Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-27] British Columbia. Supreme Court May 27, 1992

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 1044  Submissions by Ms. Buller  1 Vancouver, B.C.  2 May 27th, 1992  3  4 THE REGISTRAR:  Order in court.  In the Court of Appeal for  5 British Columbia, Wednesday, May the 27th, 1992  6 Delgamuukw versus Her Majesty the Queen at bar, my  7 lords.  8 THE COURT:  Yes, Ms. Buller.  9 MS. BULLER:  Thank you, my lord.  My name is Marion Buller and I  10 am one of the counsel appearing today on behalf of the  11 intevenor, the Union of B.C. Indian Chiefs.  Appearing  12 with me today are Mr. Steven Point and Ms. Renee  13 Taylor.  We will be splitting our argument into three  14 today.  Mr. Point will address the first issue or the  15 first error in judgment as set out in our factum,  16 being that the trial judge erred in deciding that  17 discovery, occupation or settlement of the lands of  18 this continent by European nations gave rise to a  19 right of sovereignty.  20 Ms. Taylor will then go on to address your  21 lordships with respect to the second error we are  22 addressing in our factum, being that the trial judge  23 erred in failing to properly define aboriginal title  24 and rights.  And then I shall address the third error.  25 We will be arguing that the trial judge erred in  26 finding that aboriginal title and rights could be  27 extinguished other than with the full and informed  28 consent of the aboriginal peoples through a process of  29 fair and open negotiations.  30 In the course of our submissions this morning we  31 will be referring to our factum, the trial judge's  32 decision, the appellants' original factum and  33 authorities in Volumes 1, 3, 4, 49 and 50.  Thank you,  34 my lords.  35 THE COURT:  Thank you.  Mr. Point.  36 MR. POINT:  Good morning.  My name is Steven Point, P-o-i-n-t,  37 without an E on the end.  It's my pleasure this  38 morning to speak on behalf and represent the Union of  39 B.C. Indian Chiefs who have intervened in this  40 important case, since its in their submission that a  41 grave injustice has been long outstanding between  42 themselves and the Province of British Columbia  43 regarding the Indian land question.  44 It is the belief of the chiefs that this case will  45 have serious repercussions on any further agreements  46 or on any other rights of litigation such as fishing  47 and hunting.  It is for this reason, my lord, they 1045  Submissions by Mr. Point  1 wish to be heard in this most important case.  It is  2 our submission that the trial judge erred in a  3 substantial way.  My friend has already read to you  4 the issue that I will be addressing, that is that the  5 trial judge erred in deciding that discovery,  6 occupation or settlement of the lands of this  7 continent by European nations gave rise to a right of  8 sovereignty.  Although the underlying title to the  9 land of British Columbia has been admitted by the  10 appellants, my lord --  11 LAMBERT J.A.:  Mr. Point, I wonder if I could stop you.  I'm not  12 sure that I quite understand the nature of the  13 argument that you're going to make.  I understand that  14 the appellants have conceded that there is sovereignty  15 and that it occurred about 1846, and I don't  16 understand that any of the respondents have denied  17 that or put that question in issue, so I wouldn't have  18 thought that it was open to an intervenor to raise a  19 question that isn't in issue between the parties, and  20 I'm wondering whether I have misunderstood the nature  21 of this issue.  22 MR. POINT:  No, my lords, you have not at all misunderstood the  23 nature of this issue and I'm going to state squarely  24 to you that that is in fact the sore spot between the  25 chiefs whom I speak on behalf of and the Province of  26 British Columbia.  In fact, the intervenors not being  27 parties to this particular action make no such  28 admission, of course need not make that submission,  29 but in fact specifically deny that the Province of  30 British Columbia has any underlying title.  31 And the way that we want to, and the reason that  32 we want to raise this issue, my lord, for two reasons,  33 not only has aboriginal rights proceeded and not being  34 extinguished but also our sovereign right to  35 self-government.  Despite the fact that this  36 particular issue was not a matter of contention  37 between the parties at trial His Honour Justice  38 McEachern did make a finding in relation to the  39 underlying title of the soil of province.  40 It's our contention that this finding is based on  41 bias and is unfounded in law.  And it affects his  42 finding that there is no sovereign jurisdiction of the  43 appellants, and that finding directly affects the  44 intervener's position in relation to its claim of  45 outstanding grievances with the Province of British  46 Columbia.  47 The trial judge made the following statement 1046  Submissions by Mr. Point  1 regarding this issue which we are discussing right now  2 and which we have placed in the factum for your  3 convenience, my lord.  4 TAGGART, J.A.:  Excuse me just a minute.  My brother Lambert has  5 made the point, and I think accurately, that the  6 parties have generally -- accepted may be too strong a  7 word, but in general have approached the problems and  8 issues that are raised in this case on the basis that  9 sovereignty was established in 1846 insofar as the  10 territory, as that term is defined in the reasons for  11 judgment is concerned.  Ordinarily, an intervenor  12 would not be allowed to take a position contrary to  13 that taken by the parties, however, given the interest  14 that you represent I think in the circumstances of  15 this case we should hear you on this point, but you  16 should know and realize that the court may find that  17 it is in the position where the parties have dictated  18 the basis upon which the court must approach this  19 issue of sovereignty.  20 MR. POINT:  That is understood, my lord.  21 TAGGART, J.A.:  We may not be free, even if we were inclined to  22 do so, to act on the submissions that you make.  23 MR. POINT:  It is our submission that the matter before this  24 court is of such important nature that it is  25 imperative for you as the final arbitors of this issue  26 to hear from the intervenors on this point.  Because I  27 believe it's a part of the long outstanding grievance  28 that is discussed throughout the judgment by His  29 Honour Judge McEachern about the true nature of  30 aboriginal title and what it really means and to what  31 extent the natives of British Columbia have time and  32 time again made that known to the governments both  33 federally and provincially.  The trial judge quoted  34 with approval from the 19th century work of Vattel --  35 and I'm referring to paragraph two of our factum my  36 lord -- whose principal work as published in 1844.  37 And I'm sure that this passage had been referred to,  38 my lord, in the past.  39  40 "There is another celebrated question to which  41 the discovery of the new world has principally  42 given rise.  It is asked whether a nation may  43 lawfully take possession of some part of a vast  44 country in which they are none but erratic  45 nations, whose scanty population is incapable  46 of occupying the whole?  We have already  47 observed, in establishing the obligation to 1047  Submissions by Mr. Point  1 cultivate the earth, that these nations cannot  2 exclusively appropriate to themselves more land  3 than they have occasion for, or more than they  4 are able to settle and cultivate.  Their  5 unsettled habitation in those immense regions  6 cannot be accounted a true and legal  7 possession, and the people of Europe, too  8 closely pent up at home, finding land of which  9 the savages stood in no particular need, and of  10 which they made no actual and constant use,  11 were lawfully entitled to take possession of  12 and to settle it with colonies.  13 The earth, as we have already observed,  14 belongs to mankind in general and was designed  15 to furnish them with subsistence.  If each  16 nation had from the beginning resolved to  17 appropriate to itself a vast country, that  18 people might live only by hunting, fishing and  19 wild fruits, our globe would not be sufficient  20 to maintain a tenth part of its present  21 inhabitants.  We do not therefore deviate from  22 the view of nature, in confining the Indians  23 within narrower limits."  24  25 The trial judge concluded as follows, my lord:  26  27 "I think it unnecessary to continue this debate.  28 In my view, it is part of the law of nations,  29 which has become part of the common law, that  30 discovery and occupation of the lands of this  31 continent by European nations or occupation and  32 settlement, gave rise to a right of  33 sovereignty.  Such sovereignty in North America  34 was established in part by Royal grant as with  35 Hudson's Bay Company in 1670."  36  37 He goes on to conclusion with that quote.  He  38 continues:  39  40 "Aboriginal persons and commentators often  41 mention the fact that the Indians of this  42 province were never conquered by force of arms,  43 nor have they entered into treaties with the  44 crown.  Unfair as it may seem to Indians or  45 others on philosophical grounds, these are not  46 relevant considerations.  The events of the  47 last 200 years are far more significant than 1048  Submissions by Mr. Point  1 any military conquest or treaties would have  2 been.  The reality of the crown ownership of  3 the soil of all of the lands of the province is  4 not open to question and actual dominion for  5 such a long period is far more pervasive than  6 the outcome of a battle or a war would ever be.  7 The law recognizes crown ownership of the  8 territory in a federal state now known as  9 Canada pursuant to its constitution and laws.  10  11 The real question is whether, with that  12 constitutional framework, the plaintiffs have  13 any aboriginal interests which the law  14 recognizes as a burden upon the title of the  15 crown."  16  17 My lords, the intervenors have focussed on this  18 passage of the judgment because in our submission it's  19 based on a bias and erroneous view of native and  20 aboriginal peoples of North America.  The intervenors  21 submit that the real question is not whether within  22 the constitutional framework the plaintiffs have any  23 aboriginal interests which the law recognizes as a  24 burden on the title to the crown, but rather the  25 legality of the crown's claim to territory owned by  26 aboriginal peoples for thousands of years before the  27 Europeans arrived to our home lands.  28 This intervenor rejects the trial judge's  29 contention that any of the events of the last 200  30 years could in any way justify the unlawful seizure of  31 Indian lands.  32 My lords, the appellants were in their villages  33 and living off their land when the Europeans arrived.  34 For this reason the intervenor submits that it is the  35 crown who must proof how she obtained title to land  36 held by the appellants and not the other way around.  37 On page 161 of the green book, my lords, or with  38 reference to the Western Weekly Reports it's on page  39 307, the trial judge makes reference to a petition  40 from the chiefs and principal men of Kitwanga:  41  42 "In 1884, the trial judge, states Mr. Tomlinson  43 delivered a petition from the chiefs and  44 principal men of Kitwanga alleging:  45  46 'From time immemorial the limits of the  47 district in which our hunting grounds have 1049  Submissions by Mr. Point  1 been well defined.  This district extends  2 from a rocky point called Andemane, some  3 two and-a-half or three miles above our  4 village on the Skeena River, to a creek  5 called She guin-khaat, which empties into  6 the Skeena about two miles below Lome  7 Creek.  8 We claim the ground on both sides of  9 the river, as well as the river within  10 these limits; and as all our hunting,  11 fruit gathering and fishing operations are  12 carried on in this district, we can truly  13 say we are occupying it."  14  15 His Honour then later on down the page refers to  16 some correspondence that was received which in our  17 submission identifies once again the issue that is  18 before this court.  Correspondence received by the  19 Department of Indian Affairs from the Indians at Port  20 Simpson.  One dated April 27th was from Port Simpson  21 Indians who noted that they had previously sent  22 letters to the dominion government about their land to  23 Superintendent Powell, but that they were now sending  24 a representative directly to Ottawa.  They wanted to  25 know, "If the government says we have no land and if  26 so, when and how the government got it?"  27 This is what the intervenors say is the question  28 that must be squarely addressed.  The appellants  29 should not have to demonstrate through use of the  30 trees or fishing sites or anything, except to  31 delineate their respective boundaries.  It's the crown  32 that must show how she has a better claim to the  33 appellants' land, since when the crown arrived the  34 appellants were there organized in the villages and  35 living off the land.  36 That is why they would not initially participate  37 in the reserve establishment process.  The Indian land  38 question in B.C. has never been strictly about reserve  39 size, that is as B.C. Government myth, which even the  40 Federal Government opposed until they dropped their  41 attempts in 1920 to get B.C. to extinguish Indian  42 title to all of B.C.  The Indian land question was  43 always about how and why the government of B.C., the  44 crown, can purport to give to the Indians land which  45 is already theirs.  46 The intervenors say a great injustice had been  47 done against them as well as the appellants, since the 1050  Submissions by Mr. Point  1 original title to their lands has not being recognized  2 nor extinguished by formal treaty or conquest.  3 Lord Dufferin spoke of this injustice in 1874 in  4 two letters to the colonial secretary, and the trial  5 judge makes reference to this at page 289 of the  6 Western Weekly Reports and alternatively page 146 of  7 the green book.  The trial judge made reference to  8 this at the top of the page in the green book.  9  10 "Lord Dufferin also sent two private letters to  11 the colonial secretary dated November the 26th  12 and December the 21, 1874, in which he  13 expressed some very strong opinions on the  14 conduct of the province.  In the first one he  15 said he would be sending:  16  17 ' ... a very important despatch covering an  18 order in council relative to the  19 unsatisfactory position of the Indian  20 question in British Columbia.  That  21 province appears to be treating its Indian  22 subjects with great harshness.  23 It does not recognize any obligation to  24 extinguish the Indian title before dealing  25 with the crown lands.'  26  27 In the second letter Lord Dufferin wrote:  28  29 'I don't think I have written to you  30 privately on the subject of the long  31 British Columbia Indian dispatch I had  32 send to you.  I don't think there is  33 anything to add to the case set forth of  34 the official papers.  The B.C.s have  35 evidently been acting very badly and they  36 certainly should be required to extinguish  37 Indian title before assuming possession of  38 the lands, which is the universal  39 principle observed in every province of  40 the dominion, but the truth is British  41 Columbia is hardly a large enough  42 community to have as yet developed a  43 conscience.'"  44  45 Lord Dufferin also discussed this injustice, my  46 lords, the land question, in an address he made in  47 British Columbia also referred to by the trial judge 1051  Submissions by Mr. Point  1 at page 151 of the green book.  This is Lord Dufferin  2 speaking in this address which was evidently sent to  3 the natives:  4  5 "From my first arrival in Canada I have been  6 very much preoccupied with the condition of the  7 Indian population in this province.  You must  8 remember that the Indian population are not  9 represented in parliament and consequently that  10 the governor-general is bound to watch over  11 their welfare with special solitude.  Now we  12 must all admit that the condition of the Indian  13 question in British Columbia is not  14 satifsactory.  Most unfortunately, as I think  15 there has been an initial error ever since Sir  16 James Douglas quitted office in the Government  17 of British Columbia, neglecting to recognize  18 what is known as the aboriginal title.  In  19 Canada this has always been done, no government  20 whether provincial or central, has failed to  21 acknowledge that the original title to the land  22 existed in the Indian tribes and communities  23 that hunted or wandered over them.  Before we  24 touch an acre we make a treaty with the chiefs  25 representing the lands we are dealing with, and  26 having agreed upon and paid the stipulated  27 price, often times arrived at after a great  28 deal of haggling and difficulty, we entered  29 into possession, but not until then do we  30 consider that we are entitled to deal with an  31 acre.  32 The result has been that in Canada our  33 Indians are contented, well affected to the  34 white man and amenable to the laws and  35 government."  36  37 My lords, I would also like to refer you to  38 paragraph 28 of our factum which refers to a  39 declaration of the Lillooet people in 1910.  This is  40 our position on the aboriginal right.  41 HUTCHEON, J.A. :  Paragraph 28?  42 MR. POINT:  Paragraph 23 on page 9 of the factum.  43  44 "We claim that we are the rightful owners of our  45 tribal territory and everything pertaining  46 thereto.  We have always lived in our country;  47 at no time have we ever deserted it or left it 1052  Submissions by Mr. Point  1 to others.  We have retained it from the  2 invasion of our tribes at the cost of our  3 blood.  Our ancestors were in possession of our  4 country centuries before the whites came.  It  5 is the same as yesterday when the latter came,  6 and the like the day before when the first fur  7 trader came.  8 We are aware that the B.C. Government  9 claims our country, like all other Indian  10 territories in B.C., but we deny their right to  11 it.  We never gave it nor sold it to them.  12 They certainly never got the title to the  13 country from us, neither by agreement nor  14 conquests, and none other than us could have  15 any right to give them title.  In early days we  16 consider white chiefs like a superior race that  17 never lied nor stole, and always acted wisely  18 and honourably.  We expected they would lay  19 claim to what belonged to themselves only.  In  20 these considerations we have been mistaken and  21 gradually have learned how cunning, cruel,  22 untruthful and thieving some of them can be.  23 We have felt keenly the stealing of our lands  24 by B.C. government, but we could never learn  25 how to get redress.  We felt helpless and  26 dejected, but lately we begin to hope.  We  27 think that perhaps after all we may great  28 redress from the greater white chiefs away in  29 the King's country in Ottawa.  It seemed to us  30 all white chiefs and government were against  31 us, but now we commence to think we may yet get  32 a measure of justice."  33  34 That was a declaration signed by the chief of the  35 Lillooet area in 1910.  A measure of justice.  36 This intervenor submits that not only is the  37 Indian land question a major issue for determination  38 in this appeal, but more importantly the crown's  39 title, and finally from our point of view, from the  40 way we have been perceiving the developments in this  41 our land, the Canadian justice system.  The  42 intervenors are concerned and hope that this court not  43 follow the path set by down the Provincial Government  44 regarding past relations.  Lord Dufferin says that the  45 B.C.s have acted badly.  46  47 "B.C. in colonial times had entered into 1053  Submissions by Mr. Point  1 treaties with Vancouver Island tribes, which  2 reserved to the tribes their village sites from  3 vast tracts of land ascribed in those treaties,  4 only to be later denied through Trutch that  5 they had never, ever compensated or recognized  6 these kind of claims."  7  8 That was a reference on page 281 of the judgment.  9 Our chiefs made their concerns known in 1910 to  10 Sir Wilfred Laurier from which I will quote their own  11 words which I would like this court to hear.  We have  12 provided a copy of the memorial, my lords, at the back  13 of the factum in the appendix section, Tab A, the  14 first page is a declaration of Lillooet tribe, the  15 second is a declaration of Tahltan tribe and the third  16 is the document to which I'm referring.  