Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-04] British Columbia. Supreme Court Jun 4, 1992

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 1537  Submissions by Mr. Taylor  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  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  Vancouver, B.C.  June 4, 1992.  THE REGISTRAR:  In the Court of Appeal for British Columbia,  Thursday, June 4th, 1992.  Delgamuukw versus Her  Majesty the Queen at bar, my lords.  TAGGART, J.A.:  Mr. Taylor, before you begin, my colleague, Mr.  Justice Lambert has developed a new category of  inquiry.  He says it's not a question but an  observation.  LAMBERT, J.A.:  I was heartened to learn that the appellants are  going to be making a further submission about the  remedies issue by next Friday, a week tomorrow.  I  just wanted to say that I feel sure that it will cover  the question of what exactly was the scope of the  concession that was made about sovereignty, both in  relation to title to land and in relation to self-  government.  And the only reason I wanted to make this  observation was that I wasn't so 100 percent sure that  I thought -- so I thought it would be better to raise  it now rather than to wait and see whether it was  truly in the submission when we receive it.  Thank  you.  MR. TAYLOR:  Thank you, my lords.  The Chief Justice was right, it is a vast area and  somewhat unexplored area, and to try and compress it,  and I am afraid I wasn't perhaps as clear as I could  have been yesterday.  I have prepared some summaries, which might be  useful and I have handed one up and I will hand the  other one up later.  This can go at some point in the  front of the speaking notes or the back of the  speaking notes.  Perhaps at the back of the speaking  notes in this section.  TAGGART, J.A.:  That's the set we are working on now?  MR. TAYLOR:  Yes, and it would be, the speaking notes would be  between pages 96 and 97.  And my Lord Mr. Justice Lambert and My Lord Justice  Hutcheon raised yesterday this question of if it's  distinctive to the culture, how can't it be part of  the core?  And I would like to address that by  comparing our characterization or understanding or  submissions on what makes a right or practice an  aboriginal right.  And those are, those rights -- only  occupation rights.  Obviously section 35 encompasses  other rights as well, treaty rights, that sort of  thing.  We are just here talking about these 1538  Submissions by Mr. Taylor  1 occupation category of rights, and then Indians.  And  2 the definition which Mr. Williams gave and which I  3 tried to deal with yesterday, and adopt fully, is that  4 aboriginal rights include those matters that are  5 integral to the native groups distinctive culture as  6 at the date of sovereignty.  Now, the two things I  7 think worth noting is that it's distinctive culture,  8 it's a cultural matter, in the main, but includes more  9 than culture in some instances, and I will develop  10 that.  And the assessment is made at the date of  11 sovereignty.  12 And the source of protection for these rights is  13 section 35 of the Constitution Act.  Now, my lord  14 Justice Lambert yesterday made the comment that  15 although section 35 now exists, isn't it true that  16 from the period 1871 through to 1982 the source of  17 protection for "Indianness" had come from 91(24) and,  18 that is true.  Section 35 wasn't available.  But just  19 as that is true, there is a corrollary to that  20 proposition.  In analyzing what the core set of  21 interests under 91 (24) is, one has to divorce oneself  22 from the concepts of section 35.  If you're going to  23 say it's only 91 (24) during that 100 or so year  24 period prior to section 35 (1), then it's not right to  25 adopt the tests where the expanded concept of  26 Indianness, which arose after 1982, as exemplified in  27 Sparrow, for example, one has to look to the  28 jurisprudence dealing with this core set of interests  29 during the period 1871 to 1982 and the limitations,  30 necessary limitations imposed by the courts during  31 that period, in keeping with the distribution of  32 legislative powers, and keeping in mind that section  33 35 was not yet in existence, there had been no  34 amendments to the constitution.  35 Now, in that vein as well, I was -- there has to  36 be a purpose for section 35.  And if the appellants  37 and supporting intervenors are correct, that 91(24)  38 makes property and civil rights of Indians immune from  39 provincial legislation, in our submission section 35  40 was not necessary as a constitutional amendment.  If  41 the federal government wished to recognize -- had  42 exclusive jurisdiction over all matters concerning  43 Indians and lands reserved for Indians, property and  44 civil rights of Indians, then it could have, by  45 itself, recognized and affirmed aboriginal rights and  46 there would be no necessity for the provinces to be  47 involved in that process.  Section 35 as a 1539  Submissions by Mr. Taylor  1 constitutional amendment I think is a recognition that  2 the province has jurisdiction, an overlapping  3 jurisdiction, with the 91(24) jurisdiction.  4 Now, dealing with the 91(24), I have set out the  5 language used in a number of cases.  From the Irwin  6 Toy case, it's matters which are vital and essential  7 elements of the federal jurisdiction.  From the Four  8 B, it's matters which are an integral part of federal  9 jurisdiction over Indians and lands reserved for  10 Indian.  And Canard, it's matters which are intimately  11 connected with Indian status and capacity.  12 Now, those tests are not easy to comprehend and it  13 involves drawing lines.  But as soon as one passes, as  14 the province says it is appropriate to pass, from the  15 concept of all aboriginal rights having been  16 extinguished during the Confederation period, one then  17 has to start drawing lines, and one has to draw lines  18 around Indian rights and Indianness and section 88,  19 section 35 (1), and that whole process is nothing but  20 a judicial drawing of lines.  Under 91(24) those lines  21 have been drawn.  And in our submission, as a rule,  22 cultural matters, per se, are not included in the core  23 set of interests, not being matters which on the  24 authorities are intimately or integrally connected  25 with Indian status and capacity.  And as authority for  26 that, I think there can be no higher authority than  27 the Natural Parents case.  And I just -- I haven't got  28 an extract of the argument made by the appellants in  29 that case, but if I can put it to your lordships, it  30 was argued on behalf the natural parents, as follows,  31 the submission -- this is from Chief Justice Laskin's  32 decision:  33  34 "The submissions of the appellants against the  35 validity of the adoption order are based on a  36 series of related propositions which I may  37 summarize as follows:  The Indian Act, which is  38 an act in its present form, makes the original  39 family tie the essence of Indian status and  40 keeps the child in that status, at least until  41 enfranchisement."  42  43 And Chief Justice Laskin, together with Messrs.  44 Justice Judson, Spence and Dickson, accepted that  45 argument, that this tie of family was at the core.  It  46 had to be at the core.  There is nothing more critical  47 to one's Indianness than the ability to grow up as 1540  Submissions by Mr. Taylor  1 part of that group and learn the culture.  2 Notwithstanding that, the minority in that case -- the  3 decision was all the same, the Adoption Act applied  4 and the children can be taken from their natural  5 parents.  The only defence in the minority was that  6 and then they applied section 88.  However, the  7 majority, and there is a number -- there is four  8 decisions -- all came to the opposite conclusion, that  9 that tie to the family was not vital and essential,  10 was not an integral part of Indianness and did not  11 strike at the core.  So, in effect, the provincial  12 legislation, the Adoption Act applied ex proprio  13 vigore.  In terms of this cultural interest  14 distinction, nothing can be clearer than this case,  15 because there is nothing more central, I would submit,  16 to one's cultural identity than the ability to be  17 brought up amongst one's peer group or group and learn  18 the institutions and learn the culture.  19 Now, I would also submit that if the Natural  20 Parents case were to be decided today under section  21 35, different considerations would apply.  Because  22 section 35 is directed to that cultural aspect of  23 being an Indian.  24 Now, the other distinction, if I can --  25 LAMBERT, J.A.:  So you're saying Natural Parents isn't the law  2 6 now?  27 MR. TAYLOR:  No, I am not saying that.  I would say that  28 different considerations would apply.  You would get  29 into the balancing, the justification process.  It  30 still may be justified, or it may be justified in a  31 particular situation, but it's the Sparrow test that  32 would apply to the concept of community.  33 LAMBERT, J.A.:  The Natural Parents —  34 MR. TAYLOR:  The Natural Parents.  35 LAMBERT, J.A.:  -- case may not represent the law on the very  36 issue in that case now because there is one more  37 consideration that has to be taken into account that  38 wasn't taken into account at the time it was decided?  39 MR. TAYLOR:  That's section 35, yes.  And that has to do with  40 the dates of assessment and questions of assessment of  41 the dates.  42 And a similar effect, are Jack and Charlie, and  43 Kruger.  And we say, in the next paragraph, arguably,  44 and if the evidence supports the core group of  45 interests may include matters which are -- and this is  46 essentially a quote "at the centre of what Indians do  47 and what Indians are."  That's a quote from My Lord 1541  Submissions by Mr. Taylor  1 Justice Lambert's decision in the Dick case.  We say  2 that's culture plus.  It has to be culture plus.  And  3 the facts in that were that, yes, hunting was done  4 from time immemorial, it was very important, but we  5 were dealing with the Alkali Band of Indians in a very  6 remote part of British Columbia, who depended on  7 hunting to put food on the table, and the rigorous  8 application of the Wildlife Act in that case could  9 hamper that.  And if that's the situation, that goes  10 to those core group of interests, the very survival of  11 Indians would go to the core group of interests.  But,  12 if you contrast that with Kruger, where the evidence  13 was that the Penticton band had hunted from time  14 immemorial, but in the assessment of the evidence on  15 that case in the modern context it was not held in  16 that case to go to the question of the core.  And so  17 that the other question that arises is when do you  18 look at this?  19 LAMBERT, J.A.:  In Kruger there was no evidence.  That's the  20 essential aspect of Kruger.  21 MR. TAYLOR:  I understand that, my lord.  But the same  22 theoretical considerations, I would submit, applied in  23 both cases.  If I can just develop the thought, when  24 one's assessing whether the provincial legislation  25 invades the core, the assessment is made at the time  26 that the challenge is made, at the time you're testing  27 the legislation or the grant.  You look to what did  28 the Indians do now?  Whereas under section -- under  29 aboriginal rights, and under the authority of Sparrow,  30 you say, what did the Indians do at the date of  31 sovereignty?  And it's two different things, two very  32 different things.  And I would submit, my lord, that  33 the Penticton Indian Band has the same aboriginal  34 right claims as at the date of sovereignty, to hunting  35 as an aspect of their distinctive culture as does the  36 Alkali Band.  And similarly, and arguably, in Jack and  37 Charlie, that band as at the date of sovereignty had  38 those claims to culture as did the Alkali Band in the  39 Dick case.  The distinction was, under the 91(24)  40 analysis you don't look to the date of sovereignty,  41 what was the original right, you look to its practice  42 at the time in determining whether the legislation was  43 valid.  44 And in Dick, and I, with the greatest respect to my  45 lord Justice Lambert, it was not decided that those  46 facts were sufficient to put it into the core, there  47 was only an assumption.  And insofar as your finding, 1542  Submissions by Mr. Taylor  1 Lord Justice Lambert's finding was to the effect that  2 we are dealing with culture plus, culture plus the  3 very right to survival, putting meat on the family  4 table is involved.  That's one thing.  But if it's a  5 finding simply that it's culture, it's like the  6 Penticton Band's right, historic right, or it's like  7 the hunting for religious purposes right, and we would  8 would say that case does not go that far, the Supreme  9 Court of Canada's acceptance of that as an arguable  10 proposition does not go that far, and there is no case  11 that treats a purely cultural aspect as being part of  12 the core.  And on the authorities, and as a matter of  13 principle, we submit it should not be part of the  14 core, as culture is a matter that develops fluidly  15 over time and it's impacted by a number of factors.  16 And the Chief Justice in the decision in this case  17 dealt with a lot of those factors and the inter-  18 relationships.  19 HUTCHEON, J.A.:  Is culture or would culture include the choice  20 of the chief?  Doesn't that go to the core?  21 Wouldn't -- and would the province be able to say how  22 the chief is to be chosen?  I wouldn't think so.  But  23 that's culture, or tradition.  24 MR. TAYLOR:  Well, that's —  25 HUTCHEON, J.A.:  It's a different aspect of it —  26 MR. TAYLOR:  The choice of the chief is perhaps a good example.  27 It's hard to imagine why the province would be  28 particularly concerned about the choice of a chief.  29 HUTCHEON, J.A.:  Well, some province might say we are not going  30 to have this kind of -- we are going to have a  31 democratic election here.  32 MR. TAYLOR:  I would submit, my lord, if forced into that, in  33 deciding that issue, I would say that no, yes that is  34 not a matter of core, the choice of the chief. In  35 fact, the reality of the situation --  36 HUTCHEON, J.A.:  Not a matter of core?  37 MR. TAYLOR:  As an example, and that brings a good distinction  38 between aboriginal rights and core.  One of the things  39 that is particularly of the core under 91(24), is the  40 right to elect a chief.  The Indian Act sets out  41 provisions, and the right of band members to elect a  42 band council and the band council to then nominate the  43 chief.  That's a 91(24) interest.  The traditional or  44 historic or aboriginal right to select a chief through  45 another process, is a section 35 interest.  46 HUTCHEON, J.A.:  But the test is if the province were to pass  47 the same legislation as the federal people did, I 1543  Submissions by Mr. Taylor  1 don't think it could stand up.  2 MR. TAYLOR:  It would have to be a law of general application,  3 first of all.  It couldn't be directed at Indians.  4 HUTCHEON, J.A.:  Yes.  5 MR. TAYLOR:  But if there was a law, and again it's hard to  6 think of an example, but if there was a law that had  7 an incidental effect on the traditional choosing of  8 chiefs, it may well stand up ex proprio vigore.  9 HUTCHEON, J.A.:  It would have to get in through section 88  10 first before you start to talk about it.  11 MR. TAYLOR:  Not necessarily.  I think it could be applied ex  12 proprio vigore, as, for instance, in one of the  13 earliest cases on this, the Medicine Act applied to an  14 Indian who is purporting to practise medicine.  15 HUTCHEON, J.A.:  That's Harold case?  16 MR. TAYLOR:  Yes.  That may be said to be part of one's culture,  17 traditional medicine, but that's not to say that the  18 province can't, in its proper sphere, say nobody can  19 do it, including Indians.  And presumably if there is  20 some aspect of chiefdom that fit within the  21 provincial, a proper head of provincial power, that  22 was affected by that, it would be valid.  You couldn't  23 single out a chief and say, these people can't be  24 chiefs.  That clearly would be a clear invasion of the  25 91(24).  Because you're talking about Indians as  26 Indians at that point.  27 LAMBERT, J.A.:  Is there any case -- I am sorry I don't know  28 these cases but we have gone through just little bits  29 of them -- but is there any case in which it was  30 decided that the matter of the legislation affected a  31 core value of Indianness, and as as a result the  32 legislation did not apply to Indians?  33 MR. TAYLOR:  Yes, my lord.  At 228 (0), the Derrickson case that  34 I have cited there, held that.  That was the case  35 involving whether or not the Family Relations Act  36 applied to a moveable property of Indians on a  37 reserve.  38 Although in that case as well there was a clear  39 conflict with the provisions of the Indian Act.  But,  40 again, in that case, property of Indians off reserve  41 would be -- would fall under the purview of the Family  42 Relations Act.  But on the reserve, because of the  43 Indian Act and the way it's dealt with in the Indian  44 Act for possession and rights and that sort of thing,  45 it could not apply.  But that has been held to be a  46 core interest, the interest of the natives in the  47 statutory reserve.  And it's specifically dealt with 1544  Submissions by Mr. Taylor  1 by federal legislation so the paramouncy doctrine  2 would apply anyway.  But in terms of this cultural  3 component that I am talking about, other than the --  4 LAMBERT, J.A.:  I am sorry, what was the legislation in question  5 in Derrickson?  It was British Columbia legislation in  6 relation to family law?  7 MR. TAYLOR:  Yes, the Family Relations Act.  8 LAMBERT, J.A.:  Right.  Was it decided that section 88 applied?  9 MR. TAYLOR:  No, it couldn't apply because there was a conflict  10 with the provisions of the Indian Act dealing with  11 ownership of property on the reserve.  The Indian Act  12 dealt specifically with certificates of interest and  13 that sort of thing.  14 LAMBERT, J.A.:  If there was a conflict why is the question of  15 core interest, of the core values, part of ratio  16 decidendi?  17 MR. TAYLOR:  Because it works on two levels, my lord.  First of  18 all, on the authority of Dick and Derrickson as well,  19 the first level of his inquiry is, has the provincial  20 legislation affected the core interests?  If the  21 answer to that is yes, it cannot apply ex proprio  22 vigore.  If the answer is no, it can -- it does apply  23 ex proprio vigore, provided it's a law of general  24 application.  But if it -- if it doesn't apply ex  25 proprio vigore, then one goes to section 88 and under  26 the authority of Dick and Derrickson and the settled  27 law in that area, it's been held that section 88 is  28 necessary only when the provincial legislation touches  29 upon these core interests, and if that happens it can  30 be referentially incorporated, provided, one, it's a  31 law of general application; and, two, it doesn't  32 conflict with any federal legislation.  33 Now, some of the cases deal with it less  34 circuitously simply by saying, if it conflicts with  35 federal, valid federal legislation, then the  36 paramouncy doctrine applies, we don't have to go  37 through this analysis.  38 LAMBERT, J.A.:  We don't have to go through the core analysis?  39 But in Derrickson you say they followed the different  40 route, they went through the core analysis and their  41 actual train of reasoning makes their decision ratio  42 decidendi that this was a core interest in the  43 Derrickson case?  44 MR. TAYLOR:  Yes, there is a discussion of the Indian interest  45 under the Indian Act in statutory reserves as being  46 part of this core.  And then it talks about the  47 section 88.  There was a finding it was core.  I can't 1545  Submissions by Mr. Taylor  1 say that they went through the same analysis I just  2 did but there was a finding there was a core and then  3 section 88 held and the decision was no.  4 LAMBERT, J.A.:  In that case, then, there would effectively have  5 been a reading down of the Family Relations Act of  6 British Columbia to preserve its constitutionality by  7 saying it doesn't apply to Indians?  8 MR. TAYLOR:  No, there was a reading down to say it doesn't  9 apply to a moveable property of Indians on Indian  10 reserves.  It doesn't apply off reserve.  11 LAMBERT, J.A.:  I beg your pardon.  Of course that's so.  But  12 there was a reading down involved?  13 MR. TAYLOR:  Yes.  14 LAMBERT, J.A.:  To preserve constitutionality in relation to the  15 core area?  16 MR. TAYLOR:  Yes, there was.  17 Now, my lords, if I could just go back to where I  18 was yesterday and then develop from that summary, and  19 I hope that clarified things.  It's the Dick case,  20 which is at tab Q, 228 Q, and we were at page 330.  