Two more observations about the court hearing fees decision

Two more points about the court hearing fees decision of the Supreme Court of Canada, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59.

1.

The decision creates an asymmetrical principle of access to justice. 

The majority held that there is a constitutional right of access to the province’s superior courts. 

This right is grounded in section 96 of the 1867 Constitution Act, buttressed by the so-called unwritten principle of the rule of law.  Section 96 deals with the appointment of judges to the provincial superior courts.  (In our province this is the Supreme Court of British Columbia.)  It has no application to provincial courts.  Accordingly, while there is a constitutional right of access to the superior courts, there is no such right of access to provincial courts.  Litigants who may wish to complain about the difficulty of access to provincial court justice will not be able to rely upon this decision.

Interestingly, there are no hearing fees in provincial court. 

And in fact, you can deal with most family law issues in provincial court.  Including custody, for example, which was the major issue in the trial in this case.  There was a property issue that could only be decided in a superior court, but the issue that took the most time at this trial was a question of custody.  There is surely some irony in the fact that the major issue in this case could have been decided in a provincial court where there are no hearing fees.

2.

The $3500 court hearing fee was held to be unconstitutional because, in the words of the majority, “for many litigants [payment of the fee] would require sacrificing reasonable expenses.”

I don’t disagree that litigation is expensive, unbearably so for most people, but it’s not the hearing fee that is the real problem.

Somehow or other, no one thought to ask about lawyer fees.  In this case, of course, the litigants were not represented by counsel.  What if they had been?  Well, it’s not easy to estimate the legal fees for a ten-day trial.  But I can make some conservative assumptions.  One is that a ten-day trial is the culmination of approximately 30 days of preparation, a three to one factor.  Two, that a ten day trial should have a lawyer of some experience, and so I will assume that the lawyer is charging $250 per hour, and only charging for 8 hour days.  (In the heat of trial, lawyers often work 10 or 12 hours a day.  $250 per hour would buy you a very junior lawyer in downtown Vancouver, but probably would buy you a lawyer of considerable experience in other communities in BC.).  Simple arithmetic.  The legal fees for one party for a ten-day trial would be $80,000.

So what it is that really restricts access to justice – the $3500 hearing fee or the $80,000 legal bill?

And yes, careful readers will note I left something out.  The tax on legal fees. Which, for $80,000 in fees, would be $9600 – GST and PST.

Now you may not like those taxes.  But what we know about them is that there was a constitutional challenge to them in a case called Christie. The Supreme Court of Canada dismissed the challenge. As the majority in Trial Lawyers says, “The tax at issue in Christie, on the evidence and arguments adduced, was not shown to have a similar impact.”  That is, while the hearing fee “has the potential to bar litigants with legitimate claims from the courts”, the tax did not.

Apparently the $9600 tax is not offensive to the constitution, but the $3500 hearing fee is.  Go figure.

We need a wider vision of Vancouver's economy

As published in the Vancouver Province today (October 10).

A friend asked me what I thought the ballot-box question will be in next month’s civic election in Vancouver.

It’s a great question.

The emerging narratives of the two principal contestants do not really intersect.

Gregor Robertson’s Vision Vancouver trumpets its Greenest City agenda.

So far, Kirk LaPointe’s NPA seems mainly focused on tapping into Vision resentment; more a complaint about process than substance, perhaps, but a resonant complaint nonetheless.

Any government seeking a third term will have done something somewhere along the way to annoy just about everyone. And Vision politicians have not always been very good about including the rest of us citizens in their policy journey, so there’s a lot of grumpy folks out there.

Are there enough for the NPA to displace Vision in city hall? Is that enough of a vision to kick Vision out?

The Vision campaign is single-minded in its focus on the Greenest City agenda. I actually agree with much of it. Yes, even bike lanes. Most of them, anyway.

But here’s the rub.

Vancouver’s prosperity is, in fact, largely dependent upon the provincial resource economy.

You will not see any acknowledgment of that reality in Vision’s plan. When it comes to the economy,

Vision talks about the city it wants Vancouver to be, and ignores the city that is.

This disconnect is not trivial.

The resource economy has been the foundation of our city’s prosperity for generations and still is. In GDP terms, B.C.’s natural resources were worth $5,200 per resident in 2013.

Vancouverites know our economy still depends upon quality, high-skilled, well-paying jobs in forestry, mining, oil and gas, engineering, construction, electricity generation and more.

A new study from Resource Works will show the profound impact resource-company spending has in the Lower Mainland.

