Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture)

Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture)
Collection
Supreme Court Judgments
Date
2002-03-28
Neutral citation
2002 SCC 31
Report
[2002] 2 SCR 146
Case number
27801
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Aboriginal law
Constitutional law
Notes
SCC Case Information: 27801
Decision Content
Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31
Chief Councillor Mathew Hill, also known as Tha‑lathatk,
on his own behalf and on behalf of all other members of the
Kitkatla Band, and Kitkatla Band Appellants
v.
The Minister of Small Business, Tourism and Culture,
the Attorney General of British Columbia
and International Forest Products Limited Respondents
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General for Alberta,
the Council of Forest Industries and
the Truck Loggers Association Interveners
Indexed as: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture)
Neutral citation: 2002 SCC 31.
File No.: 27801.
2001: November 2; 2002 : March 28.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Constitutional law – Division of powers – Property and civil rights – Provincial legislation protecting heritage objects while retaining ability to make exceptions – Whether provisions are intra vires province – Whether power to order alteration or even destruction of cultural object is beyond provincial powers when it affects native cultural objects – Whether pith and substance of provisions fall within property and civil rights or Indians and lands reserved to Indians – Constitution Act, 1867, ss. 91(24) , 92(13) – Heritage Conservation Act, R.S.B.C. 1996, c. 187, ss. 12(2)(a), 13(2)(c), (d).
Indians – Protection of native cultural heritage – Provincial legislation protecting heritage objects while retaining ability to make exceptions – Whether legislation constitutional – Constitution Act, 1867, ss. 91(24) , 92(13) – Heritage Conservation Act, R.S.B.C. 1996, c. 187, ss. 12(2)(a), 13(2)(c), (d).
The respondent Interfor held a forest licence over land in the central coast of British Columbia. Interfor provided direct notification of its development plans to the appellant Kitkatla Band since early 1994, but these plans never specifically identified the Kumealon area. The appellants claimed aboriginal rights in this area and had been engaged in treaty negotiations with the province. Interfor was alerted to this claim, and the firm of archaeologists it had hired contacted the Band in order to ascertain their views. Of concern was the possible presence of native heritage sites and objects, including culturally modified trees (CMTs) in the area to be harvested. These trees have often been altered by aboriginal people as part of their traditional use and they have cultural, historical and scientific importance. The archaeologist reported the presence of a significant number of these trees in seven cutblocks Interfor intended to harvest. Interfor applied to the respondent Minister for a site alteration permit under s. 12 of the provincial Heritage Conservation Act to authorize the cutting and processing of CMTs during logging operations. The Minister wrote to the Band and invited their written submissions. The Band failed to respond by the deadline. The Minister granted a site alteration permit without having considered a single archaeological report.
The Band commenced judicial review proceedings to challenge the legality of the permit. The administrative law challenge was successful and the Minister was ordered to reconsider the part of its decision which affected the CMTs, after giving the Band an adequate opportunity to be consulted and to make representations. The judge dismissed the Band’s constitutional argument that the Act was ultra vires the province. The reconsideration was conducted by the Minister, and during this process the Band asserted a claim of aboriginal rights in the continued existence of the CMTs. It petitioned for an order in the nature of prohibition, to restrain the Minister from granting the site alteration permit. The Minister took the position that this issue fell outside the scope of a permit‑granting procedure and should be left to the courts. The judge agreed and the petition was dismissed. The Minister issued a site alteration permit in accordance with the CMT management plan proposed by Interfor which provided that all fallen CMTs should be preserved together with 76 of 116 trees still standing in the cutblocks. The trial court’s decisions were upheld by a majority of the Court of Appeal. Only the constitutionality of ss. 12(2)(a) and 13(2)(c) and (d) of the Heritage Conservation Act are at issue in this appeal.
Held: The appeal should be dismissed.
