Paul v. British Columbia (Forest Appeals Commission)

Paul v. British Columbia (Forest Appeals Commission)
Collection
Supreme Court Judgments
Date
2003-10-03
Neutral citation
2003 SCC 55
Report
[2003] 2 SCR 585
Case number
28974
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
British Columbia
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 28974
Decision Content
Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55
Attorney General of British Columbia
and Ministry of Forests Appellants
v.
Thomas Paul Respondent
and
Forest Appeals Commission,
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General for Saskatchewan,
Attorney General of Alberta and
First Nations Summit Interveners
Indexed as: Paul v. British Columbia (Forest Appeals Commission)
Neutral citation: 2003 SCC 55.
File No.: 28974.
Hearing and judgment: June 11, 2003.
Reasons delivered: October 3, 2003.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Division of powers — Indians — Forestry — Whether province can constitutionally confer on administrative tribunal power to determine questions of aboriginal rights and title as they arise in course of tribunal’s duties — Constitution Act, 1867, s. 91(24) — Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, s. 96 — Constitution Act, 1982, s. 35 .
Administrative law — Forest Appeals Commission — Jurisdiction — Aboriginal rights — Whether Forest Practices Code confers on Commission power to decide existence of aboriginal rights or title — Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, s. 96.
Administrative law — Boards and tribunals — Jurisdiction — Constitutional issues — Powers of administrative tribunals to determine questions of constitutional law — Appropriate test.
The B.C. Ministry of Forestry seized four logs in the possession of P, a registered Indian, who planned to use the wood to build a deck on his home. P asserted that he had an aboriginal right to cut timber for house modification and, accordingly, s. 96 of the Forest Practices Code, a general prohibition against cutting Crown timber, did not apply to him. Both the District Manager and the Administrative Review Panel agreed that P had contravened s. 96. P 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. The B.C. Supreme Court concluded that the Legislature of B.C. 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. A majority of the Court of Appeal 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.
Held: The appeal should be allowed.
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 parties conceded that the Code is, in its entirety, valid provincial legislation in relation to development, conservation and management of forestry resources in the province, and there was no suggestion that, in operation, 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 s. 35 of the Constitution Act, 1982 . Under the doctrine of incidental effects, it is constitutionally permissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. While, through operation of the doctrine of interjurisdictional immunity, the “core” of Indianness is protected from provincial laws of general application, the Commission’s enabling provisions do not attempt to supplement or amend the constitutional and federal rules respecting aboriginal rights. The effect of the Code is to prescribe that Indians charged 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. The conclusion that a provincial board may adjudicate matters within federal legislative competence fits comfortably within the general constitutional and judicial architecture of Canada. In determining, incidentally, a question of aboriginal rights, a provincially constituted board would be applying constitutional or federal law in the same way as a provincial court, which is also a creature of provincial legislation. Boards 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, and most important, 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 s. 91(24) or s. 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 s. 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 s. 35 or any other relevant constitutional provision. There is no persuasive basis for distinguishing the power to determine s. 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 and to hear P’s defence of his aboriginal right to harvest logs for renovation of his home. 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. The nature of the appeal does not prohibit the Commission from hearing a s. 35 argument. Even if the Administrative Review Panel has no jurisdiction to determine a s. 35 question, the Commission is not restricted to the issues considered by that board. Lastly, any restriction on the Commission’s remedial powers is not determinative of its jurisdiction to decide s. 35 issues, nor is the complexity of the questions.
Cases Cited
Applied: Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; referred to: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; R. v. Sparrow, [1990] 1 S.C.R. 1075; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65; Buhs v. Board of Education of Humboldt Rural School Division No. 47 (2002), 217 Sask. R. 222, 2002 SKCA 41; Adler v. Ontario, [1996] 3 S.C.R. 609; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; R. v. Francis, [1988] 1 S.C.R. 1025; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; Ermineskin Cree Nation v. Canada (2001), 297 A.R. 226, 2001 ABQB 760; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Mills v. The Queen, [1986] 1 S.C.R. 863; Dupras v. Mason (1994), 99 B.C.L.R. (2d) 266; McKenzie v. Mason (1992), 72 B.C.L.R. (2d) 53, leave to appeal refused, [1993] 1 S.C.R. vii; British Columbia Chicken Marketing Board v. British Columbia Marketing Board (2002), 216 D.L.R. (4th) 587, 2002 BCCA 473.