The so-called green economy — the film studios, social media companies, free trade coffee roasters, gamers and biotech geniuses — plays an increasing role, but has not taken over yet.

Moreover, resource jobs are often urban, high-tech and green. A flood of job-ready young people goes forward every year to take up work in fields like environmental engineering, geology and all kinds of technical areas.

Innovations in mining and oil-and-gas extraction have meant $258 million in annual research-and-development spending across B.C., easily surpassing such spending in the information and culture industries.

So here’s the point.

Why do we have to choose? Why can’t we have both? Why can’t Vancouver be both a progressive “green” city and one that thrives on responsible development of our province’s abundant resources?

Gregor Robertson looks out at our harbour filled with ships from around the world and sees, oh, I don’t know, relics? A threat?

Or maybe he just wishes they would all go away?

I look out at that harbour and see the Vancouver which is here and now, and the Vancouver that can be our future, along with all the exciting new industries.

Surely there is a vision for our economy that embraces all of these opportunities.

Does the NPA have something to say about that?

Perhaps the ballot box question is this: which civic party has a plan that supports and encourages all sectors of economic opportunity for Vancouver?

Access to justice: two steps backward

Today in a case called Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, the Supreme Court of Canada struck down the court hearing fees imposed by the BC government for Supreme Court civil cases.  According to the court the fee scheme is unconstitutional because it places “an undue hardship on litigants and impedes the right of British Columbians to bring legitimate cases to court.”

Many have already applauded the decision as a victory for access to justice.  Certainly, the Supreme Court intends by its ruling to make access to courts more affordable. And not just for the truly impoverished, but for anyone who would have to “sacrifice reasonable expenses” to bring a claim.

That is the court’s intent.  But it is not what will happen.  This decision, intended to improve access to justice, will almost certainly make justice less accessible.  For everyone.  

Here’s why.

The court made new law.  It expanded the reach of section 96 of the 1867 Constitution Act, which deals with the power of appointment to superior courts, and it read new constraints into section 92(14), which gives the provinces the responsibility for the administration of justice.  And it invoked so-called unwritten constitutional principles - in particular, the rule of law - to buttresss its view that hearing fees that deny people access to the courts “infringe the core jurisdiction of the superior courts.”  The result is that section 96 is read - more broadly than before - as implying a constitutionally guaranteed access to courts.  

Why is this a problem?  When the court makes new law like this the result, naturally, is more litigation, especially, when, as here, there is no support in the written words of the Constitution for the new principle.  And so we will see more litigation.  The kind of litigation that is inherently slow, complex, expensive, uncertain, and unpredictable.  Litigation that will place demands on the court system, displacing other, more pedestrian claims.  

More importantly, however, we will see court challenges that rely on this decision - the constitutional right of access to justice in particular - to oppose any government reforms intended to improve justice system efficiency.  Such reforms are always attacked by lawyer interest groups as a restraint on access to the courts.  Now such attacks will be made as legal arguments in courts.  

And courts themselves will have fewer tools to manage the cases before them: such tools, themselves, will be attacked by trial counsel as an assault on the fundamental right of all citizens to have their day in court.

There’s more.  The majority holds that hearing fees must be coupled with an exemption that allows judges to waive them in any case where “they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims.”  The result, of course, will be a proliferation of applications for exemption.  These applications will be supported by evidence - affidavits, and in person testimony - so judges can decide what is, and is not a “reasonable expense” for the claimant.  More applications, more court arguments, more court days spent dealing with such arguments, more experts called as witnesses to give evidence on what is, and is not, a “reasonable expense.”  And so on.  Textbooks will be written on the appellate court decisions that will have to interpret these exceptions.  Law conferences will be held.  The increased burden of this additional litigation, will not, of course, fall on the wealthy.  It will fall, one way or the other, on those who are not. 

And then there is the bit that, as the dissenting judge, Rothstein J. pointed out, is completely missing from the majority analysis:

“The majority looks at the question solely from the point of view of the party to litigation required to undertake to pay the hearing fee.  It does not consider, and has no basis or evidence upon which to consider, the questions of the financing of court services or the impact of reduced revenues from reducing, abolishing, or expanding the exemption from paying hearing fees…. How will the government deal with reduced revenues from hearing fees?  Should it reduce the provision of sort services?  Should it reduce the provision of other government services, Should it raise taxes?  Should it incur debt?”