In order to establish the relationship between the impugned provisions and the relevant sources of legislative power, a pith and substance analysis must be conducted. This analysis involves categorizing the impugned provisions, and examining both the purpose and effect of the legislation. Sections 13(2)(c) and 13(2)(d) of the Heritage Conservation Act have as their purpose the protection of certain aboriginal heritage objects from damage, alteration or removal. Section 12(2)(a), on the other hand, provides the Minister responsible for the operation of the Act as a whole with the discretion to grant a permit authorizing one of the actions prohibited under s. 13(2)(c) and (d). The practical effect is to permit the destruction of certain CMTs while protecting others from alteration and removal. The effect of the provisions is the striking of a balance between the need and desire to preserve aboriginal heritage and the need and desire to promote the exploitation of British Columbia’s natural resources. The Act provides a protective shield, in the guise of the permit process, against the destruction or alteration of heritage property.
Sections 12(2)(a) and 13(2)(c) and (d) of the Act are valid provincial legislation falling within provincial jurisdiction over property and civil rights in the province. While legislation that singles out aboriginal people for special treatment is ultra vires the province, the impugned provisions do not single out aboriginal peoples or impair their status or condition as Indians. The impugned provisions prohibit everyone, not just aboriginal peoples, from the named acts, and require everyone, not just aboriginal peoples, to seek the Minister’s permission to commit the prohibited acts. The treatment afforded to aboriginal and non‑aboriginal heritage objects is the same and any disproportionate effects are due to the fact that aboriginal peoples have produced the largest number of heritage products. The Act is tailored, whether by design or by operation of constitutional law, to not affect the established rights of aboriginal peoples, a protection that is not extended to any other group. There is no intrusion on a federal head of power. It has not been established that these provisions affect the essential and distinctive values of Indianness which would engage the federal power over native affairs and First Nations in Canada. In the circumstance of this case, the overall effect of the provisions is to improve the protection of native cultural heritage and, indeed, to safeguard the presence and the memory of the cultural objects involved in this litigation. This appeal does not raise issues affecting the identity of First Nations, and engaging the relevant heads of federal powers, based on the weak evidentiary record and the relevant principles governing the division of powers in Canada.
Cases Cited
Referred to: R. v. Alphonse (1993), 80 B.C.L.R. (2d) 17; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Dick v. The Queen, [1985] 2 S.C.R. 309; R. v. Sutherland, [1980] 2 S.C.R. 451; Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Morgentaler, [1993] 3 S.C.R. 463; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; Kruger v. The Queen, [1978] 1 S.C.R. 104; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Ordon Estate v. Grail, [1998] 3 S.C.R. 437.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1985, App. III.
Canadian Charter of Rights and Freedoms, s. 15 .
Constitution Act, 1867, ss. 91(24) , 92(13) .
Constitution Act, 1982, s. 35(1) .
Heritage Conservation Act, R.S.B.C. 1996, c. 187, ss. 1 “heritage object”, 4, 8, 12(1), (2), (7), 13(1), (2), (4).
Indian Act, R.S.C. 1985, c. I‑5, s. 88 .
APPEAL from a judgment of the British Columbia Court of Appeal (2000), 183 D.L.R. (4th) 103, [2000] 4 W.W.R. 431, 132 B.C.A.C. 191, 215 W.A.C. 191, 72 B.C.L.R. (3d) 247, [2000] 2 C.N.L.R. 36, [2000] B.C.J. No. 86 (QL), 2000 BCCA 42, affirming two decisions of the British Columbia Supreme Court, [1999] 1 C.N.L.R. 72, [1999] 7 W.W.R. 584, 61 B.C.L.R. (3d) 71, [1998] B.C.J. No. 2440 (QL), supplementary reasons [1998] B.C.J. No. 3059 (QL), and [1999] 2 C.N.L.R. 176, [1998] B.C.J. No. 3041 (QL). Appeal dismissed.
