IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Musqueam Indian Band et al v. City of Richmond et al,

 

2005 BCSC 1069

Date: 20050718
Docket: L040742
Registry: Vancouver

In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241
And in the Matter of the Local Government Act, R.S.B.C. 1996, c. 323

Between:

Musqueam Indian Band and
Gordon Grant

Petitioners

And

City of Richmond and
British Columbia Lottery Corporation
and Great Canadian Casinos Inc.

Respondents

 

- and -

 

Docket: L041328
Registry: Vancouver

In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

Between:

Musqueam Indian Band and
Gordon Grant

Petitioners

And

British Columbia Lottery Corporation,
Minister of Public Safety and Solicitor General of British Columbia,
City of Richmond and
Her Majesty the Queen in Right of the Province of British Columbia
and Great Canadian Casinos Inc.

Respondents


 

Before: The Honourable Madam Justice Brown

Reasons for Judgment

Counsel for the petitioners Musqueam Indian Band and Gordon Grant

T.R. Berger, Q.C.
M. Underhill
J. Hickling

Counsel for the Respondent City of Richmond

R. Harding
S. James (Articled Student)

 

Counsel for the Respondents British Columbia Lottery Corporation and Her Majesty the Queen

J.J.L. Hunter, Q.C.
K.M. Stephens

 

Counsel for Great Canadian Casinos Inc.

K. Clark

Date and Place of Hearing:

February 21 – 25; 28,
March 1 – 4, 2005

 

Vancouver, B.C.

[1]                These petitions were heard together.  Both relate to the development of the River Rock Casino in Richmond, British Columbia.  In the first petition (L040742) the petitioners ask the court to set aside a resolution of the Richmond city council approving the proposed relocation of the Richmond gaming facility and the addition of slot machines.

[2]                In the second petition (L041328) the petitioners ask the court to set aside the decision of the British Columbia Lottery Corporation to relocate its gaming facility and to change the nature and extent of the lottery schemes by adding slot machines.

I.          BACKGROUND FACTS

[3]                Before March 2004 the Lottery Corporation had a gaming facility in the City of Richmond at 8440 Bridgeport Road.  This casino was operated for the Lottery Corporation by Great Canadian Casinos.  In March 2004 the Lottery Corporation decided to move its casino to 8811 River Road and to expand the casino by adding slot machines.

[4]                The background facts are set forth in each of the petitions.  The Musqueam Indian Band is a band under the Indian Act, R.S.C. 1985, C. I-5 and Gordon Grant is a member of the Musqueam who owns property and resides in the City of Richmond.

[5]                The property at 8811 River Road, Richmond is known as the Bridgepoint lands.  It is approximately 7 hectares of land at the south foot of the Oak Street Bridge.  The Bridgepoint lands are close to the current Musqueam reserves and the Musqueam have asserted aboriginal title over the Bridgepoint lands.  The Bridgepoint lands are subject of the Musqueam Comprehensive Land Claim filed in 1984 and accepted for negotiation by the Crown in 1991.  The Musqueam have been participating in negotiations with British Columbia and Canada through the British Columbia Treaty Commission since early 1994.  The Musqueam’s reserve land is small, relative to their population, and not adequate for Musqueam’s present or future needs.  The Musqueam say that the provincial and federal governments have a policy that third party interests in lands will not be involuntarily affected and that they will not offer monetary compensation for land already alienated to third parties.  The Musqueam have repeatedly asked the federal and provincial governments to preserve Crown held lands for treaty purposes, but each government has a policy of not holding land for treaty purposes until the affected First Nation has signed a framework agreement.  The Musqueam have not signed a framework agreement.  There is a limited and shrinking base of Crown held land within the Musqueam traditional territory which could be included in a Musqueam treaty.

[6]                The Bridgepoint lands are owned by the Province. They are leased to the North Fraser Port Authority (a federal crown entity).  In 1987 they were sub-leased to Bridgepoint Developments Ltd. which developed a public market on the site.  The public market was not a success and by the mid 1990’s, the site was unused. 

[7]                For many years, the Musqueam have expressed a desire to develop a gaming facility in their traditional territory.  In 1996 and 1997 they proposed developing a gaming facility on the reserve on Sea Island.  Richmond was opposed to this development and in 1998 the provincial government rejected the Musqueam proposal.  In its treaty discussions the Musqueam have advised the federal and provincial governments that they propose to pursue economic development through participation in gaming.  Through the late 1990’s the Musqueam pursued commercial acquisition of an interest in the Bridgepoint lands for the purpose of establishing a gaming facility on those lands, without success.

[8]                For many years there was one provincially controlled gaming facility in Richmond at 8440 Bridgeport Road.  This facility had 30 gaming tables and no slot machines.  In 1997 Richmond city council passed a resolution opposing Las Vegas style casino gambling and video lottery terminals within the city.  In 1998 the city council passed a resolution expressing opposition to any expansion of gaming within the city.  In the summer of 2001 the provincial gaming minister froze all relocations of casinos in British Columbia.  In January 2002 the Executive Council of the provincial government concluded that those casinos which had taken significant steps and made investments based on direction from the government or the Lottery Corporation to relocate or expand would remain eligible to do so.  Four casinos fell into this category:  the Royal Diamond Casino in Vancouver, the Royal Towers Casino in New Westminster, the Grand Casino in Vancouver and Casino Hollywood in Prince George.  The Richmond casino, operated by Great Canadian, was not among the four.  As a result, Great Canadian brought action against the provincial government and the Lottery Corporation.  This litigation was settled in approximately December 2002 when the parties entered a tentative settlement agreement which was contingent on re-zoning of the Bridgepoint lands for an expanded casino, which would include slot machines.

[9]                In the meantime, Richmond was changing its policy with respect to gaming.  In May 2002, Richmond city council held a special meeting for the purpose of considering a general gaming policy which would allow a full service gaming facility and support Great Canadian as the operator of that casino.

[10]            In October 2002, before reaching a settlement with the Province and Lottery Corporation, Great Canadian entered an agreement to purchase the sub-lease of the Bridgepoint lands, subject to regulatory approval.  The lease payments were in arrears and the land was subject to tax sale.  To ensure that the sub-lease would not be lost, Great Canadian paid $250,000 to bring the arrears into good standing.

[11]            In February 2003, Great Canadian Casinos applied to have the Bridgepoint lands re-zoned to allow development of a casino on the lands.  A public hearing was held on the re-zoning in March of 2003.  The lands were re-zoned.  In April 2003 Great Canadian acquired title to the sub-lease and Richmond issued a development permit for the Bridgepoint site.  In May 2003 Richmond adopted the Bridgepoint re-zoning by-law and issued the development permit to Great Canadian. 

[12]            In May 2003, Great Canadian announced that the tentative settlement agreement with the Province and Lottery Corporation was final as a result of the adoption of the Bridgepoint re-zoning by-law and that it would immediately begin its planned construction program for the Bridgepoint lands.

[13]            In May 2003 the Lottery Corporation advised Richmond that it would relocate the Richmond casino, subject to approval from Richmond, and that it would not make a final decision regarding the Richmond relocation until it received approval from Richmond, as required by the Gaming Control Act, S.B.C. 2002, c. 14.

[14]            In June 2003 the Lottery Corporation advised Richmond that it must consult with adjacent municipalities and First Nations as set out in the Act.  In July 2003 Richmond council directed its staff to implement a consultation program.  On February 23, 2004 Richmond city council approved the relocation of the casino to the Bridgepoint site with the addition of slot machines and advised the Lottery Corporation accordingly.

[15]            On February 24, 2004 the Lottery Corporation advised the Musqueam that the Lottery Corporation had received the approval of Richmond for relocation of the casino to the Bridgepoint lands; if the Musqueam wished to file an objection as provided for by the Act, they must do so by March 8, 2004.  On March 5, 2004 Musqueam filed an objection with the Lottery Corporation.

[16]            On March 26, 2004 the Lottery Corporation advised the Musqueam that the objection filed by the Musqueam was not an objection within the meaning of s. 21 of the Act; that the Lottery Corporation was satisfied that all of the statutory preconditions had been met for the proposed relocation; that the Lottery Corporation was satisfied that adequate community input had been sought and considered by Richmond and the Lottery Corporation had finalized its decision to relocate the casino to the Bridgepoint lands.

