Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-07] British Columbia. Supreme Court May 7, 1992

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 251  Submissions by Mr. Jackson  1 Vancouver, B.C.  2 May 7, 1992  3  4 CORAM:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Thursday, May 7th, 1992.  In the  8 matter of Delgamuukw versus Her Majesty the Queen at  9 bar, my lords.  10 TAGGART, J.A.:  Yes, Mr. Jackson.  11 MR. JACKSON:  My lords, just two matters before I continue with  12 my argument.  The appellants have considered your  13 lordships' proposed timetable and we are in entire  14 agreement with it.  I don't know whether you wish at  15 this point to hear from other counsel as to their  16 position.  17 TAGGART, J.A.:  Well, if there is any opposition to the time  18 table I would like to hear that.  19 MR. WILLIAMS:  Wouldn't dare, my lord.  20 TAGGART, J.A.:  That's all I'm interested in, if there are any  21 problems.  If there are no problems then that's the  22 timetable.  2 3 MR. JACKSON:  Yes, my lord.  24 The second matter relates to that document I  25 handed up to your lordships yesterday morning, the  26 extract from the Treaty of Albany.  And the  27 appropriate place for your lordships to put that would  28 be at the very end of Reference Book No. 19 at tab  29 B-80.  It's the very last thing to go into that tab at  30 80.  31 TAGGART, J.A.:  Report of the Pennsylvania Commission at the  32 Albany Conference?  33 MR. JACKSON:  Yes.  34 My lords, I had -- when we left off yesterday  35 afternoon -- been going through the background to the  36 Cherokee cases, my lords, and I had made the point  37 that this -- this backdrop was relevant not only to an  38 understanding of the issues which confronted the  39 Supreme Court of the United States, but also in the  40 context of the trial judge's findings that aboriginal  41 rights as a matter of law were limited to those  42 sustenance practices and gathering of those products  43 of the land and waters which had been practised and  44 used a long, long time before the assertion of  45 sovereignty.  That's a test which the appellants  46 challenge as being flawed, as being inconsistent with  47 the authorities, and the context of the Cherokee cases 252  Submissions by Mr. Jackson  1 makes it clear that their societies, their economies,  2 had gone through dramatic transformations and changes  3 after the assertion of sovereignty by the Crown, yet  4 that was not seen as derogating from or limiting the  5 rights which they sought to uphold in the Supreme  6 Court.  7 And I will take you to paragraph 48 of Appendix  8 A, where one of the leading commentators on Cherokee  9 history has referred to the two decades -- in the  10 first two decades of the 19th Century, where in the  11 years after the Cherokees ceded to the Crown the last  12 of their hunting grounds, Cherokee society went  13 through what he terms a "Renascence", the essence of  14 which was the establishment of "a distinct national  15 identity, firmly grounded in economic self-sufficiency  16 and political self-determination.  17 And I make the point again, which I have been  18 emphasizing throughout, that that aspiration which the  19 Cherokees sought to bring to fruition, parallels in  20 many ways the aspirations which are the premise and  21 basis upon which the rights of the appellants are also  22 based.  23 The nature of that Cherokee renascence is  24 described in some more detail:  25  26 "Statistical measurements for economic growth  27 are available by comparing the censuses of  28 1806, 1826 and 1835.  The censuses reveal an  29 astonishing though incomplete picture of  30 advances in numerous aspects of Cherokee life -  31 in population, productivity, resources,  32 educational skills and enterprise.  In  33 addition, the codified laws of the nation from  34 1808 to 1827 revealed the rapid elaboration of  35 their executive, legislative, judicial and  36 administrative structure, especially after  37 1819, culminating in their constitution of  38 1827. ...In addition, less precise but more  39 dramatically indices are available from the  40 development of important new institutions, such  41 as the capital town of New Echota, the first  42 printed Cherokee printed book of laws, and  43 their bilingual newspaper."  44  45 At paragraph 50 I make the point that a striking  46 aspect of this revitalization of Cherokee society was  47 a series of laws passed in the early 1820s which 253  Submissions by Mr. Jackson  1 constituted, in fact, a political revolution in the  2 structure of Cherokee Government.  Under these laws  3 the National Council created a bicameral legislature,  4 a district and superior court system, an elected  5 representation by geographical district rather than by  6 town, and a salaried government bureaucracy.  The laws  7 represented a movement by the Cherokee leaders towards  8 a replication of the American political system and  9 accommodation between Cherokee law ways and  10 Anglo-Saxon jurisprudence.  