E. Jack Woodward, Patricia Hutchings and Christopher Devlin, for the appellants.
Paul J. Pearlman, Q.C., and Kathryn L. Kickbush, for the respondents the Minister of Small Business, Tourism and Culture, and the Attorney General of British Columbia.
Patrick G. Foy, Q.C., William K. McNaughton and Robert J. C. Deane, for the respondent International Forest Products Limited.
Gerald Donegan, Q.C., and Jennifer Chow, for the intervener the Attorney General of Canada.
Lori Sterling and Daniel Guttman, for the intervener the Attorney General for Ontario.
Pierre‑Christian Labeau, for the intervener the Attorney General of Quebec.
Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.
Holly D. Penner, for the intervener the Attorney General of Manitoba.
Stan H. Rutwind, for the intervener the Attorney General for Alberta.
Written submissions only by Charles F. Willms, for the intervener the Council of Forest Industries.
Written submissions only by John J. L. Hunter, Q.C., for the intervener the Truck Loggers Association.
The judgment of the Court was delivered by
LeBel J.—
I. Introduction
1 This case concerns a constitutional challenge to the application of provincial legislation on the protection of cultural heritage property. The dispute relates to culturally modified trees or CMTs. These trees have often been altered by aboriginal people as part of their traditional use and have cultural, historical and scientific importance for a number of First Nations in British Columbia. In the opinion of the appellants, legislation authorizing the removal or modification of these cultural objects would fall beyond the scope of provincial legislative powers. Hence, the Heritage Conservation Act, R.S.B.C. 1996, c. 187 (“the Act”), should be struck down in part to the extent that it allows for the alteration and destruction of native cultural objects. For the reasons which are set out below, I am of the view that this appeal should fail because the impugned legislation falls within the provincial jurisdiction on property and civil rights within the province, as the British Columbia Court of Appeal held.
II. The Origins of the Case
2 The dispute arose during the process of administrative review and authorization of logging operations in British Columbia. The respondent, International Forest Products Limited (“Interfor”), had long held a forest licence over land in the central coast of British Columbia which included an area known as the Kumealon. Provincial forestry legislation required Interfor, as the holder of a forest licence, to propose sequential forest development plans. The legislation also granted the public some participatory rights in the creation of these plans. Interfor provided direct notification of its development plans to the appellant Kitkatla Band (“the Band”) since early 1994, but these plans never specifically identified the Kumealon area. The appellants claimed aboriginal rights in this area and had been engaged in treaty negotiations with the province. In early 1998, aware of its obligations under the Act, Interfor hired a firm of archaeologists in order to report on the impact of future logging operations in an area that included the Kumealon. Coincidentally, it appears, the appellants expressed an interest in the Kumealon at roughly the same time. Interfor was alerted to this claim, and, shortly thereafter, the firm it hired contacted the Band in order to ascertain their views. The Band designated two persons for this purpose. Interfor was concerned with the possible presence of native heritage sites and objects including CMTs in the area to be harvested. The archaeologist eventually reported the presence of a significant number of these trees in seven cutblocks Interfor intended to harvest.
3 Meanwhile, Interfor applied to the respondent, the Minister of Small Business, Tourism and Culture (“the Minister”), for a site alteration permit under s. 12 of the Act, to authorize the cutting and processing of CMTs during logging operations. The Minister forwarded Interfor’s application to the Band, along with a covering letter requesting its written submissions on the application. No submissions were received by the deadline. One week later, on March 31, 1998, and without having considered a single archaeological report, the Minister issued a site alteration permit.
4 At this stage, the Band commenced proceedings to challenge the legality of the permit. They began judicial review proceedings. These proceedings raised administrative law arguments asserting that the Minister had failed to address all relevant issues — and had violated his fiduciary obligations towards the appellants by failing to provide them with proper notification and the opportunity to consult — before issuing the permit. The Band also challenged the Act as being ultra vires the province.
