ICBC decisions should be subject to independent review, counselling an offence is also and offence, and aboriginal title vs sovereignty
If BC moves to an ICBC monopoly no-fault auto insurance system, as has been proposed, the suggested avenues for a review of ICBC decisions would not be adequate, or fair.
Apart from an ombudsperson, and fairness offer, who would have no actual authority to correct unfair decisions by ICBC, what has been suggested is to use the Civil Resolution Tribunal.
The Civil Resolution Tribunal was designed to deal with very small civil and strata property disputes. It is not an appropriate mechanism for resolving disputes where one of the parties is a government-owned insurance company. This is because members of the Civil Resolution Tribunal are hired on short term contracts by the government of between 2 and 4 years, with the possibility of renewal.
Disputes should not be resolved by someone employed by the government that also owns the insurance company.
Unlike with an independent judge, a member of the Civil Resolution Tribunal may be legitimately concerned about keeping their job if they make decisions unfavourable to the government.
Also discussed on the show are the Criminal Code provisions that make it an offence to counsel someone to commit a criminal office. This is relevant in the context of people urging others to block highways or other infrastructure. The act of encouraging others to engage in this activity is, itself, a crime even if the suggested activity doesn’t occur.
Finally, a recent Supreme Court of Canada decision concerning s. 35 aboriginal rights in the context of a mining development that straddles Quebec and Newfoundland and Labrador is discussed.
The Supreme Court of Canada spends some time reviewing the nature of aboriginal title and confirming that it is not a right to sovereign control over territory.
As is the case with other forms of title to property, such as fee simple title to a home, Canadian, and provincial, laws still apply and, where there is a compelling public need to use the property the government is able to do so.
In the case of property held in a regular fee simple fashion, the provincial and federal governments can not only enforce laws on the property but can expropriate it for public purposes. That is how it’s possible to build highways, sewer systems, and other infrastructure even if a property owner doesn’t consent to this.
Suggestions that aboriginal groups retain sovereign control over land, or that aboriginal title affords a veto over the use of land, are inconsistent with Canadian law.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
An automated transcript of the show:
Legally Speaking Feb 27, 2020
Adam Stirling [00:00:00] From Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers, a busy week in terms of legal news stories, Michael, and we also spoke with the Attorney General about ICBC changes earlier today.
Michael T. Mulligan [00:00:11] Yes, both of those are true; and I listened with interest to the Attorney General’s defence of the proposed changes to the Evidence Act, as well as the larger proposed change to a no-fault system. And one of the good questions I thought you asked of the Attorney General was with respect to the, I think the essence of it was, given ICBC his reputation for, in some cases, not treating people fairly, what assurance could we have that under a no fault system, there could be an adequate review of their decisions? And the Attorney General’s response was to say, well, we’re proposing three things: an ombudsperson, a fairness officer, and then ultimately the idea that disputes could go to an organization called the Civil Resolution Tribunal.
Adam Stirling [00:00:58] Yes.
Michael T. Mulligan [00:00:59] Now in Ombudsperson, as everyone will know, has no authority to make a decision. They can issue statements about fairness. A fairness officer, equally, has no power to decide an individual dispute, and so that really leaves that Civil Resolution Tribunal. And I think it’s important for people to know why that may not be an adequate protection if ICBC chooses to treat somebody in an unfair fashion. The origin, the fundamental problem is this: currently, if you disagree with the position ICBC is taking, there is a genuinely independent avenue for review. It’s going to court, the Civil Resolution Tribunal, the problem with it is that people who are appointed to sit on that are appointed by the provincial government. They are order in council appointments; they’d be sitting at pleasure. And, I’ve got a job posting for that position right here, it may be of interest. It says this: The initial appointments are for a term of between two and four years. Members may be appointed for an additional term of up to five years for this full-time job. Now, I’d like to imagine, of course, you’ve had a dispute with the wholly-owned government insurance company. How do you think that application for a continuation of your job after your initial two or four years is going to go if your decisions were wholly unfavourable to the government’s wholly-owned insurance company? That’s not fair. It’s not independent. That sort of a structure may be fine for sorting out what it was originally intended to be, which were things like very small, small claims disputes between private individuals. Probably appropriate for that.
Adam Stirling [00:02:39] Yes.
Michael T. Mulligan [00:02:40] And a proportionate use of resources for that sort of problem. But you should not have people who are looking to have their job renewed by one of the parties with whom you might be having a dispute. That’s not fair. And that is, I think, at the heart of why the proposed change to no-fault should be so worrisome to people. It would mean that you may be left without any meaningful independent review process. Your review may begin and end with a person who’s hoping to keep their job, and that just isn’t appropriate.