11 It was in that context, my lord, you will see at  12 paragraph 52, that the Cherokee Nation in 1826 called  13 a convention not inappropriately on July the 4th for  14 the purpose of adopting a new constitution for the  15 future government of the nation.  That constitution  16 was regarded as a capstone of Cherokee nationalism and  17 of the Cherokee renascence - a Cherokee version of the  18 American Constitution to suit Cherokee needs.  It  19 asserted the national sovereignty of the Cherokee  20 Nation and affirmed the traditional Cherokee principle  21 of communal ownership of land.  22 That provided the context for the final  23 confrontation between the Cherokee Nation and the  24 Government of Georgia.  Because faced with this  25 assertion by the Cherokee of their distinct society,  26 of their right to maintain themselves in what was left  27 of their homelands, the State of Georgia insisted upon  28 the Federal Government fulfilling its obligation to  29 obtain cessions of Cherokee lands.  And in order to  30 persuade the Cherokees to sign treaties of cessions,  31 Georgia passed a series of what are called the Georgia  32 Indian Laws.  And it was these laws which were  33 challenged in terms of their constitutionality in the  34 Cherokee cases.  35 The laws are set out at paragraph 56.  The laws  36 had a sunset clause, in the sense they weren't to take  37 effect until 1830, in order to give the Cherokees two  38 years in which to sign treaties of removal out of  39 Georgia.  The laws asserted that, "all laws of this  40 State," that's the State of Georgia, "are extended  41 over" the territory claimed by Indians within  42 Georgia's boundaries.  That land was to be surveyed  43 within the next two years and divided into counties.  44 "After the first day of June 1830", all Indians still  45 residing in those areas "shall be liable and subject  46 to such laws and regulations as the legislature may  47 hereafter prescribe".  When this happened, "all laws, 254  Submissions by Mr. Jackson  1 usages, customs made, established and enforced in the  2 said territory by the said Cherokee Indians be, and  3 the same are hereby on and after June the 1st, 1830,  4 declared null and void".  On that date, tribal  5 existence of the Cherokee Nation in the east would  6 cease.  The Constitution, the laws, the court system,  7 as well as all the old unwritten customs of the  8 Cherokee Nation would be null and void.  The Cherokees  9 would thenceforth be subject to the same laws as other  10 Georgians except that, under the terms of the laws,  11 being savages, heathens, and people of colour, "no  12 Indian or descendant of an Indian residing within the  13 Creek or Cherokee Nations of Indians shall be deemed a  14 competent witness or party to any suit in any court  15 created by the constitution or laws of this state to  16 which a white man may be a party."  17 The Cherokees sought assistance from the Federal  18 Government in the face of this assertion by the State  19 of Georgia over their territory.  Unfortunately for  20 the Cherokee, a presidential election intervened and  21 Andrew Jackson became President of the United States,  22 who had committed himself during his campaign to  23 facilitate the removal of the Cherokees and other  24 Indian Nations east of the Mississippi -- sorry, west  25 of the Mississippi.  26 WALLACE, J.A.:  Mr. Jackson, I'm having difficulty relating this  27 to the case at bar.  How do I tie them in?  28 MR. JACKSON:  My lord, I'll relate it, I think, quite directly  29 if you could bear with me for one more paragraph.  30 WALLACE, J.A.:  All right.  Carry on.  31 MR. JACKSON:  I will try to make the connection, both in a  32 factual context and also in a legal context.  33 President Jackson steered through Congress a bill  34 which appropriated funds for the signing of treaties  35 for the removal of Indians west of the Mississippi.  36 As soon as that bill was passed, the Cherokee laws --  37 the Indian Laws of Georgia were put into effect.  38 And the paragraph I want to take you to, my  39 lords, is paragraph 59, which illustrates the effect  40 of those laws being implemented.  41  42 "Jackson signed the bill on May the 28th and  43 three days later Georgia asserted its authority  44 over 192,000 acres of Creek land in that state  45 and 4,600,000 acres of Cherokee land, including  46 their capital City of New Echota... Thereafter,  47 as far as the Georgians were concerned, the 255  Submissions by Mr. Jackson  1 Cherokee Nation did not exist.  Its Council was  2 forbidden to meet; all Cherokee courts were  3 closed; its laws and its police were not  4 allowed to function.  Three hundred and twenty  5 Georgia surveyors immediately entered the  6 nation to begin dividing it into tracts of 160  7 acres each to be given away to white citizens  8 by lottery...  