17 I'd like to begin to quote from the second page on  18 the left column where it begins:  19  2 0 "When they first came among us there were only  21 Indians here.  They found the people of each  22 tribe supreme in their own territory and having  23 tribal boundaries known and recognized by all.  24 The country of each tribe was just the same as  25 a large farm or ranch belonging to all of the  26 people of the tribe from which they gathered  27 their food and clothing, fish which they got in  28 plenty for food, grass and vegetation in which  29 their horses grazed and game lived and came  30 much of the fresh materials for their  31 manufacture, stone which furnished pipes,  32 utensils and tools; trees which furnished  33 plywood materials for houses, and utensils,  34 plants, roots, seeds, nuts, berries which were  35 gathered in their season, just the same as the  36 crops on a ranch, and used for food, minerals,  37 shells, et cetera, which were used for  38 ornamental, plants, et cetera.  Water which was  39 free to all, thus fire, water, food, clothing  40 and all the necessities of life, were obtained  41 in abundance from the land of each tribe, and  42 all the people had equal rights of access to  43 everything they required.  You will see the  44 ranch of each tribe was the same as its life  45 and without it the people could not have lived.  46  47 Just 52 years ago the other whites came to 1054  Submissions by Mr. Point  1 this country.  They found us just the same as  2 the first or real whites have found us, only we  3 had larger bands of horses and some cattle, and  4 to many places we cultivated the land.  They  5 found us happy, healthy strong and numerous.  6 Each tribe was still living in its own house or  7 in other words on its own ranch.  No one  8 interfered with the other rights or possession  9 of our houses and ranches, our homes and lives.  10 We were friendly and helped these whites also,  11 for had we not learned the first whites had  12 done us no harm?  Only when some of them killed  13 us we revenged on them.  Then we thought there  14 was some bad ones among them, but surely on the  15 whole they must be good.  Besides they are the  16 Queen's people, and we had already heard great  17 things about the Queen from the real whites.  18 We expected her subjects would do us no harm,  19 but rather improve us by giving us knowledge."  20  21 I should explain, my lords, the "real whites," the  22 reference here is explained to be the early French fur  23 traders.  The ones that -- the new whites are the  24 second group of whites, that is a reference to the  25 settlers that came later.  26  27 "We expected her subjects would do us no harm  28 but rather inprove us by giving us knowledge  29 and enabling us to do something with the  30 wonderful things they could do.  At first they  31 looked only for gold.  We knew the latter was  32 our property, but as we did not use it much,  33 did not need to it to live by, we did not  34 object to their searching for it.  They told  35 us, your country is rich and you will be made  36 wealthy by our coming.  We wish just to pass  37 over your lands in quest of gold.  38 Soon they saw the country was good and some  39 of them made up their mind to settle it.  They  40 commenced to take up pieces of land here and  41 there.  They told us they wanted only the use  42 of these pieces of land for a few years and  43 then they would hand them back to us in an  44 improved condition.  Meanwhile they would give  45 us some of the products they raised from the  46 loan of our land.  Thus they commenced to enter  47 our houses or live on our ranches with us. 1055  Submissions by Mr. Point  1 When a person enters our house he becomes  2 our guest and we must treat him hospitably, as  3 long as he shows no hostile intentions.  At the  4 same time we expect him to return to us equal  5 treatment for what he receives.  Some of our  6 chiefs said, these people wish to be partners  7 with us in our country.  We must therefore be  8 the same as brothers to them and live as one  9 family.  We will share equally in everything,  10 half and half, in land, water, timber, et  11 cetera.  What is ours will be theirs and what  12 is theirs will be ours.  We will help each  13 other to be great and good.  14 The white mades a government in Victoria --  15 it goes on -- perhaps the Queen made it.  We  16 have heard it stated both ways.  Their chiefs  17 dwelt there.  At this time they did not deny  18 the Indian tribes owned the whole country and  19 everything in it.  They told us we did.  We  20 Indians were hopeful.  We trusted the whites  21 and waited patiently for the chief to declare  22 their intention towards us and our lands.  We  23 knew that what had been done in the neighboring  24 states, and we remembered what we had learned  25 about the Queen being so good to the Indians  26 and that her laws carried out by her chiefs  27 were always just and better than the American  2 8 laws.  29 Presently the chiefs -- that is the  30 government officials, et cetera -- commenced to  31 visit us and had talks with some of our chiefs.  32 They told us to have no fear, the Queen's laws  33 will prevail in this country and everything  34 will be well for the Indians here.  They said a  35 very large reservation would be staked out for  36 us southern interior tribes, and the tribal  37 land outside of this reservation the government  38 would buy from us for white settlement.  They  39 let us think this would be done soon.  And  40 meanwhile, until this reserve was set apart and  41 our land set apart, they assured us we would  42 have perfect freedom of travel and camping and  43 the same liberty from time immemorial to hunt,  44 fish, graze, gather our food supplies wherever  45 we desired.  Also the trails, land, water,  46 timber, et cetera, would be as free to access  4 7 as formerly. 1056  Submissions by Mr. Point  1 Our chiefs were agreeable to these  2 propositions, so we waited for treaties to be  3 made and everything settled.  We had never  4 known white chiefs to break their word so we  5 trusted.  In the meanwhile white settlement  6 progressed.  Our chiefs held us in check.  They  7 said, do nothing against the whites.  Something  8 we did not understand retards them from keeping  9 their promise.  They will do the square thing  10 by us in the end."  11  12 That's still our prayer.  The intervenors pray for  13 respect of their claims and the claims of the  14 appellants.  Their relationship with the Provincial  15 Government to date has given them great cause to fear  16 further denial of their rights.  17 This brings me to paragraph four of our factum.  18 The issues raised in this case are fundamental to the  19 political relationship between the First Nations and  20 government, and it is therefore imperative for any  21 legal decision to be totally objective and without  22 bias.  23 My lords, it is not this intervener's contention  24 that this panel of judges or that even His Honour  25 Judge McEachern was in any way in fact personally  26 biased against the native community.  We submit,  27 however, that it is not the appellants who have a  28 romantic view of their past, but rather the trial  29 judge who has a totally unreal and distorted view of  30 what really happened on the ground between the Indians  31 and the B.C. Government since colonial times.  32 This intervenor submits that the trial judge fell  33 into error because he followed without questioning its  34 validity the proposition that Indians, and more  35 specifically the appellants, are somehow less  36 civilized than the white settlers who eventually took  37 over their lands.  It's this underlying assumption  38 that we say is racist and unfounded.  This assumption  39 led the trial judge to make several findings against  40 the appellants that he would not otherwise have made  41 had he been properly enlightened regarding the  42 culturally subjective term "civilized."  43 One of these findings was that aboriginal title  44 did not apply to the entire territory, but rather only  45 to the village sites and adjacent lands which the  46 appellants were using.  The trial judge arrived at  47 this conclusion on page 236 of the Western Weekly 1057  Submissions by Mr. Point  1 Reports, and I go to page 102 of the green book.  2 My lords, at this page, page 102, the trial judge  3 was making reference to a document which he says was  4 properly intended for use of the colonial secretary  5 Lord Gray who had the responsibility of defending the  6 grant in the debate that took place in parliament in  7 1848.  In 1846 in connection with New Zealand he  8 expressed the following views.  This was in regard to  9 aboriginal title.  And I want to just read to you the  10 varying and opposing views that appear in this  11 passage.  And I'm going to start at the second  12 paragraph at the quote that's taken.  13  14 "The opinion assumed rather than advocated by a  15 large class of writers on this and kindred  16 subjects is that the aboriginal inhabitants of  17 any country are the proprietors of every part  18 of its soil which they have been accustomed to  19 make any use of or to which they have been  20 accustomed to assert any title.  This claim is  21 recommended as sacred, however ignorant such  22 natives may be of the arts or of the habits of  23 civilized life.  However small the number of  24 their tribes, however unsettled their abodes,  25 and however imperfect or occasional the uses  26 they make of the land.  Whether they are  27 nomadic tribes depasturing cattle or hunters  28 living by the chase or fishermen frequenting  29 the seacoasts or the banks of rivers, the  30 proprietary title in question is alike ascribed  31 to them all.  32 From this doctrine, whether it is  33 maintained on the grounds of religion or of  34 morality or of expedience, I entirely dissent.  35 What I hold to be the true principles with  36 regard to property in land is that which I find  37 laid down in the following passage from Doctor  38 Arnold...  39  40 'Men were to subdue the earth, that is, to  41 make it by their labour what it would not  42 have been by itself, and with the labour  43 so bestowed upon it came the right of  44 property in it.  Thus every land which is  45 inhabited at all belongs to somebody.  46 That is, there is either some one person  47 or family or tribe or nation who have a 1058  Submissions by Mr. Point  1 greater right to it than anyone else.  It  2 does not and cannot belong to everybody.  3 But so much does the right of property go  4 along with labour, that civilized nations  5 have never scrupled to take possession of  6 countries inhabited only by tribes of  7 savages.  Countries which have been hunted  8 over but never subdued or cultivated.  It  9 is true they have often gone further and  10 settled themselves in countries which were  11 cultivated, and then it becomes a robbery,  12 but when our fathers went to America and  13 took possession of the mere hunting  14 grounds of the Indians, of lands on which  15 men had hitherto bestowed no labour, they  16 only exercised a right which God has  17 inseparably united with industry and  18 knowledge."  19  20 The trial judge goes on to conclude:  21  22 "It is argued by the province that the grant of  23 Vancouver Island to the company for the purpose  24 of settlement and without any mention of  25 Indians is inconsistent with the existence of  26 any aboriginal interests.  Authorities such as  27 Guerin make it impossible for me to accept that  28 submission, but the foregoing passage seems to  29 limit such interest to cultivated areas."  30  31 There is a distinction here, my lord, that  32 suggests that a property right somehow follows from  33 the labour or cultivation of the land, that this unity  34 of land and industry or labour was a God-given right,  35 that people (savages) who only hunt and fish or pick  36 the fruits of land without cultivating it have no  37 property interest because they don't labour on the  38 land or farm it.  39 It's our submission that this is an exclusionary  40 rule to keep Indians, aboriginal people, who have  41 hunted and fished over their territory, out of the  42 realm of the British property law, and further to  43 justify the taking of lands claimed by those people.  44 This rule is biased since it appears to be of no  45 assistance to white people who subdue land and still  46 are required permission from the crown in order to  47 settle that land. 1059  Submissions by Mr. Point  1 The intervenors Union of Chiefs submits that what  2 the appellants are asserting is a collective right and  3 not an individual right that may be found in the law  4 of property.  It submits that the views adopted by the  5 trial judge are biased because they permit -- they  6 promote the idea that farming or farmers of the land  7 give them property interest to the land, while hunting  8 and fishing and harvesting of the wild fruits give no  9 property rights recognized in English law.  Therefore  10 it's lawful for farmers and settlers to take the land  11 claimed by the first occupants who did not farm the  12 land.  13 The trial judge leaves no speculation as to his  14 regard for native and their pre-contact lifestyle.  15 And we have simply provided in paragraph 7, 8 and 9  16 submissions that were already made in the appellants'  17 factum at their paragraphs 162, 63 and 64.  18 According to the trial judge the appellants'  19 ancestors before contact were a primitive people  20 living in a primitive condition, eking out an  21 aboriginal life which was at best nasty, brutish and  22 short, lived in a legal jurisdictional vacuum acting  23 on survival instincts, were hardly amenable to  24 obedience to anything but the most rudimentary forms  25 of custom and were not bound to specific lands and had  26 no reason before European fur trade to have any  27 boundaries, but rather roamed for sustenance purposes  28 in the vicinity of their villages.  29 In short, despite minimal levels of social  30 organization their primitive condition was not  31 impressive, and the badges of civilization, as we of  32 European culture understand that term, were indeed  33 absent.  34 The suggestion, never fully articulated, was that  35 such primitive, uncivilized people never had and could  36 not now retain property rights in land and  37 jurisdiction over their lands, their resources and  38 themselves.  39 This intervenor submits, my lords, that the  40 respondents have no right to displace the appellants  41 off of their land to which they are connected simply  42 because the appellants were not farming it.  It is  43 ethnocentric to believe that settlers or farmers can  44 take over land without inquiring into the land status  45 or respecting the First Nations' title to that land.  46 It is almost as if the trial judge had said that the  47 appellants were not advanced enough or uncivilized, 1060  Submissions by Mr. Point  1 that is why the settlement of their territories took  2 place, not because their territory wasn't sufficiently  3 claimed or defined, but because they were not farming  4 the land.  5 The trial judge used terms -- used the term  6 "badges of civilization."  What are these badges of  7 civilization to which he referred, these written words  8 and phrases?  The word "civilized" is not a legal word  9 given to precise definition, rather it's culturally  10 subjective.  11 The appellants seem not to have been given an  12 opportunity to provide evidence as to what their view  13 of the dominant society is.  Did they regard the early  14 settlers, the early fur traders as advanced,  15 civilized, clean, honest, trustworthy?  16 I'd like to refer the court to a quote, page 107,  17 which deserves your attention.  And in this particular  18 section of the judgment --  19 WALLACE, J.A.:  This is the green book?  20 MR. POINT:  The green book, my lord, yes, page 107.  At the  21 bottom of the page he is discussing the early colonial  22 times.  Governor Douglas at the time was dealing with  23 adventurers who were coming into the colony and he  24 describes them in these words:  25  26 "... Settlers so wild, so miscellaneous, perhaps  27 so transitory and in the form of society so  28 crude, a motley inundation of immigrant  29 diggers, of whose antecedents we are wholly  30 ignorant and of whom perhaps few, if any, have  31 any intention to become resident colonists and  32 British subjects.  It was most important there  33 should be a strong executive to control the  34 Indians and prevent the white settlers from  35 molesting them."  36  37 The cross-reference just for the record, my lord,  38 is page 243 of the Western Weekly Reports.  39 Underpinning all of our laws, both aboriginal and  4 0 English law, are what we submit to be fundamental  41 moral principals.  For example, theft in English law  42 is founded in the principle of thou shalt not steal or  43 that stealing one's property is morally incorrect.  44 Underlying the proposition that labour gives property  45 rights to the labourer is that any nation of people  46 can appropriate to itself property of another simply  47 because the former regards the latter as less 1061  Submissions by Mr. Point  1 civilized.  2 It is our submission, my lords, in paragraph 11 of  3 our factum this intervenor rejects the notion that any  4 nation of people can appropriate the homeland of  5 another nation of people simply because the former  6 regards the latter as less civilized.  7 This intervenor submits that the underlying bias  8 dripping from this decision manifests itself in other  9 portions of this judgment.  The trial judge quotes  10 from Vattel at page 79, which I've already read to my  11 lords, which have been reproduced in the second  12 paragraph of our factum.  And I just want to repeat  13 the second sentence in the top quote:  14  15 "We have already observed in establishing the  16 obligation to cultivate the earth that these  17 nations cannot exclusively appropriate to  18 themselves more land than they occasion for or  19 more land than they are able to settle and  20 cultivate.  Their unsettled habitation in those  21 immense regions cannot be accounted true and  22 legal possession."  23  24 It would appear that this principle applies to  25 tribes who are unsettled.  26 Later in the trial judgment at page 283, which is  27 page 141 of the green book, with regard to an order in  28 council dated May 19, 1874, which set out the special  29 funds for B.C. Indians because the government of B.C.  30 does not contemplate giving the Indians of B.C. any  31 compensation for their lands.  His Honour Judge  32 McEachern made these comments, and it appears at the  33 bottom of page 141 of the green book:  34  35 "The governor-general Lord Dufferin, while  36 approving this order in council appended a  37 note:  38  39 'Why is it a different system pursued in  40 British Columbia with regard to  41 compensation to Indians from that in the  42 Northwest Territories?'"  43  44 There were of course many reasons why.  There could be  45 a different policies on the prairies as compared with  46 British Columbia.  These are the trial judges's words:  47 1062  Submissions by Mr. Point  1 "The prairie Indians were nomadic hunters.  The  2 British Columbia hunters lived in villages near  3 great rivers and subsisted mainly on the steady  4 supply of salmon which they harvested each  5 year.  There is no evidence the Indians of the  6 territory were nomadic, indeed there is much  7 evidence they were not."  8  9 So what this means in our submission, on the one  10 hand because Indians were living in unsettled villages  11 and unsettled lives we have no legal possession to the  12 land; but on the other hand because the Indians, and  13 more particular the appellants, were living in  14 villages and were not nomadic, it was all right for  15 B.C. to have a totally homemade recipe for dealing  16 with Indians and their land claims, which was to  17 ignore those claims.  18 This intervenor submits that this court ought to  19 conclude that the evidence as found by the trial judge  20 at the very least does not support his contention that  21 discovery and occupation of the lands of this  22 continent by European nations or occupation of  23 settlement gave rise to a right of sovereignty because  24 it's founded on an inherently biased proposition.  And  25 also that, in any event, without adopting it, the rule  26 could not apply to the appellants because the trial  27 judge found that they were living in settled villages  28 and not nomadic, which justified a different policy  29 for Indians in British Columbia.  