21 And Mr. Justice Beetz recited the ultimate conclusion  22 on the evidence by My Lord Mr. Justice Lambert:  23  24 "In my opinion it is impossible to read the  25 evidence without realizing that killing fish  26 and animals for food and other uses gives shape  27 and meaning to the lives of the members of the  28 Alkali Lake band.  It is at the centre of what  2 9 they do."  30  31 Now --  32 TAGGART, J.A.:  Was that at 330?  33 MR. TAYLOR:  That's at page 320.  34 TAGGART, J.A.:  320.  35 MR. TAYLOR:  It's the second full paragraph.  36 TAGGART, J.A.:  Yes.  Okay.  37 MR. TAYLOR:  But that as My lord Mr. Justice Lambert points out  38 was on the basis of evidence.  As we say, before going  39 into this analysis, it's our position that culture  40 alone is not sufficient, and there is no authority  41 saying that culture alone is sufficient to make it a  42 core interest.  And on the authority of the Natural  43 Parents, and the thrust, the whole thrust of that case  44 says it cannot stand, there can be nothing more  45 cultural than raising children in a community.  46 But, if we can at least accept the same assumption  47 accepted by Mr. Justice Beetz, with our understanding 1546  Submissions by Mr. Taylor  1 that what we are talking about is culture plus  2 something else, then some other propositions follow.  3 And I am at 228 R.  And I will back to Dick to develop  4 section 88 because it's fairly clearly laid out in  5 Dick what the tests are in section 88.  But if I can  6 go to 228 R and just develop this thought of the core  7 and assessing the core at the date of the assessment  8 of the constitutional validity of the legislation.  At  9 228 R in Simon, the Supreme Court of Canada stated  10 that the question of whether rights had been  11 extinguished cannot be determined without an analysis  12 of facts.  And that goes back to the -- and that also  13 was stated in Kruger, the comment about aboriginal  14 rights being wrapped up in tradition and history and  15 morality, and you have to look at specific lands and  16 specific facts.  17 Now, although it is for the province to prove  18 extinguishment, the appellants must demonstrate that  19 their interests we say are within the core under  20 section 91(24).  That was the effect in Simon.  As you  21 will recall, there was no evidence as to use of the  22 road or what the road was for or what regime, legal  23 regime attached to the road.  And then in Kruger, the  24 burden, the assumption under 91(24), this is another  25 distinction between 91(24) and section 31(5) .  Or  26 35(1).  In 91(24) the cases have consistently held  27 there is a presumption of constitutional validity.  28 The burden is on the party challenging that validity  29 to show it to be unconstitutional.  In the native law  30 area that is to show that the legislation goes to the  31 core, and if it does, then section 88 can't apply  32 because it's not a law of general application or it's  33 colourable or whatever.  So the burden there is on the  34 native group.  And if you contrast that with section  35 35 and the decision of Mr. Justice Dickson in the  36 Sparrow case, he says, there is no presumption under  37 section 35 of legislative validity because section 35  38 is a constitutional right.  There is a burden on the  39 natives to show prima facie interference and there is  40 a burden to show justification on the Crown after  41 that.  But there is no presumption of legislative  42 validity.  Again, another distinction between 91(24),  43 the narrow scope of section 91(24) and the broad scope  44 of section 35.  45 At 220 S, we make the obvious observation that the  46 case at bar does not appear to have been presented at  47 trial in a manner that would enable the trial judge to 1547  Submissions by Mr. Taylor  1 assess whether any or all aboriginal rights of the  2 appellants fell within the core group of interest.  In  3 fact, it appears that the case was not even advanced  4 initially as a claim for common law aboriginal rights.  5 And that I think has been discussed in the past before  6 your lordships.  7 The trial judge did not find it necessary to assess  8 the evidence in light of the constitutional issues  9 that we have been discussing over the last day or so.  10 It is submitted that this court should not attempt to  11 determine whether or not any of the alleged rights  12 fall within the core group of interests because to do  13 so would be to determine this complex factual and  14 legal matter as a matter of first impression.  And I  15 should point out, as is stated by the Chief Justice in  16 the decision, there was 318 days of evidence, and an  17 equivalent or more number of days devoted to argument.  18 And a lot of it dealt with what the condition was on  19 the ground at the time of the trial, and that is the  20 point in time that is valid for an assessment of what  21 issue is a core issue.  22 Now, at 228 U we set out the ultimate finding of  23 the trial judge with respect to aboriginal rights,  24 apart from the question of extinguishment.  And I have  25 quoted from it.  26  27 "Subject to what follows, the plaintiffs have  28 established as of the date of British  29 sovereignty the requirements for continued  30 residence in their villages and for  31 non-exclusive aboriginal sustenance rights  32 within those portions of the territory I shall  33 later define.  These aboriginal rights do not  34 include commercial practices."  35  36 Now, that is a finding on the evidence, and it  37 involves the drawing of a line.  What did the evidence  38 say about the aboriginal right as practised at the  39 date of sovereignty?  And if I could take your  40 lordships to tab U at page 395, the ultimate  41 conclusion is set out that I have quoted from.  But if  42 I could take your lordships to pages 111 and 112,  43 which was from the summary at the beginning of the  44 judgment, it ties in.  45 At paragraph 12, the Chief Justice set out the  46 historic use of the early ancestors.  "These early  47 ancestors lived mainly in or near villages..." et 1548  Submissions by Mr. Taylor  1 cetera.  Going down at about two-thirds of the way  2 through:  3  4 "Further, these early ancestors also used some  5 other parts of the territory surrounding and  6 between the villages and rivers and further  7 away as circumstances required for hunting and  8 gathering the products of the lands and waters  9 of the territory for sustenance and ceremonial  10 purposes."  11  12 And then the Chief Justice, having looked at the  13 historical, the ancient history, looks at the more  14 recent history, but not that recent, the date of  15 sovereignty, and that's dealt with in paragraph 22 on  16 page 112.  17  18 "The aboriginal interests of the post-contact  19 ancestors of the plaintiffs at the date of  20 sovereignty were those exercised by their own  21 more remote ancestors for an uncertain long  22 time.  Basically, these were rights to live in  23 their villages and to occupy adjacent lands for  24 the purpose of gathering the products of the  25 lands and waters for subsistence and ceremonial  26 purposes."  27  28 And as the ultimate conclusion makes clear, that  29 is a very intensive use, that is an exclusive use as  30 found by the trial judge, the villages and surrounding  31 lands, but the territory beyond that was non-  32 exclusive, even at the date of sovereignty.  And as I  33 will turn to in a moment, at the date, the critical  34 date that one would have to look at those uses in  35 terms of trying to assess whether or not it was a core  36 interest, it was a much different situation.  Things  37 had changed to the point where great areas of the  38 territory had not been used in some cases on the  39 evidence, ever, because nobody could recall it being  40 used, and sometimes not for 40 years or so.  41 So that the conclusion, and we support both, there  42 is no ownership, and with respect to that extended  43 territory, whatever uses were at the time of  44 sovereignty were not exclusive as a matter of fact.  45 Now, I would like to deal with a number of specific  46 findings taken from different areas of the judgment.  47 And I should state that the province does not 1549  Submissions by Mr. Taylor  1 necessarily adopt the characterizations used by the  2 trial judge but we accept the findings of fact.  We  3 may disagree with the language but the findings of  4 fact are accepted.  5 And it's useful to analyze the assessment of the  6 trial judge's assessment of the evidence of these  7 matters from the various sources, both as to the  8 quality of the evidence before him, the extent or  9 scope of the alleged right, and the issue, the  10 importance of these alleged rights to the appellants  11 as Indians.  In other words, relating to their  12 Indianness at the time of the relevant assessment  13 under 91(24).  And also what the impact of various  14 governmental actions was on their Indianness.  15 Now, as I have stated before, it wasn't necessary  16 for the trial judge to consider the tests appropriate  17 to the 91(24) core, or in fact section 35(1), to  18 analyze the evidence in relation to those tests, but I  19 have extracted findings from a number of sources  20 from -- in the judgment, and they relate to areas such  21 as social organization, jurisdiction and ownership,  22 the assessment of the weight to be given to evidence,  23 and in particular expert evidence, boundaries, the  24 fiduciary duty as found by the Chief Justice, and that  25 sort of thing.  If I could just take you through it,  26 and I will try to be as brief as I can, but I think  27 it's important to get a flavour of the evidence and  28 the findings of the Chief Justice with respect to,  29 although he did not do the analysis, it sheds light on  30 what that evidence would be if that analysis were  31 done.  32 With respect to the issue of R, the aboriginal  33 rights as found core interests.  And I should say  34 that, as will become clear, there could well be a  35 distinction between village sites and surrounding  36 areas, occupied fields, where there is that exclusive  37 and intensive use as opposed to aboriginal rights  38 exercised over the extended territory.  39 The first, and I have set out the extracts at tab  40 V.  And before getting -- the above conclusion is not  41 sufficient to enable one to determine which rights and  42 we say particularly those rights which fall outside  43 the villages and surrounding lands, fall within the  44 core group of interests.  This becomes even clearer  45 when one examines the findings of the trial judge  46 based on the evidence before him.  The first finding  47 is at the first extract in tab V, where it was stated, 1550  Submissions by Mr. Taylor  1 the second paragraph:  2  3 "The most striking thing that one notices in the  4 territory away from the Skeena-Bulkley corridor  5 is its emptiness.  I generally accept the  6 evidence of witnesses such as Dr. Steciw, Mrs.  7 Peden and others that very few Indians are to  8 be seen anywhere except in the large river  9 corridors.  As I have mentioned, the territory  10 is, indeed, a vast emptiness."  11  12 Then the Chief Justice goes on to discuss the  13 effect of economics, not governmental action, which  14 caused from the time of sovereignty, when one looks to  15 see what are those aboriginal rights, a disuse in the  16 territory as a whole, not because of governmental  17 action, but because natives were drawn to a better  18 life in the townsites.  19 And over at 126, the full, first full paragraph:  20  21 "It is common when one thinks of Indian land  22 claims to think of Indians living off the land  23 in pristine wilderness.  Such would not be an  24 accurate representation of the present  25 lifestyle of the great majority of the Gitksan  26 and Wet'suwet'en people who, while possibly  27 maintaining minimal contact with individual  28 territories, have largely moved into the  29 villages.  Many of the few who still trap are  30 usually able to drive to their traplines and  31 return home each night."  32  33  34 Now, with respect to these outlying territories,  35 that word "minimal contact" comes up again and again  36 and again.  And I think it's well established on the  37 facts before the Chief Justice, and we are going to go  38 through some of those facts as I say, but keep in mind  39 My Lord Justice Lambert's assessment of the Alkali  40 band situation, the very core of Indianness,  41 sustenance at its greatest, to put food on one's  42 table, not minimal contact, not minimal use.  43 At sub B there is an assessment of the quality of  44 the evidence presented.  I would submit it's quality  45 of evidence, and partly credibility.  And it's at 148,  46 the next extract in, starting at the second full  47 paragraph. 1551  Submissions by Mr. Taylor  1 "The picture painted by the Indian witnesses and  2 their anthropological experts suggested that  3 all aboriginal life revolves around the chief,  4 clan and house system, and around aboriginal  5 use of, and connection with, house territories.  6  7 I do not question the social importance of  8 these institutions but I regret to say that I  9 believe that the plaintiffs' evidence in this  10 connection was overstated."  11  12 And then he goes on to discuss characterizations,  13 et cetera.  14 Over on page --  15 LAMBERT, J.A.:  In the Dick case, it wasn't a high degree of  16 occupancy of the land that was in issue, and in saying  17 that there isn't a great degree of occupancy in the  18 sense of being present on the land in this case  19 doesn't meet the point of core values.  In the Dick  20 case, a group of four or five or six members of the  21 band were going to fish when the spawning run was  22 taking place of the trout out of a stream on the lake,  23 and, as I understood the evidence, as far as I  24 remember now, they would make that visit for two days  25 in May and hoick out all the spawning trout they  26 wanted, consistent with conservation, one supposes,  27 and no one would visit that lake or that spot again  28 for another year.  So isn't constant presence on the  29 ground, that is the essence of it, if Dick is right in  30 saying that what they were doing to that case -- of  31 course they shot a deer on the way.  32 MR. TAYLOR:  That's what brought the case —  33 LAMBERT, J.A.: That's what brought the case — but it's an  34 illustration that -- as far as I know they may have  35 shot the deer in a place they never go to, other than  36 two days a year either.  37 MR. TAYLOR:  My lord, but my point on this is not that —  38 perhaps I should explain.  Our, in our submission, in  39 looking at extinguishment one looks at specific acts  40 of extinguishment relating to specific parcels of  41 land.  We are not suggesting that the granting of a  42 fee simple over one acre in 22,000 square miles of  43 territory, extinguishes the right to hunt over 22,000  44 square miles of territory.  We say if extinguishes the  45 right to hunt on that one acre.  46 Now, the question in Dick was is this an improper  47 affecting of the "native right to hunt" as a core 1552  Submissions by Mr. Taylor  1 interest?  The legislation as a whole, the restriction  2 on time.  But what we are saying with extinguishment  3 on this on-the-ground analysis, is that in looking at  4 whether or not the core interest that is extinguished  5 is in fact a core interest, you have to look at the  6 acre, you have to look at gray acre and what the  7 present use is.  And if the evidence is that it's not  8 used, or hardly used, and that around that one acre,  9 there is many, many, many acres where one can hunt and  10 fish and do whatever one wants, that can't be said to  11 be a core interest.  It just doesn't have that  12 intimate connection with status and capacities that  13 would be required, assuming that it could be on the  14 authorities.  And, as I say, Dick doesn't go quite  15 that far.  But I am proceeding on the assumption that  16 it may if it's culture plus.  But it's that one acre  17 we are looking at.  And the assessment has to be at  18 the date of the challenge, or at the date of the grant  19 of the extinguishment, was there undue or was there  20 something that affected the interest proven to be a  21 core interest?  22 LAMBERT, J.A.:  And you're looking at this in relation to fee  23 simple grants?  24 MR. TAYLOR:  Fee simple grants, yes.  25 LAMBERT, J.A.:  As well as perhaps other forms of grants.  26 MR. TAYLOR:  There could be other interests that could affect  27 hunting, although hunting, other than the Wildlife  28 Act, hunting generally is not interfered with by other  29 grants.  The two can be compatible, as long as there  30 is no hunting signs or no trespass, the property isn't  31 posted in any way.  32 LAMBERT, J.A.:  You're essentially, I understand then, accepting  33 that this law about reading down and core values,  34 though it's only been propounded recently, must have  35 been in effect since 1871 or represents the law since  36 1871?  37 MR. TAYLOR:  I think that's the effect of the authorities, yes.  38 That even though it's of recent origin it must be seen  39 to go back in time.  40 LAMBERT, J.A.: It's an explanation of the law that's always been  41 in effect, yes.  42 MR. TAYLOR:  Yes.  Yes.  Now, going on with the analysis at sub  43 C, I won't take your lordships to the actual passage,  44 but it was held the customs of the appellants'  45 ancestors relating to land outside the villages were  46 not universally practised or uniform in nature,  47 although these ancestors may have developed a priority 1553  Submissions by Mr. Taylor  1 system for the principal fishing sites at village  2 locations.  Again, there is a distinction in the  3 judgments between the village, surrounding lands and  4 the broader outlying territory.  5 Sub D, you could skip that next extract at 372 and  6 go to the next extract, which is 373.  This has to do  7 with the quality of evidence.  Starting at sub F, and  8 this extract comes from the passage dealing with  9 self -- the evidence relating to self-government and  10 the institutions.  11  12 "The plaintiffs have indeed maintained  13 institutions but I am not persuaded all their  14 present institutions were recognized by their  15 ancestors.  The evidence in this connection was  16 quite unsatisfactory because it was stated in  17 such positive universal terms, which did..."  18  19 And I would submit there is a typographical error,  20 there should be a "not" inserted in there, "...which  21 did not correspond to actual practice."  22 HUTCHEON, J.A.:  You think there is a not missing?  23 MR. TAYLOR:  If there wasn't a not I don't think it would — the  24 two parts of the sentence would stand together.  And I  25 have looked at the green book version and it has --  26 it's the same language, so it's not just a  27 transposition error to the Western Weeklies.  It seems  28 to -- I would submit that the not has been left out.  29  30  31 "I do not accept the ancestors 'on the ground'  32 behaved as they did because of 'institutions.'  33 Rather I find they more likely acted as they  34 did because of survival instincts which varied  35 from village to village."  36  37 Now, in the abstract one can say well, he is right  38 or wrong and anthropologists can debate that, but in  39 dealing with this constitutional question, you have to  40 accept, there has to be evidence, somebody has to  41 analyze the evidence and that's the analysis  42 undertaken by the trial judge.  43 And at the bottom --  44 HUTCHEON, J.A.:  Well, he doesn't point to any evidence.  That's  45 what bothers me.  Throughout we have, in this area we  46 have conclusions but no evidence that he points to.  47 MR. TAYLOR:  Well, there are passages later where he actually 1554  Submissions by Mr. Taylor  1 discusses evidence of particular witnesses and, in  2 particular, with respect to the question of  3 abandonment and the use of the land.  But the way --  4 HUTCHEON, J.A.:  They more likely acted as they did because of  5 survival instincts.  I would have thought all the  6 evidence is that they acted in accordance with  7 tradition not survival instincts.  8 MR. TAYLOR:  Well, I can't comment on that, my lord.  That's  9 what I am --  10 HUTCHEON, J.A.:  The disturbing part of this case is to be met  11 with these conclusions of the trial judge without him  12 pointing to what he is relying on when he -- "I find  13 they more likely acted as they did because of survival  14 instincts."  I would have thought they more likely  15 acted as they did because of tradition.  16 MR. TAYLOR:  My lord, that's what I was saying, there is a  17 distinction between the abstract conception of  18 aboriginal rights and how native people acted at  19 various times, and the evidence.  The trial judge is a  20 very experienced judge, he said "I find..." --  21 HUTCHEON, J.A.:  He finds it but it's against all the evidence  22 he had in front of him.  That's the part that disturbs  23 me, all the witnesses were at the other end of this  24 conclusion.  