II.         OVERVIEW

[17]            In these two petitions, the Petitioners raise four main objections:

1.           that Richmond failed to obtain adequate community input to the relocation and substantial change of the casino, as it was required to by s. 19(2) of the Act;

2.         that the Lottery Corporation did not comply with s. 19(1) of the Act when it decided to relocate the casino and add slot machines because Richmond had not consulted with the Musqueam as an adjacent and materially affected First Nation, a prerequisite to the Lottery Corporation’s decision;

3.         that the Lottery Corporation failed to require Richmond to participate in non-binding dispute resolution with the Musqueam, after the Musqueam objected to the relocation and addition of slot machines (s. 21);

4.         that the Province, through its agent the Lottery Corporation, did not fulfill its constitutional and common law duty to consult with the Musqueam regarding use of the Bridgepoint lands.

III.        THE STATUTORY SCHEME FOR GAMBLING IN BRITISH COULMBIA

[18]            The Criminal Code, R.S.C. 1985, c. C-46 makes public gambling an offence unless it is conducted and managed by the provincial government (ss. 197(2), 201-207.1).  Only the provincial government can run a casino with slot machines.  In British Columbia, the Province does so through the Lottery Commission as set forth in the Gaming Control Act.  The Lottery Corporation is a corporation which acts as the agent of the government.  The Lottery Corporation is responsible for conducting, managing and operating provincial gaming on behalf of the government.  Section 18 of the Act allows the Lottery Corporation to develop, use, or operate a facility as a gaming facility, relocate an existing facility or substantially change the type or extent of lottery schemes at a gaming facility after receiving authorization by written directive of the Minister.  Section 20 of the Act provides that in deciding whether to develop, use or operate a facility as a gaming facility, to relocate an existing facility or substantially change the type or extent of lottery schemes at a gaming facility, the Lottery Corporation may take into account factors that the Lottery Corporation considers relevant.

[19]            Before the Lottery Corporation decides to relocate or substantially change a gaming facility, the Lottery Corporation must first receive the approval of the municipality where the facility is to be located and must be satisfied that the municipality has consulted with the adjacent or materially affected first nation:

19 (1)   The lottery corporation must not … relocate an existing gaming facility or substantially change the type or extent of lottery schemes…unless the lottery corporation

(a)        first receives the approval …of the municipality…,

(b)        is satisfied that the municipality… has consulted each … first nation that is immediately adjacent or that the lottery corporation considers will be materially affected by the gaming facility….

[20]            A municipality must not give approval to the relocation or substantial change unless it satisfies the Lottery Corporation that adequate community input has been sought and considered:

19 (2)   A municipality… must not give an approval … unless, before or concurrently with giving the approval, the municipality… satisfies the lottery corporation that adequate community input has been sought and considered.

[21]            Community input is defined in s. 10 of the Gaming Control Regulation, B.C. Reg. 208/2002 as:

… includes comments, information and representations received, from persons who reside in the community or are representative of organizations in the community … after the municipality … has both (a) given public notice within the community of the proposal and the particulars of the proposal; and (b) provided an opportunity for the residents and representatives to provide comments, information and representations concerning the proposal, in the form of … (i) one or more public hearings or meetings …

[22]            A First Nation that objects to the proposal may file an objection with the Lottery Corporation pursuant to s. 21 of the Act.

21 (1)       A … first nation … may file an objection with the lottery corporation in the form and manner required by the lottery corporation, setting out how the objector will be materially affected by a gaming facility at the proposed location.

(2)            If the lottery corporation receives an objection under subsection (1), then, within 30 days after the filing of the objection, the lottery corporation must require the municipality…to participate in a form of non-binding dispute resolution with [the]…first nation.

(3)            The results of the alternate dispute resolution proceedings under this section must

… (b) be considered by the lottery corporation before the lottery corporation decides whether to locate or relocate the gaming facility.

IV.        PETITION L040742:  THE PETITION AGAINST THE CITY OF RICHMOND

[23]            In petition L040742, the petitioners, the Musqueam Indian Band and Gordon Grant seek the following relief:

1.         an order declaring that the resolution adopted by the Richmond city council on or about February 23, 2004, approving the proposed relocation of the Richmond Gaming Facility to the Bridgepoint lands and the proposed addition of slot machines is illegal and void in that it was made contrary to s. 19(2) of the Gaming Control Act, and s. 10 of the Gaming Control Regulation.

2.         an order setting aside the approval for illegality in that it was made contrary to s. 19(2) of the Gaming Control Act and s. 10 of the Gaming Control Regulation; and

3.         an order declaring that the City of Richmond did not satisfy, or in any event could not have reasonably satisfied, the Lottery Corporation that adequate community input had been sought and considered in respect of the Bridgepoint casino proposals pursuant to s. 19(2) of the Gaming Control Act, and s. 10 of the Gaming Control Regulation before or concurrently with giving the approval.

[24]            The petitioners bring their petition pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 and the Local Government Act, R.S.B.C. 1996, c. 323.

[25]            Section 262 of the Local Government Act allows the court to set aside all or part of a by-law for illegality.  By-law is defined to include a resolution.

[26]            The Judicial Review Procedure Act gives the court the power to set aside a decision that is unauthorized or otherwise invalid.

[27]            The petitioners argue that the Richmond resolution approving relocation of the gaming facility and the addition of slot machines must be set aside because Richmond has not complied with the requirements of the Gaming Control Act and Regulations.  The petitioners say that Richmond was required to give public notice of the proposal and its particulars and provide the public with an opportunity for comments in the form of one or more public hearings or meetings; that Richmond did not do so and therefore could not satisfy the Lottery Commission, as it was required to do, that it had sought and considered adequate community input. 

A.         THE POSITION OF THE PARTIES

[28]            The petitioners say that s. 10 of the Gaming Control Regulations is mandatory, that because community input is defined as including comments, information and representations received after the municipality has given public notice and provided an opportunity for the residents to provide comments, the municipality must do both before giving its approval to the relocation or substantial change of the gaming facility.  The petitioners say that here, Richmond did not give public notice to the community of particulars of the proposal and did not, after giving such notice, allow the residents and representatives an opportunity to provide comments.  The petitioners say that, as a result, the Richmond resolution approving the relocation and substantial change of the casino is invalid and must be set aside.  The petitioners say further that the Lottery Corporation could not have been satisfied that Richmond had sought adequate community input before it relocated the casino, because Richmond had not complied with s. 10 of the Gaming Control Regulation.

[29]            The petitioners say that the question of whether Richmond had sought and considered adequate community input is a question of law and the standard of review is correctness.  The petitioners say that, even if the standard were not correctness, the Lottery Corporation’s decision is patently unreasonable because there was no publication of the particulars of the proposal and no public hearing or meeting following such a public notice.

[30]            Richmond says that “community input” is to be interpreted broadly; that even if it were narrowly interpreted, it has complied, has given public notice of the proposal and its particulars, and has provided an opportunity for the residents to provide comments.  Richmond argues that the legislation contemplates the Lottery Corporation determining whether it is satisfied that there has been adequate community input.  Richmond says that the standard of review of that decision is patent unreasonableness.  Finally, Richmond says that the court should not, in any event, declare its resolution void; that the court should apply the doctrine of substantial performance; that there has been no prejudice to the petitioners, that there would be substantial prejudice to others were the resolution set aside. 

[31]            The Lottery Corporation argues that the decision made by the Lottery Corporation (whether it is satisfied that Richmond sought and considered adequate community input) is discretionary; that the standard of review is patent unreasonableness.  The Lottery Corporation says that the definition of community input is inclusive, not exhaustive.  Finally, the Lottery Corporation says that there is no evidence of prejudice to any one in its conclusion that it was satisfied that adequate community input had been sought and considered, but there is considerable prejudice to the Lottery Corporation, to Richmond, to Great Canadian Casinos and to its employees if the relief sought in this petition is granted.  Therefore, the Lottery Corporation says the relief should be refused in any event.