30 This intervenor further submits the appellants  31 should not have to demonstrate to anyone their level  32 of advancement or so-called civilization, but rather  33 this court -- we urge to court to give due regard and  34 respect for their just claims or at the very least  35 adopt the view of the judge -- adopt the view  36 expressed by His Honour at page 102 which I have  37 already read to the panel.  And it's worth repeating.  38 The paragraph to which I'm referring on page 102  39 begins:  40  41 "The opinion assumed rather than advocated by a  42 large class of writers on this continued  43 subject is that the aboriginal inhabitants of  44 any country are the proprietors of every part  45 of its soil which they have been accustomed to  46 make any use of or which they have been  47 accustomed to assert any title. 1063  Submissions by Ms. Taylor  1  2 MR. POINT:  Those are my submissions.  3 TAGGART, J.A.:  Thank you.  Ms. Taylor?  4 MS. TAYLOR:  Yes, my lord.  My lords, I shall restrict my  5 submissions to the intervener's factum set out from  6 pae 7 through 9.  7 It is the contention of this intervenor that the  8 trial judge erred in failing to properly define proper  9 aboriginal title and rights.  At paragraph 19, page 7,  10 the intervenor states the trial judge defined  11 aboriginal title in various ways throughout the  12 judgment.  The trial judge sets out the following  13 conclusions of law:  14  15 "I can only conclude on the existing authorities  16 that St. Catherine's Milling is powerful  17 authority binding on me, that aboriginal rights  18 arising by operation of law are non-proprietary  19 rights of occupation for residence and  20 aboriginal user which are extinguishable at the  21 pleasure of the Sovereign."  22  23 This is set out at the reasons at page 346 of the  24 green book, my lords.  25 Following his finding that aboriginal title is not  26 a proprietary interest, the trial judge defined  27 aboriginal rights -- turning to page 8 -- as  28 sustenance practices and the gathering of all those  29 products of the land and waters of the territory I  30 shall define which they practiced and used before  31 exposure to European civilization or sovereignty for  32 subsistence or survival, including wood, food and  33 clothing, and for their cultural and ornamentation,  34 in short, what their ancestors obtained from the land  35 and waters for their aboriginal life.  36 This is set out at the reasons at page 391 of the  37 green book.  38 The trial judge held that aboriginal rights do not  39 include a commercial component:  40  41 "In my view the purpose of aboriginal rights was  42 to sustain existence in an aboriginal society,  43 that is, top hunt and fish and collect the  44 projects of the land and waters for the  45 survival of the communal group.  There would  46 undoubtedly be some bartering, but that would  47 be in sustenance products likewise obtained by 1064  Submissions by Ms. Taylor  1 aboriginal practices.  2 These rights do not include commercial  3 activities, even those related to land or water  4 resource gathering, except in compliance with  5 the general law of the province."  6  7 This is set out at the reasons at page 392 and 393.  8 The intervenor submits that any definition of  9 aboriginal rights necessarily begins with how Indian  10 people understand those -- what Indian people  11 understand those rights to be.  And indeed, it is  12 crucial to note for this forum at the outset that the  13 respondent provinces reply factum, paragraph 46,  14 acknowledges that aboriginal lands are not limited to  15 pre-colonial uses.  16 The notion as set out in this judgment --  17 HUTCHEON, J.A.:  I'm sorry, you've told us it was the green  18 book.  19 MS. TAYLOR:  My friend has just informed me, my lord, that the  20 amendments are the new WWR.  Thank you, my lord.  21 HUTCHEON, J.A.:  I couldn't find the —  22 TAGGART, J.A.:  So we are in the WWR?  2 3 MS. TAYLOR:  Yes, my lord.  24 TAGGART, J.A.:  All right.  25 MS. TAYLOR:  Would you like me to repeat the citation?  26 HUTCHEON, J.A.:  No, I've the got the citation, but I was just  27 looking for context.  28 MS. TAYLOR:  At the outset it's crucial for this forum to note  29 that the respondent province's reply factum, paragraph  30 46, acknowledges that aboriginal lands are not limited  31 to their pre-colonial uses.  Indeed, the intervenor  32 takes great exception to any notion that aboriginal  33 rights are frozen in time.  The notion that aboriginal  34 rights are only those rights which existed at the time  35 of conflict -- contact rather, and indeed conflict,  36 has been rejected in Sparrow.  Yet this revision in  37 the province's revised factum that aboriginal rights  38 are not frozen in time does not fully address the  39 intervener's concerns.  40 The intervenor submits that it is not simply uses  41 which are at issue, but indeed rights which are at  42 issue.  This intervenor submits that aboriginal rights  43 exist independent of how those rights are exercised.  44 To suggest that we can simply evolve aboriginal  45 practices from some prior use and find a modern use  46 for the same practice has the effect of freezing  47 aboriginal society in time.  Aboriginal societies on 1065  Submissions by Ms. Taylor  1 this coast, which have evolved into many different  2 forms and reflect various cultural values of the  3 various people that live in this province, the various  4 aboriginal nations, have continued and continue to  5 this date to evolve.  6 Continuing to paragraph 21 of intervener's factum,  7 we propose that this court should adopt the reasoning  8 set out in Sparrow and that the Supreme Court of  9 Canada has recognized that aboriginal rights are sui  10 generis, to be defined with reference to how First  11 Nations themselves define and understand them.  12 Chief Justice Dickson in Sparrow defined  13 aboriginal rights in the following manner:  14  15 "Fishing rights are not traditional property  16 rights.  They are rights held by a collective  17 and are in keeping with the cultural and  18 existence of that group.  Court must be careful  19 then to avoid the application of traditional  20 common law concepts of property as they develop  21 their understanding of what the reasons for  22 judgment in Guerin at page 339, referred to as  23 the sui generis nature of the aboriginal  24 rights."  25  26 It goes on to cite, "see Little Bear, a concept of  27 native title," as well, which is referenced.  28 At paragraph 22 the intervenor submits that  29 declarations have been made since at least 1910 which  30 have stated what First Nations throughout British  31 Columbia have regarded as our rights.  32 Now, my friend Mr. Point has read the declaration  33 which follows on page 9 of intervener's factum.  What  34 is important -- the paragraph is -- the declaration is  35 set out at paragraph 23 at page 9.  What is important  36 is to look at the content of the statement.  The  37 statement begins by saying that aboriginal people are  38 the rightful owners of tribal territories and  39 everything pertaining thereto.  40 The second significant point is that British  41 Columbia's assertion of sovereignty or claim to the  42 territory is specifically denied in this declaration  43 and others which we have appended at the end of our  44 factum.  Only as samples of many, many declarations  45 that were made at the turn of the century.  46 Thirdly, the chiefs at the turn of the century  47 were very clear that there must be the expressed and 1066  Submissions by Ms. Taylor  1 specific consent of any nation before title,  2 aboriginal title as we now call it, can be alienated.  3 The position taken today by the intervenor is then not  4 a new position.  5 Moreover, at paragraph 24 of intervener's factum  6 we state that ownership is a right which excludes  7 others from entering into our territory without our  8 consent.  Ownership means that no other tribe or  9 nation of people have any right to enter into their  10 territories or to harvest or use any portion of their  11 territories without the consent of the aboriginal  12 nation to whom the territory belongs.  13 Now, intervenor is conscious of the fact that this  14 court, and indeed many other forums in this country,  15 are grappling with the question of trying to determine  16 exactly the very issues that are before this court.  17 It is intervener's submission that each nation will  18 decide in conjunction with the sovereign or the state  19 exactly how these determinations or delineations or  20 rights will be defined or certainly articulated.  21 Paragraph 25, intervenor submits that ownership  22 also means that the aboriginal peoples living within  23 their territories are to be governed according to  24 their own laws and institutions, and that no other  25 tribes or nations can pass laws affecting them without  26 their consent.  This is not a novel proposition.  27 Customary adoptions, marriages, various longhouse  28 transactions concerning property interest as between  29 band members are all recognized as customary law.  30 There is, as this court will appreciate, some --  31 certainly in the last two decades a considerable  32 discussion of the possibility of the evolution of  33 parallel tribal courts, what they may or may not mean,  34 all of these things are simply again an evolution of a  35 self-governing people defining and possibly for the  36 first time in history just in recent decades, since  37 there are not the same prohibitive legislation which  38 existed against Indian people being able to develop  39 means of self-government, that we are evolving to the  40 place where the proposition as set out is not indeed  41 novel.  42 At paragraph 26 intervenor submits that membership  43 of persons to a particular nation of aboriginal  44 peoples can only be decided by that aboriginal nation.  45 And again while -- and this was found with the passage  46 of law of Bill 31, for example, which allows native  47 women who had lost their status and their decendants 1067  Submissions by Ms. Taylor  1 through marriage to be reinstated and to become  2 Indians again, by right of conferring of status.  That  3 did not necessarily mean a conferred -- necessarily  4 conferred membership in an individual band.  Tribes  5 can decide and do decide who is and who is not a  6 member.  7 Paragraph 27, intervenor submits that aboriginal  8 people living in their territories are separate  9 nations of people that control their own future and  10 relations with other nations.  It is simply that no  11 longer can Indians or the content of what it is to be  12 aboriginal or what title or what rights or what any of  13 those things be defined by forces external to  14 aboriginal communities.  It is in direct conflict with  15 the notion of sovereignty and in direct conflict with  16 the notion of having what the full content of that  17 means.  My friend has made some submissions and there  18 will be further submissions by Ms. Buller, what we are  19 saying is that nations will decide what these mean in  20 conjunction with some agreements with the existing  21 parties, the various crowns that we have, whether this  22 is going to be through a treaty-making process or not,  23 is it something that each nation will decide?  Each  24 nation will decide which forum is appropriate to  25 resolve outstanding issues of sovereignty.  26 This intervenor submits that there can be no  27 generic application of rules without hearing from the  28 nations that will be affected.  29 Those are my submissions, my lord.  30 TAGGART, J.A.:  All right, thank you, Ms. Taylor.  We will take  31 the morning adjournment for a few minutes.  32 THE REGISTRAR:  Order in court.  Court stands adjourned for a  33 short recess.  34  35 MORNING ADJOURNMENT TAKEN  36  37 THE REGISTRAR:  Order in court.  38 TAGGART, J.A.:  We are sorry for the delay, which was not our  39 fault.  The elevators trapped us.  If you really want  40 to assist the judiciary in this building, take up a  41 collection and buy us two new elevators.  42 LAMBERT, J.A.:  In the meantime I hope you've got insurance on  43 our lives.  44 TAGGART, J.A.:  Yes, Ms. Buller.  45 MS. BULLER:  Thank you, my lord.  My submissions will be  46 concerning paragraphs 28 through 74 of our factum  47 commencing at page 10. 1068  Submissions by Ms. Buller  1 And I intend to deal with a error that we submit,  2 being that the trial judge erred in finding that  3 aboriginal title and rights could be extinguished  4 other than with the full and informed consent of the  5 aboriginal peoples through a process of fair and open  6 negotiations.  And I shall apply principles of  7 international law in this section of the intervener's  8 argument.  9 Turning to paragraph 28, this intervenor, the  10 Union of B.C. Indian Chiefs, specifically rejects that  11 Canada or British Columbia presently has or ever did  12 have any title to native land that has not been  13 otherwise purchased through a process of fair and open  14 treaty negotiations.  15 Further it's my submission that Part 10 of the  16 learned trial judge's decision, which dealt with the  17 creation of aboriginal interests, Part 13, authorities  18 and comments, and Part 15, extinguishment and  19 fiduciary duties, are all fundamentally flawed for two  20 reasons.  The first reason being that the learned  21 trial judge did not consider the appellants as peoples  22 or nations.  And secondly, as a result of that first  23 error the learned trial judge failed to apply certain  24 important principles of international law in the  25 process of analysis of the case before him.  26 Further, the intervenor as set out in paragraph 29  27 adopts the submission of the appellants in paragraph  28 828 to 989, and we rely in addition on customary  29 international law.  30 And for your lordships' reference I point out that  31 those paragraphs of the appellants' submission are  32 found tab at Tab 7 of the original appellants' factum.  33 Turning now to sources of international law in  34 paragraph 30, international law is generally  35 subdivided into two categories, being customary  36 international law, and that would be decisions of  37 international courts or tribunals, international  38 customs as reflected in the practice of states, and  39 general principles of law recognized by civilized  40 nations and writings and teachings of scholars in the  41 area.  42 Conventional international law is the law  43 established by treaties and international agreements  44 and conventions which many have come out of the United  45 Nations.  46 Now, turning to the legal effect of international  47 law, paragraph 31, there is an important distinction 1069  Submissions by Ms. Buller  1 between customary and conventional international law  2 as this will effect the extent to which international  3 principles can be relied upon in defining or  4 establishing legally enforceable rights within a  5 national legal system such as we have here in Canada.  6 And in this regard Canadian courts have followed the  7 English approach, which is that customary  8 international law is incorporated or adopted as part  9 of domestic law, unless it is in conflict with that  10 domestic law.  Also dealing with conventional  11 international law, it does not become part of the  12 domestic law unless it's incorporated or implemented  13 by some form of enabling legislation.  In either case,  14 be it customary or conventional international law, the  15 courts will always seek to interpret domestic law so  16 as not to conflict with international legal  17 principles.  18 Turning to paragraph 32, the relevance of  19 international law, international law has become  20 important in the adjudication of legal rights in  21 Canada especially within the context of developing the  22 law or in the context of charter litigation.  And Mr.  23 Justice Linden addressed this issue in the Mitchell  24 case, specifically in relation to the international  25 covenant on civil and political rights.  And I quote:  26  27 "On May 19, 1976 Canada acceded to the United  28 Nations International Covenant on Civil and  29 Political Rights.  No Canadian legislation has  30 been passed which expressly implements the  31 covenants.  The covenant may however be used to  32 assist a court to interpret ambiguous  33 provisions of a domestic statue, provided that  34 the domestic statute does not contain express  35 provisions contrary to or inconsistent with the  36 covenant.  This rule of construction is based  37 on the presumption that parliament does not  38 intent to act in violation of Canada's  39 international obligations."  40  41 There is a further reference in paragraph 33 --  42 WALLACE, J.A.:  Do you have the reference for the Mitchell case?  43 What tab?  44 MS. BULLER:  Yes, my lord.  That can be found in the authorities  45 book Volume 52 at Tab 13.  46 WALLACE, J.A.:  Thank you.  47 MS. BULLER:  International materials have been used in other 1070  Submissions by Ms. Buller  1 decisions.  One important decision was that of Chief  2 Justice Dickson, as he then was, in a dissent in the  3 judgment of Reference re Public Service Employee  4 Relations Act (Alberta), and that can be found for  5 your lordships' reference in the authorities Volume  6 49, Tab 8.  I won't read the whole quote from Mr.  7 Justice Dickson, however I should point out that the  8 sentence starting four lines from the bottom of page  9 11 is a very key part in my submission.  10  11 "The charter conforms to the spirit of this  12 contemporary international human rights  13 movement, and it incorporates many of the  14 policies and prescriptions of the various  15 international documents pertaining to human  16 rights.  Various sources of international human  17 rights law --"  18  19 Over the page now to page 12 --  20  21 "-- declarations, covenants, conventions,  22 judicial and quasi-judicial decisions of  23 international tribunals, customary norms, must  24 in my opinion be relevant and persuasive  25 sources for interpretations of charter  26 provisions."  27  28 Then in the final paragraph of that quotation:  29  30 "Canada is a party to a number of international  31 human rights conventions which contain  32 provisions similar or identical to those in the  33 charter.  Canada has thus obliged itself  34 internationally to ensure within its borders  35 the protection of certain fundamental rights  36 and freedoms which are also contained in the  37 charter.  The general principles of  38 constitutional interpretation require that  39 these international obligations be a relevant  40 and persuasive factor in charter  41 interpretation."  42  43 Turning now to international law and aboriginal  44 rights, paragraph 34.  The appellants' factum has  45 demonstrated how in the very earliest articulation of  46 the rights of aboriginal peoples Franciscus de Vitoria  47 granted those rights in the context of principles of 1071  Submissions by Ms. Buller  1 aboriginal law.  2 The very beginning -- or in the very beginning  3 upon -- at the time of first contact of white settlers  4 or white explorers to the North Americas, the thought  5 or the general policy of the European nations was that  6 of respect for the indigenous popluations as nations  7 into and of themselves.  So at the very beginning of  8 contact we have a nation to nation or nation to  9 nations relationship and policy.  10 Now, I ask your lordships to turn to authority  11 Volume number 49, please.  I shall be referring to Tab  12 15.  This is an article by Professor Douglas Sanders  13 who is a professor at the University of British  14 Columbia.  The article is entitled, "The Re-Emergence  15 of Indigenous Questions in International Law."  It's  16 found in the Canadian Human Rights Year Book, 1983.  17 WALLACE, J.A.:  Do you refer to this in your factum?  18 MS. BULLER:  Not at this paragraph, my lord.  This is an  19 additional reference.  20 Turning to page 4 of that article, Professor  21 Sanders looks at "The early history, acquiring  22 sovereignty and land."  That's the very bottom part of  23 page 4.  24  25 "In the early encounters between Europeans and  26 the peoples of the Americas, the question of  27 indigenous legal and political rights was  28 recognized as a question of morality and of  29 international law."  30  31 Over the page to page 5, please, my lords, starting at  32 the fourth line from the top of the page:  33  34 "The great scholar was -- on international law  35 at this time -- was Francisco de Vitoria, one  36 of the fathers of international law and a  37 theologian at the University of Salamanca in  38 Spain.  