It's a disturbing part of the case.  It  25 just seems to me -- he said "I don't need the  26 anthropologists, I don't need them" and as to the  27 people who came and gave evidence, well, they may have  28 believed it but it's not fact.  Well, I want to see  29 what the fact is that he bases his conclusion on.  At  30 least, I would like to see it.  I just don't see it.  31 I haven't -- we haven't heard, of course, from all of  32 the respondents yet.  33 MR. TAYLOR:  Yes, my lord.  As I said at the outset, we don't  34 necessarily agree with the characterization or  35 conclusions.  And insofar as --  36 HUTCHEON, J.A.: You said you accept the findings --  37 MR. TAYLOR:  We accept the findings.  38 HUTCHEON, J.A.:  -- even if the language may not be exact.  I  39 think you said something like that.  40 MR. TAYLOR:  Yes.  Unfortunately, we are not in a position, not  41 having been at trial, to do that kind of analysis that  42 would satisfy your lordship as to whether or not  43 that's true or not.  44 HUTCHEON, J.A.:  That's a startling conclusion, to me, at any  45 rate.  46 MR. TAYLOR:  I would think that the — either the federal  47 government or the amicus in supporting the judgment 1555  Submissions by Mr. Taylor  1 may be able to shed more light on that issue.  2 HUTCHEON, J.A.:  All right.  3 MR. TAYLOR:  The next extract is from page 384, and this has to  4 do with the finding at the date of British  5 sovereignty.  6  7 "I am satisfied that at the date of British  8 sovereignty the plaintiffs' ancestors were  9 living in their villages on the great rivers in  10 a form of communal society, occupying or using  11 fishing sites and adjacent lands as their  12 ancestors had done for the purpose of hunting  13 and gathering whatever they required for  14 sustenance.  They governed themselves in their  15 villages and immediately surrounding areas to  16 the extent necessary for communal living, but  17 it cannot be said that they owned or governed  18 such vast and almost inaccessible tracts of  19 land in any sense that would be recognized by  20 the law.  In no sense could it be said that the  21 Gitksan or Wet'suwet'en law or title followed  22 or governed these people except possibly in a  23 social sense to the far reaches of the  24 territory."  25  26 Now, what I take from that finding and that  27 conclusion, is that in the village sites there was  28 this intense occupation and control, but in the more  29 extended territory, there was a non-exclusive use with  30 competing users and, as well, there was not that level  31 of control by the Gitksan and Wet'suwet'en as has been  32 suggested by the appellant, but the trial judge is  33 accepting that with respect to the movement into the  34 outer areas, the internal regulations for  35 self-governance amongst Gitksan and Wet'suwet'en  36 themselves, had some application.  And that's how I  37 would interpret that statement.  But it gives the  38 thrust, it gives again the finding that there is a big  39 distinction on the evidence between village sites and  40 surrounding areas and the territory.  And that as well  41 goes to section 35, the section 35(1) analysis, that  42 type of evidence, that's not the analysis, but that  43 type of evidence that gave rise to that finding would  44 be relevant in the section 35(1) analysis and also  45 relevant in a 91(24) analysis.  46 The next extract, at 395, deals with the interplay  47 between the aboriginal right at the date of 1556  Submissions by Mr. Taylor  1 sovereignty and modern activities.  And it's the first  2 full paragraph.  3  4 "In the face of this, and in view of the fact  5 that Indians have always had access to all  6 vacant Crown lands, it is difficult to  7 understand how, apart from the question of  8 priorities and aboriginal sustenance right in  9 such a remote land could be an exclusive right.  10 If it was exclusive originally, it has been  11 changed throughout history in the same way the  12 Fraser River fishery is no longer exclusively  13 an aboriginal fishery."  14  15 Now, at G, at page 170, there is an assessment of  16 the evidence of one of the expert witnesses, Mr. Daly,  17 and a criticism of Mr. Daly's evidence.  But I am  18 looking not so much for the criticism, although that  19 goes to the trial judge's assessment of the quality of  20 the evidence, but to the actual assessment by the  21 trial judge, who heard not only Mr. Daly and other  22 experts, but heard elders of the community and  23 witnesses who were living in that community then, talk  24 about modern day customs, and how important or not  25 important modern day culture or the traditional  26 culture was to the modern day Indian.  And it's stated  27 in the second full paragraph:  28  29 "First, he placed far more..."  30  31 Referring to Dr. Daly,  32  33 "...far more weight on continuing aboriginal  34 activities than I would from the evidence,  35 although he recognized the substantial  36 participation of the Indians in the cash  37 economy.  For example, at page 95, he mentioned  38 that Gitksan and Wet'suwet'en persons regarded  39 their land as 'their food box and their  40 treasury' and young persons going hunting often  41 saying, 'we are going to the Indian  42 supermarket, to our land'",  43  44 And that's Mr. Daly's interpretation of events and  45 the lifestyle,  46  47 "...but many witnesses said the young people are 1557  Submissions by Mr. Taylor  1 not interested in aboriginal activities.  At  2 page 118 he recognized 'Country food may not at  3 all times be a major source of food for all  4 families.'"  5  6 And the trial judge concludes, and I submit as a  7 matter of fact:  8  9 "I find it is seldom a major source."  10  11 Now, contrast that with the recitation of facts  12 relating to the Alkali band, and even if culture plus,  13 as I have called it, can be a core interest, that's  14 certainly nowhere near that vital an integral matter  15 relating to Indians, Indianness, that was discussed in  16 the Dick case.  17 There was a further or other findings at H, that  18 British Columbia policy in the territory did not  19 usually interfere seriously with Indian land use.  If  20 I can turn that up, it's at page 419.  Perhaps this  21 may, My Lord Justice Hutcheon, the Chief Justice makes  22 a comment on page 419 that may be some answer to your  23 observation a moment ago, at the third full paragraph.  24  25 "In considering what the law expects in the  26 circumstances of this case, it is necessary to  27 remember was has really happened in the  28 territory and what is happening now."  29  30 The Chief Justice here is talking about the  31 fiduciary duty.  Then he goes on:  32  33 "I do not pretend that I have precisely captured  34 all the social and economic dynamics which are  35 operating within the Gitksan and Wet'suwet'en  36 and non-Indian communities, nor do I expect  37 that every observer would necessarily reach the  38 same conclusions as I do.  I also recognize  39 that a trial may not always be the best way to  40 investigate these matters but the evidence is  41 the only information I have."  42  43 And keeping in mind the scope of this case and the  44 fact that the evidence, the presentation of the  45 evidence took some 318 days, it's not surprising that  46 someone -- the scope of this case is such that the  47 human mind cannot grasp every facet of it with the 1558  Submissions by Mr. Taylor  1 precision you might like.  One can only do as well as  2 one can.  And I think the Chief Justice is  3 acknowledging that in that passage.  4 But going on with respect to this question of the  5 effect of governmental action, and again this has to  6 be taken in context of the 91(24) core for the period  7 1871 to 1982, it's stated in the last paragraph:  8  9 "In British Columbia the responsibility of the  10 Crown has always been a difficult one to  11 discharge with actual conflicts between  12 settlers and Indians not as obvious as in other  13 parts of North America, even though the  14 potential for conflict was always present  15 because of limited agricultural land.  Compared  16 with other jurisdictions where Indians were  17 confined to reserves, or their rights were  18 purchased for a pittance, British Columbia land  19 policy in the territory did not usually  20 interfere seriously with Indian land use.  21 Settlement, which did not begin in the  22 territory until the beginning of this century,  23 was initially confined to the Bulkley and  24 Kispiox valleys, where land cultivation had not  25 been pursued vigorously by many Indians.  There  26 were no large railway land grants in the  27 territory, and even the pre-emption of most  28 agricultural land did not impinge seriously on  29 many aspects of aboriginal life."  30  31 Now that finding, although not directed to 1924,  32 is  the type of finding that would arise from an  33 inquiry as to whether or not a matter was a core  34 matter.  35 And at page 420, again it deals with the effect of  36 governmental intrusion on this question of Indianness,  37 and it was held, at page 420, the third full  38 paragraph:  39  40 "The evidence suggests that the land was seldom  41 able to provide the Indians with anything more  42 than a primitive existence.  There was no  43 massive physical interference with Indian  44 access to non-reserve land sustenance in the  45 territory and there was no forced or encouraged  46 migration away from the land towards the  47 villages.  Migration away from the land has 1559  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  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  Submissions by Mr. Taylor  been an Indian initiative and it started before  there was any substantial settlement in the  territory."  And that's just a recognition that culture  changes.  Indians themselves, I submit, should be  entitled in a modern context to say what makes them an  Indian.  And an Indian does not have to live by  traditional ways to be an Indian, he can live in a  village, he can take the advantages of the modern  economy for himself and his family, and he is no less  an Indian.  So that's why I say, core matters do not  necessarily include culture.  And on the evidence, the  governmental interference that we would be examining  with respect to section 91(24), does not seem, does  not on the trial judge's view of the evidence, seem to  have impacted seriously on the Indian as Indian.  They  chose to move to the villages and pursue the modern  economy.  Would this be a convenient time, my lord?  J.A.:  Yes.  Take the morning break  TAGGART,  MORNING BREAK  TAGGART, J.A.:  Mr. Taylor?  MR. TAYLOR:  Yes, my lords.  If I could next deal with  subparagraph J at page seven.  And this is an  instructive passage from the judgment, because it  deals with areas that -- of evidence that would be  looked at for a number of these tests.  The 91(24)  test, the section 35(1) test, that the trial judge did  not find it necessary to analyze.  And I am not  suggesting that that analysis is a complete answer,  but it's the type of issues that one would direct  their minds to.  If I could ask your lordships to turn to the next  tab, and it's 421 to 22 that I am going to be  referring to specifically.  It was stated:  "I cannot find lack of access to aboriginal land  has seriously harmed the identity of these  peoples."  Now that, I would submit, my lords, is a finding  that goes to this question of the core, the central  core under 91(24) .  The Chief Justice then went on: 1560  Submissions by Mr. Taylor  1 "There is a further dimension to this question,  2 however, which must also be considered.  I  3 refer to the obvious spiritual connection some  4 Indians have with the land.  I accept this as a  5 real concern to the plaintiffs worthy of as  6 much consideration as actual sustenance use.  7 At the same time, this important feature cannot  8 completely be separated from sustenance because  9 the products of the land and waters of the  10 territory are an integral part of spiritual  11 attachment."  12  13 Then goes and, he deals with spiritual attachment  14 later to say it occurred, and I will deal with it, it  15 occurred at the loss of sovereignty, so that -- but  16 that isn't because of governmental action, that's just  17 a fact of history, a legal fact of history.  But goes  18 on in the next area, and this area has to do with  19 both, I would submit, 91(24), core, with respect to  20 the custom aspect, and section 35, the competing uses  21 test.  22  23 "Except in rare cases, there should be no  24 difficulty obtaining sufficient fish, game and  25 other products from most areas of the territory  26 not just for desired level of sustenance but  27 also for spiritual purposes.  In this respect I  28 pause to mention that the salmon of the great  29 rivers pass right alongside the principal  30 villages and one need not travel far from the  31 villages to reach wilderness areas where game  32 can usually be taken.  There is much wood left  33 in the territory and it can be obtained far  34 more easily with chain saws, snowmobiles and 4  35 x 4s than in earlier days.  Anyone can now  36 travel with much greater ease to whatever parts  37 of the territory he or she may wish for the  38 purpose of gathering what is required for  39 sustenance or ceremonial purposes."  40  41 Again, on a site specific analysis, with respect  42 to 91(24), extinguishment, the findings were that,  43 okay, gray acre, that one gray acre may not be  44 available for hunting or fishing, but there are many,  45 many areas where game and fish are just as abundant as  46 they were on gray acre.  That's a 91(24) core issue I  47 would say, and it's also a section 35(1) issue in 1561  Submissions by Mr. Taylor  1 terms of balancing competing uses.  2 The Chief Justice went on:  3  4 "I appreciate that it may be difficult or  5 impossible to obtain game and other resources  6 at every exact place from where they were  7 formerly obtained, particularly in built-up  8 areas such as New Hazelton, Smithers" et  9 cetera, "...which are occupied principally by  10 non-Indians and which were not prominently the  11 sites of natives villages.  This is  12 unfortunate, but the same applies,  I am sure,  13 near the Indians' own villages, particularly as  14 Indian populations increased.  Fortunately, it  15 is a very large country with enormous  16 wilderness areas."  17  18 And in keeping with the province's approach to  19 extinguishment, it should be kept in mind that roughly  20 in the province some 95, some -- only five percent of  21 the province is under fee simple tenure.  95 percent  22 of the province is Crown land under various licences,  23 et cetera.  I don't know what the analysis is in this  24 particular territory, but it's probably -- would be  25 the same statistically or roughly the same  26 statistically.  Am I incorrect, my lord?  27 LAMBERT, J.A.:  I would think so.  Yes, I would think it would  28 be less than five percent.  Five percent of the whole  29 province that's in fee simple title, and you think of  30 Victoria, Vancouver and Kelowna and their big land  31 masses, I would think it would be less than five  32 percent.  33 MR. TAYLOR:  You're quite right.  That's probably correct, given  34 the terrain and that sort of thing.  35 TAGGART, J.A.:  A lot of mountain peaks in there that nobody  36 climbs.  37 MR. TAYLOR:  As is pointed out in the judgment, they make nice  38 viewing for natives and non-natives.  39 Then the Chief Justice went over to dealing with  40 this question of spiritual attachment:  41  42 "What has been lost, perhaps, is the spiritual  43 connection not with the land, but with control  44 or belief in ownership of land.  I say this  45 because access to land has usually been  46 available to the Indians, and much of it still  47 is or will be again.  For this purpose, the 1562  Submissions by Mr. Taylor  1 loss of ownership or belief in ownership  2 includes the spiritual connection these people  3 have with the land.  This loss occurred at the  4 time of sovereignty.  For the reasons I have  5 already given, and it is not a matter for which  6 the court can provide a remedy.  It is,  7 however, a matter the Crown should take into  8 consideration in deciding how it will proceed  9 with the development of the province and its  10 resources."  11  12 This speaks of this fiduciary duty.  13 So, the concept of loss of ownership is something  14 that happened at the time of sovereignty, and that's  15 not in any way, shape or form part of the  16 constitutional inquiry that is necessary either under  17 91(24) or 35(1).  That's just a legal, historical  18 fact.  19 And going over the page, it's stated:  20  21 "I recognize that some Indians greatly regret  22 that they no longer live off the land.  Most of  23 them, however, particularly the young people,  24 no longer wish to do that.  When the price of  25 furs dropped in 1950, those still on the land  26 moved to the villages.  Most Indian sustenance  27 and ceremonial requirements are almost as  28 conveniently available as they ever were.  In  29 addition, they have access to a great many  30 advantages which were not formerly available to  31 them."  32  33 Leaving out that last sentence, the previous  34 comments go to the question of the core, what's in the  35 core, and also to the question of 35(1) in terms of  36 competing users.  37 I won't -- in K we summarize a finding that the  38 evidence was overwhelmingly against the validity of  39 internal boundaries.  It is not sufficiently specific  40 and convincing to permit a declaration that the  41 appellants have exclusive user rights to the  42 territory.  Again, the conclusion on exclusive or the  43 finding on exclusive user rights was based on the  44 evidence.  45 Over at L, which is the next tab over, the quote at  46 page 462, I say this goes to this question of  47 assessing what's -- which of these aboriginal rights 1563  Submissions by Mr. Taylor  1 are core interests under 91(24) .  2 "I think the foregoing describes this case."  3  4 He is talking about the 1951 crash in fur prices,  5 and the second full paragraph:  6  7 "... for I believe the Indians were probably  8 using the lands I have identified for  9 aboriginal purposes both before and after the  10 start of the fur trade.  Perhaps they stayed on  11 the land for non-aboriginal purposes after the  12 start of the fur trade, or gradually used the  13 lands less and less for aboriginal purposes.  14 But there is no way of establishing precise  15 categories of land abandoned and 'other'. I  16 doubt if it is possible to consider the  17 category as closed.  18 Gradually the Indians of this territory  19 have been leaving the land and migrating into  20 the villages for upwards of 90 years or more.  21 Some of them have continued to use the land,  22 some much more and some much less than others.  23 I do not think I should be quick to treat  24 aboriginal use as abandoned but common sense  25 dictates that abandoned rights are no longer  26 valid and land must be lost or used."  27  2 8 I am not so much concerned about abandonment.  We  29 accept the conclusions of the trial judge about  30 abandonment.  The evidence was not sufficient enough  31 to satisfy him it would be safe to find abandonment.  32 But with respect to this core interest, the conclusion  33 is that the Indians themselves left the land.  And  34 then over at the next page, I have set out a long  35 extract dealing with the precise questions of  36 abandonment and various issues.  And I don't propose  37 to take your lordships through them all, but a  38 sampling, perhaps, just to get a flavour of it.  At  39 page 463, number two, that territory, it is stated:  40  41 "This small territory is across the Skeena River  42 from the one just mentioned.  There is no  43 evidence that this territory had been used  44 except for one occasion when Mr. Muldoe shot  45 one moose on it prior to 1954."  46  47 And the Mount Horetsky territory: 1564  Submissions by Mr. Taylor  1  2 "This is a small territory which includes only  3 the magnificent Mount Horetsky, which rises in  4 solitary splendour out of broad, verdant  5 valleys and is a landmark visible for great  6 distances.  There is no specific evidence it  7 has ever been used for aboriginal purposes."  8  9 Number four:  10  11 "This is another territory in the Kuldo area  12 which was described by Mr. Muldoe, who says he  13 hunted and trapped on this territory with Abel  14 Tait who died in 1946."  15  16 And there is a number of them set out there and I  17 needn't go through it.  Perhaps if I could take your  18 lordships to 465, with respect to number 15, which has  19 to do with aboriginal use, and also has to do with the  20 flavour of the evidence and how the case was  21 presented.  22  23 "This huge territory stretches about 70 miles  24 from east of Kisgegas to well north of the  25 Sustat River.  