B.        ISSUES

[32]            This petition raises the following issues:

1.         What is the decision under review?

2.         What is the appropriate standard of review of that decision?

3.         Is the definition of community input in the Regulations inclusive or exhaustive?

C.        DECISION UNDER REVIEW

[33]            The petitioner says:

This petition is solely concerned with the legality and validity of a resolution passed by the respondent, City of Richmond, on February 23, 2004 approving the relocation of and substantial change to the gaming facility …

[34]            After reviewing s. 19, I have concluded that the impugned decision is the Lottery Corporation’s decision in May, 2003 in which it concluded that it was satisfied that Richmond had sought and considered adequate community input.  The Act does not dictate that the municipality must seek and consider community input; rather, it provides that the municipality must not give approval to a relocation or substantial change to a gaming facility unless it satisfies the Lottery Corporation that adequate community input has been sought and considered.  Here, the Lottery Corporation was satisfied before Richmond gave its approval in February, 2004.  Thus, Richmond had complied with the requirements of the Act in giving its approval because it had satisfied the Lottery Corporation.  The real thrust of the petitioner’s argument is that the Lottery Corporation could not or should not reasonably have been satisfied that the municipality had sought and considered adequate community input, because the municipality did not provide public notice of the proposal and the particulars of the proposal and then provide an opportunity for the residents and representatives to provide comments, information and representations concerning the proposal at one or more public hearings or meetings before the Lottery Corporation decided that it was satisfied with the community input (s. 10 of the Gaming Control Regulation). 

[35]            Put another way, the Act does not dictate that the municipality must seek community approval in any particular form before granting its approval, rather the Act says that the municipality must not give an approval unless it satisfies the Lottery Corporation that adequate community input has been sought and considered: it is the Lottery Corporation’s decision that it was satisfied which is truly in issue.

D.        THE APPROPRIATE STANDARD OF REVIEW

[36]            In Dr. Q. and the College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, Chief Justice McLachlin, speaking for the court, considered the approach to be taken by the reviewing judge and said at paras. 21-22:

…. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach…

… the pragmatic and functional approach calls upon the court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by a court, undergo "significant searching or testing" (Southam, supra, at para. 57), or be left to the near exclusive determination of the decision-maker. These various postures of deference correspond, respectively, to the standards of correctness, reasonableness simpliciter, and patent unreasonableness.

(paras. 21-22)

[37]            The court identified four factors to be considered:

27        The first factor focuses generally on the statutory mechanism of review. A statute may afford a broad right of appeal to a superior court or provide for a certified question to be posed to the reviewing court, suggesting a more searching standard of review: see Southam, supra, at para. 46; Baker, supra, at para. 58. A statute may be silent on the question of review; silence is neutral, and "does not imply a high standard of scrutiny": Pushpanathan, supra, at para. 30. Finally, a statute may contain a privative clause, militating in favour of a more deferential posture. The stronger a privative clause, the more deference is generally due.

28        The second factor, relative expertise, recognizes that legislatures will sometimes remit an issue to a decision-making body that has particular topical expertise or is adept in the determination of particular issues. Where this is so, courts will seek to respect this legislative choice when conducting judicial review. Yet expertise is a relative concept, not an absolute one. Greater deference will be called for only where the decision-making body is, in some way, more expert than the courts and the question under consideration is one that falls within the scope of this greater expertise…. Simply put, "whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act", an administrative body called upon to answer a question that falls within its area of relative expertise will generally be entitled to greater curial deference: Pushpanathan, supra, at para. 32.

30        The third factor is the purpose of the statute…. As a general principle, increased deference is called for where legislation is intended to resolve and balance competing policy objectives or the interests of various constituencies: see Pushpanathan, supra, at para. 36, where Bastarache J. used the term "polycentric" to describe these legislative characteristics.

31        A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court : …A legislative purpose that deviates substantially from the normal role of the courts suggests that the legislature intended to leave the issue to the discretion of the administrative decision-maker and, therefore, militates in favour of greater deference. …

33        The final factor is the nature of the problem….When the finding being reviewed is one of pure fact, this factor will militate in favour of showing more deference towards the tribunal's decision. Conversely, an issue of pure law counsels in favour of a more searching review. This is particularly so where the decision will be one of general importance or great precedential value: Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 23. Finally, with respect to questions of mixed fact and law, this factor will call for more deference if the question is fact-intensive and less deference if it is law-intensive.

35        Having considered each of these factors, a reviewing court must settle upon one of three currently recognized standards of review….. Where the balancing of the four factors above suggests considerable deference, the patent unreasonableness standard will be appropriate. Where little or no deference is called for, a correctness standard will suffice. If the balancing of factors suggests a standard of deference somewhere in the middle, the reasonableness simpliciter standard will apply.

[38]            What is the appropriate standard of review in this case?  Dealing with each of the factors in turn:

1.         Statutory Mechanism for Review

[39]            Here, the legislation does not include a privative clause and does not provide for a statutory right of appeal.  As the statute is silent on the question of review, it is neutral and does not imply a high standard of scrutiny.

2.         Relative Expertise of the Tribunal

[40]            The petitioner argues that s. 10 of the Gaming Control Regulation is mandatory:  that the Lottery Corporation cannot give approval unless the municipality has first given public notice of the proposal and its particulars and provided an opportunity for the residents to provide comments at one or more public hearings or meetings.  If this were correct, the decision to be made by the Lottery Corporation would place only a limited call on the Lottery Corporation’s expertise.  However, as detailed below, in my view, the petitioners’ interpretation of the legislation is not correct and the decision calls upon the Lottery Corporation to employ its expertise in managing the gaming industry in British Columbia.

[41]             The legislation requires the Lottery Corporation to be satisfied that adequate community input has been sought and considered.  In addition, s. 20 of the Act provides that in deciding to relocate or substantially change a facility, the Lottery Corporation may take into account factors that the Lottery Corporation considers relevant.  Thus, the legislation requires the Lottery Corporation to employ its expertise and discretion in determining whether to relocate or substantially change a gaming facility and in determining whether adequate community input has been sought and considered.  If the legislature intended that a municipality could not give approval until (as the petitioners argue) it had provided public notice of the proposal and its particulars and provided an opportunity for the residents to provide comments at public meetings or hearings, it could easily have said so.  Rather, the legislation provides that the municipality must not give its approval unless it has satisfied the Lottery Corporation.  The legislature clearly intended to provide the Lottery Corporation with a wide discretion in reaching its decision.  Hence, the legislation calls on the Lottery Corporation to exercise its expertise in managing the gaming industry in British Columbia and the decision is entitled to greater curial deference. 

3.         Purpose of the Statute

[42]            The Lottery Corporation is given a broad mandate in the Gaming Control Act to conduct and manage gaming on behalf of the government (s. 7).  Sections 19(2) and 20 confer a broad discretion on the Lottery Corporation.  It is the Lottery Corporation that is to be satisfied that the community input has been adequate.  When deciding to relocate or substantially change a facility, the Lottery Corporation may take into account factors that the Lottery Corporation considers relevant.  This suggests that the legislative purpose deviates substantially from the normal role of the courts, suggests that the legislature intended to leave the issue to the discretion of the administrative decision maker and militates in favour of greater deference.

4.         Nature of the Problem: Question of Fact or Law?

[43]            The petitioners argue that the question is one of pure law, the statutory interpretation of s. 19 of the Act and s. 10 of the Regulation.  The petitioners say that s. 10 of the Regulation is mandatory, that the definition of community input as “includes” comments, information and representation received after the municipality has both given public notice of the proposal and the particulars of the proposal and provided an opportunity for residents to provide comments means that this, at least, must be done.  If it is not done, then community input has not been sought.  The question is simply one of interpreting the legislation, a pure question of law. 

[44]            The respondents argue that the word “includes” is to be given its ordinary meaning, citing Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 18:

The standard guide for draftsman is that means restricts and includes enlarges.  This is what Lord Watson had to say in Dilworth v. Commissioner of Stamps:

The word “include” is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. 

[45]            Reading the legislation as a whole, the Regulation together with the Act, I am satisfied that the legislature did not intend by the definition of community input to strip the Lottery Corporation of the broad discretion granted to it in the Act.  “Includes” should be given its ordinary interpretation as enlarging rather than restricting the definition.  The question is one of mixed fact and law.  In that the legislation requires the Lottery Corporation to determine the adequacy of community input, the question is highly factual.  (I note parenthetically that even if the question were, as the petitioner argues, only whether the municipality had first given public notice of the proposal and its particulars and then provided an opportunity for the residents to provide comments that, too, would be a question of mixed fact and law, although it would be less factually weighted.)  That a decision maker is to be satisfied of something is a strong indication that the matter is fact intensive and calls for more deference.

[46]            I conclude that the legislature intended to confer substantial discretion on the Lottery Corporation to determine whether adequate community input had been sought and considered and the court should give considerable respect to the decision of the Lottery Corporation.  The standard of review is patent unreasonableness. 

