Case Brief: Yahey v. British Columbia, 2020 BCSC 278
John Gailus and Courtenay Jacklin
Summary
In March 2015, Blueberry River First Nations (“Blueberry”) commenced an action alleging that the cumulative impacts of Crown-authorized activities within their traditional territory infringed their rights under Treaty 8.
What This Case is About
British Columbia’s Supreme Court Civil Rules (the “Rules”), require plaintiffs to pay daily court hearing fees. With the trial set for 160 days, the hearing fee provisions would require Blueberry to pay over $120,000 to the Crown.
Blueberry applied to the Court for an order under the Rules that the Crown pay the daily hearing fees, or, in the alternative, for a constitutional exemption from paying hearing fees based on s. 35 of the Constitution Act, 1982.
Blueberry argued that the requirement to pay daily court hearing fees is inconsistent with both with s. 35 and the objective of reconciliation – the Crown should not be able to charge Indigenous people substantial daily hearing fees for the purpose of seeking to enforce constitutionally protected Aboriginal and treaty rights.
What the Court Found
The Court held that Blueberry should not be subject to the hearing fees regime. The Court emphasized that s. 35 rights are unique and require a process of reconciliation, recognizing hearing fees as an additional obstacle for Indigenous litigants and antithetical to the purpose of s. 35(1).
Given the length and complexity of actions relating to Aboriginal or treaty rights, the Court held that the burden of hearing fees disproportionately and unfairly affects Indigenous peoples and is inconsistent with the shared responsibility of reconciliation. The Court granted a declaration that the hearing fees provisions are of no force and effect insofar as they require Indigenous peoples seeking to uphold or protect s. 35 Aboriginal and/or treaty rights, and who are required to do so through trial, to pay to daily hearing fees to the Crown as the defendant.
While consultation and negotiation are the primary methods of reconciliation, the Court recognized that litigation is sometimes necessary to advance reconciliation. Blueberry had previously tried other means to protect its treaty rights from cumulative impacts and was repeatedly told by the Courts that it must proceed to trial to enforce their rights. The fact that Blueberry had no other recourse than to proceed to trial supported the Court’s decision to provide them with an exemption from the hearing fee provisions.
Why This Case Matters
While the hearing fee provisions remain constitutional in other circumstances, this decision provides improved access to justice, finding the hearing fee provisions are inoperative insofar as they apply to Indigenous peoples seeking to uphold or protect s. 35 Aboriginal and treaty rights through trial.