There is evidence of hunting and  26 trapping prior to the mid-1930s and hardly  27 anything since then, except for the apparent  28 revival of interest since the commencement of  29 this action.  Mr. Sterritt gave evidence about  30 the northern part of this territory but said he  31 had not been on it between 1930 and 1984.  32 Thomas Wright said he had been on the territory  33 when he was 12 years old, and that old houses  34 there had all 'rotted down.'"  35  36 I believe Mr. Wright was really old at the time of  37 the trial.  I am not sure of that.  38 But there is a listing of all the various  39 territories and the lack of any intensive use or  40 really even occasional use for periods of history.  41 That doesn't go to whether -- we don't say short of  42 abandonment and we accept what the learned trial judge  43 had to say about abandonment, but that doesn't go to  44 whether or not there are aboriginal rights relating to  45 that territory.  But it's certainly a critical factor  46 in assessing whether any of these alleged rights to  47 specific acres, or in some instances very large tracts 1565  Submissions by Mr. Taylor  1 of land, are core interests.  Because for Indians, at  2 the time of trial, they were not a significant part of  3 their life.  They cannot be said to to have that  4 intimate connection with Indians.  5 And also these comments I think all go to the  6 question of justification of competing uses under  7 section 35(1), as explained in the Sparrow decision.  8 The findings, as I have said before, the analysis  9 wasn't done, but that type of evidence and that type  10 of analysis, would be appropriate.  11 The final conclusion on abandonment, which I say we  12 agree with, is set out at 473, and the second  13 paragraph at the conclusions on abandonment, the trial  14 judge stated:  15  16 "While this case is very close to the line, and  17 I do not think there is very much aboriginal  18 activity in the territory..."  19  20 TAGGART, J.A.:  I am sorry, what page is this again?  21 MR. TAYLOR:  It's at 473.  It's the second page in from the very  22 end of that tab.  It's stated in the second paragraph:  23  24 "While this case is very close to the line, and  25 I do not think there is very much aboriginal  26 activity in the territory..."  27  28 And this is the extended territory beyond the  29 villages and cultivated fields,  30  31 "...I do not think I can safely conclude that  32 the intention to use these lands for aboriginal  33 purposes has been abandoned, even though many  34 Indians have not used them for many years."  35  36 And then there is further discussion in that vein.  37 And at the bottom in connection with the fiduciary  38 duty as suggested by the trial judge, a statement is  39 made, and I would submit that that statement bears in  40 the analysis, if it has to be done under section 35,  41 at the very last paragraph:  42  43 "In my view it would be unsafe and contrary to  44 principle, to apply the principle of  45 abandonment to such an uncertain body of  46 evidence.  It may be noted, however, that  47 limited use of the territories bears on the 1566  Submissions by Mr. Taylor  1 question of honourable reconciliation which I  2 have already mentioned."  3  4 I submit that that comment is in keeping with the  5 approach or the test enunciated in the Sparrow  6 decision in terms of -- for the reconciliation of  7 competing interests.  8 And again arising from My lord Justice Hutcheon's  9 comment or question, I say that again we are not in a  10 position to challenge the trial judge on the findings  11 of facts, but again we do not agree with the language  12 or some of the conclusions arising from those  13 findings.  14 Now, going back to the speaking notes at 228 W, we  15 state that what is clear from the reasons is that not  16 all matters which could be argued to be aboriginal  17 rights -- in other words, what was done in 1846 -- on  18 the evidence, fall within the core group of interests.  19 And at 228 we make the point that again that they must  20 be intimately connected with Indian status and  21 capacity, and that the burden is on the appellants to  22 prove that particular interest falls within the core  23 group, and that flows out of the Kruger decision.  24 We state that if any particular aboriginal right  25 does not fall within the core group of interests under  26 section 91(24), then provincial laws of general  27 application which diminish or extinguish, are valid by  28 reason of their application ex proprio vigore, even if  29 an aboriginal right falls within the core group of  30 interest pursuant to section 88 of the Indian Act,  31 provincial legislation may apply to diminish and in  32 some cases we say extinguish that right.  33 LAMBERT, J.A.:  I have great difficulty in accepting that last  34 proposition.  35 MR. TAYLOR:  The extinguishment under 88?  36 LAMBERT, J.A.:  No, diminish or extinguish.  Because you need  37 clear and plain intention, and if it takes both the  38 provincial legislation and the federal section 88 to  39 create the legislative scheme that extinguishes or  40 diminishes, then I say that there is not in section 88  41 a clear and plain intention, and it doesn't arise by  42 necessary implication.  Section 88 bears all the  43 hallmarks of something that was not put in with the  44 specific thought of every specific thing that it's  45 going to do.  So I have a great difficulty accepting  46 that final part.  47 MR. TAYLOR:  If I can just understand, I think your lordship was 1567  Submissions by Mr. Taylor  1 making a similar point yesterday --  2 LAMBERT, J.A.:  I was.  3 MR. TAYLOR: -- and just to make sure I understand it, you're  4 saying that in analyzing whether or not, or in trying  5 to determine whether or not there is the appropriate  6 intention to extinguish, and if federal referential  7 incorporation under 88 is necessary, it can't be said  8 that section 88 supplies that requisite intention,  9 because it can't be said that the sovereign ever  10 turned her mind to extinguishment by looking at  11 section 88.  12 LAMBERT, J.A.:  I think you need the clear and plain intention  13 of both the province and parliament of Canada in order  14 to make an extinguishment on core values, core  15 interests.  You need both.  And it isn't there in  16 section 88.  17 MR. TAYLOR:  My lord, I understand the question, and perhaps one  18 way to look at it is the Crown is indivisible.  There  19 is really one Crown.  And the federal Crown may be the  2 0 right hand of the Crown and the provincial Crown may  21 be the left hand of the Crown, but it's only one  22 Crown.  And it's the Crown's intention that's  23 significant.  91(24) sets up a legislative division of  24 power, but it's still the intention of the Crown that  25 should be looked at.  And under the referential  26 incorporation test, the relevant policy has been held  27 to be the policy of the provincial Crown behind the  28 legislation that's referentially incorporated.  And I  29 would submit that it would be impossible to treat the  30 Crown, for instance with respect to that issue, as two  31 separate entities, and that both Crowns have -- the  32 intention has to be examined.  Because section 88  33 excludes provincial legislation that conflicts with  34 federal legislation.  So where the intention of the  35 federal Crown can be said, the Crown in right of the  36 federal government can be said to be different, there  37 is an exclusion, but if the intention of the federal  38 Crown on a particular matter is not stated, then the  39 Crown, the indivisible Crown concept would say the  40 intense that's relevant would be in the province.  41 LAMBERT, J.A.:  I thank you for that submission.  That helps me  42 to understand your position.  43 MR. TAYLOR:  But you're still troubled with the concept?  44 LAMBERT, J.A.:  I am still troubled.  45 MR. TAYLOR:  My lord, if I can just deal with 228 Z, then I am  46 going to turn to section 228, and I don't know if it  47 will satisfy you any more, but I can at least lay out 1568  Submissions by Mr. Taylor  1 the test that comes out of the Dick case, which may  2 assist.  3 In 228 Z we say that the existing aboriginal  4 rights extending beyond the core group of interest, we  5 don't say that they don't receive constitutional  6 recognition, but the recognition flows from section  7 35, not 91(24).  And I again I think that's consistent  8 with the fact that the two levels of Crown, or two  9 levels of government, all of the provinces and the  10 federal government, felt they needed to have a  11 constitutional amendment to affirm and recognize  12 aboriginal rights.  They recognized that provincial  13 authority with respect to Indians and lands reserved  14 for the Indians, was as intrusive as federal  15 regulatory power, and that was the reason.  Otherwise  16 it would simply have been a matter of the federal  17 government, as it did with the Bill of Rights, saying  18 we recognize aboriginal rights.  19 Now, if I can go back to the Dick case and just  20 deal with section 88.  And it's at tab Q at page 317,  21 My Lord Justice Lambert in his decision in Dick --  22 TAGGART, J.A.:  Kruger and Manuel is first.  23 MR. TAYLOR:  I am sorry, Q, it's the second case in, my lord.  24 TAGGART, J.A.:  Case number two.  All right.  25 MR. TAYLOR:  Page 317.  My Lord Justice Lambert ruled in the  26 Court of Appeal, on dissent:  27  28 " seems to me that the same tests as are  29 applied to determine whether the application of  30 a provincial law to a particular group of  31 Indians and a particular activity is the  32 application of a law of general application,  33 should also be applied to determine whether the  34 application of a provincial law to a particular  35 group of Indians in a particular activity is  36 legislation in relation to Indians and their  37 Indianness."  38  39 And the Supreme Court of Canada held, with the  40 greatest respect, that Mr. Justice Lambert was wrong  41 in so setting out the test.  And that ruling -- I am  42 just tying to -- it's the second issue, at page 321,  43 starting under four, the second issue.  And this is on  44 the assumption that the legislation affected Indians  45 qua Indians, so that it was affecting the core.  Mr.  46 Justice Beetz stated:  47 1569  Submissions by Mr. Taylor  1 "In holding that the test adopted by this court  2 in Kruger to determine whether a law is one of  3 general application are the same tests which  4 should be applied to determine whether the  5 application of the Wildlife Act to appellant  6 would regulate him in his Indianness, Mr.  7 Justice Lambert fell into error, in my  8 respectful opinion.  And this error resulted  9 from a misapprehension of what was decided in  10 Kruger as to the nature of a law of general  11 application.  The test which Mr. Justice  12 Lambert applied in reviewing the evidence in  13 his above quoted reasons are perfectly suitable  14 to determine whether the application of the  15 Wildlife Act to the appellant would have the  16 effect of regulating him qua Indian..."  17  18 And this is the core concept.  19  20 "...with the consequential necessity of reading  21 down if it did.  But apart from legislative  22 intent and colourability, they have nothing to  23 do with the question whether the Wildlife Act  24 is a law of general application.  On the  25 contrary, it is precisely because the Wildlife  26 Act is a law of general application that it  27 would have to be read down were it not for  28 section 88 of the Indian Act."  29  30 The the statement there is if the law were  31 specifically directed at Indians, it would not be a  32 law of general application.  So that would be a  33 colourable incursion into the federal area.  34  35 "If the special impact of the Wildlife Act on  36 Indians had been the very result contemplated  37 by the legislature and pursued by it as a  38 matter of policy, the act could not be read  39 down because it would be in relation to Indians  40 and clearly ultra vires."  41  42 And then if I could take your lordships to page  43 323, on -- the basis is before section 88 even comes  44 into play, there has to be an affecting of interests  45 of Indians qua Indians.  And at the bottom of page 323  46 it was stated:  47 1570  Submissions by Mr. Taylor  1 "With all due deference, it seems to me that the  2 correct view is the reverse one..."  3  4 Quoting from -- perhaps I should put the quote  5 from Mr. Justice Lambert before you, and it's right  6 above the last paragraph.  7  8 "'...evidence about the motives of individual  9 members of the Legislature or even about the  10 more abstract "intention of the legislature" or  11 "legislative purpose of the enactment" is not  12 relevant.  What is relevant is evidence about  13 the effect of the legislation.  In fact,  14 evidence about its "application".'"  15  16 Mr. Justice Beetz stated with respect to that  17 statement:  18  19 "With all due deference, it seems to me the  20 correct view is the reverse one and that what  21 Mr. Justice Dickson, as he then was, referred  22 to in Kruger which he mentioned laws which had  23 crossed the line of general application were  24 laws which, either overtly or colourably,  25 single out Indians for special treatment and  26 impair their status as Indians.  Effect can  27 evidence intent. But in order to determine  28 whether a law is not one of general  29 application, the intent, purpose or policy of  30 the legislation can certainly not be ignored:  31 they form an essential ingredient of a law  32 which discriminates between various classes of  33 persons, as opposed to a law of general  34 application.  This in my view is what Mr.  35 Justice Dickson meant when he quoted the above  36 passage.  'It would have to be shown that the  37 policy of such an act was to impair the status  38 and capacities of Indians.'"  39  40 And that's the conclusion.  So that may perhaps  41 answer my lord Justice Lambert's question.  Section 88  42 does not involve an analysis of the intention of both  43 arms of the sovereign.  It's directed to and analyzing  44 the policy of the act, the provincial act, and if that  45 is, as the cases term it, a colourable intrusion into  46 the federal area, in other words it singles out  47 Indians, then section 88 cannot apply so as to 1571  Submissions by Mr. Taylor  1 incorporate it, and if that doesn't happen it will be  2 read down if it can be read down.  But the intention  3 that's relevant is the intent of the provincial arm of  4 the Crown and not the federal arm of the Crown.  5 LAMBERT, J.A.:  As to whether it's law of general application, I  6 can understand that.  As to whether it evidences a  7 clear and plain intention on the part of that  8 legislative body that has the power to carry out the  9 extinguishment, then it seems to me that section 88  10 doesn't evidence it.  Because it's -- after all, it's  11 parliament that has to show the clear and plain  12 intention because it's parliament that's extinguishing  13 it, not the legislature.  14 MR. TAYLOR:  By referential incorporation, yes.  15 LAMBERT, J.A.:  Yes.  16 MR. TAYLOR:  But we would submit, my lord, that with respect to  17 that issue, really there is no difference because on  18 the facts -- on the assumption in Dick, the Wildlife  19 Act, although it did not extinguish, it regulated, the  20 Wildlife Act had a policy of regulating wildlife.  It  21 affected Indians qua Indians.  In theory, since that  22 was the assumption on which the case proceeded, only  23 the parliament of Canada could pass regulatory  24 legislation with respect to Indians qua Indians and  25 their hunting rights.  Notwithstanding that, in Dick,  26 the Wildlife Act applied not because the parliament of  27 Canada's intention was analyzed, but because it was a  28 law of general application.  That was the -- that is  29 the only inquiry that is necessary.  If the province  30 goes beyond its legislative competence, although  31 acting within a proper head in 92, and colourably  32 intrudes, then it's not a law of general application  33 and it doesn't apply.  But that's a different thing  34 than saying one must be able to say that parliament  35 must have intended, or somehow the legislative intent  36 or parliament or policy of parliament, is an issue in  37 it.  Parliament's or the federal government's policy  38 and legislative intent only comes into bear if it is  39 legislated in the area.  40 LAMBERT, J.A.:  Well, I think when it comes to extinguishment it  41 must be shown by clear intention.  The analysis is  42 rather different than it is in relation to Dick.  But  43 I think we have explored that.  44 MR. TAYLOR:  Yes, and I will come back to that because I have  45 another just brief summary that I have tried to  46 outline some of these tests, and maybe that will  47 become clear as to what our position is. 1572  Submissions by Mr. Taylor  1 Then the rest of the case is an analysis of that  2 but -- and I could take your lordships through it,  3 but, in essence, under section 88, section 88 only  4 becomes applicable when provincial legislation affects  5 the core so as to legislate with respect to Indians  6 qua Indians, and it will be referentially  7 incorporated, we submit on the authorities, if it's a  8 law of general application and it doesn't conflict  9 with federal legislation.  And one of the concerns  10 that arose and was explored in the Dick case, is that  11 if it's a colourable intrusion into the federal area,  12 so as to single out Indians for special treatment as a  13 matter of policy, then it will not be a law of general  14 application.  15 Now, my lords, I prepared another summary, which  16 hopefully will bring some of these matters, make them  17 clearer, if I haven't expressed them as clearly as I  18 should have.  And it's a three page document which  19 summarizes what I call the tests.  20 TAGGART, J.A.:  Should we add this at the end of the speaking  21 notes?  22 MR. TAYLOR:  That could be added at the end of the speaking  23 notes, my lord.  24 And I have, on the basis of the authorities,  25 analyzed four different tests to compare them so that  26 you can look down and see what the differences are and  27 what they are going towards.  But it's basically  28 extinguish, extinguishment, the provincial legislative  29 competence, the Indianness question, section 88 and  30 section 35(1).  And with respect to extinguishment,  31 it's the province's position, we accept the intent to  32 extinguish must be plain and clear, however that  33 intent may need not be express.  If the effect of  34 legislation and government acts is completely adverse  35 to the continued exercise of aboriginal rights, and  36 that in our conception is both site and right  37 specific, in other words the acre and what portion of  38 the global aboriginal right affected that acre, then  39 it can be inferred that there was intent to extinguish  40 by necessary implication.  However, this implied  41 intent need only be to extinguish any competing,  42 potential competing claim or interest.  If it need not  43 be expressly stated, we hereby extinguish aboriginal  44 rights, then by necessary implication the legislative  45 effect that extinguishes all potential competing  46 claims does it as well.  47 The assessment that's undertaken is what was the 1573  Submissions by Mr. Taylor  1 aboriginal right existing at the date of sovereignty  2 and the effect of the governmental action on that  3 right?  In other words, the historic right.  The  4 burden, the native group -- the burden is on the  5 native group to establish the right and it's on the  6 Crown to prove extinguishment.  7 Now, with respect to Indianness, this core group,  8 the test is stated by us as does provincial  9 legislation affect a matter which is a vital and  10 essential element of, and I have taken language from  11 other cases, intimately, integrally, associated with  12 status and capacity of Indians and lands reserved for  13 Indians.  14 Now, what is being assessed on that test is  15 whether the legislation affects the interest, and we  16 say it's the current interest, not the historic  17 interest, not at the time of sovereignty, alleged to  18 be within the core group of interests.  And I have  19 taken your lordships through the Kruger and Jack and  20 Charlie cases with respect to that, or analyzed them.  21 And the burden, the burden is on the Indians to prove  22 legislation affects them in their Indianness.  And  23 that comes out of the Dick case and the Kruger case.  24 With respect to section 88, we summarize the test  25 as follows:  If provincial legislation affects Indians  26 in their Indianness, status and capacity, the  27 legislation will apply by referential incorporation  28 if, and the first if, it's not inconsistent with a  29 treaty or federal legislation; and the second if is  30 that it has to be a law of general application, which  31 has been defined in the authorities to mean it extends  32 uniformly throughout the jurisdiction.  