Vitoria affirmed that the Indians were  39 human and entitled to enjoy civil and political  40 rights.  They were the true owners of their  41 lands.  Spanish rights were limited to rights  42 of evangelism, travel and trade.  Spain,  43 however, could assume rights over the Indians  44 and their lands if it was to the benefit of the  45 tribes.  On this narrow basis the doctrine of  46 trusteeship developed as a legitimation of  47 colonialism. 1072  Submissions by Ms. Buller  1  2 And then the first paragraph -- or the first  3 sentence in the next paragraph:  4  5 "Vitoria's views were officially accepted in  6 Spain."  7  8 Then the second full paragraph on that page goes on  9 that:  10  11 "The Spanish and Portugese legacy had two  12 parts."  13  14 And that can be summarized as a moral and intellectual  15 tradition as set out.  And also going over to page 6,  16 the concept of reductions, which were a form of  17 economic reserve, for lack of better words.  18 Then at page 6, the second full paragraph:  19  20 "British colonial traditions in North America  21 were pragmatic.  Blackstone saw the need for a  22 treaty of cession or a conquest in order to  23 acquire sovereignty over populated lands.  But  24 initial British settlement in North America  25 proceeded under the auspices of feudal-like  26 grants which made no reference to Indians."  27  28 As if they didn't exist.  29  30 "A recent study demonstrates how colonial  31 officials consistently underestimated Indian  32 popluations and disregarded the existing  33 agricultural patterns in what is now New  34 England.  They re-interpreted realities in ways  35 which justified their appropriation of occupied  36 lands.  While Indian sovereignty was apparently  37 ignored, the practice developed of purchasing  38 lands from tribes.  It has been argued that  39 this process developed from competition between  40 colonial powers."  41  42 So that, for example, Britian would establish treaties  43 with certain native nations in order to stake a claim,  44 for lack of better words, against Spanish or Portugese  45 or French interests.  46 So it is our submission then that the first  47 principles applied in the treatment of or the 1073  Submissions by Ms. Buller  1 relationships with native people was that of  2 principles of morality in international law, and  3 somewhere along the line the relationships got off  4 this line of thinking.  Now, it's not apparent to the  5 authorities in this particular area how and why that  6 happened necessarily, I suppose there are a number of  7 reasons that would be possible, but the end result is  8 that legal thinking has gotten away from this  9 beginning of international law.  And it's our  10 submission that it's appropriate that your lordships  11 go back to this original line of thinking and apply  12 concepts of international law, principles of  13 international law, to the relationship between the  14 crown and the appellants.  15 In paragraphs 35, 36, 37 and 38 of our factum we  16 set out examples of where principles of international  17 law have been applied and relied upon by courts in the  18 United States, New Zealand and England.  19 Now, to page 14 of our factum, dealing with the  20 concept of self-determination in international law and  21 specifically self-determination in the League of  22 Nations.  The issue or the question of self-  23 determination became an issue in Europe post World War  24 I.  25 As set out in paragraph 39, the self-determination  26 of peoples became the concept and the founding concept  27 behind the League of Nations.  It was developed and  28 established in order to deal with the complex  29 pluralism of Europe in post World War I.  Where there  30 were larger state units, they were given protection.  31 However, minorities had to be dealt within those  32 states and there had to be some fair way of dealing  33 with those minorities.  The concern with minorities  34 was a major feature of the work of the League of  35 Nations.  36 Paragraph 40 we submit that there was no general  37 principle of decolonization set out at this particular  38 time, other than certain areas which had been under  39 the Ottoman Empire or which had been colonies of  40 Germany, were taken under international supervision  41 through the League of Nations in particular.  Separate  42 statehood was envisaged in the covenant of the League  43 of Nations for the mandate territories in the middle  44 east which had formed part of the Ottoman Empire.  45 Then in paragraph 41, Article 23(b) of the  46 covenant of the League of Nations required that at  47 that particular time states to secure just treatment 1074  Submissions by Ms. Buller  1 of the native inhabitants of territories under their  2 control, and this was applied by the League to the  3 treatment of tribal popluations by the government of  4 the Independent State of Liberia in 1929 to 1934.  5 Then the issue and the questions of  6 self-determination became the foundation for the  7 United Nations as history progressed.  8 The section of our factum which deals with  9 self-determination and the United Nations going from  10 paragraph 42, 43, 44, 45 and 46 deals with the  11 progression in the progressive thought of the members  12 of the United Nations and how minorities must be dealt  13 with in a fair manner and also how peoples or nations  14 must be dealt with in terms of realizing  15 self-determination.  16 However, as set out in paragraph 47 of our factum  17 the 1960 declaration, that was the United Nations'  18 declaration, however also provided in Article 6 that:  19  20 "Any attempt at the partial or total disruption  21 of the national unity and the territorial  22 integrity of a country is incompatible with the  23 purposes and principles of the charter of the  24 United Nations."  25  26 So that there must be self-determination certainly for  27 states, but not at the cost of the upset of the  28 territorial integrity.  29 Turning now to paragraph 48, just to reiterate, on  30 its face the provision that I've just referred to,  31 Article 6, proscribed any assertion of self-  32 determination which would lead to the disintegration  33 of a pre-existing state in practice, paragraph six has  34 been interpreted as the codification of the "blue  35 water thesis."  And the 1960 declaration has been  36 applied only to overseas or non-contiguous  37 territories.  There's been a very limited application  38 of this concept.  39 Then on page 17 of our factum, the next issue or  40 the next question is self-determination under  41 international covenants.  In paragraph 49 we submit  42 that later formulations of the right of self-  43 determination in international documents are not as  44 restricted as found in the 1960 declaration and  45 specifically Article 6.  Article 1 of both the  46 International Covenant on Civil and Political Rights  47 and of the International Covenant on Economic, Social 1075  Submissions by Ms. Buller  1 and Cultural Rights, the text to which were approved  2 by the General Assembly in 1966 reads as follows:  3  4 "1.  All peoples have the right to self-  5 determination.  By virtue of that right they  6 freely determine their political status and  7 freely pursue their economic, social and  8 cultural development.  9  10 2.  All peoples may, for their own ends, freely  11 dispose of their natural wealth and resources  12 without prejudice to any obligations arising  13 out of international economic cooperation based  14 on the principle of mutual benefit and  15 international law.  In no case may a people be  16 deprived of its own means of subsistence."  17  18 As set out in paragraph 50, Canada was a signatory  19 to these covenants in 1976.  20 In paragraph 51 we submit that these two  21 provisions must be given a broad interpretation, and  22 specifically that the language of the 1960 covenants,  23 as set out as I've read, do not support a narrow  24 interpretation.  25 Turning now to paragraph 52, an issue which arises  26 in the interpretation of the two international  27 covenants is the meaning of peoples and whether the  28 appellants will qualify under the terms of covenants.  29 Now, I understand Michael Jackson has already  30 referred your lordship to the following paragraphs in  31 our factum or the issues raised.  32 The problem here again is establishing the  33 dividing line between peoples and cultural or  34 religious minorities.  This is important because it  35 determines how this group of people will be treated,  36 whether as a minority or as a peoples and a nation.  37 This issue is an important one because aboriginal or  38 indigenous people have characteristics of both  39 categories.  And I point out that they should probably  40 have added categories, now.  41 Special U.N. Rapportuer, Cristescu, suggested the  42 following definition in 1981:  43  44 "(a)  The term 'people' denotes a social entity  45 possessing a clear identity and its own  46 characteristics.  47 1076  Submissions by Ms. Buller  1 (b) It implies a relationship with a territory,  2 even if the people in question has been  3 wrongfully expelled from it and artificially  4 replaced by another population.  5  6 (c)  A people should not be confused with  7 ethnic and religious minorities whose existence  8 and rights are recognized in Article 27 of the  9 International Covenant on Civil and Political  10 Rights."  11  12 I should point out to your lordships there has  13 been an error in the numbering of our factum.  14 Unfortunately 53 didn't appear, we go now to paragraph  15 54.  16 A more helpful and comprehensive attempt at a  17 definition has been made by the International  18 Commission of Jurists.  A number of relevant objective  19 criteria are listed, although the commission is  20 careful to point out that no single criteria, if  21 unmet, would be fatal to people-hood.  The criteria  22 are:  one, a common history; two, racial and ethnic  23 ties; three, cultural and linguistic ties; four,  24 religious and ideological ties; five, a common  25 geographic location; six, a common economic base;  26 seven, a sufficient number of people; eight,  27 consciousness of its own identity; and nine, assertion  28 of the will to exist.  29 Paragraph 55, it is submitted that the appellants  30 and other First Nations in British Columbia are  31 peoples within both of these sets of criteria.  32 Further, in paragraph 56, aboriginal nations are  33 properly described as peoples.  The most authoritative  34 decision is that of the International Court of Justice  35 in the 1975 Advisory Opinion on the Western Sahara.  36 And in that decision the phrase "indigenous peoples"  37 was accepted in a resolution establishing the 1989  38 United Nations seminar on relations between indigenous  39 peoples and states.  And the resolution also passed by  40 the Economic and Social Council, the Human Rights  41 Commission and the Sub-Commission of Prevention of  42 Discrimination and the Protection of Minorities.  43 The term "peoples" is also used in a revision of  44 the International Labour Organization Convention 107  45 on Indigenous and Tribal Popluations, and on the draft  46 Universal Declaration on Indigenous Rights.  47 Paragraph 57 it is submitted that the language of 1077  Submissions by Ms. Buller  1 Section 35 of the Constitution Act in affirming  2 existing aboriginal and treaty rights of aboriginal  3 peoples reflects the use of that concept, the  4 international law concept of peoples, and that's  5 consistent with contemporary international law.  6 Now, turning to the international labour  7 organization and indigenous peoples at paragraph 58,  8 in 1953 the United Nations and certain of the  9 specialized agencies established what was called the  10 Andean Indian Program, under the supervision of the  11 International Labour Organization and a paper was  12 ultimately published which examined and criticized the  13 condition of indigenous people as exploited labour  14 pools.  And as a result of that a convention was  15 established.  Now, Canada is not a signatory to that  16 convention.  17 Paragraph 59, though drafted with the intention of  18 encouraging better living conditions for indigenous  19 peoples, Convention 107 has been viewed negatively by  20 indigenous peoples as being basically assimilationist  21 in orientation.  22 I submit that it's important for your lordships to  23 note that Canada has not signed a document that is  24 assimilationist in orientation.  25 Turning to paragraph 60, in 1989 a draft text of  26 the new convention 169 entitled "Convention Concerning  27 Indigenous and Tribal People in Independent Countries"  28 was prepared, and this convention in many respects  29 replaced 107.  30 Going over to the top of page 20, this new  31 convention has made it appropriate to adopt new  32 international standards with the view to removing  33 assimilationist orientation of the earlier standards  34 and recognizing the aspirations of these peoples,  35 being aboriginal peoples, to exercise control over  36 their own institutions, ways of life and economic  37 development to maintain and develop their identities,  38 languages and religions within the frame works of the  39 states in which they live.  40 Paragraph 61 sets out the application of this  41 particular convention, as does paragraph 62 and  42 paragraph 63.  I won't read those at this particular  43 point, my lords.  44 Turning now to the United Nations working group on  45 indigenous popluations in the draft Universal  46 Declaration on indigenous rights, paragraph 64, the  47 charter of the United Nations assigns responsibility 1078  Submissions by Ms. Buller  1 for human rights matters, particularly issues arising  2 under the 1948 Universal Declaration -- now over to  3 page 21 -- to which Canada is a signatory to the  4 Economic and Social Council of the UN.  5 Now, just to summarize the following paragraphs,  6 my lords, the sub-commission has recognized  7 distinctive concerns that indigenous peoples have and  8 has developed new policy and new positions.  9 Specifically the Martinez-Cobo report, a result of  10 this commission, highlighted the need to approach the  11 question of indigenous rights from the perspective of  12 collective, rather than individual rights.  13 And there is a quotation that follows:  14  15 "Self-determination in its many forms must be  16 recognized as the basic pre-condition for the  17 enjoyment by indigenous peoples of their  18 fundamental rights and determination of their  19 own fate."  20  21 And in paragraph 65 the author goes on to describe  22 the nature and content of self-determination as it  23 should apply to indigenous people.  24 Paragraph 66 again the same report makes it clear  25 that self-determination should be seen as a continuum.  26 The complexity of claims to self-determination  27 requires solutions of corresponding complexity.  28 Over to page 22, paragraph 67, the right of  29 self-determination or internal self-government in our  30 submission operating within the overall context of  31 federalism, is readily recognized now as the very  32 doctrine articulated by Chief Justice Marshall in  33 Worcester and Georgia and which the appellants have  34 submitted is embedded in the common law.  35 So the positions, my lord, of the United Nations  36 and the League of Nations before it have been found  37 also in international customary law as set out in the  38 Worcester and Georgia cases, amongst others.  39 Turning now to paragraph 68, again the United  40 Nations has been working and developing positions and  41 revising previous positions with respect to the rights  42 of indigenous peoples and minority rights, and I use  43 "indigenous peoples" and "minority rights" in the same  44 sentence, however, according to principles of  45 international law those are two entirely different  46 concepts.  47 In paragraph 68 we submit that in 1982 the 1079  Submissions by Ms. Buller  1 Economic and Social Council authorized a sub-  2 commission to establish a working group on indigenous  3 populations, and its mandate is set out in that  4 particular paragraph as well.  5 Turning to paragraph 69, some of the more  6 significant articles of the draft Universal  7 Declaration on Indigenous Rights are set out.  And we  8 list them --  9 LAMBERT, J.A.:  Is there in our material somewhere the draft  10 Universal Declaration of Indignous Rights?  11 MS. BULLER:  Not in its entirety, my lord.  According to the  12 intervenor --  13 LAMBERT, J.A.:  It's not very long, is it?  14 MS. BULLER:  In its entirety?  15 LAMBERT, J.A.:  Yes.  16 MS. BULLER:  It's a fairly lengthy document.  17 LAMBERT, J.A.:  Too long to get us a copy each?  18 MS. BULLER:  Regardless of how long it is, my lord, we will  19 arrange for a copy.  20 LAMBERT, J.A: Thank you.  21 MS. BULLER:  But I would like to draw your lordships' attention  22 to three articles that are of important to this  23 particular intervenor, that being number 12:  24  25 "12.   The right of ownership and possession of  26 the lands which they have traditionally  27 occupied."  28  29 Being of course that indigenous people have the right  30 of ownership and possession of land which they have  31 traditionally occupied.  32  33 "The land may only be taken away from them with  34 their free and informed consent as witnessed by  35 a treaty or agreement."  36  37 Over to page 23, of particular importance to the  38 Union of of B.C. Indian Chiefs also is Article 21,  39 that indigenous peoples have:  40  41 "21.  The right to participate fully in the  42 political, economic and social life of their  43 state and to have their specific character duly  44 reflected in the legal system and in political  45 institutions, including proper regard to and  46 recognition of indigenous laws and customs."  47 1080  Submissions by Ms. Buller  1 And further, also of importance to this intervenor  2 is Article 22.  3  4 "22.  The right to participate fully at the  5 state level, through representatives chosen by  6 themselves, in decision-making about and  7 implementation of all national and  8 international matters which may affect their  9 life and destiny."  10  11 Turning now to page 24 and paragraph 70.  For your  12 lordships' information the final text of the draft  13 Universal Declaration will go through various steps  14 for approval before going to the General Assembly for  15 approval.  And it is anticipated that much of this  16 activity will coincide with the 500th year anniversary  17 in 1992 of the discovery of the Americas in 1492.  18 In paragraph 71 we submit that in 1987 on his  19 visit to Canada Pope John Paul II reaffirmed the Roman  20 Catholic church's position with respect to aboriginal  21 rights, and he reaffirmed a position taken by Pope  22 Paul III in 1537, being that Pope John Paul II  23 reaffirmed aboriginal rights to self-government.  For  24 your lordship's consideration we have set out a  25 quotation from Pope John Paul.  26 In conclusion then, my lord, it's our submission  27 in paragraph 72 that aboriginal peoples rights to  28 self-determination as they are recognized in the  29 evolution of contemporary international law, as shown  30 through the League of Nations and the United Nations,  31 mirror their right to internal self-government at  32 common law.  The draft Universal Declaration in  33 recognizing a right of ownership to land traditionally  34 occupied, which can only be taken away with free and  35 informed consent expressed by a treaty or agreement,  36 also reflects principles of common law.  37 In asserting these principles and asking for this  38 court's affirmation of them in its declaratory  39 judgment as existing aboriginal rights within Section  40 35 of Constitution Act, this intervenor therefore  41 points both to their historical foundation in North  42 America and to their contemporary international  43 significance for aboriginal peoples elsewhere.  44 In that way the judgment of this court, my lord,  45 will not be only the declaration of legal pathways to  46 justice for the Gitksan and Wet'suwet'en, the  47 appellants, but a model in upholding the dignity and 1081  Submissions by Ms. Buller  1 rights of all aboriginal peoples.  2 In final summary, my lord, I ask this court to  3 return to the original position taken by the European  4 states that the aboriginal peoples are, were and will  5 be nations into and of themselves.  6 And further we seek on page 26 three orders, as in  7 paragraph 73, a declaration that the aboriginal title  8 and rights of the appellants exist and have not been  9 extinguished; paragraph 74, a declaration that Canada  10 and the Province of British Columbia submit to a  11 process of fair and open negotiations to finally  12 settle the title and rights of the appellants.  