Statutes and Regulations Cited
Bill 69, Forest and Range Practices Amendment Act, 2003, 4th Sess., 37th Parl., British Columbia, 2003 (date of first reading, May 29, 2003).
Canadian Charter of Rights and Freedoms, ss. 11 , 24(1) .
Constitution Act, 1867, ss. 91(24) , 92A(1) (b), 96 .
Constitution Act, 1982, ss. 35 , 52 .
Forest and Range Practices Act, S.B.C. 2002, c. 69 [not yet in force], ss. 77, 80, 82.
Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, ss. 96, 130 to 141, 131(8).
Indian Act, R.S.C. 1985, c. I-5, s. 88 .
Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 92.1.
Workers Compensation Act, R.S.B.C. 1996, c. 492.
Workers’ Compensation Act, S.N.S. 1994-95, c. 10, s. 48.
Authors Cited
British Columbia. Debates of the Legislative Assembly, vol. 16, No. 7, 4th Sess., 37th Parl., May 29, 2003, p. 7108.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 2002, release 1).
APPEAL from a judgment of the British Columbia Court of Appeal (2001), 201 D.L.R. (4th) 251, 154 B.C.A.C. 254, 252 W.A.C. 254, 89 B.C.L.R. (3d) 210, 38 C.E.L.R. (N.S.) 149, [2001] 7 W.W.R. 105, [2001] 4 C.N.L.R. 210, [2001] B.C.J. No. 1227 (QL), 2001 BCCA 411, supplementary reasons (2001), 206 D.L.R. (4th) 320, 40 C.E.L.R. (N.S.) 169, [2001] B.C.J. No. 2237 (QL), 2001 BCCA 644, allowing an appeal from a judgment of the British Columbia Supreme Court (1999), 179 D.L.R. (4th) 351, 31 C.E.L.R. (N.S.) 141, [2000] 1 C.N.L.R. 176, [1999] B.C.J. No. 2129 (QL). Appeal allowed.
Timothy P. Leadem, Q.C., and Kathryn Kickbush, for the appellants.
M. Hugh G. Braker, Q.C., and Robert C. Freedman, for the respondent.
T. Murray Rankin, Q.C., and Mark G. Underhill, for the intervener the Forest Appeals Commission.
Mitchell R. Taylor and Peter Southey, for the intervener the Attorney General of Canada.
Michel Y. Hélie, for the intervener the Attorney General of Ontario.
Written submissions only by Pierre-Christian Labeau, for the intervener the Attorney General of Quebec.
Written submissions only by Gabriel Bourgeois, Q.C., for the intervener the Attorney General of New Brunswick.
Holly D. Penner, for the intervener the Attorney General of Manitoba.
Written submissions only by P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan.
Written submissions only by Kurt J. W. Sandstrom, for the intervener the Attorney General of Alberta.
Arthur C. Pape and Jean Teillet, for the intervener the First Nations Summit.
The judgment of the Court was delivered by
Bastarache J. —
I. Overview
1 These are the reasons following the decision of the Court on June 11, 2003 to allow the appeal. In August 1995, an official in the British Columbia Ministry of Forestry seized four logs in the possession of Thomas Paul, a registered Indian. Mr. Paul had cut three trees and found the fourth, and 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 that s. 96 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 (“Code”), a general prohibition against cutting Crown timber, did not apply to him. Both the District Manager and the Administrative Review Panel agreed that Mr. Paul had contravened s. 96. Mr. Paul then appealed to the Forest Appeals Commission (“Commission”). No one disputes these facts.
2 The issue in dispute is whether the Commission has jurisdiction to hear Mr. Paul’s defence that he cut the trees and possessed the logs in the exercise of his aboriginal rights. To this point, Mr. Paul has asserted his right but never attempted to prove it. The issue is not whether provincial legislation can override an aboriginal right recognized and affirmed by s. 35 of the Constitution Act, 1982 . As the submissions by the parties and the interveners show, the question is of great significance both to aboriginal persons and to provincial governments, which enable administrative tribunals to address a vast diversity of issues that may encompass s. 35 rights.