5 The administrative law challenge succeeded. A judgment of the British Columbia Supreme Court ordered the Minister to reconsider the part of its decision which affected the CMTs, after giving the Band an adequate opportunity to be consulted and to make representations. At the same time, the trial court dismissed the constitutional challenge.
6 The Minister went through the reconsideration process. During this process, the Band asserted a claim of aboriginal rights in the continued existence of the CMTs. It petitioned for an order in the nature of prohibition, to restrain the Minister from granting the site alteration permit. The Minister took the position that this issue fell outside the scope of the permit granting procedure and should be left to the courts. Wilson J. agreed with the Minister and dismissed the petition. In the end, the Minister issued a site alteration permit in accordance with the CMTs management plan proposed by Interfor which provided that all fallen CMTs should be preserved together with 76 of 116 trees still standing in the cutblocks. This led to the present appeal. Meanwhile, the Band launched another judicial review application on the basis that the Minister should have considered native rights in the permit granting procedure. This new challenge also failed.
III. Judicial History
A. British Columbia Supreme Court
7 As indicated above, the constitutional challenges launched by the Band failed in the trial court. Wilson J. rendered two judgments on October 21, 1998 (with supplementary reasons on November 12, 1998) and on December 15, 1998 where he discussed the constitutional issues. I will now review them briefly.
(1) First Judgment, [1999] 1 C.N.L.R. 72, supplementary reasons [1998] B.C.J. No. 3059 (QL)
8 The first judgment of Wilson J. dealt with the constitutional division of powers question, after a review of the facts and background of the matter. He found that the dominant purpose of the Act was the preservation or non-preservation of heritage property in the province generally and that, while the legislation certainly affected Indians, it did not single them out for special treatment. He concluded that the legislation was in respect of property and civil rights and, therefore, it was intra vires the province under the authority of s. 92(13) of the Constitution Act, 1867 . He dismissed the application for a declaration that the relevant sections of the Act were ultra vires.
9 Although he concluded that the legislation did not deal with Indianness, Wilson J. went on to consider in obiter dicta whether, if the legislation interfered with an aboriginal status and capacity, it was validated by s. 88 of the Indian Act, R.S.C. 1985, c. I-5 . He referred to the test set out by the British Columbia Court of Appeal in R. v. Alphonse (1993), 80 B.C.L.R. (2d) 17, regarding when s. 88 of the Indian Act was triggered, i.e. when provincial laws of general application affect Indians in relation to the core values of their society, they depend on s. 88 to give them the force of federal law. He concluded at p. 80 that Alphonse was indistinguishable from the case at bar:
The denial of the taking of fish, or the denial of the taking of deer, in the interests of conservation of a natural resource, is equivalent to, albeit not the same as, the denial of retention of a thing, in the interests of the preservation of a heritage resource.
He held that the relevant sections of the Act were laws of general application that also applied to Indians.
10 Wilson J. then considered the issue of procedural fairness in the process of issuing the site alteration permit to the respondent Interfor. He concluded that the respondent Minister had breached his fiduciary duty to the appellant Band and had failed to take into consideration the proper factors in his decision. He directed the Minister to reconsider that part of his decision which affected CMTs in seven cutblocks in order to take into consideration relevant information, and to consult with the appellant Band. This aspect of the decision is not the subject of appeal at this Court.
(2) Second Judgment, [1999] 2 C.N.L.R. 176
11 As indicated above, the appellant Band had brought a second judicial review application, pending the respondent Minister’s reconsideration of the issuance of the site alteration permit ordered by Wilson J. on November 12, 1998. The appellant Band sought an order that the respondent Minister must take into account s. 8 of the Act to determine whether the appellant Band’s aboriginal rights could be affected by the issuance of a site alteration permit.
12 In the process of reconsideration, the appellant Band had written to the respondent Minister and stated, among other things:
[The appellant Band] therefore asserts an aboriginal right to the preservation of C.M.T.s in the Kumealon, as a part of a more general aboriginal right to the preservation of its heritage objects and sites.