And  13 finally a declaration that the negotiation process be  14 conducted by an impartial, both perceived and in fact  15 impartial, tribunal selected by the three parties.  16 Thank you, my lords, those are my submissions.  17 TAGGART, J.A.:  Thank you, Ms. Buller.  Mr. Woodward, we propose  18 to adjourn a little early for lunch.  On the original  19 schedule you were given an hour this afternoon.  I  20 have in mind still Mr. Pape' s dilemma of trying to  21 deal with his position as an intervenor in relation to  22 the Alcan submission really, and wondering whether we  23 can find some time this afternoon to get Mr. Hutchins  24 started and then --  25 MR. WOODWARD;  Yes, my lord, there will be no problem with that.  26 I won't use my full hour and so Mr. Hutchins will have  27 plenty of time.  28 MR. HUTCHINS:  We will be ready, my lord.  29 TAGGART, J.A.:  All right.  Perhaps we can find some time toward  30 the end of schedule, Mr. Pape, that will give you a  31 little more time, you and Alcan and the Business  32 Coalition.  We won't allocate that precisely at this  33 stage, but we will try to hang onto whatever spare  34 time comes available.  Two o'clock.  35 THE REGISTRAR:  Order in court, court stands adjourned.  36  37 PROCEEDING ADJOURNED 12:25 P.M.  38  39  40 I hereby certify the foregoing to  41 be a true and accurate transcript  42 of the proceedings herein to the  43 best of my skill and ability.  44  45 B.M. March,  46 Official Reporter  47 1082  Submissions by Ms. Buller  1 (PROCEEDINGS RESUMED PURSUANT TO NOON RECESS)  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Yes, Mr. Woodward.  5 MR. WOODWARD:  My Lords, I will be relying only on one document,  6 the factum of the Massett Band as intervenor.  You  7 will see that leave to intervene was granted to the  8 Masssett Band in part because of the effect which this  9 Court's decision in this appeal may have on an  10 injunction obtained in the Stejack Logging case.  What  11 happened in the Stejack Logging case --  12 LAMBERT, J.A.:  Can I stop you for just a moment?  13 MR. WOODWARD:  Yes, my lord.  14 TAGGART, J.A.:  Mr. Woodward, we are sorry to get you started  15 and then stop.  We are still pondering the possibility  16 of finding some time for Mr. Pape, or at least use the  17 time that is apparently going to become available  18 tomorrow afternoon, I would say at the earliest from  19 what Mr. Hutchins said this morning.  20 One subject matter that ended in a state of some  21 confusion, at least in my mind, was the question of  22 remedies.  And I think we all felt that Ms. Mandell  23 was really pushed hard for enough time to deal  24 adequately with that subject.  And we wondered if it  25 might be an appropriate time if we have some spare  26 time tomorrow afternoon to utilize that time to  27 perhaps re-visit that subject on the part of the  28 Appellants and let us have a presentation that might  29 be a little more useful than the state in which we  30 left the subject when Ms. Mandell last spoke to the  31 matter.  32 If there are other subjects that you would sooner  33 address, we realize we have been pushing and pushing  34 hard to keep to the time table and you have been very  35 accomodating in that.  There may be other subjects  36 that could be usefully addressed in an hour or an hour  37 and a half, whatever we may have available tomorrow  38 afternoon.  39 MR. RUSH:  Well, My Lords, there are two questions on the issue  40 of timing.  Firstly, with regard to our submissions on  41 remedies, we do want to make further submissions on  42 remedies, and we had intended to do so.  Our thinking  43 on it, however, was that we would prefer to do that  44 during the reply time.  And we would take the offer of  45 the court to consider some of the questions on  46 remedies a little more thoroughly to put it over until  47 that time and we will make a more thorough submission 1083  Submissions by Ms. Buller  1 at that juncture.  2 On the question of the use of tomorrow's time, we  3 understand, thanks to Mr. Woodward's submissions and  4 the counsel for Union of B.C. that there will be  5 approximately an hour available to us after the end of  6 today's submissions.  Mr. Hutchins advises that he  7 will finish within his time frame.  And I am told by  8 Mr. Taylor that the Province cannot start until Friday  9 morning.  However, counsel for Alcan has indicated  10 that he is prepared to start tomorrow afternoon at the  11 conclusion of the intervenors for the Appellants.  And  12 it may be that if he continues to be willing, as I  13 understand that he is, then he could start tomorrow  14 afternoon and carry over into Friday.  And in this way  15 Mr. Pape would have an additional hour when it comes  16 his turn to speak, Alcan having had their opportunity  17 to make their submissions.  18 TAGGART, J.A.:  Well, that sounds like a very reasonable  19 solution, if that's possible.  20 MR. GOUGE:  My Lords, I am prepared to present my submission for  21 the intervenor at any time that is convenient for the  22 Court.  My intervenors submission is essentially the  23 first half of the submission that I would make if I  24 were a party, so it wouldn't be time wasted even if I  25 were halfway through.  26 THE COURT:  If we can tentatively then say that at the  27 conclusion of Mr. Hutchins' submissions tomorrow you  28 will be on and we will carry through on tomorrow  29 afternoon and Friday morning to completion and then we  30 will go into the Appellants' submissions.  31 MR. GOUGE:  Thank you, my lord.  32 TAGGART, J.A.:  I'm sorry, the Respondent Province's  33 submissions.  All right.  Thank you.  Yes, Mr.  34 Woodward.  35 MR. WOODWARD:  My Lords, two years ago in 1990 the Province  36 granted a cutting permit to Stejack Logging allowing  37 that small company to clear cut about 80 acres of  38 cedar forest on the Queen Charlotte Islands.  Cutting  39 began, and in about two days about a quarter of the 80  40 acre site was logged.  Then there was a weekend and my  41 clients contacted me.  They found out about the  42 logging and they asked me to seek an injunction.  43 I appeared before Mr. Justice Gow of the B.C.  44 Supreme Court on May 28, 1990.  He granted an ex parte  45 injunction to prohibit any further clear cutting of  46 that grove of trees.  And he made that decision based  47 upon the facts which I would like to take you briefly 1084  Submissions by Ms. Buller  1 through.  2 First of all, in my factum at paragraph 7, which  3 is at page 3, I have outlined the essential facts  4 which are, first of all, a provincially-issued cutting  5 permit purports to allow Stejack Logging to cut all of  6 the trees in an 80 acre portion of the forest on the  7 Queen Charlotte Islands.  And within the proposed  8 logging area, there are at least five Haida canoes and  9 upwards of 50 other cultural features, including test  10 holes, cedar bark stripping, stumps remaining from  11 aboriginal logging, and various other stages of cedar  12 use.  13 Secondly, that this site is used by the Haida to  14 learn about the carving practices of their ancestors,  15 and to teach Haida heritage to others, especially  16 schoolchildren.  17 The site would be completely destroyed by the  18 logging which the cutting permit T.S.L. A33491  19 purports to authorize.  20 Now, in the factum which I have prepared, there  21 are five tabs.  And the third tab is the affidavit of  22 Gary Patrick Edenshaw.  Guujaaw is his Haida name.  23 And this was the only evidence before Mr. Justice Gow  24 when he issued the injunction.  And if I could refer  25 you to certain paragraphs beginning at paragraph 21.  26 Mr. Edenshaw says these things, and I will read a bit  27 here.  He says:  28  29 "21.      I have taken a special interest in  30 canoes abandoned in various stages of  31 completion.  I have gone and studied these  32 canoes, in an attempt to determine the order  33 and procedures by which canoes were carved.  34 22.       Over the years I have located,  35 measured, and studied several partially  36 finished canoes.  I made a careful study of  37 about fourteen different partially finished  38 canoes which had been left in the woods at  39 different stages of completion.  This personal  40 study has allowed me to learn important  41 information about the techniques used to  42 fashion canoes from cedar trees.  43 23.       For example, I have learned that..."  44  45 And this is a little example he gave of what he can  46 learn.  47 1085  Submissions by Ms. Buller  1 "... up to about a 30 foot canoe the stern is at  2 the butt end of the tree.  If the canoe is  3 larger than 30 feet, the prow of the canoe is  4 at the butt end of the tree.  I learned this  5 particular fact from observing the partially  6 finished canoes, and their orientation to the  7 stumps of the trees from which they came, as  8 found in the virgin forests of Haida Gwaii."  9  10 Haida Gwaii is the name for the Queen Charlotte  11 Islands.  12  13 "As well, I have learned that the gunnel is  14 established first, then the prow line, then the  15 stern.  The canoe is then turned, the hull is  16 shaped, turned again for hollowing, then  17 removed from the forest for finishing.  These  18 are examples of the kinds of facts which I have  19 learned from studying these partially finished  20 canoes.  There are many other examples of this  21 kind of thing which I have learned, too  22 numerous to mention.  None of this information  23 was recorded in any written form, and the only  24 source for this information is the record found  25 within the culturally modified tree sites, in  26 unlogged virgin forests.  27 24.       By studying heritage features on the  28 living trees, it is possible to determine the  29 date when the Haida ancestral activity took  30 place because the trees continued to grow, and  31 it is possible to count the growth rings, to  32 determine those dates.  I have done this on  33 some of the features, and I have determined the  34 exact dates when some of the various ancestral  35 activities I have studied took place.  It  36 appears to me that the dates when many of the  37 canoes were left unfinished correspond to the  38 dates of the smallpox epidemics which decimated  39 the population of Haida people in the  40 nineteenth century.  41 25.       When I visit one of these sites I  42 usually take care not to disturb the moss on  43 the logs and the forest mat.  This is because  44 the old fallen cedar logs which have been  45 shaped for canoes are fragile, even though the  46 features are still distinguishable.  You can  47 still see the adze marks in the wood on the 1086  Submissions by Ms. Buller  1 underside of logs, so long as the logs are not  2 disturbed.  So I am very careful not to disturb  3 the sites in any way.  The natural surroundings  4 in which my ancestors worked are very much as  5 they left them.  When I am at one of these  6 sites I observe more than just the particular  7 features remaining.  I can learn from the  8 surrounding grove of trees, just how it must  9 have felt to the early canoe makers to work in  10 that place.  This is important to me as I feel  11 a sense of communion with the old canoe makers.  12 The atmosphere associated with the work of the  13 old canoe makers is preserved in the virgin  14 forest sites where the culturally modified  15 trees may be found.  This includes the forest  16 sounds, the smell of moss and trees, bird  17 calls, natural lighting, the peaceful setting,  18 et cetera.  19 26. I have measured some of the old  20 canoes.  The old canoe makers had achieved  21 accuracies of within one sixteenth of an inch.  22 This must have required great concentration,  23 and I assume that the peaceful solitude of the  24 deep virgin forest was a substantial help to  25 the canoe makers in achieving this level of  26 concentration."  27  28 And then if you would turn to paragraph 38 he  29 describes the particular site which was one quarter  30 logged.  31  32 "38. This site contains at least five  33 canoes and upwards of 50 other features,  34 including test holes, cedar bark stripping,  35 stumps, and various stages of cedar use.  This  36 site is of special significance, since it  37 contains a high concentration of culturally  38 modified trees.  This is also one of the most  39 accessible sites I have seen."  40  41 And paragraph 41:  42  43 "Because the site is close to Massett I was  44 able to take students to the site to show them  45 where our ancestors worked.  I have taken a lot  46 of schoolchildren, interested adults and  47 carvers to the site.  It is an important 1087  Submissions by Ms. Buller  1 teaching place.  Some of the people I have  2 taken have, in turn, taken others there.  I  3 have organized school groups to the site at the  4 request of the teachers in local schools.  I  5 have taken my own children there.  I consider  6 it to be the best site for teaching purposes  7 because it is so close to the town of Massett.  8 All of the people I have taken there have  9 observed the area with reverence and have taken  10 care not to disturb any of the features of the  11 site."  12  13 And paragraph 44:  14  15 "I and the other members of the Haida nation  16 require the culturally modified trees in order  17 to learn and pass on the cultural heritage of  18 my people.  If the culturally modified trees  19 are destroyed, an important record of the  20 cultural achievements of the Haida people will  21 be destroyed.  As a people, the Haida want to  22 preserve their culture, and pass it onto future  23 generations.  Destruction of the culturally  24 modified trees is destruction of Haida  25 culture."  26  27 And finally from this affidavit, paragraph 53 which  28 says simply:  29  30 "Once destroyed, the site can never be  31 reconstructed, and most of the knowledge to be  32 discovered within the site cannot ever be  33 retrieved.  No amount of money could compensate  34 for this loss. "  35  36 Now, My Lords, this particular site was not a  37 village site, nor was it a cultivated field.  The  38 cutting permit was issued in 1990, well after the  39 Constitution date of 1982.  There had been apparently  40 no private interests in that land prior to the  41 issuance of the cutting permit.  It was simply Crown  42 land within a forest managed for logging purposes.  43 Now, the right claimed by the Haida is found in  44 paragraph 8 of my factum.  And that's just a quote  45 from the writ of summons issued two years ago, I  46 should say before we learned as much as we now know  47 about aboriginal rights before these proceedings.  But 1088  Submissions by Ms. Buller  1 this was how it was drafted:  2  3 "the right of the Plaintiffs within the said  4 area:  5 1.  To study Haida use of the forest and the  6 culturally modified trees within the forest,  7 2.  To maintain and conserve the culturally  8 modified trees, and  9 3.  To use the forest as a place for  10 education."  11  12 It is an unusual right.  It is intended to be the  13 minimum protection needed to save this grove of trees  14 from destruction.  15 Now, my task in making submissions in this  16 proceeding has been greatly simplified by a question  17 from the bench.  And I refer to the question of my  18 lord Mr. Justice Lambert on May 15th which laid the  19 foundation for my submissions.  My lord posed the  20 question concerning aboriginal rights in two parts:  21 What makes them rights, and what makes those  22 rights aboriginal rights?  23 And this Massett intervention is restricted to issues  24 concerning aboriginal rights.  And I propose to  25 give -- to advance a partial answer to Mr. Justice  26 Lambert's question based on the facts that I have just  27 read to you.  28 Now, the specific rights that -- the specific  29 facts that I have read out to you, and which are the  30 basis of the injunction, are a body of facts that were  31 not before the trial judge.  And my submission really  32 is quite simple.  It's that the trial judge must have  33 been wrong in his decision that aboriginal rights were  34 all land based aboriginal rights were distinguished  35 because if he had known about these facts he could not  36 have reached that decision.  37 The -- my factum, as I said, has been -- I am able  38 to go through it more quickly because of framing my  39 answer to Mr. Justice Lambert's question.  Paragraphs  40 13 to 18 of the factum are really an attempt to say  41 that in the trial judgment appealed from here there  42 was no well analyzed jurisprudential foundation for  43 the comments made about aboriginal rights.  44 And if I may read from the transcript just to  45 outline this of Mr. Justice Lambert's question on May  46 15th, this is page 2 of the proceedings on May 15th.  47 This is page 2 of the proceedings on May 15th. 1089  Submissions by Ms. Buller  1  2 "So I don't believe that there is a well  3 analyzed jurisprudential foundation for  4 aboriginal rights as a whole.  At least it  5 hasn't come through to me so far in the  6 submissions that I've heard."  7  8 And then my lord goes on to pose this question:  9  10 "I think my particular problem is twofold.  The  11 first question is what makes an activity,  12 custom, practice or institution into a right in  13 the context of aboriginal rights generally, and  14 in the context of Section 35 of the  15 Constitution Act.  This question asks what  16 makes something a right.  The second question  17 is what makes an activity, customs, practices  18 and institution carried on by aboriginal  19 peoples into an aboriginal right.  This  20 question asks what makes a right aboriginal."  21  22 And this intervenore, My Lords, proposes today to  23 present a minimal set of requirements that would  24 answer those two questions.  It is submitted that the  25 facts in the Stejack Logging case illustrate the type  26 of facts which must always give rise to a finding that  27 there is an aboriginal right.  28 Now, let me quickly say that by asserting a  29 minimal position, a bottom line so to speak on  30 aboriginal rights, the Massett intervenor does not  31 intend to make anything away from the Appellants or  32 the other intervenors who present a fuller answer to  33 the question.  And, in particular, I adopt what Mr.  34 Jackson has already said and what Mr. Pape is going to  35 say about the fuller flowering of aboriginal rights in  36 their contemporary form.  But I would like to present  37 this bottom line proposition.  38 And if I can return to the outline of the  39 questions provided by Mr. Justice Lambert, the first  40 question, and I'm -- for your future reference I am at  41 the top of the page 3 of the proceedings of May 15th.  42 He says this:  43  44 "In relation to the first question, namely,  45 what are the factors that makes an action into  46 an action in the exercise of a right, there is  47 no avoiding, in my opinion, some form of 1090  Submissions by Ms. Buller  1 analysis of the jurisprudential formulation of  2 rights."  3  4 And some contrasting propositions are set out.  5  6 "That jurisprudential formulation should be  7 able to put in place questions about rights in  8 rem and rights in persona, questions about  9 collective rights and individual rights,  10 questions about correlative, individual and  11 relative duties, questions about enforceability  12 and non-enforceability in relation to rights,  13 and questions about the distinction between  14 rights and practices."  15  16 And it is that that I wish to address, which is the  17 distinction between rights and practices.  If it is or  18 was merely a right in theory, for example an  19 unexercised practice, then this Court would want to go  20 on to decide if that theoretical right has  21 crystallized into an aboriginal right in some way.  It  22 is much like the reference this morning that Mr. Point  23 made to gold.  The Indians said they didn't use the  24 gold much.  But they may well have had an aboriginal  25 right to that gold, but they were not asserting that  2 6 at the time.  27 But it seems to me, My Lords, that if there was a  28 practice as of 1846, say, then you have no problem.  29 The practice is the bottom line.  And that if you can  30 find the aboriginal practice you can find the  31 aboriginal right.  This was the right of the people in  32 1846.  And unless that practice has been prohibited  33 since 1846 then it is still there.  It is still their  34 right.  If there was a freedom, a privilege, a  35 property right or a practice which existed as of 1846  36 that has not since been extinguished, then you clearly  37 have a right pursuant to the Constitution Act of 1982.  