And the second  33 branch of it, it must not be in relation to one class  34 of persons in object and purpose, and that's taken  35 from the Kruger decision.  And it's been stated,  36 restated in Dick, interpreting Kruger as that the  37 policy of the legislation must not overtly or  38 colourably impair the status and capacity of Indians.  39 And what is to be assessed there is the conflict with  40 the federal legislation, and whether or not it is a  41 law of general application.  42 The burden in this case is as well on the native  43 group to prove conflict with federal legislation or  44 the law, the law is not a law of general application.  45 That's derived from the Kruger case.  46 Now, dealing with section 35(1), this is derived  47 from Mr. Justice Dickson's discussion of the 1574  Submissions by Mr. Taylor  1 justification process in Sparrow, and it seems general  2 in nature but non-fishing rights may have different  3 considerations, but it contains a very good shopping  4 list of considerations.  The test in the first  5 instance is, does legislation have the effect of  6 interfering with an existing aboriginal right?  It's  7 described as prima facie infringment.  And the burden  8 is on native group to prove that, and factors to be  9 taken into account is whether or not the limitation is  10 unreasonable, whether or not it imposes undue  11 hardship, whether or not it denies the preferred means  12 of the native group of exercising the right.  13 Two, if there is a prima facie interference then  14 the legislation is justified -- is the legislation  15 justified, and the burden is on the Crown to justify  16 it.  And the various factors are set out, there has to  17 be a valid legislative object, and that's not a  18 constitutional issue, that's what's being done here,  19 the examples are given, does it go to conservation,  20 does it go to resource management?  The honour of the  21 Crown with respect to Indian priorities and  22 allocation.  There should be as little infringment as  23 possible.  If a situation amounts to an expropriation,  24 and we say on the basis of Sparrow we say there are  25 situations where legislative action can, we say,  26 effect an extinguishment, even with section 35, but  27 all these factors have to be taken into account.  28 Under section 35, it would be very difficult to  29 extinguish, we acknowledge that, but in the right case  30 if all the factors have been met it may be possible.  31 And we certainly wouldn't want to foreclose the  32 possibility of that.  33 Has the aboriginal group being consulted?  And then  34 generally an admonition that the government be  35 sensitive to and respect rights of aboriginal peoples.  36 Now, what is assessed is the historic right in its  37 modern context and the effect of legislation thereon.  38 And that's what was done in Sparrow.  The historic  39 right, from time immemorial, fishing in this branch of  40 the Fraser, but in setting out how these factors might  41 be looked at, you have to look at that right in the  42 modern context.  Other people share the fishery, there  43 is conservation issues to be examined.  None of that  44 was a consideration in 1846, we submit, but that's  45 what has to be done when looking at section 35 rights.  46 And I have stated what the burden, the various burdens  47 are on that.  And I hope that will be helpful. 1575  Submissions by Mr. Taylor  1 HUTCHEON, J.A. :  Could I just ask, the first page under  2 provincial legislative competence, where you say what  3 assessed, and you use the word current, not historic.  4 Does current mean the date of the legislation?  If we  5 have a statute of 1891, is that what you mean by  6 current?  7 MR. TAYLOR:  I think there is two elements to it.  Certainly if  8 you're looking at extinguishment by a grant of  9 something, I think you would assess it at the date of  10 the grant in the main.  Because that's the -- that's  11 the current use to which --  12 HUTCHEON, J.A.:  Let's take a Water Act of 1921, does current  13 mean 1921?  14 MR. TAYLOR:  With respect to legislation, I think you would look  15 at the date of the challenge.  Because presumably the  16 legislation would change as it went along.  You would  17 look at it whenever the challenge came up, but with  18 respect to a grant, it has to be a combination of when  19 the grant was made, coupled with what is the current  20 legislation.  The more appropriate time would be the  21 date of the challenge, and most of -- all of cases  22 that I am aware of that deal with these issues, look  23 at the facts on the ground as at the date of the  24 challenge.  25 HUTCHEON, J.A.:  I see. Thank you.  26 MR. TAYLOR:  My lords, if I could go back to the factum at page  27 96, which is the page just before we start the  28 speaking notes, I would like to deal with the concept  29 of lands reserved for the Indians.  30 TAGGART, J.A.:  I have at the end of that most recent addition  31 to the speaking notes, a page headed comparison,  32 aboriginal rights versus Indian rights.  33 MR. TAYLOR:  That was the earlier — that was the earlier  34 insertion.  35 HUTCHEON, J.A.:  We dealt with that.  36 TAGGART, J.A.:  All right. We dealt with that.  37 MR. TAYLOR:  Now, going back to the factum, and we have covered  38 the main concepts with the speaking notes, and I think  39 I can go through the balance of the factum fairly  40 quickly.  There is just a few things to point out in  41 particular.  One is this question of lands reserved  42 for the Indians.  The St. Catherine's case stands for  43 the proposition of lands reserved for the Indians is  44 not restricted to Indian reserves.  In other words,  45 statutory Indian reserves.  In fact, that argument was  46 made for counsel for Ontario in the case and was  47 rejected.  And we accept that, that the lands reserved 1576  Submissions by Mr. Taylor  1 for Indian concept goes beyond Indian Act reserves.  2 It can be broader than that.  However, Lord Watson  3 went on to say that the words actually used are  4 according to the their natural meaning sufficient to  5 include all lands reserved upon any terms or  6 conditions for Indian occupation.  And reserve has  7 been defined as being retained, kept aside for a  8 purpose or a person.  So, in our submission, lands  9 reserved for the Indians must involve some  10 governmental action, it doesn't have to be an official  11 transfer or the staking out of metes and bounds under  12 the Indian Act to make it a reserve.  But there has to  13 be some governmental action by the appropriate  14 authority, and in this case it's the province, being  15 the owner of the land, to set it aside on whatever  16 terms and conditions.  And as I indicated yesterday,  17 in fact Calder III itself makes reference to reserves,  18 and in fact, as early as Calder III lands had been set  19 aside for Indian purposes, and we would say those are  20 lands reserved for Indians at least at the time when  21 B.C. joined Confederation, and as well Calder did not  22 allow settlers to take liberties with lands in the  23 village sites and surrounding cultivated fields, the  24 areas of high intensity.  25 Now, accordingly, for lands to be reserved for  26 Indians, they must be set aside or designated for  27 Indian occupation.  And this was the conclusion  28 reached in 1917 by the Exchequer Court of Canada,  29 appeal was taken from that to the Supreme Court of  30 Canada, and that appeal was dismissed.  I have quoted  31 from the decision there:  32  33 "And while not desirous of repeating here what  34 was so clearly stated in St. Catherine's case  35 in respect to the Indian title, yet I wish to  36 draw attention to the fact that it was decided  37 beyond cavel in that case, that only land  38 specifically set apart and reserved for the use  39 of Indians are lands reserved for Indians  40 within the meaning of section 91(24) ."  41  42 Now the appellants and some of the supporting  43 intervenors have suggested that the mere fact that  44 there was historic occupation of those lands, through  45 a number of international law concepts, historical  46 analysis of cases from other jurisdictions, means that  47 all lands for which there was historic occupation are 1577  Submissions by Mr. Taylor  1 lands reserved for the Indians, and again we say that  2 those are interesting, the analysis in the historical  3 cases in another jurisdiction is interesting, but the  4 law of Canada, approved by the Supreme Court of Canada  5 in the Bonhomme case, is that there must be a specific  6 setting aside and apart and reservation of lands for  7 the use of the Indians to make them lands reserved for  8 the Indians.  9 Now, after Confederation, only the province can  10 designate lands reserved for the Indians, and we refer  11 there to the decision of Madam Justice Southin in the  12 Mount Currie Indian Band case. She was dissenting in  13 that case but the point that we have referred to the  14 judgment for is not at odds with the decision of the  15 majority.  And I should point out as well, if you  16 could make a note, that the very early case out of  17 Ontario, the Ontario Court of Appeal decision in  18 Ontario Mining and Seybold, was to the same effect.  19 TAGGART, J.A.:  S-e-y —  20 MR. TAYLOR:  S-e-y-b-o-l-d.  And I can probably give you the A  21 book reference to that, my lords.  22 TAGGART, J.A.:  Maybe we can find it.  23 Mr. Taylor, we are going to have to adjourn right  24 on time because one of the judges has an appointment.  25 So perhaps it would be appropriate to do that now.  26 MR. TAYLOR:  Thank you, my lord.  27 MR. WILLIAMS: Perhaps I could just say it looks as though on the  28 schedule that we will be into tomorrow, and probably  29 until noon in any event.  30 TAGGART, J.A.:  All right.  Thank you.  31  32 LUNCH RECESS  33  34  35  36  37 I hereby certify the foregoing to be  38 a true and accurate transcript of the  39 proceedings herein to the best of my  40 skill and ability.  41  42  43  44  45 Wilf Roy  46 Official Reporter  47 United Reporting Service Ltd. 1578  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 LUNCH BREAK  2  3 TAGGART, J.A.:  Yes, Mr. Taylor.  4 MR. TAYLOR:  Yes, my lord.  I was at paragraph 233 dealing with  5 the question of lands reserved for Indians and what  6 are lands reserved for Indians and I misspoke myself.  7 The Ontario Mining and Seybold case in fact is a  8 decision of Privy Council and it's the A book,  9 reference is A-ll T312.  10 TAGGART, J.A.:  312?  11 MR. TAYLOR:  312, tab 312.  And at page 79 the ratio of that  12 case which is reflected in Madam Justice Southin's  13 judgment as well is to this effect:  14  15 "Their Lordships think that it should be added  16 that the right of disposing of the land --"  17  18 And this is for the setting who can set aside a  19 reserve,  20  21 "Their Lordships think that it should be added  22 that the right of disposing of the land can  23 only be exercised by the Crown under the advice  24 of the Ministers of the Dominion or province,  25 as the case may be, to which the beneficial use  26 of the land or its proceeds has been  27 appropriated, and by an instrument under the  28 seal of the Dominion or the province."  29  30 And that authority, my lords, I say is unchallenged  31 and flows from the St. Catherine's principle that the  32 entire beneficial interest of the lands within the  33 province is in the province.  It belongs to the  34 province subject to a burden, but not -- the burden  35 does not take anything away from the province.  The  36 province is the owner of the lands.  37 Now, at 234 we go on to say, and I think Mr. Bell  38 addressed this, that if the Royal Proclamation were to  39 apply in British Columbia there is an argument that  40 lands in British Columbia would be lands reserved for  41 the Indians under the Royal Proclamation.  It's our  42 position that the Royal Proclamation does not apply  43 for the reasons stated by Mr. Bell and presumably to  44 be addressd a little later today.  45 And at 236 it's the province's position that aside  46 from statutory reserves, there are no "lands reserved  47 for the Indians" in the territory of the claim.  Hence 1579  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 section 91(24) does not operate as a bar to Provincial  2 legislation from operating so as to extinguish or  3 diminish aboriginal rights with respect to the lands  4 and resources of the territory.  5 Now, there was a comment by Mr. Justice Dickson in  6 Guerin where Justice Dickson stated that "the interest  7 of an Indian band in a reserve" is the same as "an  8 unrecognized aboriginal title in traditional tribal  9 lands."  And that -- I would ask you to turn that up.  10 It's at tab 237.  And we say with respect to that  11 quote, quite clearly Justice Dickson was not  12 addressing his mind to the question of whether or not  13 traditional tribal lands would be lands reserved for  14 the Indians, and I think on a proper reading of the  15 case the analysis was undertaken to establish the fact  16 that since traditional tribal -- the interest of  17 Indians in traditional tribal lands was not a trust,  18 you then did not have to worry about the trust  19 doctrine under consideration, but the traditional  20 interest was sufficient to give rise to a fiduciary  21 duty.  And if I could just develop that from the case  22 itself at page 378, the very bottom:  23  24 "For this reason Kinloch v. Secretary of State  25 for India in Council"  26  27 and another case, the Tito and Waddell case,  28  29 "and the other 'political trust' decisions are  30 inapplicable to the present case."  31  32 So the analysis was undertaken to oust this political  33 trust doctrine.  34  35 "The 'political trust' cases concerned  36 essentially the distribution of public funds or  37 other property held by the government.  In each  38 case the party claiming to be beneficiary under  39 a trust depended entirely on statute, ordinance  40 or treaty as the basis for its claim to an  41 interest in the funds in question.   The  42 situation of the Indians is entirely different.  43 Their interest in their lands is a pre-existing  44 legal right not created by Royal Proclamation,  45 by s. 18(1) of the Indian Act, or by any other  46 executive order or legislative provision."  47 1580  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 And then the quote that I have already referred to is  2 there:  3  4 "It does not matter, in my opinion, that the  5 present case is concerned with the interest of  6 an Indian Band in a reserve rather than with  7 unrecognized aboriginal title in traditional  8 tribal lands.  The Indian interest in the land  9 is the same in both cases: ....  It is worth  10 noting, however, that"  11  12 it was traditional tribal lands.  And then later on in  13 the analysis Justice Dickson held that upon a  14 surrender of what happened to be a reserve lands a  15 fiduciary obligation arose, but the analysis certainly  16 wasn't directed towards whether or not traditional  17 tribal lands or lands reserved for the Indians.  And  18 in fact we submit it could not be read into that  19 decision, because to so read it in would be contrary  20 to well established authority.  21 Now, going on as an alternative argument, that  22 even if some of the lands within the territory are  23 "lands reserved for Indians," this does not mean that  24 they constitute "enclaves" entirely shielded from  25 provincial law.  I have covered that area in the  26 speaking notes.  But it's quite clear that even on  27 statutory reserves some provincial legislation is  28 applicable provided it doesn't pierce the core which  29 we discussed this morning or is in conflict with the  30 provisions of federal legislation.  31 And that thought is developed at paragraph 242.  32 However, not all provincial acts of extinguishment  33 will invade federal jurisdiction.  In the Province's  34 submission, acts of extinguishment of aboriginal  35 rights with respect to land will not be ultra vires  36 the Province unless the right or rights in question  37 are sterilized to such an extent that the interests  38 that those rights are designed to protect are  39 thwarted.  Such may be the case where an act of  40 extinguishment occurs in relation to land where  41 aboriginal people can claim extensive and exclusive  42 use.  And this is his core concept.  And remember this  43 is an alternative argument.  Such may not be the case  44 where extinguishment occurs in relation to land less  45 often used and where there is neighbouring land that  46 can be used for the same purpose.  47 Moreover, where the aboriginal right in question 1581  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 is non-possessory, its extinguishment would not  2 extinguish any right of possession of land and  3 therefore would not interfere with the exclusive  4 federal jurisdiction over "lands reserved for the  5 Indians."  And I developed those concepts this morning  6 in relation to the evidence.  7 The next subheading (c) deals with Indians, most  8 of which I've dealt with through the speaking notes,  9 but I would draw your lordships' attention to  10 paragraphs 244, 245 and 246 whereby the courts have  11 recognized the distinction between Indians and land  12 reserved for Indians.  It's been recognized by learned  13 authors and those texts are set out at 245, and in  14 fact has been recognized by the Supreme Court Canada,  15 the Four B case being one, and as you recall the  16 comment was it's Indians and land reserved for  17 Indians, not Indians on reserves, and you don't get  18 greater force if you are on a reverse and you don't  19 get less force if you are not on a reverse.  And  20 Derrickson and Derrickson is to the same effect,  21 whereby, because of the clash with the Indian Act,  22 Family Relations Act could not apply under section 88,  23 but it was clear that the Family Relations Act applied  24 to other property of Indians not on reserves.  25 My lords, I have dealt with status and capacity at  26 length and I won't deal with that again, and that's  27 set out in the Factum at 248 through to 253.  And at  28 254 I wish to make it clear we have been addressing --  29 I have been addressing in argument the concept of  30 extinguishment, but in many cases, as I hope I have  31 made clear, the legislation may not extinguish the  32 global right or the whole right.  It may extinguish a  33 part of that right and so -- and thereby diminish the  34 right or in fact in many, many cases there is no  35 extinguishment at all, but there is diminishment.  36 Whereas, post-1982 as referred to in Sparrow there is  37 interference.  And in our submissions the province is  38 fully entitled to do that under the authorities in the  39 constitutional regime.  Clearly, if it can extinguish  40 it can diminish.  Section 88 I have dealt with at  41 length, again, and I won't dwell on it.  If I could  42 ask your lordships to turn to paragraph 261.  43 LAMBERT, J.A.:  Well, if you say clearly it can extinguish it  44 can diminish, I am not sure that that is so  45 self-evident as you say it is, that if there is a  46 diminishment the right, the essential right is still  47 in existence, part of which is perhaps dormant.  That 1582  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 is, a diminution is not necessarily an extinguishment  2 of that part that is diminished for the time being.  3 It might just move it into dormancy, because the  4 fundamental right continues and in that respect it's  5 different than extinguishment where what seems to  6 happen is that the right is completely gone forever  7 and cannot revive.  8 MR. TAYLOR:  Yes, my lord, it would depend again on you how you  9 define the right.  If the right, for example, with  10 respect to the extended territory is non-exclusive  11 user rights in general without further definition,  12 then arguably the extinguishment, for instance of the  13 right to hunt elk, or the right to hunt elk on one  14 square acre because of a fee simple has been  15 diminished, the total right has been diminished and  16 you needn't talk necessarily of extinguishment of that  17 particular aspect of the right.  But I submit when you  18 are looking at extinguishment with respect to  19 particular aspects, it would be -- it is necessary to  20 look at the particular acre and say the whole -- it's  21 true the whole right continues, but with respect to  22 that acre it is forever gone because of the fee  23 simple, and that might be different than the situation  24 where you have a relatively short-term lease as an  25 example.  Whereas, because you have granted a lease,  26 say, for ten years and somebody has put a fence around  27 it, it can't be said necessarily that that particular  28 right to hunt on that acre has been extinguished.  And  29 in that context it probably does lie dormant.  In  30 other words, when the lease removes itself and the  31 fences are taken down, that particular aspect of the  32 right can be revived as it had been in the past.  33 LAMBERT, J.A.:  Yes.  