13 The appellants argued that an authorization to harvest CMTs would derogate from their aboriginal rights and, accordingly, would be outside the jurisdiction of the respondent Minister pursuant to s. 8 of the Act. The respondent Minister stated that it was not in a position to make such a determination in a permit granting procedure, and that only a court could do so.
14 Wilson J. reviewed the arguments of the parties. He accepted the position of the respondents and concluded that the legislature did not confer a power of decision on aboriginal rights upon the Minister (p. 180).
15 Wilson J. thus dismissed the application.
B. British Columbia Court of Appeal (2000), 183 D.L.R. (4th) 103, 2000 BCCA 42
16 The appellants appealed the judgments rendered by Wilson J. Braidwood and Hall JJ.A. upheld the decision of the trial court. In dissent, Prowse J.A. would have granted the appeal. Each judge wrote reasons.
(1) Braidwood J.A.
17 Braidwood J.A. briefly reviewed the history of the proceedings. He then framed the issues on appeal as follows (at para. 5):
[First Application]
1. Are sections 12(2)(a) and 13(2) of the Heritage Conservation Act in pith and substance laws in relation to Indians or Lands reserved for the Indians, or alternatively, are the laws in relation to property, and, therefore, within the exclusive legislative competence of the Province under section 92(13) of the Constitution Act, 1867 ?
2. If the impugned provisions of the Heritage Conservation Act are within provincial jurisdiction under s. 92(13) of the Constitution Act, 1867 do they apply to the appellants ex proprio vigore?
3. If the impugned provisions do not apply to the appellants ex proprio vigore do they nonetheless apply by virtue of s. 88 of the Indian Act ?
[Second Application]
1. Is the Minister required to decide whether the appellants have aboriginal rights concerning CMTs before the issuance of a permit under section 12(2) of the Heritage Conservation Act?
18 Braidwood J.A. noted that the appellants did not take issue with the Act as a whole, but argued that ss. 12(2)(a) and 13(2)(c) and (d) of the Act are ultra vires the province because in pith and substance they were legislation concerning Indians or lands reserved for them. In the alternative, even if the legislation was not invalid because of the division of powers analysis, the appellants argued that the impugned sections touched upon the core of Indianness and could not apply of their own force. However, they could not be saved by s. 88 of the Indian Act because they were not laws of general application. The respondents argued that the impugned sections were valid provincial law because they dealt with property and civil rights. Therefore, they applied of their own force to Indians, or, in the alternative, they were saved by s. 88 of the Indian Act as a law of general application affecting Indians in their Indianness.
19 Turning to his analysis of the issues, Braidwood J.A. discussed the principles governing the determination of the pith and substance or “matter” of particular legislation. He noted that each federal head of power had a basic, minimum and unassailable content which the provinces are not permitted to encroach indirectly. Referring to Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 178, he quoted Lamer C.J.’s statement that aboriginal rights “encompass practices, customs and traditions which are not tied to land” (para. 46). Braidwood J.A. concluded that the proper analysis of the “matter” of the Act should be conducted in light of Lamer C.J.’s definition; thus, the impugned sections should be looked at in the context of the whole of the Act. He noted that the express purpose of the Act was to encourage and facilitate the protection and conservation of heritage objects and sites.
20 The respondents had conceded that the majority of items caught by the provisions of the Act would be aboriginal in origin but that the impugned sections were not limited to those items and applied generally. Braidwood J.A. then concluded that the Act was a law of general application which was not aimed at Indians or at the impairment of their status. As such, it remained a valid exercise of provincial powers in respect of property and civil rights. The Act in general enhanced the protection of both non-aboriginal and aboriginal heritage objects and the Act retained its character as legislation dealing with property and civil rights. The impugned sections must be read in the context of the entire Act.