Adam Stirling [00:03:14] One of the things I have noticed, just as an ordinary layperson examining public affairs is that there is a judicial culture in Canada that fiercely and entirely justifiably will defend its independence from any improper incursions being made by governments for any reason. It’s much less of a politicized culture than we see, say, in the United States of America, where state judges have to literally run for election, and they will collect donations from counsel who may appear before them at one point in future. That’s just that’s galling to me that that can happen. We don’t do anything like that here in Canada. But that is not to say that justices are unaccountable. They are held to account by each other, not by the government itself. So, we have that accountability mechanism. I can’t help but wonder with a Civil Resolution Tribunal, it’s not like there’s going to be an entire judiciary where they all hold each other to account with various methods and mechanisms. It’ll be, well, politically empowered government that ultimately makes those calls to higher and perhaps not renew. So, I think your concerns are entirely justified, Michael.
Michael T. Mulligan [00:04:12] And you could fix that. You could easily imagine how you could have members of the Civil Resolution Tribunal not appointed in that way, not have positions that are short term and subject to a review, subject to renewal or not. You could create a structure that was more akin to a Provincial Court Judge such that they wouldn’t need to be fired or wouldn’t be hoping for some reward based on what their decisions were.
Adam Stirling [00:04:37] Yes.
Michael T. Mulligan [00:04:37] You could certainly fix that. And so, when there’s this discussion about whether we should move to no-fault or not, that is right at the heart of why it’s so problematic. People, you know, ICBC has a reputation. It earned it over many years, and it has that reputation which produces so many cases going to court when they shouldn’t. Right? If the ICBC acted in a fair fashion and offered people what they would receive at the end of the day, promptly, there would be no reason to be hiring counsel and going to trial. That happens because what’s being offered is not the amount that should have been awarded. It’s the only reason for it. And so, with an organization that has that culture, having allowed them to make decisions that are only reviewable by individuals who are beholden to the provincial government is not appropriate.
Adam Stirling [00:05:28] Now the decisions can be reviewed by a higher level of court, can they not? Or how does that work?
Michael T. Mulligan [00:05:34] Well, decisions may be reviewable on the basis of a judicial review to determine things like whether the decision was within the realm of reasonableness.
Adam Stirling [00:05:44] Okay, But that’s not a…
Michael T. Mulligan [00:05:44] …that’s not a meaningful process. So, it just should not be that you are subject to decision making by a government insurance company, and your appeal mechanism is to a group of people who are hoping to have their jobs renewed by the government that owns the insurance company. That’s not right. That should be fixed. If for other reasons you think no-fault is a good idea, you certainly shouldn’t have one where that is the review mechanism.
Adam Stirling [00:06:09] I think that’s one of the very helpful things that I learned from our saying this that we do together, and I hope the public realizes as well, is that when a court of appeal reviews a matter of the Supreme Court itself, it’s not a whole new trial where everything’s redone. It’s the higher courts or courts of error. There has to be an error to identify that error can be reviewed and, in some cases, held or overturned. But it’s not a complete redo. Some things done by the trial judge will not be changed regardless.
Michael T. Mulligan [00:06:34] That’s quite right. You don’t just get a do-over because you want one. But the point is that the person making the decision should be independent and should not be employed by.
Adam Stirling [00:06:43] Yes.
Michael T. Mulligan [00:06:43] Either of the parties to the dispute.
Adam Stirling [00:06:45] All right. Great point. What else do we want to talk about today? I see we have Section 423 of the Criminal Code on the agenda again.
Michael T. Mulligan [00:06:51] Yeah, I think that’s worth mentioning along with a couple of other related sections. That section, which we’ve discussed before, is the section that expressly prohibits blocking of highways for the purpose of compelling somebody to do something or not do something. And the point there is that no injunctions are required to enforce that. But the other elements of the Criminal Code that I think people should be aware of, include the fact, that it is a criminal offence to counsel somebody, to commit an offence, and you can become a party to an offence if you’re doing something to, you know, encourage or assist somebody in committing it. And so, the point there is that if you are posting things, for example, online saying, I urge you to go out and blocked the highway to cause this or that to happen. That activity is in itself a criminal offence, not the people captured by that or not simply the people who are out on the highway. But if you’re involved in encouraging people to behave in that way, you also are committing a criminal offence. And the only thing preventing the police from choosing to arrest you, as well, is their exercise of discretion. And that exercise of discretion may wind up being exercised in a less patient fashion. If this sort of behaviour continues.