Many of these options, if pursued, will necessarily compromise access to justice.  There will be fewer courtrooms, or fewer judges or fewer support staff.  (Or at least there will be until these resource allocation decisions are themselves challenged in court on the basis of the same principles created to decide this case!)  Because governments are of limited means - not just by whim, but by strong direction from their electors.  And every time the court invents new constitutional doctrine to impose new spending priorities on government, funding for something else, something that does not enjoy the benefit of constitutional protection, is at risk.

Access to justice is a laudable goal.  Today’s Supreme Court of Canada decision made it less reachable.

How the Supreme Court changed British Columbia - my thoughts on the Tsilhqot'in decision

To understand why last week’s Supreme Court of Canada decision in Tshilqot’in is so important, it is helpful to know what the Court actually decided. 

There were three key issues or questions.  First, what is the test for aboriginal title?  Put another way, where will you find it?  Second, what does it mean to have aboriginal title?  Is it really ownership of land, or something quite different, say, just a right to be consulted about its use? Third, what authority does the provincial government have over aboriginal title lands?  Are they like Indian reserves, where provincial land laws do not apply, or something different?

On the first and third questions, in particular, there were sharply different views taken by the trial court and the BC Court of Appeal.  Those views were based on those courts’ interpretations of prior court decisions.  The Supreme Court has now resolved those differences.  They’ve made clear what has been argued about for a long time.  And that clarity, in my view, will have a profound impact on the use and development of lands and resources in British Columbia.

The test for aboriginal title. 

Aboriginal title is the way our law gives effect to the fact of prior aboriginal presence on the lands of what is now Canada.  It’s not just the right to engage in culturally important practices such as fishing, trapping, hunting and forage - those activities are recognized and protected as aboriginal rights.  Aboriginal title is how the law recognizes the indigenous claim that “this land has always been ours”.  But putting it that way does not necessarily answer the question: what land are you talking about?  Is it the land that has been most intensively and continuously occupied, say, villages and their immediate surroundings?  Or is it larger areas of land, the territories over which First Nations have exercised dominion by using and regulating access for resource use purposes, assigning rights of ownership, and excluding other First Nations?  

In terms which do not do justice to the complexity of the question, but at least make the differences clear, it is sometimes said that this is the debate between the “postage stamp” theory of aboriginal title, and the “mountaintop-to-mountaintop” theory.

The answer could not be more important, at least in a province like British Columbia, where there are over 200 First Nations, and very few treaties.  If it’s the postage stamp theory, then aboriginal title will mostly be found in and around Indian reserves and will hardly affect the rest of the lands of the province.  If it’s the mountaintop-to-mountaintop theory, then large parts of the province will be aboriginal title lands because most First Nations in BC exercised dominion over large territories, with clearly recognizable internal rights of resource use and ownership, and histories of defending their lands against other First Nations.

The Supreme Court of Canada decided it’s not just villages, it’s traditional territories.  I say this not just because of the Court’s statement of the requirements for the proof of aboriginal title, but also because of the Court’s actual decision - reversing the Court of Appeal - that the Tsilhqot’in had established their claim for title over a large part of their traditional territory. 

What made the Tsilhqot’in title claim interesting from a legal perspective is the evidence that they were traditionally semi-nomadic.  Their use and occupation of large areas of land was, or so it was argued, less intensive than is required to support a claim to aboriginal title over a large area.  And yet the Supreme Court found in favour of the Tsilhqot’in claim to some 1700 square kilometres.  Not, it is true, the whole of their traditional territory.  But an area so large that, when you consider what we know of the histories and land use of most other First Nations in BC it is abundantly clear that aboriginal title must exist over vast tracts of the province.  

The content of aboriginal title.  

As the Court makes clear, aboriginal title means ownership largely as we would recognize it.  It includes the right to decide how the land will be used, and to occupy, enjoy, possess, and manage it.  Put plainly, it’s their land. There are limits, of course.  Aboriginal title land cannot be used in a way that would prevent future generations of the group from using and enjoying it.  It is held communally, not individually.  And it cannot be sold, except to the Crown.  But the court also made it clear that aboriginal owners are entitled to the economic benefits of their land, and they can use the land “in modern ways, if that is their choice.”  

There is little that is new law in this, aspect of the court’s decision, but it all means much more once it becomes clear that aboriginal title exists in large parts of the province - and indeed, wherever in Canada aboriginal title has not definitively been surrendered to the Crown by treaty or otherwise.

What about provincial powers? 

The constitution assigns exclusive legislative authority over “Indians and lands reserved to the Indians” to the federal government.  For this reason, provincial land laws generally do not apply on Indian reserves.  What about aboriginal title lands?  Some courts, including the trial judge in this case, have held that aboriginal title lands are federal enclaves, where provincial land laws cannot apply. 