21 Braidwood J.A. then discussed the issue of whether the impugned provisions applied of their own force. He distinguished this Court’s decision in Dick v. The Queen, [1985] 2 S.C.R. 309, because the Act does not restrict any activity which relates to Indianness as did the hunting regulations in that case. He found that the impugned provisions of the Act did not affect Indians in relation to the core values of their society and, therefore, the provisions applied of their own force.
22 Although he did not need to consider whether s. 88 of the Indian Act could validate the impugned provisions of the Act, Braidwood J.A. went on to consider that question in obiter dicta. He found that they would have been saved under s. 88, a law of general application in the province, which did not single out Indians in such a way as to impair their status as Indians (para. 81).
23 Next, Braidwood J.A. dealt with the issue on the second application, in which the appellants had argued that, pursuant to s. 8 of the Act, the respondent Minister should inquire whether an aboriginal right, established by a court of law or by treaty or otherwise, might be affected by his decision, and that failing to do so, no permit should be issued until the right has been determined by treaty or court of law. Braidwood J.A. rejected this argument. Section 8 of the Act meant that the granting of any privileges under the Act would have no impact on the determination of aboriginal rights.
(2) Hall J.A.
24 Hall J.A. adopted the facts and legislative provisions as set out in Braidwood J.A.’s reasons. He dismissed the appeal on the second application for the same reasons as Braidwood J.A. He concurred with the result and with Braidwood J.A’s reasons generally regarding the first application but offered some further comments of his own.
25 Hall J.A. agreed with Braidwood J.A. that the pith and substance of the legislation in question is the preservation of heritage objects in the province. While the main thrust of the legislation is preservationist, the Act also permits proper use and management of provincial land and resources. He noted that while the Act referred to “First Nation” and “aboriginal” it was not legislation which dealt with Indians or lands reserved for Indians. The Act applied equally to all heritage objects and sites.
26 Hall J.A. distinguished the case at bar from R. v. Sutherland, [1980] 2 S.C.R. 451, which was a case involving a colourable attempt by the Manitoba legislature to affect hunting rights vested in Indians under a federal-provincial agreement that effectively vested existing treaty rights. There was a clear singling out of Indians in that case. Hall J.A. noted that, in the Canadian federation, there will always be some uncertainty regarding the subject matters that lie within provincial and federal jurisdiction. The legislation in question naturally fits in the provincial sphere because it possessed more local aspects and concerns with respect to property in the province. For these reasons, Hall J.A. agreed that the appeal on constitutional issues should be dismissed (para. 109).
(3) Prowse J.A. (dissenting)
27 While she concurred with Braidwood J.A.’s outline of the background and the relevant legal principles to be applied in examining the constitutionality of the impugned provisions, Prowse J.A. disagreed with his application of those principles to the impugned provisions, taken in the context of the Act as a whole. She found that it affected the core values of Indianness and Indian society and thus fell outside the scope of provincial powers on property and civil rights (paras. 111-13).
28 After this judgment, the appellants sought and were granted leave to appeal to this Court. A number of parties have intervened in support of the respondents’ position with respect to the constitutional questions in discussion.
IV. Relevant Constitutional and Statutory Provisions
29 Constitution Act, 1867
91. . . .
24. Indians, and Lands reserved for the Indians.
. . .
92. . . .
13. Property and Civil Rights in the Province.
Heritage Conservation Act, R.S.B.C. 1996, c. 187
8 For greater certainty, no provision of this Act and no provision in an agreement entered into under section 4 abrogates or derogates from the aboriginal and treaty rights of a first nation or of any aboriginal peoples.
12 (1) In this section, except subsection (6), and in sections 13 (4) and 14 (4), “minister” includes a person authorized in writing by the minister for the purposes of the section.
(2) The minister may
(a) issue a permit authorizing an action referred to in section 13, or
(b) refuse to issue a permit for an action that, in the opinion of the minister, would be inconsistent with the purpose of the heritage protection of the property.