3 The Commission had decided, as a preliminary matter of jurisdiction, that it was able to hear and determine the aboriginal rights issues in the appeal. In the Supreme Court of British Columbia, Mr. Paul moved, under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, for an order for certiorari quashing the preliminary decision of the Commission and an order of prohibition preventing the Commission from considering and determining questions relative to his aboriginal rights. Pitfield J., the chambers judge, concluded that the Legislature of British Columbia 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: (1999), 179 D.L.R. (4th) 351. A majority of the Court of Appeal allowed the appeal: (2001), 89 B.C.L.R. (3d) 210, 2001 BCCA 411. Lambert J.A. concluded 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. Huddart J.A., dissenting, held that an administrative decision maker must be able to decide questions of aboriginal rights necessary to the exercise of its statutory authority. Specifically, she held that the Commission had capacity to hear and decide the issues in relation to Mr. Paul’s aboriginal rights.
4 In the hearing before this Court, all parties conceded the general validity of the Code and of the Legislature’s power to create the Commission. The Code, a law of general application, is clearly legislation in relation to the development, conservation and management of forestry resources in the province under s. 92A(1) (b) of the Constitution Act, 1867 . Within the Code, ss. 130 to 141 regulate the appeals process for all persons, rather than singling out Indians or any other group.
5 There are two prongs to the respondent’s challenge to the jurisdiction of the Commission. The first is that the Legislature of British Columbia cannot give the Commission the power to adjudicate questions relating to aboriginal rights, on the basis that doing so would encroach on the federal power under s. 91(24) . This is the constitutional argument. The majority of the Court of Appeal had also determined, as an alternative approach, that the Code ran afoul of the doctrine of interjurisdictional immunity. The Court of Appeal reasoned that, since the existence and extent of aboriginal title and aboriginal rights come within the essential core of “Indianness” (Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010), a law granting quasi-judicial jurisdiction to determine matters of aboriginal title and aboriginal rights intrudes upon the core of Indianness and is therefore inapplicable to Indians. Furthermore, held the majority, s. 88 of the Indian Act, R.S.C. 1985, c. I-5 , which makes provincial laws of general application apply to Indians, fails to invigorate the relevant portions of the Code, since s. 88 incorporates laws respecting Indians, not land.
6 With respect, I think that the majority of the Court of Appeal misunderstood the scope of the doctrine of interjurisdictional immunity. The doctrine 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. As the parties conceded, the Code is constitutional. The majority of the Court of Appeal applied the doctrine in the context of an adjudicative, not legislative, function. The effect of the Code is not to alter the substance of any federal rule or aboriginal right, but rather to prescribe that Indians charged 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. There is therefore no need to consider s. 88 ; the Code applies ex proprio vigore.
7 The second prong of Mr. Paul’s challenge deals with the Commission’s statutory jurisdiction. The respondent argued that the enabling provisions of the Code were insufficient to empower the Commission to decide the existence of aboriginal rights or title. Mr. Paul argues that the Legislature would need to confer the power to determine such questions, even ones arising incidentally to forestry matters, upon the Commission expressly. I note that the appellants agree with the respondent that the particular provisions of the Code fail to confer such power on the Commission. Only the Commission itself, intervening, believes it has been so empowered. Since the majority of the Court of Appeal believed that granting the Commission power to determine questions of aboriginal law would be unconstitutional, it did not examine the statutory interpretation question in detail. Nevertheless, the majority believed that practical considerations militated against a finding that the Code conferred jurisdiction on the Commission. In his brief concurring reasons, Donald J.A. referred to Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, as authority for the importance of practical considerations in seeking out implied jurisdiction (paras. 92-109). This prong of the challenge is the administrative law question of interpretation of a tribunal’s enabling statute.
8 The facts in this appeal and in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, released concurrently, have given this Court the opportunity to reappraise the law respecting the jurisdiction of administrative tribunals to apply the Constitution. The correct approach in a constitutional case such as the present appeal is the same as that in Martin, which concerns the Canadian Charter of Rights and Freedoms . That approach is to determine whether the tribunal is empowered to decide questions of law. If so, the judge must verify whether there is a clear implication arising from the statutory scheme that the power to decide questions of law was meant to exclude the legal issues under review. In this case, s. 131(8) of the Code permits a party to “make submissions as to facts, law and jurisdiction”. It is therefore clear that the Commission has power to determine questions of law. The Commission is not restricted to the issues considered by the Administrative Review Panel, the decision maker appealed from. Any restriction on the Commission’s remedial powers is not determinative, nor is the complexity of the questions. Nothing in the Code provides a clear implication to rebut the presumption that the Commission may decide questions of aboriginal law.