E.         WAS THE LOTTERY CORPORATION DECISION PATENTLY UNREASONABLE?

[47]            Mr. Asselstine, casino project coordinator for the Lottery Corporation considered the status of Richmond’s community input efforts in May 2003.  He was aware, through communications with Great Canadian, of Richmond’s efforts to obtain community input.  In addition, he reviewed:

(a)        the meeting minutes of the City of Richmond regular council meeting of May 12, 2003;

(b)        Richmond Zoning & Development By-law 7484 and 7485;

(c)        the meeting minutes of the City of Richmond regular council meeting for public hearings of March 17, 2003; and

(d)        Report to Committee of the City of Richmond with respect to By-law 7484 and 7485 dated January 30, 2003 which he obtained from the City of Richmond website.

On May 12, 2003 Richmond passed the by-law approving the re-zoning of the lands to permit development of casino, following a public hearing on March 17, 2003.  Richmond gave notice of the proposed rezoning by publishing five separate notices of public hearing in two newspapers.  The notices provided:

Applicant/s: Great Canadian Casinos Inc.

Purpose: To re-zone a portion as shown on the attached sketch from automobile-oriented commercial district (c-6 to comprehensive development district cd/87) in order to permit the development of a casino, hotel, offices and accessory uses.

Information on procedure:

Persons who believe that their interest in property is affected by the proposed by-law may make an oral presentation or submit written comments at this public hearing.  If you are unable to attend, you may send your written submission to the City clerk’s office by 4:00 p.m. on the date of the public hearing.  All submissions will form part of the record of the hearing.  Further information may be obtained from the City contact identified above.  A copy of the proposed by-law, supporting staff and committee reports and other background material may be inspected at the urban development division, between the hours of 8:15 a.m. and 5:00 p.m. Monday through Friday except statutory holidays commencing March 7, 2003 and ending March 17, 2003 or upon the conclusion of the hearing.  Staff reports on the matter (as) identified above are available on the City website at http://www.city.richmond.bc.ca/council/hearings/2003/ph2003listdoc.htm. 

[48]            Mr. Asselstine reviewed the website materials which included the re-zoning and development by-law and the staff report, which provided detailed information on the relocation of the casino:

This report addresses two applications to facilitate the relocation of the Great Canadian Casino from its current location at Bridgeport/Sea Island Way to the Bridgepoint Market site on River Road.  The applications are proceeding concurrently in order to ensure consistency with council’s current gaming policy which supports only one full service community casino in Richmond.  Council adopted this policy on May 29, 2002

and on the gaming policy:

On May 29, 2002, council adopted a gaming policy that supports one full service community gaming casino in Richmond which contains a maximum of 30 gaming tables, up to 6 poker tables and a maximum of 300 slot machines (see attachment 5).  This policy was adopted after a planning process which included public consultation with Richmond residents.

In order to ensure consistency with this policy, relocation of the Great Casino operation requires the land use contract at its current location at Sea Island Way/Bridgeport Road and No. 3 Road be amended to remove casinos as a permitted use on that site.  Carousel Ventures Ltd. which owns the existing casino site has applied to the City to amend the current land use contract (LUC 126) on the site to prohibit casinos as a permitted use.

The Lottery Corporation has recognized council’s policy to allow one full service community gaming casino in Richmond.  The Lottery Corporation has advised the City that the Great Canadian Gaming Corporation is eligible to be relocated within the City of Richmond as a full service casino (including table games and slot machines) pursuant to council’s adopted casino policy and supports the new site at the Bridgepoint Market property subject to all necessary approvals by the City. 

[49]            Mr. Asselstine advised Mr. Lynch, the Vice-President of casino gaming for the Lottery Corporation that Richmond had satisfied the community input requirement.  Mr. Lynch had attended the May 2002 gaming policy hearings and was aware of the March 2003 rezoning public meeting. He agreed with Mr. Asselstine and concluded, on behalf of the Lottery Corporation, that Richmond had satisfied the requirement for community input.

[50]            Was this conclusion patently unreasonable? Patent unreasonableness has been defined as clearly irrational, evidently not in accordance with reason.  It is a very strict test (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941).

[51]            In my view, the decision was not patently unreasonable.  There was a rational basis for the Lottery Corporation to conclude that Richmond had sought and considered adequate community input.  The public hearings in May 2002 addressed the gaming policy generally, the expansion to slot machines and Las Vegas style gambling.  The rezoning hearing provided members of the public to express their views with respect to the relocation of the casino to this site.

[52]            Even if the standard of review were correctness, I would not set aside the decision.  Richmond did give the public notice of the proposed casino project at the Bridgepoint site.  The public notice, both in the newspaper and on signs posted on the site directed the reader to further information available from the city.  The staff report for the rezoning application provided full particulars of the Bridgepoint casino project and was available at the city offices or on the website.  A public hearing was conducted on the rezoning application and members of the community provided comments on the casino project.

[53]            Finally, the Lottery Corporation was aware of the two day public hearing held in May 2002 with respect to changing the city’s policy with respect to gaming, and particularly with respect to slot machines in Richmond and the extensive public input at that time.  Hence, even if the standard to be applied were correctness I would not set aside the decision of the Lottery Corporation that adequate community input had been sought and considered.

V.         PETITION L041328:

[54]            In petition L041328 the petitioners, the Musqueam Indian Band and Gordon Grant seek:

1.         An order setting aside the decision of the Lottery Corporation of March 26, 2004 to relocate the gaming facility to the Bridgepoint site as contrary to sections 18(1)(b), 19(1)(a)(2), 19(b) and 21 of the Gaming Control Act and sections 10 and 11 of the Gaming Control Regulations;

2.         An order setting aside the decision of the Lottery Corporation made on March 26, 2004 to substantially change the nature and extent of the lottery schemes at the Richmond Gaming Facility including adding slot machines as contrary to sections 18(1)(c), 19(1)(a)(3) and 19(1)(b) of the Gaming Control Act and sections 10, 11, 12 and 13.1 of the Gaming Control Regulations;

3.         An order setting aside the Bridgepoint Casino relocation and substantial change decisions as invalid on ground of reasonable apprehension of bias or on the ground that the Lottery Corporation improperly fettered its discretion in respect of those decisions;

4.         an order declaring that the Bridgepoint Casino decisions are invalid and setting aside those decisions on the grounds that the Lottery Corporation and Her Majesty the Queen in Right of the Province of British Columbia failed to fulfill their fiduciary and constitutional duties to consult and accommodate the Musqueam Indian Band in respect of aboriginal and treaty interests asserted by the Musqueam and affected by those decisions.

5.         An order prohibiting the Lottery Corporation from taking any further steps to relocate or substantially change the gaming facility until:

            (a)        the Lottery Corporation has received valid authorizations from the Minister in conformity with s. 18 of the Gaming Control Act; received a valid approval from the City of Richmond in conformity with s. 19 of the Gaming Control Act; and been satisfied on a reasonable basis that the City of Richmond has consulted Musqueam in conformity with s. 19 of the Gaming Control Act; and

            (b)        the fiduciary and constitutional duty of the Lottery Corporation and Her Majesty the Queen in Right of the Province of British Columbia to consult and accommodate the Musqueam in respect of the aboriginal and treaty interests that are asserted by Musqueam and that would be affected by that relocation or substantial change, has been satisfied.

A.         POSITION OF THE PARTIES

[55]            The petitioners argue that Richmond did not fulfill its obligation to consult with the Musqueam as an immediately adjacent First Nation pursuant to s. 19(1)(b) of the Act; that the Lottery Corporation erred in being satisfied that Richmond had fulfilled its duty to consult with Musqueam and that Richmond’s purported consultation was not made in good faith.

[56]            Second, the petitioners say that the Musqueam filed an objection to the proposed relocation of the gaming facility; the Lottery Corporation was required to refer Richmond and the Musqueam to non-binding dispute resolution and to consider the results of that dispute resolution; that Lottery Corporation erred in rejecting the Musqueam objection and in not referring Richmond and Musqueam to non-binding dispute resolution.

[57]            The Musqueam say that the Lottery Corporation improperly fettered its discretion by its settlement agreement with Great Canadian and that the Lottery Corporation’s conduct gives rise to a reasonable apprehension of bias, if not actual bias. 

[58]            Finally, the Musqueam say that the decision of the Crown in this case with respect to use of the Bridgepoint lands triggered a common law and constitutional duty to consult and accommodate which was not fulfilled.