13 (1) Except as authorized by a permit issued under section 12 or 14, a person must not remove, or attempt to remove, from British Columbia a heritage object that is protected under subsection (2) or which has been removed from a site protected under subsection (2).
(2) Except as authorized by a permit issued under section 12 or 14, or an order issued under section 14, a person must not do any of the following:
(a) damage, desecrate or alter a Provincial heritage site or a Provincial heritage object or remove from a Provincial heritage site or Provincial heritage object any heritage object or material that constitutes part of the site or object;
(b) damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains or any heritage object from a burial place that has historical or archaeological value;
(c) damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value;
(d) damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846;
(e) damage or alter a heritage wreck or remove any heritage object from a heritage wreck;
(f) damage, excavate, dig in or alter, or remove any heritage object from, an archaeological site not otherwise protected under this section for which identification standards have been established by regulation;
(g) damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of unknown origin if the site may be protected under paragraphs (b) to (f);
(h) damage, desecrate or alter a site or object that is identified in a schedule under section 4 (4) (a);
(i) damage, excavate or alter, or remove any heritage object from, a property that is subject to an order under section 14 (4) or 16.
. . .
(4) The minister may, after providing an opportunity for consultation with the first nation whose heritage site or object would be affected,
(a) define the extent of a site protected under subsection (2), or
(b) exempt a site or object from subsection (2) on any terms and conditions the minister considers appropriate if the minister considers that the site or object lacks sufficient heritage value to justify its conservation.
Indian Act, R.S.C. 1985, c. I-5
88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.
V. Constitutional Questions
30 On January 22, 2001, the Chief Justice stated the following constitutional questions:
(1) Is s. 12(2)(a) in respect of the subject matter of s. 13(2)(c) and (d) of the Heritage Conservation Act in pith and substance law in relation to Indians or Lands reserved for the Indians, or alternatively, is the law in relation to property, and, therefore, within the exclusive legislative competence of the Province under s. 92(13) of the Constitution Act, 1867 ?
(2) If the impugned provisions of the Heritage Conservation Act are within provincial jurisdiction under s. 92(13) of the Constitution Act, 1867 do they apply to the subject matter of s. 13(2)(c) and (d) of the Heritage Conservation Act?
(3) If the impugned provisions do not apply to the appellants ex proprio vigore, do they nonetheless apply by virtue of s. 88 of the Indian Act ?
VI. The Issues
A. Position of the Parties
31 All parties agree that legislation concerning the protection of heritage or cultural property falls under provincial legislative jurisdiction as being a law relating to property and civil rights within the province, under s. 92(13) of the Constitution Act, 1867 . The intervener, the Attorney General of Canada, agrees, with one caveat. She points out that some cultural properties may fall under federal jurisdiction or that the application of unspecified federal heads of power may affect them. In the present case, the Attorney General of Canada supports the validity of the legislation challenged by the appellants. The respondents and all the interveners take the same position.
32 The appellants concede that the province may legislate in respect of cultural properties, but challenge the validity and applicability of the Act to the CMTs found in the Kumealon region. In substance, the appellants submit that legislative provisions allowing for the alteration or destruction of native heritage property fall outside provincial legislative powers, even if provinces may validly legislate in respect of other cultural objects. They submit that ss. 12(2)(a) and 13(2)(c), which authorize the Minister to grant permits to alter, destroy or remove native heritage property impact on federal legislative powers in respect of Indian affairs. The impugned provisions affect objects and sites which stand at or near the core of aboriginal identity. For these reasons, the impugned provisions fall beyond the scope of provincial legislative authority. Moreover, even if the legislation is intra vires under a pure division of powers analysis, aboriginal objects would be immunized from its effects. The interjurisdictional immunity doctrine, which immunizes core federal competencies from the effect of otherwise valid provincial laws, would apply and render site alteration permits issued by the Minister ineffective.