38 So the practice is the bottom line.  39 And then I go to the second question posed by Mr.  40 Justice Lambert which was:  41  42 "...namely, what makes a right an aboriginal  43 right, one of the questions will be..."  44  45 I am reading from the transcript again on page 3 of  46 May 15th at line 19.  47 1091  Submissions by Ms. Buller  1 " of the questions will be whether the  2 right has to be one that is enjoyed only by  3 aboriginal people and not by others."  4  5 In other words, what does aboriginal mean?  What makes  6 it an aboriginal right?  And the distinction between a  7 right which is only exercised by aboriginal people and  8 one which is not distinctly aboriginal is, of course,  9 before this Court.  And as I've said already, I do  10 adopt the submission that Mr. Pape is going to make  11 which supports the -- the flowering of practices into  12 contemporary rights, rights which can be expressed in  13 a modern form and which in many cases will be  14 indistinguishable as between aboriginal people and  15 non-aboriginal people.  16 But the minimum position surely is this, that if  17 it is uniquely or distinctly aboriginal then it is  18 aboriginal.  So in the case of the Haida use of the  19 cedar trees, who use those cedar trees in a very  20 distinctive cultural way, surely they were exercising  21 an aboriginal use of those trees.  And since it was a  22 practice that dates back to 1846, surely that is an  23 aboriginal right.  It satisfies the minimum test, the  24 minimum requirement for an aboriginal right.  25 If I could return to my factum to just make a few  26 points and I will be done.  First of all, on page 9 of  27 my factum, paragraph 19 I reproduce s. 37 of the  28 Constitution Act.  29 HUTCHEON, J.A.:  Page please?  3 0  MR. WOODWARD:  Page 9.  31 HUTCHEON, J.A.: I have it.  32 MR. WOODWARD:  Subsection 2 of section 37, this has now be  33 repealed, but stated:  34  35 "(2)  The conference convened under subsection  36 (1) shall have included in its agenda an item  37 respecting constitutional matters that directly  38 affect the aboriginal peoples of Canada,  39 including the identification and definition of  40 the rights of those people to be included in  41 the Constitution of Canada..."  42  43 Now, Lord Denning in the Secretary of State case said  44 this, and it's a quote just underneath that.  He says:  45  46 "It seems to me that the Canada Bill itself  47 does all that can be done to protect the rights 1092  Submissions by Ms. Buller  1 and freedoms of the aboriginal peoples of  2 Canada.  It entrenches them as parts of the  3 constitution, so that they cannot be diminished  4 or reduced except by the prescribed majorities.  5 In addition, it provides for a conference at  6 the highest level to be held so as to settle  7 exactly what their rights are.  That is most  8 important, for they are very ill-defined at the  9 moment."  10  11 Now, during the first year after the patriation of the  12 Constitution, the British Columbia Supreme Court gave  13 a generous interpretation to the section 37 process,  14 so as to allow "future political action" to takes its  15 course.  That's a quote from the Peters case that I  16 have cited there that future political action was the  17 possibility that aboriginal rights might well be  18 identified and defined pursuant to the constitutional  19 process.  20 Now, section 37 was repealed and replaced.  But it  21 remains true, as Lord Denning said, that aboriginal  22 rights are "very ill-defined".  I submit that since  23 1982 there has not been enough case law to define  24 aboriginal rights to any satisfactory degree.  In  25 addition, the section 37 and 37.1 constitutional  26 conferences failed -- they failed to provide any  27 political assistance as to the "identification and  28 definition" of the rights.  29 And therefore, it is submitted, that the field of  30 rights which are constitutionally protected remains,  31 in a sense, a dark continent in our law which has not  32 been explored.  Dr. Slattery uses the analogy of an  33 unexplored archaeological site.  34 I make a small point about the trial judge's  35 reverse declaration, My Lords.  I begin right at the  36 bottom of page 12 at line 47.  In particular, the  37 trial judge should not have granted a "reverse  38 declaration" in the circumstances of this case.  39 Now, I am quoting here from a book called  40 Declaratory Orders by P.W. Young where he says this at  41 the top of page 13:  42  43 "In some cases, after a hearing, the judge may  44 consider that it is preferable to make a  45 declaration in favour of the defendant rather  46 than merely dismiss an unsuccessful plaintiff's  47 claim.  Such a declaration is referred to in 1093  Submissions by Ms. Buller  1 this work as a reverse declaration.  2 However, such a reverse declaration will  3 not be made if there is a matter which could be  4 put up against it which was not raised in the  5 proceedings."  6  7 And, of course, I submit that the matter which could  8 have been put up against it was the kinds of facts you  9 find in the Stejack Logging case.  10 The trial judge treated the claim for aboriginal  11 rights as an included claim or a lesser claim than the  12 primary claims of the plaintiffs.  And you will see  13 the quote at the bottom of page 13 where that is set  14 out.  15 And on page 14 of my factum I argue that this was  16 an incorrect approach of the trial judge.  That  17 aboriginal rights being this dark continent, as I've  18 described it, can't be considered to be somehow an  19 included set of rights, rather, they are different.  20 And we need to understand them based on the -- based  21 on first principles.  And really it does injustice to  22 the body -- the emerging body of law about aboriginal  23 rights for the learned trial judge to have said all of  24 these land based aboriginal rights are simply  25 extinguished without -- without building that upon an  26 understanding of the particular fact situations which  27 arise in this province.  28 Now, beginning on page 16 I set out what is really  29 another -- another fall-back position, another minimal  30 position.  And what this is is the proposition that  31 even if aboriginal title was extinguished that  32 aboriginal rights were not therefore automatically  33 extinguished.  34 Now, I must hasten to say, as it says in my  35 factum, that I adopt what the Appellants have said  36 that aboriginal title was not extinguished.  And  37 indeed you heard me arguing on behalf of Harry Thomas  38 Dick that such extinguishment would require express  39 legislative intention.  So I'm not here arguing or  40 conceding that aboriginal title has been extinguished.  41 But for the sake of this argument, if it has been  42 extinguished, as the trial judge found, that does not  43 mean that aboriginal rights were extinguished.  And I  44 will be saying that for the rest of this factum.  45 First of all, I submit in paragraph 35 on page 17  46 that there are some categories of aboriginal rights  47 that may be afforded constitutional protection: 1094  Submissions by Ms. Buller  1 (a) there are land rights which include, but are  2 not necessarily limited to "aboriginal title".  3 (b) there are self-government rights, including a  4 sui generis form of sovereignty.  5 Now, that, as you've heard argued, has long been  6 recognized in the United States.  Hints of that appear  7 in Canadian law.  You have also cultural and religous  8 rights that are distintive and which don't appear  9 obviously to be connected to aboriginal title.  And  10 certain other rights, we don't know if they are  11 aboriginal rights or not, but there are various tax  12 exemptions.  There is an exemption from customs  13 duties.  There is the J treaty, for example.  Other  14 categories of privileges which aboriginal people enjoy  15 which may well be aboriginal rights.  We don't know  16 yet.  Our law has simply not developed.  17 Now, in paragraph 37 on page 18 I say this:  18 aboriginal people may assert certain aboriginal rights  19 which are not necessarily dependent upon any  20 particular territory or relationship with the soil.  21 And here are some examples:  22 the right of a band to determine its own  23 membership, whether or not the membership are  24 living within the aboriginal territory,  25 the right to retain a customary form of  2 6 government,  27 the right to customary family law, including  28 customary adoption,  29 the right to practice native religion,  30 the right to practice traditional medicine.  31  32 Case law has established, or commented upon the  33 potential existence of, certain specific aboriginal  34 rights which do not appear to be related to the  35 continued existence of aboriginal title.  I give four  36 examples:  37 (a)   the aboriginal right to self-government.  38 The Eastmain case is a Provincial Court in Quebec, but  39 it nevertheless asserts that right to exist.  40 (b)   the right to maintain aboriginal secrets.  41 HUTCHEON, J.A.:  COULD you give us the reference to that?  42 MR. WOODWARD:  The Eastmain case?  43 HUTCHEON, J.A.:  Yes.  You've got the citation, but do you have  44 the —  45 MR. WOODWARD:  That is in one of the intervenors' volumes 49 or  46 50.  47 HUTCHEON, J.A.:  Well, perhaps it could be looked at later on. 1095  Submissions by Ms. Buller  1 MR. WOODWARD:  It is in volume 49.  2 HUTCHEON, J.A.:  49 and tab —  3 MR. WOODWARD:  Sorry, I don't have a tab handy here.  4 HUTCHEON, J.A.:  Well, we can perhaps get that.  5 TAGGART, J.A.:  Tab 19.  6 HUTCHEON, J.A.:  And Worcester v. Georgia, does that also deal  7 with self-government?  8 MR. WOODWARD:  Yes, my lord, in Worcester v. Georgia you have --  9 HUTCHEON, J.A.:  I believe that was the minister or the preacher  10 that ended up in jail, wasn't it?  11 MR. WOODWARD:  Yes, exactly.  He uses the word — Chief Justice  12 Marshall uses the word self-government in that case.  13 He said these people have the right to Indian title  14 and self-government within their territory.  15 HUTCHEON, J.A.:  I see.  16 TAGGART, J.A.:  I should tell you, Mr. Woodward, in about 15  17 years when you next appear before Mr. Justice Hutcheon  18 he will remember that preacher in Georgia.  19 HUTCHEON, J.A.:  I wondered how he got into ousting all of the  20 laws of Georgia.  That's what puzzled me.  21 MR. WOODWARD:  Well, I assume that the other parties have talked  22 about Worcester v. Georgia in some thoroughness.  23 HUTCHEON, J.A.:  Well, I didn't quite understand how he got in  24 there, but I did find out that he said he wasn't -- he  25 didn't have to swear allegiance to the laws of Georgia  26 because he was in Indian territory.  And he was  27 convicted and sentenced to four years.  28 MR. WOODWARD:  Yes, he was in jail, I believe, when the United  29 States Supreme Court heard its case.  And then the  30 U.S. Supreme Court said he was convicted under State  31 of Georgia laws which don't apply.  32 HUTCHEON, J.A.:  I was interested in this subject matter because  33 I couldn't recall cases on self-government.  But you  34 say this Quebec case touches on the matter of  35 self-government?  36 MR. WOODWARD:  Yes.  It is a case about a -- it is a case about  37 a -- what do you call it, a curfew.  And the -- Mr.  38 Hutchins will be much better able to talk about that  39 case than I will be able to.  But certainly the  40 Provincial Court Judge allowed that the power of this  41 band in one of the Cree'Nas Kapi Bands in northern  42 Quebeck to impose a curfew derives not simply from the  43 Indian Act, but it derives from their inherent  44 self-government.  One of the few comments we have in  45 Canadian law.  46 LAMBERT, J.A.:  But if I recollect Worcester v. Georgia  47 correctly, there was a -- the judgment says that the 1096  Submissions by Ms. Buller  1 Indians were a dependent sovereign nation.  2 MR. WOODWARD:  Domestic dependent nation.  3 LAMBERT, J.A.:  Domestic dependent nation.  4 MR. WOODWARD:  With sovereignty.  5 LAMBERT, J.A.:  With sovereignty.  The key problem is the  6 problem that we alluded to is reconciling the concept  7 of self-government with the concession that has been  8 made by the Appellants that the sovereignty rests in  9 the Crown and has done since 1846.  10 MR. WOODWARD:  And there is no problem today and there was no  11 problem before the U.S. Supreme Court.  The Indian  12 nations of Canada as is the Indian nations of the  13 United States have inherent -- according to that line  14 of common law, an inherent sovereignty except where it  15 is necessarily limited by the coming of the Crown.  16 And the only way in which it is limited is in terms of  17 external relations, military forces and that kind of  18 thing.  And perhaps that the underlying title on  19 the -- the name on the top of the deed is Her Majesty,  20 although it is fettered completely by the Indian  21 burden.  22 So the sovereignty -- there is no problem with the  23 coexistence of Indian sovereignty and Crown  24 sovereignty.  Chief Justice Marshall I think was  25 interpreting the same body of law that is before you  26 today.  The coming into force of the United States  27 Constitution didn't affect that underlying  28 proposition.  I don't see them as being contradictory  29 because the word "sovereignty" is used in slightly  30 different senses in that it is a slightly limited form  31 of sovereignty that aboriginal nations have in that  32 they are limited in terms of external relations and  33 military affairs, that kind of thing.  But until  34 otherwise interfered with, they retain their complete  35 internal domestic sovereignty.  36 Now, there has been a lot of interference, a ton  37 of statutory interference in Canada and in the United  38 States.  But if you roll back that statutory  39 interference, what's left is sovereign internal  40 nations within Canada or the United States.  41 LAMBERT, J.A.:  Any statutory interference since 1982 it would  42 be in effect?  43 MR. WOODWARD:  Yes.  That's right if it is an interference with  44 the aboriginal right of self-government.  So, for  45 example, in British Columbia you have on the West  46 Coast you have many tribes that are still governed by  47 their hereditary systems of chiefs.  The Indian Act 1097  Submissions by Ms. Buller  1 has never -- through the Indian Act there is a  2 provision that hereditary councils can be replaced by  3 elected councils.  But that has never been done by  4 many of the bands in British Columbia.  5 Surely as of 1982 that right of those people to  6 have a hereditary traditional system of government  7 becomes entrenched because that is a continuation of  8 that pre-existing sovereignty that was never  9 extinguished.  Parliament, the Ministers of Indian  10 affairs over generations, have never seen fit to  11 replace those hereditary governments.  Many of them  12 make very fine governments indeed.  And it would be an  13 interference with their aboriginal right to come along  14 now and presume to replace those governments with some  15 other form of government dictated by parliament.  16 So, sure, I think there are still elements of the  17 aboriginal right of self-government that we can see  18 quite clearly in operation today.  And statutory  19 attempts to interfere with that since 1982 are  20 invalid.  21 Now, I'm not in this factum getting into the  22 question of what happened between 1871 and 1982.  And  23 certainly Hugh Braker will deal with that in the Dick  24 intervention.  And of course the Appellants and all  25 the other intervenors are dealing with that.  26 I mentioned on page 19 the right to practice  27 native religion.  Not a very well developed part of  28 our law in Canada.  But in the United States native  29 religion is given some protection from the law in the  30 case of The People v. Woody, a colourful case,  31 involving use of payote, a drug that would be  32 prohibited to other members of the State of California  33 but is not prohibited to members of --  34 HUTCHEON, J.A.:  But there have been more recent cases on that.  35 MR. WOODWARD:  I think there have been, yes, my lord.  36 HUTCHEON, J.A.:  Within the last two years.  37 MR. WOODWARD:  Yes.  And I think that Woody has been to some  38 extent tightened, although not completely eliminated.  39 HUTCHEON, J.A.:  Yes.  40 MR. WOODWARD:  But I am not really up on the most current  41 American law.  But the U.S. Supreme Court has done  42 some damage to Woody I think.  43 Finally, I mention the Sioui case.  Here you have  44 in Sioui the tribes of Lorett (phonetic) were actually  45 refugees.  They were displaced from their homeland.  46 They were in a different part of what is now Quebec.  47 Again, Mr. Hutchins will correct me if I am wrong 1098  Submissions by Ms. Buller  1 about this.  But when the British Armed Forces met  2 them in 1760 certain rights to practice their religion  3 were confirmed to them.  So it didn't matter that they  4 were not within their aboriginal territory, that they  5 had aboriginal title.  Certain aboriginal rights to  6 practice religion were confirmed to them.  And sure  7 enough, 222 years later when the Constitution Act came  8 into effect those rights became treaty rights  9 protected by the Constitution.  And what was it, the  10 right to practice their native religion involved  11 lighting a ceremonial campfire.  It was prohibited by  12 the park regulations.  But the Supreme Court of Canada  13 said:  Well, that treaty right which was confirmed to  14 them in 1760 is still alive and is protected.  And it  15 protects them against park regulations that the  16 Province of Quebec might pass.  17 So I submit in paragraph 39 on page 19 that  18 aboriginal rights are not yet defined, just as section  19 37 of the Constitution Act suggested.  In other words,  20 there is no finite legal definition.  His Lordship in  21 the trial decision attempted a definition which I  22 submit was premature and incorrect.  Such a definition  23 may emerge from the body of the common law, but not  24 from a theoretical approach.  The learned trial judge  25 was incorrect in putting forward the definition found  26 at page 127 of his Reasons.  27 So, My Lords, I just would conclude by saying that  28 the -- of course the intervenor Massett is here  29 because they are concerned that when you deliver your  30 reasons in this case that you keep in mind that they  31 have an injunction, an injunction to prevent the clear  32 cutting of the other three quarters of their 80 acre  33 grove of culturally modified cedar trees containing  34 five partially completed canoes.  And if you uphold  35 the trial decision in this case, that injunction will  36 most certainly be dissolved and those trees will be  37 cut.  And that practice which those Haida people enjoy  38 of observing and learning from those trees will be  39 forever terminated.  40 MACFARLANE, J.A.:  Does the same thing apply to Meares Island?  41 MR. WOODWARD:  Yes, my lord, it is very similar to Meares  42 Island.  So I submit that although Massett Band is  43 before you today with this particular set of facts,  44 there may well be a number of other such facts  45 throughout the Province.  And that these -- this type  46 of thing is -- falls within the minimum definition of  47 what is a right and what is aboriginal.  These things 1099  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 are distinctly aboriginal practices.  They certainly  2 are rights because they were practices as of 1846 and  3 have never been extinguished.  4 So I again want to emphasize that I don't mean by  5 proposing this minimal position to take anything away  6 from what Mr. Pape is going to say and what others  7 have already said about how those rights develop  8 through time in order to become modernized and about  9 how those rights may well be part of a network of  10 rights which support the economic foundation of a  11 people to maintain themselves as a distinct aboriginal  12 society.  Those arguments you will hear.  But at a  13 minimum, such rights as you find in the Stejack  14 Logging case must well be aboriginal rights.  And to  15 that extent, his Lordship the Chief Justice was in  16 error when he said that all such rights were  17 extinguished.  Thank you, My Lords.  18 TAGGART, J.A.:  Thank you, Mr. Woodward.  Mr. Hutchins, we could  19 perhaps move things along by taking the afternoon  20 break now while you organize.  21 MR. HUTCHINS:  If you so wish to, my lord.  22 TAGGART, J.A.:  All right.  23 THE REGISTRAR:  Order in court.  Proceedings adjourned for five  24 minutes.  25  2 6 (AFTERNOON RECESS)  27  28 THE REGISTRAR:  Order in court.  29 TAGGART, J.A.:  Yes, Mr. Hutchins.  