In making these observations, I am cognizant of the caution by Mr. Justice Chiasson in Halalt First Nation v. British Columbia (Minister of the Environment), 2012 BCCA 472, (application for leave filed [2013] S.C.C.A. No 22) at para. 126: I question the extent to which such an analysis should be undertaken on a judicial review application. The parties remain engaged in ongoing negotiations concerning the claims. A detailed examination of claims by the court obliges parties to expose their legal analysis that may adversely affect their negotiating positions. Albeit described as a preliminary, prima facie determination, a detailed legal analysis of the positions of the parties is likely to influence them and could create difficulties if the claims subsequently are litigated.
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