33 At this point, the appellants acknowledge that, sometimes, s. 88 of the Indian Act tempers the application of the doctrine of interjurisdictional immunity in respect of provincial laws of general application. They argue, though, that s. 88 would not save the legislation in this case, because the Act is not a law of general application. It singles out Indian aboriginal objects and sites for special treatment. It amounts to discriminatory legislation. Section 88 should be read in such a way as to avoid incorporating discriminatory laws which have a differential impact on First Nations. Section 88 should be applied in a manner consistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, R.S.C. 1985, App. III. This approach would introduce a method analogous to a s. 15 Charter analysis in the interpretation of s. 88 of the Indian Act .
B. Respondents’ Position
34 The main argument of the respondents is directed at the division of powers question. They submit that the impugned provisions form part of a comprehensive scheme which, in pith and substance, remains legislation in relation to property and civil rights in a province. The respondents point out that the site alteration permits do not apply to areas included within any Indian reserve and that no Indian title had been established in the Kumealon at the time of the litigation.
35 The primary legal effect of the impugned provisions is to regulate, through the s. 12 permit process, the actions of any person which may damage heritage property protected under s. 13(2). The heritage objects at issue are culturally modified trees.
36 The respondents argue that the impugned provisions of the Act are provincial laws of general application, which do not single out Indians for special treatment. There is no doubt that the Act applies uniformly to all persons throughout the province. The Act does not lose its status as a law of general application by the inclusion of heritage objects of importance to aboriginal people. Neither in purpose nor in effect do the impugned provisions of the Act single out Indians for unique treatment. The impugned provisions apply to all persons in the province whether aboriginal or non-aboriginal and to all heritage objects and heritage sites as enumerated in s. 13(2) of the Act. The respondents submit that the province has the legislative authority to regulate the protection of heritage sites and objects within the province, including heritage sites and objects of aboriginal origin. The right to regulate must include the right to impose limits on that protection. In the absence of any prohibited singling out of Indians, ss. 12(2)(a) and 13(2)(c) and (d) must fall within the same head of legislative authority as the rest of the Heritage Conservation Act, namely, “Property and Civil Rights in the Province”.
37 In the respondents’ view, any intrusion into federal jurisdiction is simply incidental and constitutionally permissible. Sections 12 and 13 remain an integral part of the legislative scheme of the Act. They permit the Minister to balance the heritage value of a particular site or object against other interests. They preserve a ministerial discretion which is essential for the practical operation of any statutory scheme for the protection and management of heritage property.
38 The respondents submit that the core federal jurisdiction does not extend to the regulation of heritage sites or objects in British Columbia. Provincial law which regulates all heritage objects cannot be said to be aimed at affecting an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians. In this case, the impugned provisions do not, as a matter of application or legal effect, regulate the Band in the exercise of any aboriginal right or in respect of their Indianness. A determination by this Court that the impugned legislation is intra vires the province does not preclude the appellants from advancing a claim of aboriginal rights or title in respect of the trees or the lands where they are situated.
39 The respondents submit that, in the alternative, if this Court finds the impugned provisions affect the appellants in their Indianness, ss. 12(2)(a) and 13(2) of the Act would apply as federal law by operation of s. 88 of the Indian Act . Section 88 incorporates as federal law those provincial laws of general application which touch upon the essential core of federal jurisdiction under s. 91(24) of the Constitution Act, 1867 and which would otherwise be inapplicable to Indians by virtue of the doctrine of the interjurisdictional immunity. Indeed, the appellants’ test for discrimination would substantially restrict the operation of s. 88 and would shift the test for laws of general application from a division of powers analysis to a rights-based analysis. Such a test ought not to be adopted because it confuses the tests applicable to determining the scope of constitutionally protected rights with those which apply to a division of powers analysis.
40 The respondents then turn to a subsidiary argument on s. 88 . They note that this provision serves a jurisdictional purpose in allowing thos