II. Analysis
9 My analysis follows the two prongs of the challenge to the Commission’s jurisdiction identified above. In the first part, the division of powers discussion, the question is whether the Legislature of British Columbia is constitutionally capable of conferring on an administrative tribunal the power to determine questions of aboriginal right and title as they arise in the course of the tribunal’s duties. In the second part, I will consider the extent of the power actually conferred on the Commission in this case. I turn first to the doctrines relevant to determining the Legislature’s powers in endowing administrative tribunals to adjudicate questions relative to aboriginal rights.
A. Division of Powers: Can the Province Empower the Commission to Hear and Determine Section 35 Questions?
(1) The Scope of the Constitutional Challenge
10 It is important to indicate precisely which provisions of the Code are under discussion at this point. The challenge is to the notion that ss. 130 to 141, which provide that a person may appeal the decision of the Administrative Review Panel to the Commission, permit the Commission to hear and rule upon a defence of aboriginal rights. In contrast, there is no challenge to the substantive prohibition, which appears in s. 96(1):
96 (1) A person must not cut, remove, damage or destroy Crown timber unless authorized to do so
. . .
Nor, I should note, do the appellants take the position that s. 96(1) would prevail in a conflict with a demonstrated aboriginal right affirmed by s. 35 of the Constitution Act, 1982 . Once an aboriginal right is proven, s. 96(1) would be of no effect to the extent that it was inconsistent with that right, unless that inconsistency could be justified according to the test in R. v. Sparrow, [1990] 1 S.C.R. 1075. On this, there is no dispute.
(2) The Validity and Application of the Code
11 As I noted above, at the hearing the parties conceded that the Code is in its entirety valid provincial legislation. In any case, it is clear to me that the Code is legislation in relation to development, conservation and management of forestry resources in the province, under s. 92A(1) (b) of the Constitution Act, 1867 . There was no argument made that the entire Code, or that portion treating appeals before the Commission, has as its true meaning, essential character, or core matters relating to Indians and lands reserved for the Indians (s. 91(24)) or to any other federal head of power. More specifically, there was no suggestion that, in operation, the law’s effects on Indians are so significant as to reveal a pith and substance that is a matter under exclusive federal competence: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, at para. 54; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 18.
12 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 s. 35 of the Constitution Act, 1982 . There is no need to consider whether s. 88 of the Indian Act would revive the statute and render it applicable.
13 In the classic federalism cases, the vires of legislation is challenged: Reference re Firearms Act (Can.), supra; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21. Here the question is the relationship between valid provincial legislation and matters under the federal competence to legislate under s. 91(24).
(3) Incidental Effects
14 The doctrine of incidental effects holds that where there is a valid provincial law of general application, the provincial law applies if its effects upon matters within federal legislative competence are “merely incidental, irrelevant for constitutional purposes”: P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p. 15-8, quoted in Global Securities, supra, at para. 22. See also General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 670. In other words, as Iacobucci and Major JJ. put it in Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 81, “it is constitutionally permissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament”. Since all relevant provisions of the Code are valid provincial legislation, it follows that by virtue of the doctrine of incidental effects, any impact of the Code upon aboriginals is irrelevant for classification purposes. It remains to be seen, however, whether the law’s application to specific factual contexts can be put in issue.
(4) Interjurisdictional Immunity
15 The doctrine of interjurisdictional immunity is engaged when a provincial statute trenches, either in its entirety or in its application to specific factual contexts, upon a head of exclusive federal power. The doctrine provides that, where the general language of a provincial statute can be read to trench upon exclusive federal power in its application to specific factual contexts, the statute must be read down so as not to apply to those situations: Grail, supra, at para. 81. The doctrine has limited the application of a provincial statute to a matter of exclusive federal power in numerous contexts. For example, in Grail, a provincial statute of general application was found to have the effect of regulating indirectly an issue of maritime negligence law. The provincial statute had the effect of supplementing existing rules of federal maritime negligence law in such a manner that the provincial law effectively altered rules within the exclusive competence of Parliament. Accordingly, the provincial statute of general application was read down so as not to apply to a maritime negligence action. In Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, this Court held that a provincial occupational health and safety statute was inapplicable to a federal undertaking. More relevant, for present purposes, in Delgamuukw, supra, at para. 181, Lamer C.J. held that s. 91(24) protects a “core” of Indianness from provincial laws of general application, through operation of the doctrine of interjurisdictional immunity. See also Kitkatla Band, supra, at para. 75: in that case it was not established that the impugned provisions affected “the essential and distinctive core values of Indianness”, and thus they did not “engage the federal power over native affairs and First Nations in Canada”.