However, every aspect of diminishment,  34 every case of diminishment must be looked at  35 separately to see whether there is an extinguishment  36 on the part of the right involved or whether there is  37 just a dormancy.  38 MR. TAYLOR:  That's correct, yes.  And I don't mean to imply  39 that we approach it on a global basis.  We really -- I  40 think it is necessary to do a very site-specific  41 analysis and right-specific analysis to be able to say  42 whether there has been an extinguishment and the  43 province does not advocate, and I hope that's clear as  44 well, that you take extinguishment lightly.  It must  45 be -- it must be by necessary implication there being  46 no other alternative, no co-existence of the rights.  47 Going to 261, there is an area of law that is 1583  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 unsettled and that is whether or not section 88  2 contemplates referential incorporation with respect to  3 lands reserved for Indians.  That was mentioned in the  4 Derrickson case and it has not yet been settled.  5 And at 262 the respondents submit that it does and  6 we respectfully adopt the submission of the Attorney  7 General for Ontario in the Derrickson case.  And I  8 have set out the arguments, and if I could I'd leave  9 that for your lordships if it's a troublesome point  10 with you.  And it's further support of that argument  11 at 263 we quoted from the Kruger case, as follows:  12  13 "However abundant the right of Indians to hunt  14 and to fish, there can be no doubt that such  15 right is subject to regulation and curtailment  16 by the appropriate legislative authority.  17 Section 88 of the Indian Act appears to be  18 plain in purpose and effect.  In the absence of  19 treaty protection or statutory protection --"  20  21 That's the paramountcy doctrine,  22  23 "-- Indians are brought within provincial  24 regulatory legislation."  25  26 And in keeping with Derrickson with respect to the  27 enclave theory several years before that, we say that  28 there is no policy reason or legislative reason why  29 section 88 should not apply to lands reserved for  30 Indians.  31 And at 441, again, citing from the Kruger  32 decision:  33  34 "It has been urged in argument that Indians  35 having historic hunting rights which they have  36 not surrendered should not be placed in a more  37 invidious position than those who entered into  38 treaties, the terms of which preserved those  39 rights.  However receptive one may be to such  40 an argument on compassionate grounds, the plain  41 fact is that s. 88 of the Indian Act, enacted  42 by the Parliament of Canada, provides that  43 'subject to the terms of any treaty' all laws  44 of general application from time to time in  45 force in any Province are applicable to and in  46 respect of Indians in the Province, except as  47 stated.  The terms of the treaty are paramount; 1584  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 in the absence of a treaty provincial laws of  2 general application apply."  3  4 And again, Justice Dickson was referring to treaties  5 but as well the paramountcy doctrine would exclude  6 some laws of general application.  7 If I could next turn to section 109 and I'll spend  8 some time on 109.  In our submission it's well  9 settled, as I have indicated before with respect to  10 the St. Catherine's case and the Ontario Mining and  11 Seybold case, that the interest of the province in its  12 lands is entire notwithstanding there may be an  13 interest other than that of the province.  And it's  14 fundamental to understand that concept of the entire  15 title, because we have, for instance, the  16 Carrier-Sekani as an attempt to create to revive the  17 enclave theory saying because of section 109 with  18 respect to traditional aboriginal lands, there has  19 been created a third class of property in Canada, not  20 provincial, not federal, but Indian.  And I don't know  21 how far it goes and I'll have to hear oral argument on  22 it, but the implication is that with respect to that  23 third class of property neither the federal government  24 nor the provincial government could legislate.  And  25 that is a radical departure from the constitutional  26 law that is developed over the last 130 or so years.  27 And I have to spend some time to negative that I think  28 and explain on the authorities that that kind of a  29 conception is just not available.  30 Now, in paragraph 265 we've set out the provisions  31 of 109 and I think referred to it before, but it said:  32  33 "All Lands, Mines, Minerals, and Royalties  34 belonging to the several Provinces ..."  35  36 etc. ,  37  38 "... and all Sums then due..."  39  40 etc,  41  42 "... shall belong to the several Provinces of  43 Ontario, Quebec, Nova Scotia ..."  44  45 etc,  46  47 "... in which the same are situate or arise," 1585  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1  2 and it says,  3  4 "subject to any Trusts existing in respect  5 thereof, and to any Interest other than that of  6 the Province in the same ..."  7  8 Now, the use of the word "subject" is instructive  9 because "subject" means, we say implies there is a  10 burden, a trust burden as an example or a sui generis  11 burden arising out of previous aboriginal occupation,  12 but that is a much different matter than something  13 taken out of the chain of title or a piece taken out  14 of the pie.  If the British parliament had intended to  15 suggest or mean that something was left out of the  16 transfer, surely they would have used instead of  17 "subject," "with the exception of" any trust, etc.  If  18 they had used those words inarguably you could say the  19 province didn't get everything.  But all they did was  20 say "subject to" and the courts consistently have  21 interpreted that language as creating a burden, a bar  22 to free dealing with the property perhaps, but  23 certainly not as any whole in the entire beneficial  24 ownership or lessening of the entire beneficial  25 ownership of the province.  26 At 266 we say section 109 is declaratory and  27 provides that all lands within the province belong to  28 the province.  And I referred your lordships the other  29 day to the policy behind the B.N.A. Act and the  30 distribution of property between the federal  31 government and the provincial government.  The purpose  32 of section 109 is to vest in the province the same  33 property entitlements that the colony enjoyed prior to  34 Union.  Section 109 ensures that the bifurcation of  35 legislative jurisdiction that occurred at  36 Confederation would not result in any diminution of or  37 accretion to the province's land holdings from that  38 held by the colony.  However, "interests" or "trusts"  39 that burden Crown land that existed prior to Union  40 continue to exist as of the Union.  41 At 267 I have set out the quote from St.  42 Catherine's that's been referred to many times.  And  43 the underlining is the critical passage:  44  45 "The enactments of s. 109 are, in the opinion  46 of their Lordships, sufficient to give to each  47 Province subject to the administration and 1586  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 control of its own Legislature, the entire  2 beneficial interest of the Crown in all lands  3 within its boundaries,"  4  5 And then at 268 I point out that this principle has  6 been accepted in Attorney General -- the Star Chrome  7 case, the Smith case.  I have referred to others.  8 It's a well established and settled principle of law  9 and we submit that to attack that principle as the  10 appellants appear to have been attempting to do and  11 some of the supporting intervenors are attempting to  12 do is to ignore 150 or so years of British -- or  13 Canadian constitutional law and it's just not  14 supported by authority and would be a very radical  15 change in the proper way the B.N.A. Act was understood  16 to operate.  17 I have set out at 269 that aboriginal rights have  18 been held not to be a trust within the meaning of  19 section 109.  And that at 270, even assuming that  20 aboriginal rights are an "interest" within section  21 109, the Crown's inherent right to deal with its  22 lands, including the power to extinguish the  23 "interest", is not fettered by section 109.  And I  24 have made the point before and I will make it again  25 and I'll refer to the Smith case at this point, but  26 the -- 109 does not bar the province from dealing with  27 its property in the province in any way.  If there is  28 any bar it's a section 91(24) bar.  And after 1982  29 section 35(1) may have some impact on freedom to  30 freely alienate and use the land without considering  31 the Indians or the native's rights, the aboriginal  32 rights protected by 35(1).  But at 109 itself is not a  33 bar.  34 And if your lordships could turn to tab 270 I have  35 set out an extract at the second case.  271, I am  36 sorry.  It would be tab 271, the Smith case.  The  37 decision of Mr. Justice Estey speaking for the court.  38 And this would be at -- in the A series, Volume A2 tab  39 26.  And this case deals with a statutory reserve.  40 The band had attempted to transfer its interest to the  41 federal government directly so that some of the lands  42 could be sold and used and the proceeds used for the  43 support of the band.  The fact situation is somewhat  44 complicated, but an attempt was made to do that, but  45 Mr. -- the predecessors of Mr. Smith happened to be --  46 have made a -- had squatter's rights in the middle of  47 this band and there was a competition between who 1587  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 owned the lands: Mr. Smith who had been there for some  2 hundred and -- hundred years or so or the federal  3 government on behalf of the band.  So this was an  4 attempt, again, before -- at the time when the  5 transfer was done it was in 1895, before the St.  6 Catherine's principle was understood, that as soon as  7 there was a surrender, or in this case a transfer, the  8 burden disappeared.  It wasn't understood when the  9 transfer was made and this case examines again in a  10 modern context, 1983, the same principles that were  11 considered in the St. Catherine's case, and the nature  12 of the Indian burden as it's been called and the  13 distinction between the Indian burden being a 91(24)  14 issue as opposed to the taking away of something from  15 the title.  16 At page 561 of the case starting at letter "f" Mr.  17 Justice Estey reviewed the law with respect to the  18 consequences of the surrender, and you recall in this  19 case it wasn't just a surrender, it was actually an  2 0 attempt to transfer the land to the federal government  21 directly.  22  23 "The consequences of a surrender by the  24 occupying Indians of Indian lands under s.  25 91(24) of the Constituion Act were examined in  26 St. Catherine's."  27  28 Now, in Mr. Justice Estey's mind, and it will come up  29 again and again, the issue is 91(24), it's not 109  30 with respect to the entire beneficial interest.  The  31 burden is encompassed within 91(24).  For example, in  32 St. Catherine's, and its quote is there:  33  34 "The Crown has all along had a present  35 proprietary estate in the land, upon which the  36 Indian title was a mere burden.  The ceded  37 territory was at the time of the union, land  38 vested in the Crown, subject to 'an interest  39 other than that of the province in the same,'  40 within the meaning of sect. 109, and must now  41 belong to Ontario in terms of that clause,  42 unless its rights have been taken away by some  43 [other] provision of the Act."  44  45 And then 91 -- I have already referred your lordships  46 to the statement in St. Catherine's regarding 91(24)  47 and it doesn't just apply to statutory reserves but it 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  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  1588  Submissions by Mr. Taylor  Submissions by Mr. Taylor  must be land set aside.  562:  And at letter "b" on page  "The authority of that decision -- "  being a St. Catherine's decision,  " -- has never been challenged or indeed varied  by interpretations and application.  Neither  the parties to that proceeding nor the Privy  Council appear to have had any doubt about the  efficacy in law of a surrender by the Indians  of their interests in a particular part of the  land theretofore set aside for their benefit.  There had been challenges to the surrender  process where the procedure or the evidence of  the process had left some doubt as to whether a  surrender was indeed intended."  And that's a fact situation whether or not there was a  surrender, and in some cases what was called a  Hedendum clause was included.  In other words, it's  going to the federal government but not to use at its  full discretion or not to use fully.  Not to sell, for  instance.  "The law therefore came to recognize the right  and ability of the benefitted Indians to give  up their relationship to lands theretofore  devoted to their use and occupation, and the  result of such a process is the revival or  restoration of the complete beneficial  ownership in the Province without further  burden by reason of -- "  not 109,  91 (24)  Going over to the next at page 564, Mr. Justice Estey  reviewed the terms "reserve" and "surrender" as used  in the Indian Act and related it to the issues in this  case in the following terms, starting at letter "b":  "There may be some confusion by reason of the  use in the Act of the terms 'reserve' and  'surrender' on a defined basis, whereas in some 1589  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 of the documents now before the Court the terms  2 are used in their ordinary sense of the  3 language.  The lands 'reserved' for the benefit  4 of the Indians --"  5  6 and this was a statutory reserve I recall,  7  8 "-- on being released by the Indians for whose  9 benefit the lands had been set aside, cease  10 thereby in law to be within the legislative  11 reach of Parliament under the Constitution.  12 The Federal Government never had a proprietary  13 interest in such lands as were set aside for  14 the use of Indians in the circumstances of the  15 said lands.  These 'reserves' were set up in  16 the earliest days of the colony of New  17 Brunswick and the title has never been  18 transferred to the Government of Canada.  The  19 effect of the complete release, therefore,  20 would be the withdrawal of these lands from  21 Indian use within the contemplation of s.  22 91(24) of the Constitution Act.  As found in  23 St. Catherine's, the title of the Province  24 would be unencumbered by any operation of s.  25 91 (24) . "  26  27 Again, 109 is not the encumbrance, is not the burden,  28 91(24) is.  And carrying on to the bottom of the page  29 there is a reference to the Ontario Mining Company  30 and Seybold case which I have already referred your  31 lordships to and again, it's worth repeating in the  32 context of this case at the very bottom in the quote  33 which I have already referred you to:  34  35 "The Dominion Government, in fact, in selling  36 the land in question was not selling lands  37 reserved for Indians, but was selling lands  38 belonging to the Province of British -- "  39  40 sorry,  41  42 " — the Province of Ontario."  43  44 And finally, my lords, if I could take you to page 568  45 and 569.  Right at the bottom beginning with the  46 letter "j" at 568:  47 1590  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 "The right of the Indians to the lands in  2 question was described by Lord Watson in St.  3 Catherine's at p. 54 as 'a personal  4 usufructuary right'."  5  6 And then a definition was given by Mr. Justice Estey.  7 Now, you should note that this definition used by Mr.  8 Justice Estey is much different than the definition of  9 usufruct given to your lordships by Mr. Jackson which  10 was taken from, I believe, the Civil Code of Quebec or  11 that regime.  It's defined as follows:  12  13 "Law.  The right of temporary possession, use  14 or enjoyment of the advantages of property  15 belonging to another, so far as may be had  16 without causing damage or prejudice to it."  17  18 And then:  19  20 "Use, enjoyment, or profitable possession."  21  22 So Mr. Jackson suggested or tried to make the point  23 that usufruct was a very full estate indeed and in  24 fact the usufruct left the Crown with really nothing  25 but a bare title underneath.  And I would submit on  26 the definition of usufruct used by Mr. Justice Estey  27 in fact the opposite is the effect.  The Crown has the  28 full title, but the usufruct is really a temporary  29 possession.  And then going on beyond the definition:  30  31 "The release, therefore, is of a personal right  32 which by law must disappear upon surrender by  33 the person holding it; such an ephemeral right  34 cannot be transferred to a grantee, be it the  35 Crown or an individual.  The right disappears  36 in the process..."  37  38 So it's clear in terms of the right arising because of  39 Indian occupation, prior Indian occupation as well,  40 that it is in the nature of a personal right.  It is  41 not really a proprietary interest and it certainly  42 does not detract from the whole and entire beneficial  43 title of the Crown in right of the province with  44 respect to its public lands.  Now --  45 HUTCHEON, J.A.:  I don't remember the Smith case being discussed  46 in Guerin or Calder.  Well, it would be after Calder,  47 wouldn't it? 1591  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 MR. TAYLOR:  I am told by Ms. Koenigsberg that it's adopted in  2 Guerin.  I'd have to look at a copy of Guerin.  3 HUTCHEON, J.A.:  All right.  We can get it as we go.  4 MR. TAYLOR:  I can check that at the break.  5 HUTCHEON, J.A.:  All right.  6 MR. TAYLOR:  Now, if I could go to the next topic — I am told  7 it's at page 356 of Guerin where it's discussed, my  8 lord.  9 HUTCHEON, J.A.:  Thank you.  10 MR. TAYLOR:  Now, the next section of the Factum, hopefully I  11 can deal with it briefly, is again an alternative  12 argument and it's a fall-back, a fall-back position  13 quite clearly.  But clearly the province is interested  14 and concerned that all citizens, native and  15 non-native, have justified expectations with respect  16 to the grants received from the province and the  17 governmental action that has taken place for the  18 last -- well, since 1871.  And if this attack on the  19 legislative jurisdiction of the province in any -- in  20 any element is accepted, the province is concerned  21 that the rights acquired during that period, and as I  22 say both rights for natives and non-natives, be  23 recognized and be treated as valid or as valid as  24 possible.  25 Now, at 272 we set out that the power of the  26 province flows from those sections of Constitution  27 Act, 1867.  However, even if the government act that  28 effected the extinguishment of an aboriginal right is  29 ultra vires, the act authorizing the extinguishment  30 would not thereby be, per se, invalidated.  Rather it  31 would be construed or "read down" so that the grant  32 would be valid.  In other words, if your lordships  33 were to say this particular legislation or this grant  34 strikes at the core as I have discussed it would still  35 be possible to read it down so that with respect to  36 the rest of the world it's valid but it just doesn't  37 apply to Indians perhaps or some aspect of Indianness.  38 Now, we are not saying that that should be done.  We  39 are saying it shouldn't be done.  But the reading down  40 would still leave the legislation as valid.  And I  41 have included at tab 272, the second green tab, an  42 extract from Hogg.  On the question of reading down it  43 arose from the discussion which ensued between some of  44 your lordships and Mr. Gouge with respect to the topic  45 of reading down.  And I thought it would be  46 instructive.  It's the second material in on 272.  And  47 the province accepts the statement with respect to 1592  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 reading down in Hogg as being a more accurate  2 description of the process than the approach taken by  3 Mr. Gouge.  It's at page 327.  4  5 "The 'reading down' doctrine requires that,  6 whenever possible, a statute is to be  7 interpreted as being within power.  What this  8 means in practice is that general language in a  9 statute which is literally apt to extend beyond  10 the power of the enacting Parliament or  11 Legislature will be construed more narrowly so  12 as to keep it within the permissible scope of  13 power.  Reading down is simply a canon of  14 construction (or interpretation).  It is only  15 available where the language of the statute  16 will bear the (valid) limited meaning as well  17 as the (invalid) extended meaning; it then  18 stipulates that the limited meaning be  19 selected.  