Hundreds of white Georgians  9 followed the surveyors into the region (under  10 the protection of the Georgia Guard, eager to  11 locate the best farms, plantations, mill sites  12 missionary stations...  Although the Georgia  13 law stated that all Cherokees would be given a  14 tract of land, subsequent revisions made it  15 clear that they would get only the land that no  16 white citizen wanted. ...  Having no right to  17 defend themselves in the Georgia courts, there  18 was no way they could defend their property.  19 Soon after the lottery began handing out tracts  20 in October 1830, Georgia's citizens were  21 forcibly moving Cherokees out of their homes  22 and off of their farms."  23  24 My lords, that dispossession of the Cherokees and  25 the immediate aftermath of Georgia's implementation of  2 6 those laws, may seem removed in time from the  27 situation in British Columbia.  But I would ask your  28 lordships to just go back two days to Mr. Rush's  29 rendition of the facts, where he related to you how,  30 in the early years of this century, the Wet'suwet'en  31 were moved out of their homeland.  How, as a result of  32 the creation of script through the Boer War script,  33 and the ultimate transition of those script in the  34 hands of the white settlers, Wet'suwet'en came back  35 from their winter -- in their winter territories to  36 find their lands taken up, their cabins burned down,  37 and their being told that this was no longer their  38 land.  It had been acquired legally under deeds and  39 they were to move somewhere else.  40 You will recall Mr. Rush related how their cabins  41 were burnt down and under the umbrella of law  42 enforcement, they were told not to come back.  43 The scale may be different, my lord, but the  44 point I'm making is the dispossession which underlies  45 the Cherokee case is not a phenomena in which Canada  46 can simply say, "It did not happen here."  That is  47 only part of my answer to you, my lord, Mr. Justice 256  Submissions by Mr. Jackson  1 Wallace.  I'll be making another point in terms of the  2 legal issue as I go through this argument.  3 But in the face of that dispossession, the  4 Cherokee did as the appellants have done; they have  5 come to court.  The Cherokees went to court and they  6 sought declarations that Georgia's laws were in  7 violation of their treaties, in violation of the laws  8 and the constitution of the United States.  9 That case reached the U.S. Supreme Court as a  10 case of original jurisdiction.  The Cherokees invoked  11 the jurisdiction, the original jurisdiction of the  12 U.S. Supreme Court under Article III of the U.S.  13 Constitution, and I've set that out at paragraph 61 of  14 Appendix A, which gave the court original jurisdiction  15 to determine "controversies between a State...and  16 foreign states".  17 That jurisdictional issue was resolved against  18 the Cherokee.  The Supreme Court declined to accept  19 jurisdiction of the controversy on the basis that the  20 Cherokees were not a foreign state within the meaning  21 of that Article of the Constitution.  22 In the course of coming to that conclusion, Chief  23 Justice Marshall, however, addressed the question of  24 what was the status and capacity of the Cherokee  25 Nation as a matter of international and federal common  26 law.  And I've referred your lordships in paragraph 61  27 to Chief Justice Marshall's statement about the nature  28 of Cherokee statehood:  29  30 "So much of the argument as was intended to  31 prove the character of the Cherokees as a  32 State, as a distinct political society  33 separated from others, capable of managing its  34 own affairs and governing itself, has, in the  35 opinion of a majority of the judges, been  36 completely successful.  They have been  37 uniformly treated as a state from the  38 settlement of our country.  The numerous  39 treaties made with them by the United States  40 recognize them as a people capable of  41 maintaining the relations of peace and war, of  42 being responsible in their political character  43 for any violation of their engagements, or for  44 any aggression committed on the citizens of the  45 United States by any individual of their  4 6 community."  47 257  Submissions by Mr. Jackson  1 However, in relation to the issue which the court  2 had to deal with, were they a foreign state, the court  3 said they were not.  Rather, the Supreme Court  4 characterized their status as "a domestic, dependant  5 nation".  What that meant was further clarified in  6 Worcester v. Georgia.  7 But in the Cherokee Nation case, what Chief  8 Justice Marshall said is set out at the bottom of page  9 30:  "Though the Indians" -- and this, in some ways,  10 is a reflection on what the court had already said in  11 Johnson v. M'Intosh in relation to a right to land in  12 addition to the question of their national character.  