Adam Stirling [00:08:05] Ordinarily, what factors are weighed when an officer exercises such discretion? I had that question on open lines earlier this week. I didn’t feel well enough inform to give a good answer.
Michael T. Mulligan [00:08:13] Well, it’s going to depend on the nature of the discretion being exercised. I mean, on any call the police are going to get, the individual officer is going to exercise some discretion in terms of how to proceed. Right. If a constable gets called to a bar fight, for example, they’re going to exercise discretion in terms of, well, what do they think happened here? Should the person be arrested? Does this you know, there’s going to be all sorts of individualized discretion and we absolutely need that. You do not want to live in a place where there are robots or automatons out enforcing the law. We don’t want that for these sorts of things. It’s going to be like the, you know, blocking the highway. Those decisions are going to be made at a higher level. They’re not going to leave it to whatever constable gets the 9-1-1 call, transfer it about, oh my God, the highway is blocked. Those are the sort of decisions which would be made by the Chief of Police. You know, they’re going to take into account all manner of things in deciding, you know, what’s the best, best approach to this.
Adam Stirling [00:09:07] All right. So, take a look at 431. Everyone’s guilty of an indictable offence and liable to imprisonment for a term, if not more than five years, or is guilty of an offence punishable on summary conviction, who wrongfully, etc., etc… I hardly ever hear about this being exercised, though, Michael, in terms of encouraging the blocking. Why? Why do you think that is?
Michael T. Mulligan [00:09:26] Well, that’s a good question. Again, it’s simply an exercise of discretion. But if you have somebody out encouraging that sort of behaviour or encouraging any criminal offence for that matter, could be like we saw, for example, the arrests for mischief with the people blocking the premier’s driveway. If the police were aware that some person had encouraged others to go and block the driveway, online post for example, that person, as well, is committing a criminal offence. You’re not permitted to counsel others to go and do some. You’re not permitted to go online and post things saying, hey, I encourage you to rob the bank today or, you know, you might want to go and commit murder. All of those things are unlawful for pretty obvious reasons. And so, the as if this sort of behaviour continues, you may well see police exercising discretion in a different way than they have been. So far, they’ve clearly been exercising, I think, a fair bit of patience, allowing and deciding not to immediately arrest. And, you know, one of the things which they would no doubt be taking into consideration is not wanting to do things which would encourage that sort of behaviour, because people engaged in that sort of behaviour are looking for attention and they want to have some sort of conflict.
Adam Stirling [00:10:46] Yeah.
Michael T. Mulligan [00:10:46] And so police quite wisely are doing things like saying, look, all oh, wait, some period of time, I’ll encourage you to leave. And then they do sensible things in terms of how they would eventually, you know, clear the building or get people off the street. I must say, I chuckled the other day watching the protesters being carried away from the Port in Vancouver. Somebody had given some thought as to which officers you might wish to assign to the task of carrying the protesters off. And they weren’t a bunch of sort of burly looking young men. They had some, you know, kind looking female officers who were there, you know, picking these people up gently and carrying them off. You know, that’s not a mistake. The police are pretty sophisticated operation there. They’re going to be aware of what the imagery and reporting of that’s going to be. And so having the kind smiling looking officer who doesn’t look particularly intimidating, they’re, you know, carrying the person off is going to be probably from their perspective, a much more satisfactory state of affairs than, you know, the ERT team going in with, you know, bang, you know, flash bang grenades and people with automatic rifles. So that’s the sort of thing which they might take into account, who is of course, they don’t want to just sort of encourage more of this behaviour to get more attention.
Adam Stirling [00:11:59] All right. Let’s take a quick break. After the break, the Supreme Court of Canada on Friday helped us with a useful summary of what Aboriginal title is. I hear all the time. Michael, always there should be sovereign land. I keep saying no, because, I’ve read through all the cases and it keeps saying specifically that indigenous nations are not sovereign, that they don’t have a veto. You’re going to help us understand why after the break. I’m thankful for that. Stick around, everybody.
[00:12:22] COMMERCIAL BREAK.
Adam Stirling [00:12:22] Do indigenous nations have a right to free prior and informed consent under Canadian law? No, they do not. Are they sovereign under Canadian law? No, they are not. Our courts have held consistently for decades these simple truths. Michael Mulligan for Mulligan Defence Lawyers brought to my attention a finding by the Supreme Court of Canada on Friday that provides a useful summary of what Aboriginal title is, Michael.