[59]            The respondents say that Richmond consulted with the Musqueam pursuant to the Act; that the objection made by the Musqueam was not that contemplated by the Act and the Lottery Corporation properly concluded that it was not an objection.  They say that the argument with respect to bias and fettering of discretion is misconceived in circumstances such as these, where the Lottery Corporation is the proponent of the casino relocation and expansion.  Finally, they say that the land in question had already been alienated some years before by virtue of the lease to the North Fraser Harbour Commission and sub-lease to the Bridgepoint Market, that there was no duty to consult or accommodate in these circumstances.

B.        CONSULTATION BY RICHMOND

[60]            Section 19(1) of the Act provides that the Lottery Corporation must not relocate or substantially change a gaming facility unless the Lottery Corporation is satisfied that the municipality has consulted with any First Nation that is immediately adjacent or will be materially affected.  The Gaming Control Regulation provides in s. 11(2) that “materially affected” includes that, as a result of the proposal proceeding, the First Nation can demonstrate a likelihood that it will incur significant new infrastructure or policing costs, experience increased traffic with a significant impact on its highways, or experience a significant adverse impact on the amenities and character of one or more of its neighbourhoods.

[61]            The issues between these parties are the scope of Richmond’s duty to consult and whether that duty was fulfilled.

[62]            The Musqueam say that Richmond had a duty to consult with them on issues which were likely to be important to the Musqueam and say that these would include aboriginal title claims, treaty negotiations and economic and social development issues.  The respondents say that Richmond’s duty to consult was limited to land use issues, as those would be the only issues within Richmond’s jurisdiction.  Richmond says that it has fulfilled that obligation to consult.

C.        BACKGROUND

[63]            On July 14, 2003 Richmond directed staff to implement its consultation program with adjacent municipalities and the Musqueam.  On July 21, 2003, Richmond sent written information to the Musqueam and to the municipalities of Vancouver, Delta, Burnaby and New Westminster, asking if they considered themselves to be materially affected by the casino relocation.  On July 21st the Musqueam contacted Terry Crowe, the manager of the policy planning department of Richmond, requesting a meeting on August 18, 2003 to discuss the proposed relocation of the casino and advise of the band’s concerns.  On August 14, 2003 Richmond delivered an information package to the Musqueam with respect to the relocation and addition of slot machines. 

[64]            On August 18, 2003 Mr. Crowe met with Musqueam representatives to discuss the process.  On October 9, 2003 Mr. Crowe wrote to Darryl Harjit, Chief Administrative Officer/Band Manager for the Musqueam, requesting a meeting “to hear how you are materially affected by the casino relocation”.  The Musqueam took the position that the obligation to consult with them arose because they were immediately adjacent and the consultation was not limited to the manner in which they were “materially affected”.  On December 4, Mr. Crowe and Richmond Solicitor Mr. Paul Kendrick met with Musqueam representatives, including their legal counsel.  There is an issue between Richmond representatives and the Musqueam representatives as to whether Mr. Kendrick and Mr. Crowe said that this would or would not be part of the consultation process.  The Richmond representatives say that to their minds it was part of the consultation process, although they were not authorized to make decisions on behalf of the Richmond.  The Musqueam representatives say that Mr. Kendrick and Mr. Crowe said it would not be part of the consultation process.  In any event, at that meeting the Musqueam representatives identified three areas where the band felt they were materially affected:

1.         Alienation of the land when it is one of the few remaining parcels of land available for their land claims;

2.         That the casino relocation would affect their own gaming initiatives;

3.         Economic impact from the Musqueam not having the income stream which the casino would provide.

[65]            Mr. Crowe and Mr. Kendrick reported on the meeting to city council on December 8, 2003.  Also on December 8, 2003, Mr. Rosenbloom, counsel to the Musqueam, wrote a letter summarizing the Musqueam concerns with respect to the proposed casino development.  In that letter, Mr. Rosenbloom took the position that the letter itself should not be considered part of the required consultation process.  He said:

The proposed casino relocation and development at Bridgepoint materially affects the Musqueam in many ways, including by:

1.         infringing Musqueam aboriginal rights and title over the land comprising the Bridgepoint site;

2.         prejudicing the Musqueam in their ongoing treaty negotiations, by reducing the amount of land in the Musqueam traditional territory available for the settlement of the Musqueam comprehensive land claim;

3.         prejudicing the Musqueam in their ongoing treaty negotiations with regard to gaming and authority over gaming;

4.         adversely affecting Musqueam financial interests in gaming and gaming-related business ventures;

5.         adversely affecting Musqueam interests in community development directly or indirectly related to gaming.

[66]            On January 19, 2004, Richmond’s solicitor, Mr. Kendrick, wrote to Mr. Rosenbloom: 

The city wishes to move the consultation process required under the Gaming Act and the regulations under that Act to a conclusion . . . the constraints of the Community Charter and the role of the council and the committee system employed in Richmond has led me to suggest the procedure that follows.  Council has set up a number of standing committees which look at various matters before they are considered at a formal council meeting. [T]he committee (as does council) will hear delegations on items on the agenda.  One of those committees is the general purposes committee which consists of all members of council.

The rules for the procedure of a committee are less formal than council, and allow for a more complete discussion of the issues.  Items are placed on the committee agenda through staff reports which set out the issues and make recommendations.  The committee then decides whether or not to endorse the staff position and sends the result to the formal council meeting. 

I will be writing a report to the general purposes committee setting out how the Musqueam consider they are materially affected based on the comments made at the meeting held on December 4, 2003 and on the five points contained in your letter of December 8, 2003.  The report will not try to separate the concerns on the basis of whether they come under the Gaming Act, or the common-law duty that you have indicated the City has to consult.  . . . you and your clients are invited to attend either or both of these meetings to explain the band’s position and to add other concerns if that is deemed to be appropriate. 

I will attempt to supply you with a copy of the report in advance of the meeting.

[67]            With respect to the first three issues raised by Mr. Rosenbloom, Mr. Kendrick took the position that relocating the casino and the addition of slot machines did not infringe on aboriginal rights; that the disposition of lands was a provincial and federal issue; that Richmond had no authority over gaming and Richmond’s decision whether or not to allow the casino to move was a land use issue, not a gaming issue.  With respect to the fourth issue, Mr. Kendrick said that the current city policy allowed only one casino in Richmond, but that policy could be changed if council wished.  The Musqueam could apply to council to change the policy if the band were given the right to have a casino in Richmond; further, the Province had the power to overrule any city policy that would impact on the casino.  With respect to the fifth item, Mr. Kendrick said that Richmond was entitled to a percentage of the revenue from the casino as a host city, the percentage set by the provincial government.  Richmond had been receiving revenue from its existing casino; the situation was not changed by the relocation of the casino.  He said, in conclusion “if there were other points you wish me to deal with in the report, please advise and I will add them.  As mentioned, you and the band are invited to attend at the committee meeting to comment on the position I have taken and to suggest any other areas which the band considers that it is “materially affected”.”

[68]            Mr. Rosenbloom responded and requested itemized documents and information, including copies of minutes of all meetings of Richmond council and committees regarding casino relocation and development from 2001 to date; a copy of all Richmond policies on gaming from 2001 to date; a copy of any agreement or draft agreement between Richmond and the Lottery Corporation regarding gaming at the Bridgepoint site; an explanation of how and when Richmond was advised that the Great Canadian Gaming Corporation was eligible to relocate and or expand its casino operations within Richmond; Richmond’s estimate of the projected revenues from all sources to be derived from gaming and related businesses at the proposed casino development.

[69]            Mr. Kendrick responded, reiterating his concerns that the consultation taking place was pursuant to the provisions of the Gaming Control Act, limited to matters clearly within the jurisdiction of the municipality such as traffic, policing costs, etc. 

[70]            On February 10, Mr. Kendrick provided certain of the requested documents and information, including the minutes of meetings of council and committees concerning casino relocation and development from 2001 to date; Richmond’s policy on casinos and gambling, along with information provided by the Lottery Corporation to a special council meeting on May 28, 2002; a copy of the host financial assistance agreement between the province and Richmond; information with respect to revenue currently received from the existing casino.

[71]            On February 16, 2004, the General Purposes Committee met with the Musqueam.  At that meeting the Musqueam expressed their concern with the manner in which the consultation had taken place, and with Richmond’s delay in contacting the Musqueam.  They expressed their view that Richmond had failed to consult and accommodate the Musqueam in good faith.  They said that the meeting with the committee should be taking place in camera.  The Musqueam submitted that:

The report [the report from the city solicitor to the committee] wrongly characterizes the nature and extent of the City’s obligation to consult the Musqueam in respect of the proposed Bridgepoint Casino and accommodate Musqueam concerns and interests.  The report wrongly suggests that the City is not obligated to take account of the infringement of Musqueam aboriginal title and rights, the prejudice to Musqueam treaty negotiations and the damage to Musqueam financial and community development interests that would result from the relocation and expansion of the casino at Bridgepoint.