13  14 "Though the Indians are acknowledged to have  15 unquestionable, and heretofore, unquestioned  16 right to the lands they occupy until that right  17 shall be extinguished by a voluntary cession to  18 our government, yet it may well be doubted  19 whether those tribes which reside within the  20 acknowledged boundaries of the United States  21 can with strict accuracy, be denominated  22 foreign nations.  They may, more correctly,  23 perhaps, be denominated domestic dependant  24 nations.  They occupy a territory to which we  25 assert a title independent of their will, which  26 must take effect in point of possession when  27 their right of possession ceases.  Meanwhile  28 they are in a state of pupilage.  Their  29 relation to the United States resembles that of  30 a ward to his guardian."  31  32 I say, my lords, at paragraph 63, that in this  33 passage, Chief Justice Marshall is making two  34 statements:  The first is a property statement.  The  35 passages which are bolded affirm that the Indians have  36 an unquestionable right to the lands which they occupy  37 until that right is extinguished by a voluntary  38 cession.  The title asserted by the United States to  39 Indian lands by virtue of the doctrine of discovery,  40 did not vest it with an immediate right of possession.  41 The United States could only take possession of Indian  42 lands when the Indians' own right of possession was  43 extinguished by voluntary cession.  That addresses the  44 point, my lord, Mr. Justice Wallace directed to me  45 yesterday, in terms of what was meant by the language  46 used in Johnson v. M'Intosh.  Until such  47 extinguishment the Indians enjoyed a legal right to 25?  Submissions by Mr. Jackson  1 the exclusive possession of their lands.  2 The second statement relates to jurisdiction, and  3 this is the statement which Chief Justice Marshall was  4 to develop at some length when the issue came back  5 before the court in Worcester v. Georgia.  6 We say at the top of page 32:  Read in the  7 context of what the court said about Cherokee  8 statehood -- the first passage I read to you -- it is  9 clear that the only jurisdictional limitation on the  10 Cherokee Nation is -- again, derived from the doctrine  11 of discovery -- is that it excludes them from entering  12 into external relations or trade relations with any  13 other than, initially, the British Crown and  14 subsequently, the United States.  15 The issue, as with the issue of aboriginal rights  16 in British Columbia, did not go away when the  17 Cherokees first failed to gain the declaration they  18 sought.  The case, indeed, came back before the  19 Supreme Court only a year later in a somewhat  20 different guise.  One of the Cherokee laws which I've  21 set out in paragraph 66, required any whites who  22 lived --  23 HUTCHEON, J.A.:  One of the Georgia laws?  24 MR. JACKSON:  Georgia laws, beg your pardon, my lord.  25 One of the Georgia laws required that anyone who  26 resided within the former Cherokee territories after  27 the appointed day, had to apply for and receive a  28 licence from the State of Georgia.  A missionary,  29 Samuel Worcester, refused to apply for the licence,  30 was prosecuted and was convicted and sentenced to four  31 years imprisonment.  His lawyers not only challenged  32 the particular law under which he was tried and  33 convicted, they constituted the challenge to the whole  34 panoply of Georgia's Indian laws on the same basis as  35 they had tried in their first case, on the basis that  36 they were unconstitutional and in violation of the  37 laws, treaties and constitution of the United States.  38 And I've set that out at paragraph 67.  39 The Supreme Court this time accepted jurisdiction  40 and granted the relief sought, declaring that  41 Georgia's laws were a wrongful and unconstitutional  42 usurpation of authority over Cherokee territory.  43 And my lords, paragraph 70 -- paragraph 69 sets  44 out how the Supreme Court characterized the effect of  45 the Georgia laws, and paragraphs 70 through 74 contain  46 some of the passages I've already cited to your  47 lordships earlier in my argument. 259  Submissions by Mr. Jackson  1 You will see at paragraph 70 is the passage in  2 which Chief Justice Marshall restated the doctrine of  3 discovery and what its effects were, vis-a-vis  4 European Nations, and what its effects were not as --  5 vis-a-vis Indian Nations.  6 You will see at paragraph 72 his analysis, which  7 I've already recited, as to the effect of Crown  8 charters and grants, and his statement that as against  9 the aboriginal peoples, they were but as "blank  10 paper".  11 I want to continue looking at the judgment of  12 Worcester v. Georgia and I'll be spending some time on  13 it.  14 At paragraph 75 -- because Worcester v. Georgia  15 also contains the most expansive and extensive  16 analysis in the common law as to the nature of  17 pre-existing rights of self-government.  