Paul v. British Columbia (Forest Appeals Commission)

Supreme Court of Canada – [2003] 2 S.C.R. 585


British Columbia Aboriginal rightsJurisdiction over IndiansTribunal jurisdiction
Summary

This case concerns the jurisdiction of an administrative tribunal over constitutional issues. The Supreme Court considers that the province could authorize the Commission to hear a defense based on aboriginal rights – to do so did not touch “the core of Indianness”.

Issue

Did the Commission have jurisdiction to consider Paul’s defense that he had an Aboriginal right to cut lumber in order to make improvements on his house?

Decision

The Commission could examine Paul’s defense, since the province had the power to authorize it to do so (unanimous decision).

Parties

Between: British Columbia (Ministry of Forests)

And: Thomas Paul

Interveners: Forest Appeals Commission, Canada, Ontario, Quebec, New Brunswick, Manitoba, Saskatchewan, Alberta and First Nations Summit

Facts

In August 1995, the ministry of Forest seized the wood that Thomas Paul, a registered Indian, had cut down for the construction of a deck for his home. The ministry’s district manager and the administrative review panel agreed that Paul had contravened the Forest Practices Code.

Paul maintained that the regulations did not apply to him because of his Aboriginal right to cut trees. Therefore, he appealed to the Forest Appeals Commission.

There was an appeal to the Supreme Court of British Columbia to nullify the Commission’s decision on the grounds that it did not have the jurisdiction to deal with issues pertaining to section 35 of the Constitution Act, 1982.

Arguments

Paul: First, the Commission jurisdiction to decide on questions of Aboriginal rights would infringe on the federal government’s legislative power. Second, the Commission’s statutory jurisdiction is deficient since there are no provisions enabling it to come to a decision on the existence of Aboriginal rights.

British Columbia: Agrees about the insufficient statutory jurisdiction, but argues the Commission could decide on questions regarding Aboriginal rights by the effect of the Forest Practices Code.

Decision of the lower courts

B.C. Supreme Court (1999): The Province had legally adjudicated the Commission’s powers to deal with questions of Aboriginal title and rights pertaining to violations of the Code.

B.C. Court of Appeal (2001): The majority overruled the decision, in deciding that section 91 (24) of the Constitution Act, 1867 barred British Columbia from giving the Commission jurisdiction to assess the content of Aboriginal rights or title with regard to forestry.

Reasons for Judgement

Jury

McLachlin, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps

Reason

British Columbia has the capacity to enact the piece of legislation giving the Commission competence to deliberate on matters of Aboriginal rights since this does not affect the “core of Indianness” and is not inconsistent with section 35 of the Constitution Act, 1982.

The Court of Appeal erred in the interpretation of the doctrine of incidental effect. The doctrine pertains to the legislative powers of a province to enact laws that infringe on matters of federal legislation, whereas the Commission’s powers do not have the effect of extinguishing Aboriginal rights or title. In fact, its decisions do not make jurisprudence and thus do not affect the authoritative body of common law.

To determine whether an administrative tribunal has the power to apply the Canadian Constitution, including section 35 of the Constitution Act, 1982, the Court followed the same reasoning as that in Douglas (in this case, the issue was whether the Canadian Charter of Rights and Freedoms could be invoked in an administrative tribunal): 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.

Impact

In theory, administrative tribunals should be competent to hear issues pertaining to Aboriginal rights if they fulfill the conditions set out in Paul.

Less than a year after the Supreme Court issued a decision in Paul, the British Columbia legislature passed a bill to include two new sections pertaining to the Commission’s jurisdiction with respect to constitutional issues. Sections 44 and 45 of the Administrative Tribunals Act deny those tribunals jurisdiction over constitutional and Charter questions, in restricting the wide conferral of jurisdiction attributed by section 43 of the same act. This reduction of the administrative tribunals’ ability to consider constitutional provisions was motivated by the province’s Justice Department as a measure to reduce the complexity of potential constitutional litigation in these lower courts, thereby cutting down on costs and increasing the courts’ efficiency since most of the tribunals do not have the expertise to evaluate such claims.

Some observers claimed that by withdrawing constitutional jurisdiction from administrative tribunals, the principles of natural justice and rule of law will be hindered (Rankin, 2005: 181-182). Also, their specialized competence can be of service when evaluating the conformity of a conduct with the Constitution since the specific facts and circumstances will be far better understood by an arbitrator or agency than by a trial judge with no knowledge of their area of expertise (Douglas, para. 59).

In Quebec, one must look at the concerned tribunal’s constitutive act to determine whether the legislator gave it jurisdiction to analyze and decide on any questions of law (this includes, of course, constitutional provisions, such as section 35 of the Constitution Act, 1982). For example, a grievance arbitrator has the jurisdiction to consider any act or regulation to settle a grievance, as does a council of arbitration created by the Health Insurance Act, the Commission des droits de la personne et des droits de la jeunesse and its Tribunal, the Administrative Tribunal of Quebec and the Commission des lésions professionnelles (Brunelle, 2009, 118-119). In comparison with the situation in B.C., Quebec administrative tribunals’ jurisdiction in constitutional matters is far more extensive.

Related Cases

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


Sources

An Act respecting administrative justice, R.S.Q., c. J-3, s. 14, 82 and 112

 Charter of Human Rights and Freedoms, R.S.Q., c. C-12. s. 57, al. 2, 71 al. 1 and 80

 Health Insurance Act, R.S.Q., c. A-29, s. 54

 Labour Code, R.S.Q., c. C-27, s. 100.12 a)

 Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 43, 44 and 45

Douglas/Kwantlen Faculty Association v. Douglas College, [1991] 2 S.C.R. 5

Martin v. Nova Scotia (Workers’ Compensation Board), 2003, SCC 54

Gauthier c. Commission scolaire Marguerite-Bourgeois, [2007] R.J.D.T. 1376 (C.A.)

Brunelle Christine. 2009. Les tribunaux administratifs et les Chartes, in Barreau du Québec (ed.), Droit public et administratif, coll. “Collection de droit.” Cowansville: Yvon Blais.

Kristjanson Freya and Morgana Kellythorne. 2008. Charter Cases before Administrative Tribunals and on Judicial Review, in National Journal of Constitutional Law 2008-2009: 217-231.

Rankin T. Murray. 2005a. The British Columbia Administrative Tribunal Act: Evaluating Reforms to the Standard of Review and Tribunals’ Jurisdiction over Constitutional Issues, in Canadian Journal of Administrative Law & Practice 18 (June): 165-186.

Rankin T. Murray. 2005b. The Administrative Tribunal Act: One Step Forward, Two Steps Back?, in BC Council of Administrative Tribunals News 4 (1): 3-7.

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