Michael T. Mulligan [00:12:44] Indeed it does. This is a bit of a sleeper decision that came out on Friday and it said the underlying dispute was a dispute between a mining company that has an operation, that’s large and expanding, that straddles the border between Quebec and Newfoundland and Labrador and an Innu Group there, I think two of them, who are opposed to the expansion and continuation of that mining operation. And so, the dispute over the claim to stop it was brought in Quebec. And the mining concern argued that, well, hold on a minute, part of this mine is not in Quebec it’s over in Newfoundland and Labrador. So, what authority does this Quebec Superior Court have over that bit of it, which got the attention of Newfoundland and Labrador? Who thought yes, yes.
Adam Stirling [00:13:32] Yes, yes.
Michael T. Mulligan [00:13:32] Hold on a minute.
Adam Stirling [00:13:34] We’re on the news.
Michael T. Mulligan [00:13:35] We’re on the news, what’s going on. So that is the issue that the Supreme Court of Canada was sorting out was the issue of can a Superior Court in Quebec, deal with a Section 35 Aboriginal treaty and Aboriginal rights claim, including the bit of the project that’s not in Quebec.
Adam Stirling [00:13:52] Huh, interesting.
Michael T. Mulligan [00:13:53] So that was the narrow legal issue and ultimately the majority concluded. Yes. The court in Quebec can deal with that constitutional issue and part, I think, out of a concern that otherwise you would have duplicate litigation going on in two provinces anytime something straddled the two provinces. And so there we are. But it is in that context that I think the Supreme Court of Canada provided a somewhat useful summary of trying to summarize what Section 35 Aboriginal Rights, Treaty rights are and what they are not. And the summary there, I think is useful in the context of some of the rhetoric that’s been used in British Columbia surrounding the pipeline dispute.
Adam Stirling [00:14:40] Yes.
Michael T. Mulligan [00:14:40] And some of the rhetoric that you hear are things like, you know, this is a Sovereign First Nation or you’ve heard language about, you know, consent is required, things of this sort. And at least according to the Supreme Court of Canada, those are not, an accurate statement of what Aboriginal Rights and Title are. And there is still work to be done defining what exactly the limits of Aboriginal Title amount to.
Adam Stirling [00:15:10] Yes.
Michael T. Mulligan [00:15:11] And the Supreme Court of Canada has talked about that being a collective right to the territory. They’ve talked about it being distinct from the sort of fee simple ownership somebody might have, in part because, for example, that collective right isn’t simply for the benefit of people who are currently living there, but for future generations.
Adam Stirling [00:15:30] That’s so interesting. So, you can’t do anything that would deprive the rights of peoples yet to be born of hunting, fishing and other attributes of being have having a substantial connection to the land. It’s really fascinating.
Michael T. Mulligan [00:15:41] Yeah, you couldn’t sell it off to, you know, Hilton Hotels,
Adam Stirling [00:15:44] Exactly.
Michael T. Mulligan [00:15:44] And then, you know, use the money for some other purpose. So the in the context of discussing all of that, the Supreme Court of Canada, again, makes clear, as it has in previous decisions, that there is no doubt about Canadian sovereignty over all of the land, including land for which there may be some Aboriginal Title. And well, Aboriginal Title is not the same as fee simple title, the courts made that clear.
Adam Stirling [00:16:15] Yes.
Michael T. Mulligan [00:16:15] When you have ownership, for example, of a home, right,
Adam Stirling [00:16:19] Yeah.
Michael T. Mulligan [00:16:19] You and maybe clear, yes, I got fee simple title to that home. That does not mean that you have sovereign control over the territory in which your home sits. The RCMP, if you commit a crime, will show up and arrest you on your property. You can’t say you can’t come here and/or for example, if there was some, you know, public need to put a highway or a sewage treatment plant pipe or something else through your property, you know, there’s going to be a process. You’re going to have to there you have to talk to you about that and they may have to pay you some compensation for using it. But ultimately, the hydro line or sewage treatment pipe or highway or whatever it might be, is going to go through this.
Adam Stirling [00:16:59] Yes.
Michael T. Mulligan [00:16:59] Otherwise, nothing, of course, could possibly, you know, public work of that sort could ever be completed if everyone had an absolute right to say, no, you cannot run the sewage treatment line through my backyard. Right. And of course, who would want that? But ultimately, something has to be done.
Adam Stirling [00:17:13] Yeah. Yeah.