The rights  18 which the appellants are asserting are rights which  19 they have as pre-existing aboriginal rights in Canada.  20 And Worcester v. Georgia is really the source,  21 jurisprudentially, of the rights which the appellants  22 are asserting in terms of rights to self-government.  23 At paragraph 75, having gone through the history  24 of treaty making, having -- in a much more summary  25 form than I went through with your lordships -- but  26 having reviewed the history of treaty making with the  27 British Crown and the colonies, the Chief Justice  28 said -- and I'll go straight to the second paragraph  29 of that quote at 75:  30  31 "Certain it is, that our history furnishes no  32 example, from the first settlement of our  33 country of any attempt on the part of the Crown  34 to interfere with the internal affairs of the  35 Indians, farther than to keep out the agents of  36 foreign powers, who, as traders or otherwise,  37 might seduce them into foreign alliances.  The  38 King purchased their lands when they were  39 willing to sell, at a price they were willing  40 to take; but never coerced a surrender of them.  41 He also purchased their alliance and dependence  42 by subsidies; but never intruded into the  43 interior of their affairs, or interfered with  44 their self-government, as far as respected  45 themselves only."  46  47 And at paragraph 77 on the next page -- and I 260  Submissions by Mr. Jackson  1 should say, my lord -- and I'll just mention at  2 paragraph 76, the judgment refers to the Royal  3 Proclamation as an affirmation and a continuation of  4 the principles which he saw as being ones well  5 established and well entrenched in colonial law prior  6 to 1763.  7 But in summarizing British Indian policy -- and  8 again, I would emphasize the importance of these cases  9 is not that they are American cases of America's  10 highest court.  The importance of these cases is that  11 Chief Justice Marshall consciously and unambiguously  12 seized the source of these principles in British  13 colonial law and policy prior to the revolution.  14 In summarizing that British colonial law and  15 policy, the Chief Justice stated, paragraph 77:  16  17 "Such was the policy of Great Britain towards  18 the Indian Nations inhabiting the territory  19 from which she excluded all other Europeans;  20 such her claims, and such her practical  21 exposition of the charters she had granted; she  22 considered them as nations capable of  23 maintaining the relations of peace and war; of  24 governing themselves under her protection; and  25 she made treaties with them, the obligation of  26 which she acknowledged."  27  28 Now, my lords, the next parts of Appendix B I'm  29 going to jump over because I will be coming back to  30 them in the Factum when I deal with the question of  31 the concept of the inherent right to self-government  32 and what Worcester v. Georgia said more about that  33 subject.  34 But where I would like you to go to now is  35 paragraph 90, which addresses another point, a point  36 started with this morning, and that is the relevance  37 of changes in the Cherokee economy and Cherokee  38 society and Cherokee territory itself, to the  39 legitimacy of their rights which they were asserting  40 in 1832, at a time when they were a very different  41 society than that which they had been prior to the  42 assertion of sovereignty by the British Crown back in  43 the 17th Century.  44 And addressing himself, my lords, to certain  45 legislation in the United States, the Chief Justice  46 said this, and I just want to read this to you at  47 paragraph 90.  The congressional legislation stated: 261  Submissions by Mr. Jackson  1  2 "...'that, for the purpose of providing against  3 the further decline and final extinction of the  4 Indian tribes adjoining to the frontier  5 settlements of the United States and for  6 introducing among them the habits and arts of  7 civilization, the President of the United  8 States shall be, and he is hereby authorized,  9 in every case where he shall judge improvement  10 in the habits and condition of such Indians  11 practicable, and that the means of construction  12 can be introduced with their own consent, to  13 employ capable persons, of good moral  14 character, to instruct them in the mode of  15 agriculture suited to their situation;  16  17 "This Act [his lordship's characterization]  18 avowedly contemplates the preservation of the  19 Indian nations as an object sought by the  20 United States, and proposes to effect this  21 object by civilizing and converting them from  22 hunters into agriculturists."  23  24 And of course that was an agenda, my lords, which  25 was very much the late motif of Canadian Indian policy  26 in the later 19th Century as well.  27  28 "Though the Cherokees had already made  29 considerable progress in this improvement, it  30 cannot be doubted that the general words of the  31 Act comprehend them.  