The report wrongly suggests that the Musqueam would not be materially affected by the Bridgepoint casino within the meaning of the Gaming Control Act and Regulation.  There can be no doubt that the Musqueam would be materially affected by the proposed casino.  The consequences for the Musqueam would be severe and profoundly damaging on a number of levels, including the economic level.

The City has long been aware of the Musqueam initiative to own and operate their own gaming facility in the area.  . . . The City clearly considers that it would be materially affected by the establishment of a Musqueam gaming facility.  And yet, city staff, in their report to committee, suggest that the Musqueam will not be materially affected by the proposed Bridgepoint casino.  The double standard is obvious . . . the City appears to have done no more than grudgingly go through the motions of a superficial hearing of the Musqueam.  An invitation to respond to a deeply deficient city report in a public forum with restrictions on discussion is far wide of the mark of bona fide consultation.  There has been no accommodation of Musqueam concerns and interests.  The City has not discharged its legal obligations.”

[72]            On February 23, 2004 Richmond determined that it had fulfilled its duty to consult with the Musqueam and others under the Gaming Control Act and Regulations and approved the relocation and expansion of the casino.

[73]            On February 24, 2204, Richmond advised the Lottery Corporation that it had completed its consultation with municipalities and First Nations and approved the relocation and expansion of the casino.

[74]            On February 24, 2004 the Lottery Corporation advised the Musqueam of the approval and noted:

The Gaming Control Act provides for a procedure by which an immediately adjacent local government or First Nation may file an objection with BCLC setting out how the objector will be materially affected by a gaming facility at the proposed location … if BCLC receives an objection which fits within the context of the Act and is properly supported within the required time, then BCLC will require the City of Richmond and the objector to participate in non-binding dispute resolution process in the manner specified by BCLC.  A copy of BCLC’s objection and dispute resolution process for the location or relocation of gaming facilities is attached for your reference.

[75]            The enclosed materials provide in part:

The objection must set out how the objector will be materially affected by a gaming facility at the proposed location.  The term “materially affected” is given more precise meaning in s. 11(2) of the Regulation.  Specifically, the definition of “materially affected” describes certain grounds for objection which include that as a result of the proposed proceeding the objector:

Can demonstrate a likelihood that it will:

(a)        incur significant new infrastructure or policing costs;

(b)        experience increased traffic with a significant impact on its highway; or

(c)        experience a significant adverse impact on the amenities and character of one or more of its neighbourhoods.

If an objector raises any other grounds, the objector must demonstrate to BCLC satisfaction that those grounds are contemplated by the Act and the Regulation which includes that the proposed host government and objector have the ability to resolve the objection through a non-binding DR process involving only those parties.  In determining whether such an objection is contemplated by the Act, BCLC will be guided by the definition of “materially affected” in the Regulation.

[76]            Counsel for the Musqueam responded on March 5, 2004, saying that the Musqueam would be materially affected by the proposed relocation substantial change of the casino:

1.         Infringement of Musqueam aboriginal title and rights;

2.         Would prejudice Musqueam treaty negotiations in respect of the Bridgepoint lands;

3.         Would prejudice Musqueam treaty negotiations in respect of gaming:  the establishment of a massive new gaming facility at Bridgepoint would make Musqueam treaty negotiations on the subject of gaming all but academic;

4.         Would adversely affect Musqueam economic interests relating to gaming:  the capacity of the Musqueam to participate in and obtain economic benefit from the gaming industry would be severely limited by the establishment of a massive new gaming facility;

5.         Would aversely affect the Musqueam community development interest relating to gaming:  the suppression of Musqueam participation in the gaming industry would have a significant negative impact on the future employment and social development of the Musqueam community and its members, here referring to creation of jobs anticipated by the development and the availability of gaming revenues to fund services.

[77]            On March 26, 2004 the Lottery Corporation responded, saying:

BCLC has reviewed and considered the Musqueam objection and has determined that it does not represent an objection within the meaning of s. 21 of the Act.  BCLC has concluded that the Musqueam objection does not set out how the Musqueam will be “materially affected” by a gaming facility at the proposed location within the meaning of the Act.  The concerns raised by the Musqueam are not concerns that can be resolved through non-binding dispute resolution with the City of Richmond under the Act.  As BCLC does not regard the March 5 letter as an “objection” within the meaning of s. 21 of the Gaming Control Act, BCLC will not be referring the objection to non-binding dispute resolution under the Act.

D.        STATUTORY REQUIREMENTS

[78]            The Lottery Corporation must not relocate or substantially change gambling facilities unless the Lottery Corporation is satisfied that the municipality has consulted with each First Nation that is immediately adjacent or that the Lottery Corporation considers will be materially affected by the proposed gaming facility (s.19(1)(b)). 

[79]            A First Nation that is dissatisfied with its consultation with the municipality may file an objection with the Lottery Corporation setting out how the objector will be materially affected by the facility at the proposed location.  If the Lottery Corporation receives such an objection, it must require the municipality to participate in a form of non-binding dispute resolution with the First Nation (s. 21).

[80]            “Materially affected” is defined in s. 11(2) of Gaming Control Regulation as meaning:

… as a result of the proposal proceeding, the municipality, regional district, or first nation can demonstrate a likelihood that it will:

(a)        incur significant new infrastructure or policing costs;

(b)        experience increased traffic with a significant impact on its highways; or

(c)        experience a significant adverse impact on the amenities and character of one or more of its neighbourhoods.

[81]            Results of the alternate dispute resolution proceedings are reported to the Lottery Corporation and considered by the Lottery Corporation (s. 21(3)) and the Lottery Corporation has 30 days after receiving the report to decide whether or not to locate or relocate the gaming facility.

E.         THE DECISIONS IN ISSUE

[82]            As with the dispute relating to s. 19(2) in Petition L040742, the decisions in issue here are those of the Lottery Corporation: 

1.         That it was satisfied that the municipality had consulted with the Musqueam First Nation; and

2.         That the objection filed by the Musqueam First Nation is not that contemplated by s. 21(1). 

Although the petitioner argues that Richmond failed to consult with the Musqueam as contemplated by the Act, there is no positive duty placed on Richmond by the Act.  Rather, the Act requires that the Lottery Corporation is satisfied that Richmond has consulted.

F.         STANDARD OF REVIEW

[83]            The Lottery Corporation’s decision pursuant to s. 19(1), that it was satisfied that the municipality had consulted with the Musqueam, is akin to its decision pursuant to s. 19(2), that it was satisfied that Richmond had sought and considered community input.  As with that decision, I have concluded that the standard of review is patent unreasonableness, for the reasons set out above with respect to the decision pursuant to s. 19(2).

[84]            The Lottery Corporation’s decision that the objection filed by the Musqueam did not come within s. 21(1) is a question of statutory interpretation, for which the Lottery Corporation is no more expert than is the court.  The appropriate standard of review, as acknowledged by the parties, is correctness. 

G.        WAS THE LOTTERY CORPORATION PATENTLY UNREASONABLE IN DECIDING THAT IT WAS SATISFIED THAT RICHMOND HAD CONSULTED WITH THE MUSQUEAM?

[85]            I have concluded the Lottery Corporation’s decision was not clearly irrational or not in accordance with reason.  The Lottery Corporation had evidence logically capable of supporting its conclusion.  Staff from Richmond had, over the course of several months, met with representatives of the Musqueam, received the Musqueam’s concerns with respect to the development and provided information to the Musqueam.  While the Musqueam did not consider these meetings with staff to be consultation or appropriate consultation, the Lottery Corporation considered such meetings to be part of the consultation process.  This was a rational conclusion.  The Richmond staff report was provided to the Musqueam representatives before it was provided to Richmond city council.  The Musqueam were given ample opportunity to respond to the staff report and to raise additional concerns with Richmond city council.