It’s one thing of course to imagine the application of such a principle in a postage stamp aboriginal title context.  But if aboriginal title exists throughout the province, what would happen to the authority over land and resource development that the provincial government has exercised for over a century, and on which our resource economy is founded?

The Supreme Court of Canada has made new law here, by clarifying that a controversial rule of constitutional interpretation known as the principle of “interjurisdictional immunity” does not apply to aboriginal rights and title.  Accordingly, the province still has the authority to regulate land and resource development on aboriginal title lands.  But that authority is severely restricted by requirements that have been established by the courts as they have interpreted the recognition and affirmation of aboriginal rights and title established by section 35 of the 1982 Constitution Act.  In short, government may infringe aboriginal title, but only if the infringement can be justified.  Justification requires consultation with the aboriginal titleholder.  It means that the infringement must be minimal, consistent with government’s fiduciary responsibilities to aboriginal peoples, and backed by “a compelling and substantial objective.”  And it may mean offering accommodations.

This language is familiar to those who know the Supreme Court of Canada’s decisions in cases such as Sparrow, Delgamuukw and Haida Nation.  What the court has consistently been trying to do is to create a balance in which aboriginal rights are given strong recognition, without completely displacing government’s ability to govern in the larger public interest.  What’s important here is that the stakes are higher, once you recognize that large parts of British Columbia are not just territories claimed by aboriginal peoples but, most likely, owned by them. 

The court repeatedly makes it clear that the preferred method of authorizing development on aboriginal title land is to obtain aboriginal consent beforehand.  In simple terms, if you have aboriginal permission, then you don’t need to justify the infringement.  You also avoid the uncertainty that is created by the requirement of justification, particularly where aboriginal title is asserted but not yet proven.  Absent consent, government will not know if it has justified an infringement unless and until it has survived a court challenge.  This is inherently risky: as the court says, “if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.”  Rather than proceed in the hope that the development can be justified, the better course is to obtain consent beforehand. 

There are many circumstances in which a First Nation may be willing to consent to an infringement of their asserted or proven title.  But almost certainly, if the infringement is in pursuit of an economic development objective - a forest licence, a hydro-electric dam, or a pipeline project - consent will come with a price tag.  Aboriginal people are unlikely to agree to the creation of economic value from their land unless they have a share in that value. 

The new law here is the court’s decision that the province still has legislative authority over aboriginal title land.  They reversed the trial judge on this point and ended a long legal debate over the question.  But while the province still has the power to regulate, it’s clearer than ever that it will only be able to exercise that authority if it is willing to share the benefits of economic activity with the aboriginal owners of the land on which it is proposed to take place.

And of course, there is no requirement that First Nations consent to that activity.  They may refuse, either because the price - the benefit - is not high enough, or because the cost - in environmental terms - is too high.  In such circumstances, government may only proceed if it meets the high burden of the requirements of justification.

What does all this mean?

I am in the camp of those who see this decision as transformational both as a matter of legal doctrine and, equally importantly, in its impact. It matters that the Supreme Court has, for the first time in its history, declared the existence of aboriginal title on specific lands outside Indian reserves.  It matters that it has done so by conclusively rejecting the postage stamp view of aboriginal title.  It also matters that it has rejected the enclave theory of aboriginal title, affirming provincial legislative authority over aboriginal title lands.  These are important legal questions, where the court’s clarification has been long awaited, and the judgement is bound to become the leading case on aboriginal title in Canada. 

And as to impact, the decision is of course profoundly important to the Tsilhqot’in, who fought so long for this result.  But only a fool would downplay the significance of this judgement for the rest of British Columbia.  While it is certainly true that the court has not drawn specific boundaries of aboriginal title land anywhere outside Tsilhqot’in territory, it has nonetheless inescapably redrawn British Columbia.  It has raised the stakes for aboriginal participation in economic development and complicated provincial land and resource decision-making in ways that may take years to sort out. 

But to contend that all this is important is not to say that the sky just fell on British Columbia.  There is nothing in this decision that need necessarily increase conflict or halt all development.  It will certainly cause many First Nations and project proponents to take a second look at their plans and strategies.  And in a province where land and resource development is always slow, expensive, and difficult, there’s a risk that it will become even harder to get things done.  But only, in my view, if government fails to recognize that this time out, the rules really have changed, and that now, more than ever, there is a need for real political leadership, provincially and federally, on this all-important file.  Now is not the time for governments to pause while they study their way into inaction.  Now is the time for something quite radically different.