Their advance in the  32 'habits and arts of civilization' rather  33 encouraged perseverance in the laudable  34 exertions still further to ameliorate their  35 condition.  This Act furnishes strong  36 additional evidence of a settled purpose to fix  37 the Indians in their country by giving them  38 security at home."  39  40 And what we say here, my lords, is that in  41 referring to this legislation in the context of the  42 pre-existing colonial policy of the British Crown and  43 subsequent to the United States, the Chief Justice  44 acknowledged that the significant changes the  45 Cherokees had made in their traditional economy, while  46 he characterized it in a way which, perhaps with the  47 benefit of hindsight, we might see as rather demeaning 262  Submissions by Mr. Jackson  1 and ethnocentric as an "advance in the habits and arts  2 of civilization".  But he in no way suggested that  3 those changes in any way constituted a negation or  4 diminution of Cherokee rights to their lands and their  5 rights to exercise jurisdiction within these lands.  6 Indeed, far from it.  He sought the guarantees of  7 their rights in law as being the essential  8 pre-conditions to encourage further changes and  9 stability in the Indian economy.  10 And I say at paragraph 92 by way of summary of  11 that point, that this view of aboriginal rights in  12 Worcester v. Georgia stands in stark contrast to the  13 view advanced by the trial judge, which would have  14 frozen the rights of the Cherokees to those  15 subsistence practices in those territories in which  16 those practices had been undertaken before exposure to  17 European civilization.  18 My lords, at paragraph 93, I say that Worcester  19 v. Georgia, in legal terms, was a resounding victory  20 for the Cherokee nation.  21 It's -- the case was characterized by Mr. Justice  22 Chapman, New Zealand Court of Appeal -- New Zealand  23 Supreme Court in 1847, as the efforts of the Supreme  24 Court to "throw its protective decision over the  25 plaintiff nation against a gross attempt at  26 spoliation".  27 Mr. Justice Story, having participated in the  28 majority judgment of Chief Justice Marshall, is  29 recorded to have said, "The court has done its duty.  30 Let the Nation do theirs."  31 Now unfortunately, in 1832, my lords, neither the  32 State of Georgia nor the United States Government saw  33 its duty as upholding the rights of the Cherokees.  34 And not for the first time either in American history  35 or, as your lordships will hear, in Canadian history,  36 particularly in British Columbia history, did the  37 interests of federal and provincial, federal and  38 states, operate so as to defeat the rights of  39 aboriginal peoples.  40 Very, very briefly, what happened was that at the  41 time in which the judgment was handed down, the State  42 of South Carolina threatened to nullify a federal  43 tariff law.  President Jackson was on the horns of a  44 dilemma.  If he did not enforce the judgment against  45 Georgia, how could he enforce the federal law against  46 South Carolina?  If he did enforce the judgment  47 against Georgia, he was concerned that he would throw 263  Submissions by Mr. Jackson  1 that state in alliance with South Carolina and  2 precipitate the conflict which in fact took place in  3 the context of the American Civil War, some 30 years  4 later.  5 As a result of that, enormous efforts were laid  6 at the doors of the missionaries in prison not to  7 secure the enforcement of the order and they were  8 offered free pardons.  And in the face of that and  9 because they were told that the state of the union was  10 more important than the state of the Cherokee Nation,  11 the order was never executed.  No one went back to the  12 court to seek the execution of the Marshall decree.  13 At paragraph 95, I've set out again, very  14 briefly, the aftermath of that.  At paragraph 95 I  15 say:  The federal government subsequently did  16 negotiate a removal "treaty" with the Cherokees to  17 secure their voluntary removal west of the  18 Mississippi.  At the signing of the Treaty at New  19 Echota only a tiny fraction of the Cherokee Nation  20 participated.  However, the Federal Government relied  21 upon the terms of the Treaty and in the spring of 1838  22 the U.S. Army rounded up 15,000 Cherokees who had  23 refused to move in the time allotted under the terms  24 of the Treaty and they were "escorted" to their new  25 lands in Oklahoma.  During the march, which became  26 known in history as the "Trail of Tears", fully a  27 quarter of the Cherokee Nation died en route.  28 My lords, the last statement made by the  29 Cherokees, prior to their removal, is something which,  30 again, goes back to statements made by the Iroquois in  31 the 18th Century and are statements which resonates  32 down to contemporary times in statements made to the  33 trial judge by the hereditary chiefs of the Gitksan  34 and Wet'suwet'en.  