Michael T. Mulligan [00:17:14] And so this case, and that, I think is a good reminder for everyone about what’s really at stake. There is a meaningful claim to be advanced and defined there about what the scope of Aboriginal Rights and Title are. But it is not a sovereign control of territory, and the way sovereign control of territory is sorted out is not something you go to a domestic court and have an argument about, and it’s something which amounts to are you able to enforce your laws in that place? So, you know, for example, if you want to ask yourself who has sovereign control over Crimea, well, the Ukraine might not like that outcome. It’s pretty clear that sovereign control over Crimea’s land is in the hands of Russia at the moment. Or, you know, you can imagine what would happen if, you know, Canada tried to send the RCMP in to enforce some law in Washington state. That’s not going to go well. And that’s how you sort out whether you’ve got sovereign control over something. It’s not a matter of, hey, I wish to go to court and argue about that. It’s not decided by the United Nations it is decided by, do you have control over that territory? Do you or do you not? And…
Adam Stirling [00:18:26] It’s like the Arctic we’re in the debate now or whether Canada can assert meaningful sovereignty over the Arctic because we may not have the ability to enforce our laws there because we lack the armed forces needed to do so.
Michael T. Mulligan [00:18:37] Correct. And you don’t go to the Supreme Court and ask for control over the Arctic. Control over the Arctic is do you have control over the Arctic. It’s about that. And from a Canadian legal perspective, it’s again, crystal clear, and the Supreme Court of Canada references this in Section 1109 of the Constitution Act 1867 that vests in the province, ownership of and control over all lands, mines, minerals, resources, royalties and so forth.
Adam Stirling [00:19:06] Yeah.
Michael T. Mulligan [00:19:06] And so as a matter of Canadian law, it is very clear that the province of British Columbia has sovereign control over all of the territory of British Columbia, including any territory where there might be some Aboriginal Title established and protected by Section 35 of the Constitution. The Aboriginal Title is a real thing, but it does not mean that it is sovereign control over the territory. The Province of British Columbia’s laws of general application apply there. If you commit a crime, the police are going to show up there and arrest you for it. And so whatever Aboriginal title does mean, it does not mean you have sovereign control over it and you’re immune to, you know, the requirements to abide by the criminal code or immune from any other general law that would apply there. Nor does it mean you have an absolute right to veto.
Adam Stirling [00:19:59] Yeah…
Michael T. Mulligan [00:19:59] …anything happening there any more than owning your home attaches some absolute right to veto the highway or the sewage treatment pipe going through your property. You have to talk to you about it. But ultimately, if there’s a compelling need to do that, it’s going to be expropriated and the pipe is going to go in. And the same is true there. So, I think that context is important. When you hear that sort of language and rhetoric about, well, we didn’t have consent, or this wasn’t ceded or things of that sort. It really is not very helpful or accurate in terms of …
Adam Stirling [00:20:33] How the law works…
Michael T. Mulligan [00:20:33] …the legal reality in hand, how it actually works.
Adam Stirling [00:20:35] I like this quote here in paragraph 35 from Friday’s decision, Aboriginal title is also firmly grounded in the relationships formed by the confluence of prior occupation and the assertion of sovereignty by the Crown. Then quotes the Tsilhqot’in Nation decision, Paragraph 72, Aboriginal title would not exist if the Crown was not sovereign. If indigenous nations are sovereign, it means that the crown is not sovereign. If the crown is not sovereign, it means that there is no Aboriginal title. It would… It’s a paradox. It wouldn’t, it would fall apart so it can’t be sovereign.
Michael T. Mulligan [00:21:03] Well, I mean, you can make a sovereign claim to something if you like. If you want to make a sovereign claim to your back yard. Good luck to you. The police are likely going to show up and take control over it. That’s that’s what that kind of a claim means. But what’s really being advanced is not that what’s really being advanced is this Aboriginal title claim. That’s what’s being pursued in court, reasonably it’s constitutionally enshrined. But that is a very different thing from saying I’ve got sovereign control over it. You need my consent before you put that highway, or you know line in or whatever. That’s that’s not what is what’s afforded by Canadian law.
Adam Stirling [00:21:39] Michael, thank you for your explanations and the clarity that you bring to these matters, as always. It is greatly appreciated.
Michael T. Mulligan [00:21:44] Thank you.
Adam Stirling [00:21:44] Legally Speaking, every Thursday during the second half of our second hour on CFAX 1070
Automatically Transcribed on February 27, 2020 – MULLIGAN DEFENCE LAWYERS