16 The question, then, is whether, in a valid law of general application, provisions that empower a provincially constituted administrative tribunal to hear and rule upon arguments relating to aboriginal rights as they arise in execution of its provincial mandate trench upon the core of Indianness. If so, those provisions will be inapplicable to Indians.
(5) Application: Adjudication Versus Legislation
17 Lambert J.A., in the British Columbia Court of Appeal, concluded that such provisions would touch the core of Indianness. The doctrine of interjurisdictional immunity would, accordingly, render those enabling provisions inapplicable to questions of aboriginal law. It is helpful to review the heart of his reasoning on this point, at para. 72:
The existence and extent of aboriginal title and aboriginal rights has been held in Delgamuukw to come within the essential core of Indianness. That being so, I cannot imagine that a law granting quasi‑judicial jurisdiction to determine matters of aboriginal title and aboriginal rights could be anything other than equally and co‑extensively within the core of Indianness. As such it fulfils the conditions for application of the principle of interjurisdictional immunity . . . .
18 This short passage reveals the fundamental error in the analysis of the majority of the Court of Appeal. It equates legislation respecting the “existence and extent of aboriginal title and aboriginal rights” (a legislative or regulatory function) with legislation enabling a board “to determine matters of aboriginal title and aboriginal rights” (an adjudicative function) (emphasis added). The respondent made the same error, stating in his factum that “the province’s power to enact the jurisdiction-granting sections of the Code cannot extend to matters that are not within the province’s legislative competence” (respondent’s factum, at para. 105).
19 Legislation that triggers the doctrine of interjurisdictional immunity purports to regulate indirectly matters within exclusive federal competence, that is, to alter rights and obligations. Such inapplicable legislation may purport to “supplement” existing federal rules, as in Grail, supra. It may purport to “regulate” the essential parts of federal undertakings, as in Bell, supra. To my knowledge, none of the authorities applying the doctrine of interjurisdictional immunity has done so in respect of an adjudicative function. The function at issue in this appeal is one of identifying where existing aboriginal rights affirmed by s. 35 of the Constitution Act, 1982 prevail over provisions in the Code. The Commission’s enabling provisions do not attempt to supplement or amend the constitutional and federal rules respecting aboriginal rights. Indeed, the question is whether the legislature may empower the Commission to take cognizance of existing constitutional rights and rights under federal rules, not to alter or supplant them. In my view, as I shall explain, there is no reason under the Constitution that the legislature may not so empower the Commission.
20 The respondent cites Professor Hogg’s discussion of the rationale for the conferral upon Parliament by the founders of Confederation of legislative power over Indians. Professor Hogg writes that the main reason “seems to have been a concern for the protection of the Indians against local settlers” (Hogg, supra, at p. 27-2). Once adjudicative and legislative functions are separated, however, it becomes clear that neither s. 91(24) itself nor Professor Hogg’s discussion refers to adjudication. The passage is therefore unhelpful in this context.
21 The conclusion that a provincial board may adjudicate matters within federal legislative competence fits comfortably within the general constitutional and judicial architecture of Canada. In determining, incidentally, a question of aboriginal rights, a provincially constituted board would be applying constitutional or federal law in the same way as a provincial court, which of course is also a creature of provincial legislation. At the hearing all parties agreed that a provincial court may determine s. 35 issues. I believe that Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206, is helpful. It stands for the proposition that legislative and adjudicative competence are not coterminous. In that case, this Court concluded that a small claims court, a provincially constituted inferior court, was competent to hear a case of admiralty law. Admiralty law, of course, falls within exclusive federal competence. The Court noted that, within the unitary court system in Canada, provincially constituted inferior and superior courts apply federal as well as provincial laws. There are procedural and structural differences between provincially created courts and administrative tribunals, including the judicial independence requirements bearing upon them. Nevertheless, I believe that, analogous to the result in Pembina, supra, the division of powers does not preclude a validly constituted provincial administrative tribunal, legislatively empowered to do so, from determining questions of constitutional and federal law arising in the course of its work.