Reading down is like severance in  20 that both techniques mitigate the impact of  21 judicial review; but reading down achieves its  22 remedial purpose solely by the interpretation  23 of the challenged statute, whereas severance  24 involves holding part of the statute to be  25 invalid."  26  27 Now, in saying that, my lords, it's our position that  28 reading down should not lightly be undertaken and in  29 fact reading down should only occur when the first  30 question is answered, without reading down it would be  31 a question that the legislation was ultra vires.  And  32 that point is made at 328 in the article by Professor  33 Hogg:  "The general idea -- " this is the last  34 paragraph:  35  36 "The general idea that a law should not be held  37 to be wholly invalid just because it  38 overreaches the limits of jurisdiction in  39 certain respects is obviously in accord with a  40 properly restrained role for the courts.  41 Reading down allows the bulk of the legislative  42 policy to be accomplished, while trimming off  43 those applications which are constitutionally  44 bad.  But, as the difference of opinion in  45 McKay demonstrates --"  46  47 And that was, I believe, a sign by-law case. 1593  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1  2 " -- it is not easy to tell when a law which is  3 valid in most of its applications has  4 trespassed outside its proper field.  It must  5 be recalled that the pith and substance  6 doctrine, exemplified by Bank of Toronto v.  7 Lambe, is that a law which is in relation to a  8 matter within jurisdiction (in that case  9 taxation) is not objectionable just because it  10 affects a matter outside jurisdiction (in that  11 case banking)."  12  13 And then there is a reference to the McKay case  14 dealing with an impunged sign by-law which was held  15 inapplicable to the federal election -- to the federal  16 elections.  And the discussion that ensues is  17 interesting and it points out that the court just  18 because the reading down doctrine is available  19 shouldn't take it as the first -- as the first  20 alternative.  It should readily be one of the last  21 alternatives, once it's -- once the conclusion is that  22 the legislation is beyond -- beyond competence of the  23 appropriate government.  24 Now, in the same vein at 273, we have made  25 reference to the de facto doctrine, and the de facto  26 doctrine was applied in the Manitoba Language case and  27 Mr. Arvay will be developing or speaking at length  28 about the Manitoba Language case with respect to the  29 question of remedies.  But in that case in a nutshell,  30 and the extract is set out at tab 273.  I won't read  31 all of it and I probably won't read any of it, but it  32 is -- if your lordships take the trouble to read it,  33 it becomes very apparent that this is an old doctrine.  34 It's been applied in many, many instances, and it's a  35 doctrine of great integrity.  And that doctrine, while  36 it does not give effect to unconstitutional laws, does  37 recognize and give effect to "the justified  38 expectations of those who have relied upon the acts of  39 those administering invalid laws."  And the ultimate  40 conclusion in the Manitoba Language case is set out  41 there:  42  43 "Thus the de facto doctrine will save those  44 rights, obligations and other effects which  45 have arisen out of actions performed pursuant  46 to invalid Acts of the Manitoba Legislature by  47 public and private bodies corporate, courts, 1594  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 judges, persons exercising statutory powers and  2 public officials.  Such rights, obligations and  3 other effects are, and always will be  4 enforceable and unassailable."  5  6 The validity of the Acts and the grants does not flow  7 from the impunged legislation as is made clear in the  8 discussion of the doctrine in the case that I have  9 included.  It flows from the fact that the law  10 recognizes that a third party is entitled to deal with  11 government officials on the assumption that they have  12 proper authority to do what they are doing.  And if  13 they in fact don't have that authority and people have  14 relied in good faith upon the acts on the belief that  15 they do have that authority notwithstanding the  16 absence of authority or the invalidity of the  17 legislation, all grants and other acts of public  18 officials are nonetheless valid and not open to  19 attack.  The de facto doctrine, as I say it has a long  20 history in law and it's not -- its application is not  21 limited to the extreme situation as prevailed in  22 Manitoba, being the invalidity of the laws of the  23 province.  The remedy that the court used to address  24 that particular issue is in fact the delay period or  25 the supervision period.  But it's quite clear that  26 those grants are nonetheless valid and will remain  27 valid forever -- for all time because of the  28 application of this de facto doctrine.  And again, of  29 course this is an alternative argument of the  30 province, but it is imperative in our submission with  31 respect to the rule of law that those grants be  32 recognized under that doctrine.  33 And at 274 we set out our position and some  34 authority that section 35 of the Constitution Act,  35 1982 does not have retrospective or retroactive effect  36 with respect to grants and statutory activity prior to  37 that date.  Certainly after that date it would have  38 application, but it would not be open in our  39 submission for anyone to say this interest which may  40 have extinguished, diminished or somehow impaired an  41 aboriginal right recognized in 1982 has to be set  42 aside.  Clearly after 1982 the test set out in Sparrow  43 has to be looked to with respect to future grants,  44 etc., but there is no authority flowing from section  45 35 to set aside existing grants and the like.  46 At page 275 I set out the -- we deal with the  47 Sparrow decision and authority as of 1982.  I have 1595  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 dealt with it in essence in the summary and it's very  2 difficult to really say more about it than I have said  3 in the summary, because there was no analysis of the  4 facts in this case using the section 35 test where you  5 can say that's how it should be done, that's how it  6 shouldn't be done.  And as I have already pointed out  7 to your lordships, it's our submission that this court  8 shouldn't be undertaking that task as a matter of  9 first impression.  10 I would, however, just like to deal with the  11 concept and leave it with your lordships that, on the  12 authority of Sparrow, there still is a possibility  13 that government action can extinguish an aboriginal  14 right.  It is a matter that I would submit have a  15 pretty heavy onus on the government, but in our  16 submissions it should be held open on the authority of  17 Sparrow and the balancing test suggested in Sparrow  18 that that could be the result.  19 And if I could just take your lordships to  20 paragraph 278 of the Factum.  The province concedes  21 that some laws, grants in fee simple and lesser  22 interests, and other Crown instruments that would have  23 extinguished aboriginal rights prior to 1982 may well  24 constitute undue interference with the exercise of  25 aboriginal rights after 1982, after the passage of  26 section 35(1) .  27 We submit, however, that not all laws, grants and  28 fee simple and lesser interests, and other Crown  29 instruments that would have extinguished are  30 constitutionally unjustified exercises of legislative  31 or executive power if passed or made after 1982.  And  32 fundamentally this is because the test in the two  33 things is different.  With respect to extinguishment,  34 extinguishment by necessary implication one looks to  35 whether or not Dominion and control has been vested by  36 the Crown in third parties so as to exclude the  37 continuation of the aboriginal right.  Now, prior to  38 '82, if that happened the right no longer exists so  39 35(1) does not become a problem.  After 1982, really  40 the question of intent to extinguish becomes less of  41 an issue, because if there is an act that goes to --  42 that extinguishes, clearly there has been  43 interference.  And if it even goes a long way to  44 extinguishment but not quite all the way, clearly  45 there has been interference, so really the court would  46 be engaged in the process of looking at the  47 justification process under section 35 in most cases. 1596  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 And it wouldn't matter so much about extinguishment  2 other than that extinguishment, because of its radical  3 consequences after 1982, might place a heavier onus on  4 the Crown.  5 Now, continuing on at 283, rather than the  6 complete adverse Dominion test with respect to  7 extinguishment, we have contrasted -- and that summary  8 I handed out I think contrasted it well as well.  In  9 determining whether there has been a primary  10 interference with an aboriginal right, the Supreme  11 Court of Canada has declared that a number of factors,  12 totally unrelated to the intent of the Sovereign, are  13 to be assessed.  And really you are looking at effect  14 with respect to section 35 and undue effect, not  15 intention.  16  17 "First, is the limitation unreasonable?  18 Secondly, does the regulation impose undue  19 hardship?  Thirdly, does the regulation deny to  20 the holders of the right their preferred means  21 of exercising their right?... "  22  23 And ultimately the test as to whether or not there has  24 been a prima facie infringement boils down to:  25  26 "asking whether either the purpose or the  27 effect of the restriction... unnecessarily...  28 infringes the interests protected by the  29 fishing right,"  30  31 or any aboriginal right which we would say.  And as we  32 point out in 284, the test for determining whether  33 there has been a prima facie infringement of an  34 aboriginal right after 1982, is not directed in any  35 way to intent, but instead to the ability of the  36 aboriginal person or group to exercise the aboriginal  37 rights, having been recognized and affirmed under  38 section 35.  39 285, we point out that whether or not undue  40 hardship would occur depends on a number of factors.  41 And I will leave that -- those passages for your  42 lordships.  It flows from the summary of the test  43 which I handed out this morning, and there is examples  44 and instances of how that would work, but there is  45 enough language we submit in the Sparrow decision to  46 leave open whether or not extinguishment could take  47 place.  For instance, at 289 the court in Sparrow 1597  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 acknowledged that other governmental objectives would  2 not be constitutionally permissible.  3  4 "Also valid would be an objective purporting to  5 prevent the exercise of s. 35(1) rights that  6 would cause harm to the general populace or to  7 the aboriginal peoples themselves, or other  8 objectives found to be compelling and  9 substantial."  10  11 A law, grant or colonial instrument that prima  12 facie interferes with the exercise of aboriginal  13 rights that has as its purpose the prevention of harm  14 to the general populace or to aboriginal peoples  15 themselves would also therefore possess a valid  16 governmental objective.  17 With respect to the responsibility of the  18 government vis-a-vis aboriginal people, the court in  19 Sparrow held that for the prima facie infringements to  20 be justified, such infringements must "treat  21 aboriginal peoples in a way ensuring that their rights  22 are taken seriously."  And it's part of that, at 292,  23 the court stated:  24  25 "Within the analysis of justification, there  26 are further questions to be addressed,  27 depending on the circumstances of the inquiry.  28 These include the questions of whether there  29 has been as little infringement as possible in  30 order to effect the desired result; whether, in  31 a situation of expropriation, fair compensation  32 is available, and whether the aboriginal group  33 in question has been consulted with respect to  34 the... measures being implemented."  35  36 And we state that in light of the above, it is not  37 difficult to conceive of situations where a law, grant  38 or Crown instrument that would have extinguished prior  39 to '82 would be nonetheless justified after 1982.  40 And just looking at a site-specific example.  If  41 you're on a river and the traditional fishing grounds  42 are at the junction of the river and 20 miles away the  43 government wishes for economic development to grant a  44 fee simple to a company to put in a pulp mill,  45 non-polluting variety, with respect to five acres, the  46 Indians are consulted and all of that process, the  47 proper consultative process and the respect for the 1598  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 rights is adhered to, I would submit that either the  2 first test wouldn't be made out, in other words undue  3 interference, for instance, some of the territories we  4 looked at today in terms of the use the aboriginals  5 had put them to, or else it could be justified  6 especially if there were spin-off benefits to the  7 native groups and that sort of thing.  So there are  8 situations where even after 1982 we say extinguishment  9 could happen, but without the facts it's difficult to  10 do any more than speculate.  My lords, I am just about  11 finished, but I see it's at 3 o'clock.  12 TAGGART, J.A.:  All right.  We will take a five minute break.  13  14 AFTERNOON RECESS  15  16 MR. TAYLOR:  Yes, my lord.  Just — sorry.  17 TAGGART, J.A.:  Yes.  18 MR. TAYLOR:  My lords, just to conclude, Lord Justice Hutcheon  19 asked if Smith had been referred to in the Guerin case  20 and I gave you the wrong page cite.  It's in the joint  21 book.  It's Volume 1, tab 9, and the proper page cite,  22 the cite I gave was with respect to Madam Justice  23 Wilson's decision.  Mr. Justice Dickson considered it  24 at page 342 at the D.L.R. report.  It's not long and I  25 have it here and I can read it to your lordship.  26 HUTCHEON, J.A.:  Yes.  2 7 MR. TAYLOR:  28  29 "As the Smith decision (supra) makes clear upon  30 unconditional surrender the Indians' right in  31 the land disappears.  No property interest is  32 transferred which could constitute the trust  33 res so that even if the other indicia of an  34 express or implied trust could be made out, the  35 basic requirement of a settlement of property  36 has not been met.  Accordingly, although the  37 nature of Indian title coupled with the  38 discretion vested in the Crown are sufficient  39 to give rise to a fiduciary obligation, neither  40 an express nor an implied trust arises upon  41 surrender nor does surrender give rise to a  42 constructive trust."  43  44 And I think that's clear that Mr. Justice Dickson -- I  45 think it's a clear acknowledgement that there is no  46 property interest per se.  That's what is meant by  47 there would be no res to constitute the trust.  My 1599  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 lord, just finishing off, it's I think worth making  2 the point in conclusion that the province --  3 TAGGART, J.A.:  Where is that Smith — oh, there it is.  I have  4 got it now.  Okay.  5 MR. TAYLOR:  -- that the province -- one of the principle  6 concerns of the approach taken by the appellants and  7 the supporting intervenors is this enclave theory, and  8 if the result in any way with respect to any aspect of  9 heads of power under section 92 is such that only the  10 federal government can legislate with respect to  11 Indians or extinguish aboriginal rights, for example,  12 if a fee simple grant doesn't do it, then the effect  13 would be that British Columbia cannot deal properly  14 with its own land and resources.  And the consequences  15 of that are grave.  There is just no doubt about it.  16 TAGGART, J.A.:  What was the page reference in Guerin to Smith?  17 MR. TAYLOR:  I believe it was 346.  18 TAGGART, J.A.:  346.  19 HUTCHEON, J.A.:  342.  20 MR. TAYLOR:  342?  21 TAGGART, J.A.:  342?  22 MR. TAYLOR:  Yes, my lords.  Just very briefly, as Mr. Williams  23 advised, I would be dealing with tab 11, issue 7,  24 Other Defences Raised At Trial, which is only one  25 page, but not unlike a lot of things in this appeal  26 refers to something which opens up into a larger  27 issue, although this isn't very extensive.  The  28 situation essentially is that the respondent advanced  29 certain defences at trial including defences entitled  30 equitable defences, the Crown Proceeding Act damages  31 pre-1974.  Now, as Mr. Arvay will address, it's our  32 suggestion that those sorts of damage issues and  33 compensation and the specific resolution of the  34 particular on-the-ground disputes at least be left to  35 the parties for negotiations, and further it's our  36 position that because an analysis hasn't been done of  37 damages, that that should be referred -- if there is  38 any -- to be any damages, that would go back to the  39 trial court.  And if it went back to the trial court,  40 then we would seek to raise these defences.  However,  41 if your lordships feel necessary to deal with it, then  42 the written argument of the province at trial can be  43 found in Appendix C.  I would refer your lordships to  44 Appendix C if it becomes an issue which you feel you  45 have to deal with.  And I should point out that with  46 respect to the appendix and tab C, we are only  47 pursuing the defence under tab two, which is the 1600  Submissions by Mr. Taylor  Submissions by Mr. Taylor  1 application of the Crown Proceeding Act and its  2 predecessor the Crown Procedure Act, which would  3 exclude the award of damages until 19 -- for anything  4 that occurred up to 1974.  And the argument is set out  5 at -- over some eight pages at tab two.  Now, tab one  6 raised some equitable defences --  7 LAMBERT, J.A.:  I am sorry, I am lost.  8 MR. TAYLOR: I am sorry, my lord.  9 TAGGART, J.A.:  This is in Appendix C, I take it.  10 MR. TAYLOR:  Appendix C.  11 TAGGART, J.A.:  Tab two, Crown Proceeding Act and its  12 predecessor.  13 MR. TAYLOR:  Yes.  14 TAGGART, J.A.:  And then there is another tab in Appendix C?  15 MR. TAYLOR:  Yes, there is.  There is tab one, which material we  16 will not be pursuing.  Our defence is we will not be  17 pursuing.  I am just going to explain briefly why  18 briefly, but my lord Mr. Justice Lambert --  19 LAMBERT, J.A.:  Yes, I know it's in Appendix C and I haven't  20 been able to locate Appendix C yet.  So --  21 MR. TAYLOR:  Oh, it would be in Volume 2 of the Revised Factum.  22 There should be a large Volume 2 just labelled Revised  23 Factum, which has the Royal Proclamation material in  24 it I believe.  25 LAMBERT, J.A.:  It's Appendix C, tab two in this Volume 2?  26 MR. TAYLOR:  That's correct, my lord.  27 LAMBERT, J.A.:  Thank you.  28 MR. TAYLOR:  Now, with respect to tab one there were some  29 defences raised, some equitable defences raised and  30 when we put the Factum together that was taken from  31 the Russell and DuMoulin Factum.  However, we have  32 subsequently on a closer reading of the judgment come  33 across page 474 of the judgment dealing with other  34 defences.  And in the very last sentence in that  35 section the learned trial judge held as follows:  36  37 "In my view, the Indians' claims have not been  38 discharged by any conduct on their part."  39  40 And we have interpreted that to be a dismissal of  41 these, quote, "equitable defences" set out at tab one  42 and no appeal, no cross-appeal was taken with respect  43 to that finding.  However, with respect to the Crown  44 Procedure Act there was no ruling made because it was  45 not necessary for the learned trial judge to get into  46 the issue of damages.  But we will be pursuing tab  47 two, the Crown Procedure Act defence.  Thank you, my 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  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  it proposed now to deal with  advanced --  MR. BELL:  THE COURT  MR. BELL:  1601  Submissions by Mr. Bell  Submissions by Mr. Taylor  lords.  TAGGART, J.A.:  Now, Mr. Bell, is  the questions that were  Yes, my lord.  :  -- yesterday?  Yes, my lord.  Before I begin, I'd ask your lordships  to arm yourselves with Volume W-3 again, please.  Now,  my lords, there were two questions raised.  The first  one had to deal with the issue of consent under the  Royal Proclamation and the second one had to deal with  the question of the impact of the Sikyea.  And I will  deal with the Royal Proclamation first.  I'd ask your  lordships to turn to tab 11.  I want to refer  particularly to part four of the Royal Proclamation as  set out on page 489 and following.  J.A.:  I can't find your Royal Proclamation in the  Factum.  In the Factum it's at paragraph 70 of the Revised  Factum, which is just a brief paragraph referring to  the appendix.  