30 MR. HUTCHINS:  May it please the court, my name is Peter  31 Hutchins and I appear for the intervenor National  32 Indian Brotherhood, Assembly of First Nations.  33 Appearing with me is Ms. Diane Soroka.  34 My Lords, I would like to just explain the  35 material that we will be referring to.  We have filed  36 two facta, so we will be referring to our principal  37 factum and the supplementary factum in the blue  38 covers.  There is also an appendix to the factum which  39 you should have as well, three volumes, blue covers.  40 We have also provided your lordships with a reference  41 book for use during oral argument.  I hope to be -- My  42 Lords, I hope to be able to refer you to extracts of  43 authorities in our factum and in the reference book  44 without going on searches in the books of authorities.  45 We have also supplied you with a -- with speaking  46 notes, My Lords, which should be before you and which  47 I will be starting with.  The speaking notes are 1100  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 referenced to the two facta.  So you have with the  2 speaking notes references as I go to the paragraphs in  3 our principal factum and our supplementary factum.  I  4 might also add the speaking notes constitute a summary  5 of our argument, but also an attempt to respond to  6 some of the questions posed by the court over the past  7 several weeks.  8 And in the reference book, the system in the  9 reference book is that we have tabbed references to  10 the paragraph numbers in our facta.  In the  11 supplementary factum the tabs are S with a number.  12 And at the end of the reference book you have a tab  13 marked Q which designates the authorities for the  14 questions or the responses to the questions from the  15 Court.  16 My lord, in taking you to our summary, the attempt  17 is to indicate our perspective, this intervener's  18 perspective on the issues, and to highlight the  19 written arguments that we have put forward in the  20 facta.  We will not have, of course, time to go to --  21 through both facta in their entirety.  But I would  22 like to take you through the summary, the speaking  23 notes and then move on to detailed treatment in the  24 facta on certain specific points.  25 By way of confirming this intervener's interest in  26 the appeal, My Lords, I might just briefly explain, as  27 we did at the time of the application for leave to  28 intervene, that the Assembly of First Nations is  29 composed of chiefs and Indian chiefs in Canada with  30 the National Indian Brotherhood acting as a  31 secretariat.  The A.F.N, represents approximately 631  32 First Nations of which 204 are found in British  33 Columbia for a total population of approximately  34 570,000 status Indians.  The A.F.N, has a mandate from  35 the chiefs to look to the protection and advancement  36 of rights and interests of First Nations, their  37 members, including treaty rights, aboriginal rights  38 and, of course, Constitutional rights and protections.  39 My Lords, over the past two weeks this court has  40 heard a great deal of argument, eloquent argument on  41 what the Appellants in law can do.  I suspect that  42 over the next several weeks you will hear argument, no  43 doubt also eloquent, on what the Crown in law can do.  44 This intervenor, My Lords, wishes to redirect, if  45 we may, the inquiry slightly and ask what the Crown in  46 law cannot do.  And we refer to constraints on the  47 Crown.  I haven't quite got to my speaking notes, My 1101  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 Lords, if you are looking for that.  So what the Crown  2 in law cannot do and what the Crown in law must do.  3 The question of constraints on the Crown and the  4 question of duties positive, you would say fiduciary  5 duties, on the Crown.  6 Finally other intervenors, Mr. Berger for the  7 Coalition and Mr. Pape for the Carrier Sekani have  8 dealt very well with the question of title as it  9 pertains to Appellants' claim.  10 In our oral submissions we would like to  11 concentrate, if we may, upon the other aspect of  12 Appellants' claim that of jurisdiction.  Although, of  13 course, our facta deal with both elements.  14 Now, My Lords, I have arrived at the speaking  15 notes.  I would like to take you through by way of  16 indicating what arguments are before you in the facta  17 and trying to deal perhaps with some of the questions  18 posed by the court.  Of course, the National Indian  19 Brotherhood Assembly of First Nations intervenes in  20 support of Appellants in this appeal.  21 Now, in the light of Respondent British Columbia's  22 revised position, and in reply to certain questions  23 that have been put by the Court over the past several  24 weeks, we would like to say that the role of this  25 Honourable Court is in no way diminished and remains  26 of utmost importance both to Appellants and certainly  27 to First Nations across the country.  28 It is not the case that because of the revised  29 position of British Columbia this Honourable Court  30 must seek a role.  We say that your role is absolutely  31 crucial.  And why?  Well, we now and we have cast the  32 issues this way in our supplementary factum, as you  33 will see in the reference.  We see the issues in this  34 appeal now being framed as follows:  Whether the  35 judgment of the trial judge is a correct statement of  36 the law.  And we say that it is not.  We say that it  37 represents an anomaly in the law in this area, with  38 great respect.  And we do say that it is creating  39 confusion in the law for First Nations and prejudice  40 to First Nations both inside and outside British  41 Columbia.  42 Secondly, My Lords, we say that an important issue  43 certainly for Appellants is whether there will be for  44 Appellants a Court mandated treaty process premised  45 upon unextinguished and appropriately characterized  46 aboriginal rights.  And we say that there must be such  47 a process. 1102  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 Finally, thirdly, whether this appeal will  2 contribute to a similarly equitable treaty process for  3 aboriginal peoples elsewhere in British Columbia and  4 throughout Canada.  And we say that it should.  And,  5 My Lords, we say for these reasons that the role of  6 this Court remains of absolute importance in the  7 issues in this appeal.  8 Now, in our principal factum, my lord, we attempt  9 to put the case in a proper perspective.  And we say  10 that the Crown's assertion with respect to British  11 Columbia generally, and the land claim territory in  12 particular, must be placed in that proper perspective.  13 An unquestioning reliance upon the Crown's  14 characterization of its own acts, rather than upon the  15 relevant facts and law is not the proper perspective.  16 Even if this Honourable Court does not see fit to  17 overturn the trial on the findings -- on his findings  18 of fact, we say that it can and should overturn the  19 legal conclusions drawn from those facts.  And we  20 refer the court to a similar submission faced by the  21 Supreme Court of Canada in the case of Attorney  22 General of Ontario v. Bear Island Foundation.  And, My  23 Lords, I will return to that.  But in that case this  24 is precisely the way the Supreme Court dealt with the  25 trial judge's characterization of rights in the very  26 large record.  27 Now, in light of our perspective, or the  28 perspective that we would like or wish the Court to  29 consider for this case, we deal with the starting  30 point.  What is the starting point of the issues?  And  31 that is original occupation, original use of lands.  32 And we say that aboriginal peoples have had, and it is  33 acknowledged that they had, de facto title to lands  34 and they were self-governing.  This historical fact,  35 we say, has been recognized by the Courts and by  36 governments, but was not given sufficient weight by  37 the trial judge, the de facto establishment of  38 occupation, use and self-government.  39 So moving from that starting point we say:  What  40 is the inquiry?  What are the appropriate tests and  41 what is the burden of proof?  And we say that the  42 burden of proof lies on those alleging change, a  43 modification of that initial situation.  We suggest in  44 our factum that in the establishment of aboriginal  45 rights, the appropriate test is the establishment of a  46 prima facie case by aboriginal people as to the  47 location of their homeland at the time of European 1103  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 assertions of sovereignty.  We say that then the  2 burden shifts to the Crown to establish any change or  3 dimunition of that aboriginal nation's title to or  4 jurisdiction over its homeland.  And the proper  5 inquiry we would suggest is neither the "intention of  6 the Crown", what was the intention of the Crown, or  7 "the acts of the Crown", but rather whether there  8 existed a legal foundation for such intention, for  9 such acts, whether they were based in law.  10 And we say, My Lords, that in conducting this  11 inquiry no double standard should be applied.  12 Certainly no double standard should be applied in  13 findings as to characterization of interests, as to  14 the effective occupation, the test of effective  15 occupation, as to acquisition of title and  16 sovereignty, or as to institutions.  And we say, with  17 great respect, that such double standard colours the  18 judgment of the trial judge on these matters.  19 Now we move to the situation and position of the  20 Crown having the burden to establish change,  21 modification of the situation.  And we submit, My  22 Lords, that the law of nations and the common law  23 impose important constraints upon the Crown's  24 authority.  That the trial judge, again with great  25 respect, did not give sufficient weight to these  26 constraints.  27 We examined both what we refer to as external  28 constraints on the Crown and internal.  On the matter  29 of external constraints under the law of nations we  30 say these matters have been canvassed fully with your  31 lordships, but that discovery when consummated by  32 possession gave rights against other competing  33 European nations, that is the law, the marshall courts  34 established, but not as against aboriginal peoples.  35 Britain's title to major portions of its holdings in  36 North American could only be derived through treaties  37 and agreements, we say, with aboriginal nations.  And  38 this is how the British explained this.  My Lords, I  39 will develop that this is how the British explained  40 the process to the Indian nations.  And this is how  41 Britain or the British Crown legitimated its claim in  42 international law.  We say that the Crown itself went  43 forward and made these statements.  44 The Crown acknowledged external constraints in two  45 ways.  I am at page 5 of the speaking notes, My Lords.  46 In regard it has considered its title, certainly the  47 perfection of its title, as deriving from First 1104  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 Nations.  And I think that distinct is important, the  2 perfection of its title derives from First Nations.  3 And it has considered its claims to complete and  4 secure sovereignty in international law as contingent  5 upon its political, military and trade relations with  6 First Nations.  7 My Lords, at the moment we are not questioning the  8 Appellants' position on British sovereignty in British  9 Columbia.  We are simply saying that an appropriate  10 inquiry is to look to how the Crown itself saw its  11 sovereignty, how it justified its sovereignty, how it  12 explained its sovereignty.  And First Nations  13 definitely played a role in the manner in which the  14 Crown explained its position to First Nations and the  15 manner in which the Crown explained its position to  16 the other actors of international law, other competing  17 sovereign states.  18 The legal regimes governing First Nations and  19 European relations therefore we say were not comprised  20 of rules promulgated by one party to that relationship  21 but rather are rules external to the parties through  22 the law of nations or rules agreed upon by the parties  23 through treaty making or Constitutional arrangements.  24 And here, with reference to Mr. Justice Lambert's  25 question as to whether the principle of consent forms  26 part of the law of nations or municipal law, we say  27 that this appeal addresses precisely the process  28 through which external rules governing the  29 relationship are transformed into consensual rules.  30 That nothing happened magically as of a second, that  31 there was an evolution in the relationship, an  32 evolution in the law and the legal rules applying to  33 that relationship.  34 That's on the matter of summary on the matter of  35 external constraints, we also deal with the matter of  36 internal constraints, and on that say that British  37 Columbia and Canadian constitutional history is a  38 history of curtailment of the sovereign's power, the  39 establishment of a rule of law to protect rights.  40 British Columbia, we say, was not judicially distinct  41 in this regard.  It was governed by the same laws,  42 including the law of nations and the common law as  43 restated in the Royal Proclamation of 1763.  44 Now, on the matter of sovereignties and coexisting  45 sovereignties, my lord, because there have been -- My  46 Lords, there have been questions as to how is it  47 possible that two sovereignties can exist, can 1105  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 coexist.  The trial judge certainly had difficulty  2 with that notion.  We say that the coexistence of  3 titles and of sovereignties, including the allocation  4 of what we refer to and others refer to as external  5 sovereignty and internal sovereignty, is well known in  6 law and applicable in this case.  7 As to title and jurisdiction, the Constitution  8 Act, 1867 we say accomodated the existence of title or  9 interests in land and jurisdiction over lands other  10 than those of the Crown.  Already in 1867 the  11 Constitution recognized this.  And certainly as of  12 1982 the constitution recognizes and affirms that  13 fact.  14 And I will be taking the Court to the two cases.  15 Certainly one case that your lordships expressed some  16 interest in during Mr. Woodward's presentation,  17 Eastmain v. Gilpin and also another case from Quebec,  18 the Quebec Court of Appeal in Attorney General of  19 Canada v. Kuncun, a case which you will find at A 51,  20 tab 6.  That is a case, a recent judgment of the Court  21 of Appeal of Quebec which we say recognizes the  22 constitutional order of government.  I will be taking  23 you to that in the factum.  The reference to our  24 supplementary -- in our supplementary factum if you  25 wish to get a head start on me, My Lords, are pages 23  26 to 27 in the supplementary factum we deal with those  27 two cases.  28 I prefer to carry on with the overview of the  29 position before going to the detail.  But we do  30 discuss Eastmain v. Gilpin and A.G. of Canada v.  31 Kuncun as two cases of the government recognizing  32 self-government, the power of the authority of  33 self-government.  34 We say as to jurisdiction specifically,  35 sovereignty is a concept much misunderstood but  36 considerably more elastic with respect to who the  37 actors who enjoy sovereignty or who may claim  38 sovereignty and considerably more accomodating with  39 respect to the notion of coexistence of the  40 sovereignty than presumed by the trial judge, that  41 sovereignty is not necessarily an absolute exclusive  42 of all of the claims, that there is a notion in law,  43 and certainly we practice it in Canada, of coexisting  44 sovereignties.  45 Now, my lord, we here deal with the nature of  46 rights and aboriginal rights and attempt in this  47 section of the speaking notes to address some of the 1106  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 concerns expressed by the Court in the last several  2 weeks.  And although there are cross-references to our  3 facta, I am also here trying to address what we  4 understand are the concerns of the court.  5 In answer to those questions, with particular  6 reference to rights and aboriginal rights, we say that  7 rights of Appellants (and other First Nations)  8 coexisting with those of the Crown are collective  9 rights exercised through social and political  10 structures that are not to be confused with rights  11 enjoyed by individuals with respect to specific  12 activities.  The analogy we suggest would be the  13 distinction between a state's rights to territory and  14 sovereignty in international law, and I stress the  15 analogy would be the distinction between a state's  16 right to territory and sovereignty at international  17 law on the one hand and, on the other, the individual  18 rights of citizens of that state.  So there are two  19 levels that one must consider in this discussion.  20 The First Nations as collectivities claim the  21 freedom to exist and function as discrete, but not  22 totally independent, societies, with economic freedoms  23 (such as access to lands and resources) and political  24 freedoms (such as jurisdiction) to do so.  These  25 freedoms take the form of rights.  And this is where I  26 believe Mr. Justice Lambert's question centers.  The  27 freedoms take the form of rights, and more  28 particularily, of aboriginal rights in the context of  29 the relationship with the Crown with whom First  30 Nations share territory.  31 Now, My Lords, before moving on I would just  32 indicate that in our reference book at tab Q for  33 questions -- we have assembled two or three  34 authorities on the question of freedoms and rights  35 which might assist the court.  And before I move into  36 our summary, I would just perhaps point to two of  37 those authorities.  This is in the reference book,, at  38 the end of the reference book, last tab in the  39 reference book.  This would be the black volume, My  40 Lords.  41 The first authority under tab Q, re Alman v.  42 Commissioner of the Northwest Territories, if you can  43 go to page 478 of that case, My Lords.  It is three or  44 four pages in.  The court is addressing the question  45 of the distinction, if any, between rights and  46 freedoms.  And if you go to the second to last  47 paragraph which commences "Walter S. Tarnopolsy", the 1107  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 Court is referring to Mr. Justice Tarnopolsky's  2 analysis in the Canadian Bill of Rights, 2nd revised  3 edition dealing with the meanings to be given to the  4 words "rights", "freedoms" and "liberties".  And there  5 are two ideas -- I apologize for the small print, but  6 two ideas which I think are important there.  Mr.  7 Justice Tarnopolsky writes:  8  9 "In discussing basic or fundamental rights and  10 freedoms one is concerned with the relationship  11 between the individual or a group and the  12 state.  In its simplest form this relationship  13 may be thought of in two ways.  It may be that  14 an individual or a group demands  15 non-interference from the state, at least in  16 certain activities:  this is a claim for  17 freedom or liberty.  It may be, however, that  18 the demand is for state intervention to protect  19 one's away of life against encroachment by  20 others, or to provide it either as a minimum  21 living standard or on the basis of equality  22 with others:  this is a claim for the positive  23 assistance of the state in the securing of  24 certain rights."  25  26 The two ideas being non-interference with respect to  27 freedoms, the freedom to continue uninterfered with  28 and, on the other hand, the positive duty on the  29 state, the right to have state intervention in certain  30 cases to protect those freedoms.  And we will be  31 examining those concepts further, My Lords.  32 I would just refer you to -- there are three or  33 four authorities here.  And there is actually an  34 extract of Mr. Walter Tarnopolsky's article in the  35 final authority in that tab.  And if you could just  36 turn to the introduction, My Lords, the final  37 authority in that tab.  And this would be the last  38 paragraph on the page entitled "Chapter 1,  39 Introduction".  That would be the second to last page  40 of the last tab.  The side barred portion:  41  42 "A 'right' may be said to be a claim or an  43 advantage possessed by a person or persons,  44 which is conferred or protected by law, and  45 which implies a corresponding duty on the part  46 of another."  47 1108  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 The idea that a right implies a corresponding  2 duty.  3 Now, My Lords, if I may return to the speaking  4 notes.  