22 I do not agree with the respondent that the conclusion in Pembina that a provincially constituted court could determine questions of federal law implies, a contrario, that a provincially constituted administrative tribunal cannot do so. First, while I need not decide this point, it is arguable that La Forest J.’s reference to “courts of inferior jurisdiction” naturally includes an adjudicative tribunal such as the Commission. Such a conclusion follows perhaps even more readily from the French version, “tribunaux d’instance inférieure” (Pembina, supra, at p. 225). Second, even if the statement in Pembina does not embrace the Commission, La Forest J. was speaking of the jurisdiction of a small claims court, and I do not think he can be taken to have been pronouncing, by implication, on broader questions. Third, the constitutional protection of judicial review of administrative tribunals, derived from s. 96 of the Constitution Act, 1867 , integrates administrative tribunals into the unitary system of justice: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. By performing judicial review of the decisions of administrative tribunals, superior courts play an important role in assuring respect for the rule of law (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21). While there are distinctions between administrative tribunals and courts, both are part of the system of justice. Viewed properly, then, the system of justice encompasses the ordinary courts, federal courts, statutory provincial courts and administrative tribunals. It is therefore incoherent to distinguish administrative tribunals from provincial courts for the purpose of deciding which subjects they may consider on the basis that only the latter are part of the unitary system of justice.
23 The conclusion sought by the respondent would pose intractable difficulties for administrative tribunals in the execution of their tasks. A provincially constituted board cannot respect the division of powers under the Constitution Act, 1867 if it is unable to take into account the boundary between provincial and federal powers. For example, in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65, the Law Society could only stay within the limits of its jurisdiction to review a prosecutor’s ethical breach if it considered federal law relating to prosecutorial discretion. Indeed, a multitude of administrative tribunals, both provincial and federal, routinely make determinations respecting matters within the competence of the other legislator. Provincial boards may have an express statutory mandate to pronounce upon federal legislation: Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 92.1; Workers’ Compensation Act, S.N.S. 1994-95, c. 10, s. 48; Workers Compensation Act, R.S.B.C. 1996, c. 492 (enabling legislation of provincial boards directing them to interpret and apply federal income tax, pension and employment insurance legislation). Alternatively, the necessity to consider a question of constitutional or federal law may simply arise in the course of a primary determination: Buhs v. Board of Education of Humboldt Rural School Division No. 47 (2002), 217 Sask. R. 222, 2002 SKCA 41, at para. 31 (municipal tax Board of Revision could hear assessment appeal on ground that property subject to aboriginal title). In short, in applying their enabling legislation, boards must take into account all applicable legal rules, both federal and provincial. I therefore decline to accept the respondent’s argument and its logical extension that the practices just described are constitutionally impermissible.
24 Further reasons persuade me to reject the respondent’s general position that questions relating to aboriginal rights are untouchable by a provincially created tribunal by virtue of their falling within federal legislative competence. It is necessary to examine side by side two provisions in the Constitution. The one on which the respondent relies heavily is s. 91(24), which empowers Parliament to legislate in relation to “Indians, and Land reserved for the Indians”. The other is s. 35 of the Constitution Act, 1982 . Unless otherwise specified, such as official language rights in the Charter particular to New Brunswick, every right in the Constitution Act, 1982 applies to every province as well as to the federal government. Section 35 therefore applies to both provinces and the federal government. It is also established that one part of the Constitution cannot abrogate another: Adler v. Ontario, [1996] 3 S.C.R. 609. By virtue of s. 35 , then, laws of the province of British Columbia that conflict with protected aboriginal rights do not apply so as to limit those rights, unless the limitation is justifiable according to the test in Sparrow, supra. I find it difficult to think that the Province cannot, when administering a provincial regulatory scheme, attempt to respect its constitutional obligation by empowering an administrative tribunal to hear a defence of aboriginal rights.
25 Sparrow stands for the proposition that government regulation, including provincial regulation, may, by legislation, infringe an aboriginal right if that infringement is justified. Though this is not the basis of the Commission’s jurisdiction, where legislation justifiably infringing rights is possible, surely adjudication by the Commission, which simply takes existing rights into account, must be permissible. This conclusion follows from the distinction between legislation and adjudication and the nature of their impact upon rights.
26 I rely considerably on this distinction. I wish, therefore, to address an argument made by the respondent that, in practical terms in the aboriginal rights context, the two are insufficiently distinguishable.
27 The respondent submits that, in deciding a question arising from a defence of aboriginal right, the Commission will necessarily turn to matters at the core of s. 91(24). In his view, the Commission would determine not only the scope and content of the claimed right, but also perhaps the respondent’s relationship to his First Nation, the times at which the claimed right can be practised, and the limits on the right, if any, and how the right can be exercised and by whom. He notes that the Commission might be required to determine whether the aboriginal right at issue had been e