[86]            The petitioners argue that consultation process with Richmond was a sham because Richmond had already made up its mind that it wanted to pursue the casino at the Bridgepoint site.  It is apparent from the evidence before me that Richmond was keen to pursue the casino development at the Bridgepoint site.  This does not mean that the consultation process was a sham.  The consultation process allowed the Musqueam to advise Richmond of their concerns.  The Musqueam might have raised concerns that Richmond would have chosen to address.  For example, an adjacent municipality or a First Nation may be concerned with traffic flow or adequacy of parking.  These are matters which Richmond could respond to and which Richmond may be inclined to respond to, given that the Lottery Corporation had yet to reach its final conclusion as to whether it would develop the casino in its proposed location.

[87]            There is some force to the petitioner’s argument that by the time their input was sought, many of the development decisions were already taken by Richmond in that the property had been rezoned and development permits issued.  This argument may have had more force, had the issues raised by the Musqueam been issues which would be addressed in the zoning application or development permit process.  So, for example, were the Musqueam concerned with traffic flow or adequacy of parking, these would be issues that could have been addressed in the zoning and development permit process. 

[88]            However, in this case, the issues raised by the Musqueam were not of this type.  Rather, the Musqueam’s concerns were of a larger nature:  if the Richmond casino were substantially expanded as contemplated, then it would be less likely that the Musqueam would be able to have a casino of their own or that any casino that the Musqueam did develop would be as financially successful; that development of a casino on the Bridgepoint site would infringe Musqueam aboriginal title and rights, and would prejudice Musqueam treaty negotiations with respect to the land and in respect of gaming.  These concerns are of a higher order and are properly addressed to either the Lottery Corporation with respect to its decision as to where it chose to place its casino, or with the provincial and federal governments with respect to treaty negotiations.  They are not matters over which Richmond had jurisdiction or which could be addressed by Richmond.  Essentially, the Musqueam were asserting that Richmond must become the Musqueam’s advocate with respect to Musqueam interest.  This cannot be the type of consultation contemplated by the Act.

[89]            The petitioners argue that Richmond failed to consult with them because Richmond refused to hold an in camera meeting with the Musqueam.  I accept the argument of Richmond that its meetings with the Musqueam were not such as to allow it to hold an in camera meeting:  section 90 of the Community Charter, S.B.C. 2003, c. 26.  Further, Musqueam’s wish for confidentiality could have been met in other ways.  Two of the Richmond staff members, Mr. Crowe and Mr. Kendrick, met and corresponded with various representatives of the Musqueam, including counsel for the Musqueam.  If there were information or materials which the Musqueam wished to be kept confidential, surely it could have been raised and addressed at this point.  A vehicle could have been considered to keep such materials confidential.

[90]            The Musqueam say that they were not consulted by Richmond in a timely way, that they were not consulted until August 14, 2003, after Richmond had taken many steps to facilitate the establishment of the casino including re-zoning, demolition and construction permits for the development of the casino. 

[91]            The statute does not provide any time frame within which the consultation must take place.  However, to be effective, there would be instances in which the consultation must take place before re-zoning, demolition, construction and development permits are issued.  For example, an adjacent municipality may be concerned that a casino development will have an impact on its community because the development proposed is adjacent to a school, or will impact a nearby road on which there is already too much traffic.  In those circumstances, the adjacent municipality may wish to have the casino developed elsewhere, or may wish accommodation in redevelopment of roads, overpasses, etc.  These sorts of accommodation would necessarily take place before the relevant re-zoning, construction and development permits were issued.  Presumably, it would be in the interests of the developer and of the municipality promoting the casino that legitimate concerns of adjacent municipalities and First Nations be elicited early enough in the process to accommodate these concerns, as, otherwise, they would risk a decision by the Lottery Corporation not to place the casino as originally proposed. 

[92]            However, in this instance, the concerns that the Musqueam advanced could not be accommodated by Richmond, so the timing of the meetings with Richmond is not of consequence, and does not make the Lottery Corporation conclusion that Richmond had consulted with the Musqueam patently unreasonable.

H.        LOTTERY CORPORATION REJECTION OF MUSQUEAM OBJECTION

[93]            The Lottery Corporation rejected the objection filed by the Musqueam as not coming within s. 21, not being matters that could be resolved with Richmond through non-binding dispute resolution.  In my view, this is a correct interpretation of this section.  The then applicable Regulation defined “materially affected”:

11(2)    For the purposes of the Act “materially affected”, in relation to a municipality, regional district or first nation, includes that, as a result of the proposal proceeding, the municipality, regional district or first nation can demonstrate a likelihood that it will

(a)        incur significant new infrastructure or policing costs,

(b)        experience increased traffic with a significant impact on its highways, or

(c)        experience a significant adverse impact on the amenities and character of one or more of its neighbourhoods.

[94]            The definition of “materially affected” is to be given its usual interpretation; ‘includes’ is expansive, not restrictive (as discussed above with respect to Petition L04072).  The definition is not limited to the three items listed in s. 11(2) of the Regulation, but includes those items.  However, to refer municipalities and First Nations to non-binding arbitration after consultation has failed to resolve issues between them, must contemplate matters that can be addressed by the municipality.  The subject of the objection and the non-binding resolution is clearly land use planning.  The issues which the Musqueam raised were not land use planning issues, and were not matters which could be addressed by Richmond.  Therefore, the objection was not an objection contemplated by the Act.

I.          BIAS/FETTERING

[95]            The Musqueam argue that the Lottery Corporation has an obligation to be objective and unbiased and not to fetter its discretion.  The Musqueam say that the Lottery Corporation improperly fettered its discretion by entering a settlement agreement with Great Canadian with respect to the Bridgepoint lands and was improperly biased in exercising its discretion in reaching its decisions on the various issues before it. 

[96]            I accept the argument of the Lottery Corporation that the reasonable apprehension of bias standard is not suited to Lottery Corporation decisions.

[97]            In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquid Control and Licensing Branch) [2001] 2 S.C.R. 781 at paras. 21 – 22 the court said:

Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with the principles of natural justice … in such circumstances, administrative tribunals may be bound by the requirement of an independent or impartial decision maker, one of the fundamental principles of a natural justice. … [I]ndeed, courts will not lightly assume that legislators intended to enact procedures that run contrary to this principle, although the precise standard of independence required will depend ‘on all the circumstances, and in particular on the language of the statute under which the agency acts, the nature of the task it performs and the type of decision it is required to make…’

However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication …

[98]            Here, the legislation contemplates the Lottery Corporation being the proponent of the casino relocation and expansion and contemplates the Lottery Corporation being driven by business considerations in reaching its conclusions.  The minister’s letter in this particular case provided:

This directive, issued pursuant to s. 18 of the Gaming Control Act, authorizes the British Columbia Lottery Corporation in its discretion to:

(a)        relocate gaming facilities for business reasons, in accordance with provincial policy, the Gaming Control Act, and the Gaming Control Regulation, as they may be amended from time to time; and

(b)        substantially change the type or extent of lottery schemes in gaming facilities in order to best meet market place demand, in accordance with provincial policy, the Gaming Control Act, and the Gaming Control Regulation, as they may be amended from time to time. 

[99]            Thus, the Lottery Corporation is the proponent of the development.  It cannot be independent or unbiased.  It must follow certain statutory procedures and consider certain issues as laid out by the statute, but it is not required to be independent or unbiased.  The Act contemplates the Lottery Corporation choosing a site for relocation of the casino and reaching a preliminary decision with respect to expansion of the casino before it notifies the relevant land use authority.  That being so, the Lottery Corporation would in all instances have reached a preliminary conclusion or decision with respect to the casino development.  It would never be unbiased.

[100]        The Musqueam argue that because the Lottery Corporation entered a settlement agreement with Great Canadian and concluded that the Bridgepoint site would be an appropriate site for the relocation and redevelopment of the casino, it must be taken to have improperly fettered its discretion.  However, it is clear that as early as December 16, 2002, immediately after the settlement was reached with Great Canadian, the Lottery Corporation indicated to both Richmond and Great Canadian that the relocation and expansion would be subject to “all necessary approvals by the City of Richmond.”  Great Canadian was advised in approximately December of 2002 that, before the Lottery Corporation could finalize a decision with respect to the relocation of a full service casino in Richmond, all of the statutory steps under the Gaming Control Act had to be completed.  Until the Lottery Corporation’s final decision was made on March 26, 2004, the development was undertaken at Great Canadian’s risk.  Richmond may not have approved of the development and the Lottery Corporation may not have made a final decision in favour of the Bridgepoint casino proposal. 