I was at page 8 of the notes, paragraph 17.  5 We develop this notion of freedoms, rights and  6 aboriginal rights.  The question that Mr. Justice --  7 Mr. Justice Lambert asked was:  When does a right  8 become an aboriginal right?  Well, we would say that  9 these rights and freedoms that we have identified are  10 aboriginal because they pre-existed the introduction  11 of European concepts of rights and freedoms.  12 Aboriginal peoples were here when Europeans arrived.  13 The first Europeans were required to accept aboriginal  14 societies as they found them.  They imported -- the  15 Europeans imported laws and institutions for their own  16 use.  Non-aboriginals subsequently arriving or born  17 into the new society became by that fact part of the  18 new society.  Aboriginal societies, while establishing  19 relationships with the new society, through treaties,  20 remained distinct from that new society,  21 pre-existence.  22 LAMBERT, J.A.:  Pre-existence as a right or pre-existence at  23 all?  24 MR. HUTCHINS:  My lord, I am addressing here the question:  Why  25 is a right an aboriginal right?  And this paragraph 17  26 addresses that point.  Why is this right claimed  27 aboriginal?  And we say it is aboriginal because it is  28 pre-existing, and for the other reasons set out in  29 paragraph 17.  I will come back to the question of why  30 is it a right in a moment.  31 I do -- I did point out in paragraph 16, my lord,  32 that we start with the notion of freedoms.  We say  33 that in the context of the relationship with the Crown  34 and the corresponding duties on the Crown there are  35 rights established because of the duties assumed by  36 the Crown.  So those freedoms, the freedom to use  37 territory, to use resources, the freedom to exercise  38 jurisdiction become rights, or can be seen in law as  39 rights within the context of that relationship with  40 the Crown.  And they are aboriginal because of their  41 pre-existing nature.  42 LAMBERT, J.A.:  Yes.  I see that analysis and I am willing to  43 accept that it is your submission.  But you could help  44 me if you would answer the question:  does its  45 pre-existing nature have to be as a right and not  46 merely as a practice in the sense that in the  47 aboriginal community it was seen as something with a 1109  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 correlative duty in someone's terminology.  2 Does it -- I mean your submission is that it has  3 to be a right because there are correlative duties of  4 the Crown post-contact and aboriginal because it was  5 in existence, although you don't say it was as a right  6 before contact.  But it seems to me that you are  7 comparing apples and oranges in trying to put the two  8 things together.  You have got two different periods  9 of time.  One that you say is the right one for  10 aboriginal and the other is the right one for rights.  11 And so I just feel that I have to understand whether  12 the pre-existing time had to have rights in the same  13 sense as you've described.  14 MR. HUTCHINS:  Yes, my lord.  Of course, this is all within the  15 context of our examination of the question of the  16 relationship with the Crown, constraints on the Crown.  17 This case, of course, is about, among other things,  18 the ability of the Crown to extinguish rights, what  19 impact the Crown activity has had.  So it is really on  20 that point.  But I would -- if we go pre-contact, if  21 we examine societies I believe there is proof in the  22 record that this notion of correlative rights, duties  23 existed in aboriginal society certainly across the  24 country.  Aboriginal collectivities had the idea of  25 boundaries, aboriginal collectivities traded,  26 conducted military and diplomatic relations, had these  27 ideas of rights to territory, not necessarily the  28 exclusive, and we will I hope get to that as well.  29 They were not necessarily fences drawn or built around  30 territories, but there was a notion of respective  31 territories, a respect for those territories.  And at  32 times war waged as a result of impact or aggression on  33 those territories.  34 So there was, as between aboriginal  35 collectivities, we believe there is still this notion  36 of freedom to exercise and a right against  37 interference.  And within the societies, and this is  38 the distinction I was trying to make as well, my lord,  39 that we really have to look at two levels of  40 relationship.  We have to look at the relationship of  41 the collectivity, the nation, the aboriginal nation to  42 the Crown as one examination.  We also have to look  43 behind, if I may say so, the veil of aboriginal  44 society to say that there were individuals, there were  45 family groups, there was a system of law operating  46 within aboriginal society at the level of family  47 hunting groups, at the level of trade, at the level of 1110  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 feasts.  And this was -- again there was a notion of  2 rights and duties.  At that point, however, we are  3 talking about rights and duties between families as  4 between families, as between individuals.  5 So certainly the notion of freedoms, rights  6 existed pre-contact.  What we are trying to address  7 when your Lordship said:  Well, there were activities  8 being conducted, when did they, or how did they, or  9 did they become rights?  And we addressed that  10 question as follows:  we say that essentially one must  11 say there was a freedom to exercise, to occupy  12 territory, not to be interfered with.  There was that  13 freedom.  That was perhaps a right vis-a-vis the  14 neighbouring aboriginal nations.  And at the time of  15 European assertions of sovereignty it became a right  16 within the context of the relationship with the Crown.  17 There then became duties imposed upon the Crown to  18 respect that -- those freedoms, the exercise of those  19 freedoms.  20 And we would suggest that as the law evolved those  21 duties became positive duties to actually actively  22 protect the exercise of activity.  We are trying to  23 address your lordship's question through saying: one  24 does not look at the bundle of rights, or one does not  25 take an inventory of activities to say:  Well, there  26 is the bundle of rights, and that is the aboriginal  27 right.  Perhaps one should look at the notion of  28 freedoms, freedom to use territory, access to  29 territory and activities which consisted -- and this  30 is our point at the starting point, it is  31 acknowledged.  It has been acknowledged by the courts.  32 Mr. Justice Judson in Calder.  They were there  33 exercising, occupying the land as their forefather's  34 have.  So there is this de facto notion that they were  35 there, they were self-governing.  Our inquiry is:  36 Well, what has happened, and did it happen legally?  37 So that we say that in the interference with that de  38 facto, with that occupation and self-government by the  39 Crown any interference must be justified.  40 I would also say, my lord, that the law has the  41 notion of acquired rights.  I think all of our legal  42 systems, the civil law in Quebec, the common law does  43 have this notion of respect of pre-existing rights,  44 acquired rights.  There is a legal presumption in  45 favour of the possessor.  Possession is evidence of  46 ownership.  The law protects the fact situation,  47 absent any authority to the -- to contradict it.  And 1111  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 if we do expect -- if we respect that notion, for  2 example in Quebec we refer to it as prescription.  If  3 the law does set up these protections for holders of  4 property, the possessors, and says that someone who  5 comes later cannot dispossess without title and good  6 reason, we can -- why cannot the law tolerate that  7 notion with respect to these collectivities with  8 respect to First Nations occupying, possessing the  9 land at the time that the Crown -- Europeans arrived.  10 So then we say that, yes, the freedom to continue  11 as before unaffected is the right, and is a right  12 vis-a-vis the Crown.  I don't know, my lordship -- my  13 lord, if I've answered the question satisfactory.  But  14 that is the notion that we are putting forward here.  15 And we in number 17, paragraph 17, I am simply  16 addressing the question of when is a right and why is  17 a right aboriginal.  And we do believe that the  18 essential question, and you have had other answers to  19 that question, one of them must be because it was  20 pre-existing.  21 And at the very least our thesis is that it was a  22 burden on the Crown.  It is up to the Crown to  23 demonstrate in law why it was not a right, why they  24 did not occupy as of right, why they did not exercise  25 jurisdiction as a right.  And under what legal  26 pretense the Crown could interfere with those  27 freedoms.  28 We say that that, at the very least, is what is to  29 be expected on the basis of simply the fact situation  30 of they were there, the Europeans arrived.  Now, what  31 has happened in law and why?  And surely the law  32 favours the presumption of a continuing situation,  33 absent any very good reason, any better title to  34 dispossess the original occupant, the original enjoyer  35 of the right.  36 HUTCHEON, J.A.:  You need not answer it now, and you probably  37 are going to be developing it, but did the trial judge  38 at any point talk about burden of proof?  39 MR. HUTCHINS:  I don't believe, and I stand to be corrected, my  40 lord, by those with more detailed knowledge.  I don't  41 think this was a central concern of the trial judge.  42 I don't think he examined the issues on that question.  43 Although, I do believe that he referred to some  44 authorities.  Because there are, of course,  45 authorities that the burden is on the Crown to prove  46 extinguishment.  The clear and plain intention test  47 surely advances that. 1112  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 HUTCHEON, J.A.:  Oh, yes.  2 MR. HUTCHINS:  So in that respect, yes.  3 HUTCHEON, J.A.:   Yes.  4 MR. HUTCHINS:  I don't believe that the whole notion of starting  5 from the starting point saying there was a fact  6 situation, there was a de facto situation, what has  7 happened, what has changed and what is the legal basis  8 for the change, if any?  9 We certainly, as we say at paragraph 18, do not  10 deny that British law was eventually introduced into  11 British Columbia.  British law was present to  12 supervise the lives of British citizens, whether  13 traders or settlers, in the limited areas occupied by  14 them.  There certainly was that situation.  What is  15 denied is that the arrival of a handful of British  16 citizens, the declaration of a colonial governor had  17 the legal effect of immediately and unilaterally  18 stripping independent, distinct peoples, not living  19 among the British, of their right to self-governance  20 or of justifying legislative interference with that  21 right.  22 We say that aboriginal right is the right enjoyed  23 by aboriginal societies to be protected against  24 disturbance or deprivation of these freedoms at large  25 (as in this appeal with respect to territory and  26 governance) so that the right to be protected for  27 aboriginal societies to be protected on the one hand.  28 And it is also the right of aboriginal individuals to  29 be protected against disturbance or deprivation of  30 these freedoms in their particular aspects.  And we  31 will refer to Sparrow and fishing.  So that, yes, it  32 is true that the Courts have dealt with the individual  33 exercise of aboriginal rights by individuals, this  34 does not preclude the collective -- the right in  35 society for non-disturbance or deprivation of freedoms  36 at large, as we say, as to territory or governance.  37 The aboriginal rights of Appellants are  38 constitutionally recognized and protected rights.  And  39 we say that the evolution of Anglo-American  40 constitutional law is characterized precisely by the  41 expressions of protections against public authority.  42 That is the essence of a constitutional right.  So  43 again why are these a right?  And the right is the  44 protection against a public authority or abuse of the  45 public authority and Anglo-American constitutional law  46 has spent a great many years and a great amount of  47 effort developing those protections. 1113  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 In the case of aboriginal peoples, and this is the  2 point that I made to my lord Mr. Justice Lambert,  3 attention should not be directed at taking an  4 inventory of activities to establish a "bundle" of  5 rights, but rather should be directed at the  6 constraints on the Crown's exercise of power to  7 interfere with the functioning societies and with  8 individual lives of aboriginal people.  9 Now, we deal with non-extinguishment, no  10 extinguishment demonstrated in the colonial period.  11 That has been well canvassed, my lord, and I won't go  12 through 22 to 25 of the summary.  But at the bottom of  13 page 10 I would like to highlight paragraph 26, which  14 is the distinction well known but which bears  15 repeating, and was certainly supported by this court  16 in Sparrow and by the Supreme Court.  The distinction  17 between a frustration of the exercise of a right and  18 the existence of the right.  Frustration of the  19 exercise of a right does not entail extinguishment.  20 The fact that the exercise of certain rights by  21 Appellants may have been interfered with did not  22 result in extinguishment or disappearance of the  23 rights.  And I would suggest that that applies with  24 respect to rights in land, title to land, and also  25 exercise of jurisdiction.  26 In answer to other questions from this Court on  27 the matter of Crown grants, and with respect in  28 particular to the post-Confederation period, we would  29 say that any test of "clear and plain intention to  30 extinguish" is not applicable in respect of Provincial  31 Crown activities or Provincial Crown grants, including  32 grants in fee simple, and certainly including resource  33 grants.  And why?  Because we say under the  34 constitutional make-up of Canada, provinces even  35 before 1982 and the protections of s. 35 and 52 quite  36 simply did not have the constitutional authority to  37 extinguish aboriginal rights, however clear or however  38 plain the intention, that one must look to the  39 constitutional capacity to do an act before one  40 examines the act a fait accompli.  41 We examine in our factum, My Lords, the question  42 of required conduct.  Again required conduct on the  43 Crown, if one talks about duties to respect, duties of  44 non-interference and perhaps positive duties of  45 protection, what is the required course of conduct?  46 Well, we would say, with respect, that contrary to the  47 conclusions of the trial judge, the courts have 1114  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 identified the treaty process as an important  2 expression of due process in dealing with aboriginal  3 peoples.  The Supreme Court has and this court  4 certainly has attached significance to treaties.  5 And we say that the relationship between the Crown  6 and First Nations is fiduciary in nature.  The courts  7 in this case may scrutinize, and equity will  8 supervise, that relationship.  9 We say, My Lords, that the fiduciary duty on the  10 Crown is not restricted to the Crown in right of  11 Canada.  The duty lies as well upon the Crown in right  12 of British Columbia, although certainly not in the  13 manner suggested by the trial judge.  14 The positive, constitutional duty on the Crown  15 includes the obligation to establish a treaty process.  16 This is part of the duty, pursuant to a public and  17 voluntary process, prior to any interference with  18 First Nations lands or jurisdiction.  19 We make the point in our principal factum, my  20 lard, that in arguing its case, the Crown cannot  21 invoke its own turpitude, and we suggest that it has  22 in many of its argument.  Relying on its past refusal  23 to recognize rights as the basis for extinguishment of  24 those rights and declaring the Indian question in  25 British Columbia as "settled"  on the basis of a  26 process (McKenna-McBride) represented by it to the  27 First Nations as not precluding further recourse,  2 8 amounts to nothing more than the Crown invoking its  29 own turpitude, and we believe that the court should  30 not condone such actions.  31 My Lords, we say that this Honourable Court may  32 take comfort in the fact that the constitutional  33 make-up of Canada and the Constitutional Act, 1867 to  34 1982 have recognized and affirmed the rights, freedoms  35 and protections claimed by Appellants.  It is now  36 clearly entrenched in the Constitution of Canada.  37 We say that in 1867 and continuing to this day  38 Canada has been a state "being assembled" -  39 terrotorially and jurisdictionally.  Treaty-making  40 with First Nations has been and continues to be a  41 feature of this "assembling" process.  42 Well, what do we mean?  We will develop that, My  43 Lords.  But certainly there was unfinished business in  44 1867 territorially and jurisdictionally.  Provinces  45 were to be added.  Territories were to perhaps  46 eventually be added.  This process continued on in  47 through the nineteenth century into the twentieth 1115  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 century and is continuing to this day in the northern  2 territories.  The treaty process with First Nations  3 was part of that "assembling" of Canada process.  4 And we say that through this Appeal, this  5 Honourable Court should ensure that the "assembling"  6 of Canada continue in British Columbia in an equitable  7 fashion, consistent with constitutional duties and  8 rights - through a treaty process based upon  9 coexisting rights and jurisdiction.  We say that this  10 will allow for consideration of third party interests.  11 This is the orderly way to proceed.  12 My Lords, we propose an appropriate remedy, a  13 remedy to the court at the end of our principal factum  14 which, and I'm at page 14 of the speaking notes,  15 paragraph 37, we submit that appropriate remedy would  16 be for this Honourable Court to provide the parties  17 with encouragement, the encouragement, the opportunity  18 and the legal framework to structure and commence a  19 treaty process.  We say that this remedy is permitted  20 and required by s. 35 and 52 of the Constitution Act.  21 We say, with respect, that the judgment of the  22 trial judge was not in unison with the history or law  23 of this country, nor was it necessary to protect  24 political structures or third party rights.  It is not  25 necessary.  It was, in fact, we suggest, an anomaly.  26 We suggest that the judgment of this Honourable  27 Court overturning the trial judgement and providing a  28 remedy such as that suggested, and I say such as, not  29 absolutely, there may be adjustments as suggested by  30 this intervenor, would be consistent with the history  31 and law of this country and would strengthen political  32 structures and would lead to greater security for  33 third party rights.  It would be, in fact,  34 restorative.  35 And, finally, in summary, My Lords, with respect  36 to the continuing constitutional reform process, which  37 has been referred to by the Court, we would say that  38 such a judgment, a judgment of this court overturning  39 a trial judge, would also be indicative.  40 Constitutional reform, as it relates to aboriginal  41 matters, does not involve creating new rights, but  42 rather, identifying existing and inherent rights.  And  43 the Courts, we would submit, have an absolutely vital  44 role in informing this process in this way.  45 My Lords, it would now be my intention to turn to  46 our principal factum to develop some of these, and I  47 stress some of the ideas in more detail.  Perhaps this 1116  Submissions by Ms. Buller  Submissions by Mr. Hutchins  1 would be a good time to break for the day.  2 TAGGART, J.A.:  Very well.  We will adjourn now until 10 o'clock  3 tomorrow morning.  4 THE REGISTRAR:  Order in court.  Court stands adjourned.  5 (PROCEEDINGS ADJOURNED)  6  7 I hereby certify the foregoing to  8 be a true and accurate transcript  9 of the proceedings transcribed to  10 the best of my skill and ability.  11  12  13  14  15  16 Lisa Reid,  17 Official Reporter,  18 UNITED REPORTING SERVICE LTD.  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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