J.A.:  Paragraph 70, that's right.  Yes.  The full argument is contained in the appendix.  J.A.:  Yes.  Okay.  Now, referring to the Royal Proclamation itself at  tab 11, I just want to direct your lordships'  attention to the --  J.A.:  It's W-3?  Yes, that's correct, my lord.  I direct your  lordships' attention to the preamble of part four.  It  says :  "And whereas it is just unreasonable, and  essential to Our Interest and the Security of  Our Colonies, that the several Nations or  Tribes of Indians, with whom We are connected,  and who live under Our Protection, should not  be molested or disturbed --"  And I want to emphasize that phrase:  "-- should not be molested or disturbed in the  Possession of such Parts of Our Dominions and  Territories as, not having been ceded to, or  purchased by Us, are reserved to them, or any  of them, as their Hunting Grounds."  Now, the preamble sets out the purpose of these  TAGGART,  MR. BELL:  TAGGART,  MR. BELL  TAGGART,  MR. BELL  TAGGART,  MR. BELL 1602  Submissions by Mr. Bell  Submissions by Mr. Taylor  1 provisions of the Royal Proclamation, which is to  2 prevent the molestation or disturbance of the Indians  3 in the occupation of their hunting grounds.  And it's  4 directed against -- or towards, rather, the incursions  5 of settlers that had been taking place around the time  6 of the Royal Proclamation and before.  And it sets out  7 a number of measures to deal with this particular  8 problem and to provide this protection.  And you will  9 recall -- if we could move down to paragraph -- well,  10 first of all paragraphs T and U briefly prohibit the  11 governors of colonies from granting patents of land  12 beyond the bounds of the colonies of which they are  13 the authorities, and then in paragraph V we have the  14 creation of what I refer to as the hundred per cent  15 reserve and that carries over into paragraph W and X.  16 And then in paragraph Y we have what I referred to as  17 the partial reserve.  And I'd like to deal with the  18 hundred per cent reserve first.  Paragraph V, of  19 course it describes the geographic limits of the  20 hundred per cent reserve and then in paragraph W it  21 says:  22  23 "and We do hereby strictly forbid, on Pain of  24 Our Displeasure, all Our loving Subjects from  25 making any Purchases or Settlements whatever,  26 or taking Possession of any of the Lands above  27 reserved, without Our especial Leave and  28 Licence for that Purpose first obtained."  29  30 And I emphasize the last phrase, "without Our especial  31 Leave and Licence for that Purpose first obtained,"  32 because in my respectful submission, my lords, this is  33 a clear reservation by the Crown to itself of the  34 power to authorize settlements, purchases and taking  35 of possession of any lands in the reserve.  There is  36 no mention of consent on the part of the Indians with  37 respect to the hundred per cent reserve, and in my  38 respectful position nor can anybody infer.  Therefore,  39 even if the hundred per cent reserve can be taken as  40 encompassing British Columbia, no consent is required  41 for the Crown to take the Indian interest in those  42 lands.  43 Now, paragraph X is the direction to the squatters  44 to remove themselves from these lands and we come to  45 paragraph Y, which requires a little bit more  46 attention.  Paragraph Y itself has a preamble.  And  47 I'd like to just go through it in some detail.  It 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  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  1603  Submissions by Mr. Bell  Submissions by Mr. Taylor  says :  "And whereas great Frauds and Abuses have been  committed in the purchasing Lands of the  Indians, to the great Prejudice of Our  Interests, and to the great Dissatisfaction of  the said Indians; in order therefore to prevent  such Irregularities for the future, and to the  End that the Indians may be convinced of Our  Justice, and determined Resolution to remove  all Reasonable Cause of Discontent,"  etc.  So here we have the mischief to which the  provisions of paragraph Y is directed.  That is the  prevention of the so-called frauds and abuses that had  been committed in the purchasing the lands of the  Indians.  And I don't know where your lordships have  read that part of the evidence, but there was evidence  as to the rather sharp practices that were used by  some of the settlers in obtaining lands from the  Indians.  So we have a specific situation to which  these provisions of the Royal Proclamation are  directed.  It then goes on to say:  "We do, with the Advice of Our Privy Council,  strictly enjoin and require, that no private  Person do presume to make any Purchase from the  said Indians of any Lands reserved to the said  Indians, within those Parts of Our Colonies  where We have thought proper to allow  Settlement;"  And my respectful submission here is the command to  the settlers not to make any purchases from the  Indians and it's restricted to those colonies where we  have thought proper to allow settlement.  And in my  respectful submission that means the colonies existing  at the time the proclamation was issued.  And that's  not only because of the language, that is have thought  proper to allow, which suggests action completed in  the past, it is also because of the mischief towards  which this particular provision is directed.  That is  the frauds and abuses that had taken place.  HUTCHEON, J.A.:  I thought we were just dealing with consent.  MR. BELL:  Yes, my lord.  We are coming down to consent in a  moment.  HUTCHEON, J.A.:  All right.  You are repeating what we had 1604  Submissions by Mr. Bell  Submissions by Mr. Taylor  1 yesterday.  2 MR. BELL:  Now, following the command, it goes on to say:  "but"  3 and it's part of the same sentence:  4  5 "but that if, at any Time, any of the said  6 Indians should be inclined to dispose of the  7 said Lands, the same shall be purchased only  8 for Us, in Our Name, at some publick Meeting or  9 Assembly of the said Indians to be held for  10 that Purpose by the Governor or Commander in  11 Chief of Our Colonies respectively, within  12 which they shall lie:"  13  14 And then it goes on to make a similar provision with  15 respect to proprietory governments.  In my respectful  16 submission, my lords, there is a possibility that an  17 inference could be drawn from this wording that  18 consent of the Indians is required to the acquisition  19 of their lands.  I submit, my lords, that it is a weak  20 inference and that indeed it's not an inference that  21 can be upheld.  In the first place, we're dealing here  22 with restrictions on the settlers in acquiring lands.  23 It says that "no private person do presume to make any  24 purchase."  Fine.  We're trying to protect the  25 encroachment of settlement and to control settlement  26 on Indians lands.  And it's directed towards the  27 actions of the settlers.  And the policy obviously is  28 so that the Crown can gain more control over  29 settlement.  And this is different from the regime  30 that exists in the hundred per cent reserve where we  31 have direct rule by the -- by London.  There is no  32 need for such a provision in the hundred per cent  33 reserve, because the Crown controls settlement there  34 directly.  Whereas, in the colonies it's up to the  35 local colonial government to issue the patents.  36 Therefore, there is no need for such a restriction in  37 the hundred per cent reserve.  38 Now, dealing with the inference for a moment,  39 focusing in on the language "but that if at any time  40 any of the said Indians should be inclined to dispose  41 of the said lands, the same shall be purchased only  42 for us," etc.  In my respectful submission this deals  43 with a situation where the Indians are inclined to  44 sell the lands.  It does not deal with the situation  45 where the Crown is inclined to dispose of the lands  46 and to grant patents on its own.  It doesn't say that  47 the Crown cannot take the Indians' interest without 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  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  the  In  1605  Submissions by Mr. Bell  Submissions by Mr. Taylor  the Indians' consent.  It just says if the Indians are  inclined to dispose of the said lands, then this is  the procedure that has to be followed.  There is no --  no suggestion of any fettering of the Crown's  authority to take aboriginal interest without consent.  In my respectful submission, my lords --  TAGGART, J.A.:  The object of the exercise here is to get —  being to get title into the name of the Crown.  MR. BELL:  Well, that's right.  So that it can control —  TAGGART, J.A.:  Instead of directly into the settler.  MR. BELL:  That's right, my lord, so that it can control the  pace and the direction of settlement.  It's interesting to note the situation that  difference in the situation that existed in the  colonies at this time and the situation and the  procedure that was followed in British Columbia.  British Columbia in the mid-1850s there is little or  no evidence that the so-called frauds and abuses were  taking place in the purchasing of Indians lands.  There is evidence that attempts were being made to  purchase Indians lands by private settlers.  And what  happened in British Columbia, well, first of all the  Act of 1858 was passed giving authority to the Crown  to deal with the situation and through the  diligence -- the vigilance, rather, of Governor  Douglas steps were taken to prevent private purchases  of lands from the Indians.  And I'm speaking  specifically here of the Calder II Proclamation, which  declared that all lands in the colony belonged to the  Crown in fee.  This was in my respectful submission at  least in part a message to the settlers that the Crown  owned the land and only -- and that purchases of land  could only be made from the Crown.  And that was how  the Crown interposed itself between the settlers and  the Indians in British Columbia.  Again, this is  another reason for concluding that this particular  provision was designed to apply only to the colonies  that existed at the time of the Royal Proclamation and  not to British Columbia.  That's essentially the  argument on that point, my lords.  A number of subsidiary points have been made in  the Factum and I'll just refer your lordships to them.  I don't intend to repeat them here.  Our argument on  this point is in the appendix Volume 2 of our Factum,  tab A-l paragraphs 11 to 21.  TAGGART, J.A.: Could I have that latter part, please?  Defendants' Volume 2. 1606  Submissions by Mr. Bell  Submissions by Mr. Taylor  1 MR. BELL:  Yes.  It's appendix Volume 2, tab A-l, paragraphs 11  2 to 21.  So unless there are any further questions I  3 will move on to the second question.  Now, I would  4 like to deal with the question of the impact of the  5 Sikyea and in particular the passage from it that  6 refers to the Royal Proclamation.  Perhaps it would be  7 useful for me to just review it briefly.  It's not  8 very long.  This was a judgment of the Northwest  9 Territories Court of Appeal given by Mr. Justice  10 Johnson, and it concerned a case of a charge under the  11 Migratory Birds Convention Act.  And Mr. Justice  12 Johnson says at page 66 of the Western Weekly Reports  13 at about the third paragraph:  14  15 "The right of Indians to hunt and fish for food  16 on unoccupied crown lands has always been  17 recognized in Canada - in the early days as an  18 incident of their 'ownership' of the land, and  19 later by the treaties by which the Indians gave  20 up their ownership right to these lands."  21  22 And then he refers to another authority, and he says:  23  24 "It is sufficient to say that these rights had  25 their origin in the royal proclamation that  26 followed the Treaty of Paris in 1763.  By that  27 proclamation it was declared that the Indians  28  29 '... should not be molested or disturbed in  30 the possession of such parts of Our  31 Dominions and Territories as, not having  32 been ceded to or purchased by Us are  33 reserved to them or any of them as their  34 hunting grounds.'  35  36 The Indians inhabiting Hudson Bay Company  37 lands were excluded from the benefit of  38 proclamation, and it is doubtful, to say the  39 least, if the Indians of at least the western  40 part of the Northwest Territories could claim  41 any rights under the proclamation, for these  42 lands at the time were terra incognita and lay  43 to the north and not 'to the westward of the  44 sources of the river which fall into the sea  45 from the west or northwest,' (from the 1763  46 proclamation describing the area to which the  47 proclamation applied)." 1607  Submissions by Mr. Bell  Submissions by Mr. Taylor  1  2 And stopping there for a moment, my lords.  The  3 province takes the position that that's essentially  4 the correct statement.  It recognizes the geographic  5 limits of the hundred per cent reserve and it is  6 essentially a statement that the Royal Proclamation  7 did not follow the flag, at least into the Northwest  8 Territories.  Then he goes on to say, and I believe  9 this is the point of controversy:  10  11 "That fact is not important because the  12 government of Canada has treated all Indians  13 across Canada, including those living on lands  14 claimed by the Hudson Bay Company, as having an  15 interest in the lands that required a treaty to  16 effect its surrender."  17  18 And I think the concern was that this implies that the  19 federal government may have bound itself to a treaty  20 process for taking the surrender of Indian lands, a  21 process that would have legal effect.  It would be a  22 legal requirement and therefore the consent  23 requirement would be part of the law.  And my comment  24 on that is this.  First of all we have to bear in mind  25 the context in which this case arose.  This was  26 dealing with the offence that took place within the  27 confines of Treaty No. 11 which is entirely north of  28 the 60th parallel and is entirely federal lands.  Now,  29 the province takes no position as to whether the  30 federal government has bound itself by its conduct in  31 relation to entering into treaties with Indians.  I am  32 sure that the Attorney General of Canada would have  33 something to say about that.  Nevertheless, even if it  34 has, our submission is that federal policy and conduct  35 in relation to the taking of Indian interest in lands  36 that are owned by the federal government cannot have  37 any effect of binding the province in relation to  38 provincial lands.  The federal government is dealing  39 with its own lands in the Northwest Territories and it  40 really doesn't have anything to do with provincial  41 obligations in respect of provincial lands.  And  42 that's essentially the answer.  43 Now, there was a question that was raised  44 concerning whether the endorsement of the Supreme  45 Court of this particular judgment meant that this  46 court was bound by this statement, and the question  47 was raised as to therefore whether this statement 1608  Submissions by Mr. Bell  Submissions by Mr. Taylor  1 might be obiter.  Before I deal with that I'll just  2 refer to the passage of the Supreme Court judgment  3 that deals with this.  It's a judgment written by Mr.  4 Justice Hall and in the Supreme Court Reports at page  5 646 he says:  6  7 "On the substantive question involved, I agree  8 with the reasons for judgment and with the  9 conclusions of Johnson J.A. in the Court of  10 Appeal.  He has dealt with the important issues  11 fully and correctly in their historical and  12 legal settings, and there is nothing which I  13 can usefully add to what he has written."  14  15 Now, this would seem to be a blanket endorsement of  16 the entire judgment.  In my respectful submission, my  17 lords, however, the passage that I quoted earlier must  18 be obiter, and I say that with the utmost of respect  19 to Mr. Berger who is very knowledgeable in these  20 matters.  Nevertheless I feel obliged to disagree with  21 him.  The issue in this case concerned the validity of  22 a charge under the Migratory Birds Convention Act and  23 this required an examination of the relationship  24 between Treaty No. 11 and the rights acquired by the  25 accused under it and the Migratory Birds Convention  26 Act.  And for the purpose of that inquiry the court  27 only needed to know that Treaty No. 11 was valid, that  28 is whether, among other things, the federal government  29 had the authority to enter into the treaty.  If it did  30 then —  31 HUTCHEON, J.A.:  The migratory treaty, not treaty —  32 MR. BELL:  No, I am talking about Treaty No. 11.  33 HUTCHEON, J.A.:  Go ahead.  34 MR. BELL:  The Migratory Birds Convention Act was obviously  35 valid and the question was whether or not the Treaty  36 No. 11 as a valid treaty would have given the accused  37 rights as against the application of the Migratory  38 Birds Convention Act.  And so for the purpose of this  39 judgment all the court needed to decide was whether  40 Treaty No. 11 was a valid treaty and was in force.  41 And in order to decide that all the court had to  42 decide was whether the federal government was  43 authorized to enter into the treaty.  It did not have  44 to decide whether the federal government was required  45 to enter into the treaty.  The two different ideas  46 there.  Now, I don't think there is any dispute that  47 the federal government was authorized to enter into 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  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  1609  Submissions by Mr. Bell  Submissions by Mr. Taylor  the treaty, but that's as far as the court needed to  go in order to make the judgment in the case.  And  therefore, the statement concerning the legal effect  of the federal government's practice of entering into  the treaty and whether or not it implied a requirement  of consent is obiter.  Another problem, another issue that I see involved  in this case concerns the blanket nature of the  endorsement of the judgment, of the reasons for  judgment.  You will recall the earlier part of the  quote dealt with the fact that Hudson's Bay Company  lands had been excluded from the benefit of the  proclamation and that these lands were terra incognita  and lay to the north and not to the westward of the  sources of the rivers.  And I say that this  effectively says that the Royal Proclamation did not  follow the flag.  Now, you will remember, my lords,  that in the later judgment in Calder Mr. Justice Hall  says that the Royal Proclamation did follow the flag  and yet here if he's endorsing in a blanket way the  judgment of Mr. Justice Johnson, there seems to be  some conflict between the two statements.  And it  raises the question in my mind which in my respectful  submission ought to give the court pause in applying  this judgment as if it were binding on this court.  That concludes my submission on that point, my lords.  J.A.:  Thank you, Mr. Bell.  It's Mr. Arvay's turn now.  J.A.:  Thank you, Mr. Bell.  Mr. Arvay.  Do you really want to hear from me?  Mr. Arvay, would you prefer to begin in the  LAMBERT,  MR. BELL  TAGGART,  MR. ARVAY  TAGGART, J. A  9  MR. ARVAY  morning  :  I will tell you what I was going to do if I was --  if I was to start now what I was going to do was  attempt to answer Mr. Justice Lambert's other  question, the question, and I could probably make some  headway in ten minutes if you want me to use it now  and then I can start tomorrow on the remedies.  But I  am in your lordships' hands.  LAMBERT, J.A.: It's the question that is said to have taken ten  minutes to ask and if you can answer it in ten minutes  it wasn't worth asking.  MR. ARVAY:  I don't know if I can answer it in short of two  years, my lord.  But I'm going to do my very best to  answer it in a shorter frame as possible.  LAMBERT, J.A.:  I would prefer to have a clear mind when you  answer and to start in the morning if that's up to me. 1610  Submissions by Mr. Bell  Submissions by Mr. Taylor  1 TAGGART, J.A.:  I would also like to have a look at the question  2 again.  3 MR. ARVAY:  Do you have a copy of the question or should I get a  4 copy?  5 LAMBERT, J.A.:  We will get the copies, yes.  But the essence of  6 it is what makes aboriginal rights rights and what  7 makes them aboriginal.  8 MR. ARVAY:  I got the question.  It's the answer which is a  9 little bit more difficult.  But shall I deal with it  10 in the morning then?  11 TAGGART, J.A.:  Yes.  I think perhaps we'll pack it in for the  12 day and deal with it at 10 o'clock tomorrow morning.  13  14 PROCEEDINGS ADJOURNED  15  16 I hereby certify the foregoing to  17 be a true and accurate transcript  18 of the proceedings transcribed to  19 the best of my skill and ability.  20  21  22  23  24  25 Laara Yardley,  26 Official Reporter,  27 UNITED REPORTING SERVICE LTD.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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