[101]        I cannot conclude that the Lottery Corporation improperly fettered its discretion.  As noted above, the Act, which contemplates the Lottery Corporation being both the proponent and the ultimate decision maker, determines that the Lottery Corporation must have concluded that the relocation and redevelopment was appropriate before the process is commenced.  However, that does not mean that the Lottery Corporation blinds itself to its statutory duty to be satisfied that Richmond has sought and considered adequate community input or has consulted with the adjacent First Nation.  The evidence before me to allow me to reach such a conclusion. 

J.         MINISTERIAL AUTHORIZATION

[102]         The petitioners argue that the Lottery Corporation did not have the authority of the gaming minister to relocate and substantially change this casino, and therefore, the decision must be set aside.

[103]        Section 18 provides that the Lottery Corporation may relocate or substantially change a gaming facility, subject to first receiving authorization from the Minister. The Lottery Corporation decided to relocate and substantially change this casino in February 2004.  By that time, it had received an s.18 authorization from the Minister, dated June 17, 2003 which directed the Lottery Corporation to use its discretion to relocate gaming facilities for business reasons, and to substantially change gaming facilities to best meet marketplace demand.

[104]        Section 18 does not require an individual authorization for each site.  The authorization of June 17, 2003 is sufficient for s.18.

K.        CONSTITUTIONAL/COMMON-LAW DUTY TO CONSULT

[105]        The Supreme Court of Canada has dealt with the issue of the duty to consult and accommodate in two recent decisions: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550.  The SCC confirmed the obligation of the Federal and Provincial Crown to consult and determined that a third party in the position of Great Canadian or Richmond did not have a duty to consult.  In Haida the court said at paras. 16-17:

The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown … It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems.  In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. …

The court continued at paras. 24 – 25:

The Court’s seminal decision in Delgamuukw, supra, at para. 168, in the context of a claim for title to land and resources, confirmed and expanded on the duty to consult, suggesting the content of the duty varied with the circumstances: from a minimum “duty to discuss important decision” where the “breach is less serious or relatively minor”; through the “significantly deeper than mere consultation” that is required in “most cases”; to “full consent of [the] aboriginal nation …” on very serious issues.  These words apply as much to unresolved claims as to intrusions on settled claims.

Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.  Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties.  Others, notably in British Columbia, have yet to do so.  The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982.  The honour of the Crown requires that these rights be determined, recognized and respected.  This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.  While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

            1.         When does the duty to consult arise?

[106]        In Haida, the Supreme Court noted that proving rights may take time, in some cases a very long time.  In the meantime, how are the interests under discussion to be treated?

The answer, once again, lies in the honour of the Crown.  The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.  It must respect these potential, but yet unproven, interests. … depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. …

(para. 27)

But, when precisely does a duty to consult arise?  The foundation of the duty in the Crown’s honour and the goal of reconciliation, suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.

(para. 35)

There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case.  Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate.  The content of the duty, however, varies with the circumstances, as discussed more fully below.  A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties.  The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims.  Parties can assess these matters, and if they cannot agree, tribunals and courts can assist.  Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.

            2.         The Scope and Content of the Duty to Consult and Accommodate

The content of the duty to consult and accommodate varies with the circumstances.  Precisely what duties arise in different situations will be defined as the case law in this emerging area develops.  In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

In Delgamuukw, supra, at para. 168, the Court considered the duty to consult and accommodate in the context of established claims.  Lamer C.J. wrote:

The nature and scope of the duty of consultation will vary with the circumstances.  In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title.  Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue.  In most cases, it will be significantly deeper than mere consultation …

Transposing this passage to pre-proof claims, one may venture the following.  While it is not useful to classify situations into watertight compartments, different situations requiring different responses can be identified.  In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. …

…However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. …

…At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor.  In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”…

At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high.  In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required.  While precise requirement will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision.  This list is neither exhaustive, nor mandatory for every case.  The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.

Between these two extremes of the spectrum just described, will lie other situations.  Every case must be approached individually.

(para. 37-45)

3.         Administrative Review

[107]        The Supreme Court of Canada suggests that the appropriate standard of review, should the government misconceive the seriousness of the claim or the impact of the infringement, a question of law, is correctness.  The process itself would likely fall to be examined on a standard of reasonableness.

L.         DISCUSSION

            1.         Existence of the Duty

[108]        Did the Province have knowledge, real or constructive, of the potential existence of an aboriginal right or title claim and contemplate conduct that might adversely affect the claim?

[109]        The Musqueam advance a title claim to the Bridgepoint lands.  They argue that they have established a prima facie case to such a claim, as their claim to these lands has been accepted for negotiation in the treaty process.  This point was not extensively argued before me.  The Musqueam have produced historical materials which suggest that the Musqueam have historically used these lands.  The Province consulted with the Musqueam with respect to other portions of the Bridgepoint lands and with respect to use of these lands after 2041.  While I understand that four other bands also claim title to these lands, in my view, the Musqueam have established a credible claim to these lands, which the Province recognizes.

[110]        Parenthetically, in their dealings with Richmond, Great Canadian Casino and Lottery Corporation, the Musqueam also asserted an aboriginal right to gaming.  This argument was not advanced before me and I need not address it.

            2.         Scope and Content of the Duty

[111]        The scope of the consultation will be proportionate to a preliminary assessment of the strength of the case supporting the existence of the title claim and to the seriousness of the potentially adverse effect on the title claimed.

[112]        As noted above, the Musqueam have advanced a claim to title and the Province has recognized a duty to consult with respect to the Bridgepoint lands.  Therefore, I accept that there is a prima facie case in support of the claim to Aboriginal title.

[113]        The Musqueam argue that, having advanced a prima facie claim to title, they are entitled to say how the lands are used.  The respondents say that even if the Musqueam have a prima facie claim, there was no duty to consult:  the lands in question were already leased for commercial purposes until the year 2041; placing a casino and hotel development on those lands had no impact and did not alter the use to which the lands had already been committed, Great Canadian Casino merely assumed the lease; the Province need not consult with the Musqueam when deciding to place its casino on the lands.

3.         Discussion

[114]        Because the Lottery Corporation is an agent of the Crown, the provincial crown had a duty to consult which was triggered when it contemplated moving and expanding its casino to lands which it knew were subject to the Musqueam claims.  Placing the casino on the Bridgepoint lands might affect Musqueam interests.

[115]        Although the lease and sub-lease were in place, by 2002 the market was defunct, the land unused for several years. The sub-lease was in arrears.  The Lottery Corporation gave life to the moribund lease when it contemplated moving the casino to the property. Without the casino, Great Canadian would not have taken over the property. In the words of Taku, the Crown actor had knowledge of the potential existence of Aboriginal title and contemplated conduct that might adversely affect the claim. The potential adverse effects include the redevelopment of the property which makes it unlikely that the property will be available to the Musqueam before 2041.   As the Musqueam argue, because the casino has been developed on the lands, it is less likely that the lands will be included in a Musqueam treaty settlement, the development itself may make the lands more valuable and more difficult for Musqueam to acquire, or may prevent the Musqueam from developing the lands for a different purpose.

[116]        Therefore, the Crown’s contemplated move of the casino to the Bridgepoint lands triggered a duty to consult.  To be effective, consultation should take place at the earliest stages, before irrevocable steps have been taken. That did not occur. What relief is appropriate in these circumstances?

[117]        In the petition, the Petitioners seek orders setting aside the Lottery Corporation’s decision to relocate the casino to the Bridgepoint lands and prohibiting the Lottery Corporation from taking further steps to relocate or substantially change the gaming facility until it has satisfied its duty to consult and accommodate. This would shut down the casino and impair the entire development.

[118]        This relief is not appropriate in the circumstances of this case.  As the petitioners acknowledge, practically speaking, at this late date, accommodation could only be economic accommodation. Because the harm suffered by the Musqueam from a failure to consult and potentially accommodate is compensable it is not appropriate to set aside the decisions, close the casino, and cause consequential damage.

[119]        I have concluded that the Crown had a duty to consult in this case, and will grant that declaration. It is possible that following consultation, accommodation may be appropriate. Because the Crown did not recognize a duty to consult, the parties have not attempted to determine appropriate consultation and accommodation.   In Haida, the court suggested that the parties can assess the strength of the claim and the appropriate scope and content of the duty to consult and accommodate. If they cannot agree, the courts can assist.  That seems to me appropriate in this case: the parties can assess the strength of the claim and determine the scope and content of the duty to consult and accommodate. If they are not able to agree, they may return to court for additional relief.

[120]        The parties may make submissions on costs if necessary.

“B.J. Brown J.
The Honourable Madam Justice B.J. Brown