The Cherokee Nation said:  35  36 "The consent of the Cherokee people is  37 indispensable to the valid transfer of the  38 Cherokee title.  The Cherokee people have  39 neither by themselves nor representatives given  40 such consent.  It follows that the original  41 title and ownership of lands still rests in the  42 Cherokee Nation.  The Cherokee people have  43 existed as a distinct national community for a  44 period extending into antiquity beyond the  45 dates and records and memory of man.  These  46 attributes have never been relinquished by the  47 Cherokee people and cannot be dissolved by the 264  Submissions by Mr. Jackson  1 expulsion of the Nation from its territory by  2 the power of the United States Government."  3  4 In the aftermath of the Trail of Tears, President  5 Jackson had this to say of it -- and I referred your  6 lordships to it at the top of page 47:  7  8 "Humanity has often wept over the fate of the  9 aborigines of this country, and Philanthropy  10 has been busily engaged in devising means to  11 avert it, but its progress has never for a  12 moment been arrested, and one by one have many  13 powerful tribes disappeared from the earth.  To  14 follow to the land the last of his race and to  15 tread on the grave of extinct nations excites  16 melancholy reflection.  But true philanthropy  17 reconciles the minds to these vicissitudes as  18 it does to the extinction of one generation to  19 make room for another."  20  21 Now I want to come back, my lord, Mr. Justice  22 Wallace, to your point in relation to the relevance of  23 this.  And I think it is very easy to -- for us in  24 Canada to say, "That was the United States.  That  25 happened then, this is now.  That is there, this is  26 here."  And I think many of us would have felt the  27 same way a week ago in relation to events in Los  28 Angeles.  29 WALLACE, J.A.:  You're getting a bit away from the facts with  30 that.  Aren't we deciding the facts on legal premises  31 in this case rather than the social implications of  32 what took place in the United States a hundred years  33 ago?  34 MR. JACKSON:  My lord, my point is that in the same way as the  35 undertones of racial intolerance -- which we saw in  36 Los Angeles -- have their reflections in Canada, the  37 attitudes which led to the Cherokee dispossession are  38 not so far removed in time and tone from attitudes  39 which were reflected in British Columbia at the time  40 when the Chief Justice says, "Aboriginal rights were  41 extinguished in British Columbia."  And I make this  42 point in paragraph 96, my lord, in terms of the  43 relevance of the Cherokee cases in terms of their  44 factual matrix to British Columbia.  45 To conclude, my lords, as the trial judge did,  46 that the 45 square miles which constitute the Gitksan/  47 Wet'suwet'en reserves, represents the only lands to 265  Submissions by Mr. Jackson  1 which they have aboriginal rights is, in effect, an  2 argument that they have been legally removed from the  3 balance of their aboriginal rights -- the territory to  4 which they have aboriginal rights -- and would give  5 British Columbia the same rights over the appellants'  6 territory as the State of Georgia asserted in 1830  7 over the Cherokee territory.  And we say, my lords,  8 that those rights constituted the foundation for the  9 society of the Cherokee Nation in the 19th Century.  10 And in the same way --  11 HUTCHEON, J.A.:  I have a question, but go ahead.  12 MR. JACKSON:  Yes.  In the same way we say that the territories  13 of the Gitksan and Wet'suwet'en have not only formed  14 the foundation of their distinctive culture and  15 economy, it also provides the basis upon which their  16 future strength and survival depends.  And we say that  17 aboriginal rights defined in the nature of the  18 appellants' Statement of Claim are the legal  19 foundations to ensure that Andrew Jackson's  20 contemplation of the disappearance and extinction of  21 aboriginal nations will never come to pass in Canada.  22 And more importantly, we say that Section 35 -- and  23 the proper interpretation we would ask this court to  24 pour into it -- is designed to ensure that Canada is  25 built upon the vitality and not the demise of  26 aboriginal peoples.  27 My lord, Justice Hutcheon?  28 HUTCHEON, J.A.:  Yes.  Going back to paragraph 91 and 92.  As I  29 understood, your proposition was that the Worcester  30 case showed that the trial judge's approach was wrong,  31 that the Worcester case took into effect the  32 developments after sovereignty.  33 MR. JACKSON:  Yes, my lord.  34 HUTCHEON, J.A.:  But I don't quite read that in paragraph 91 and  35 92.  In 91, what was said is that the changes do not  36 diminish the aboriginal rights, the economic changes  37 and development.  There is nowhere there that it says  38 that they increase the aboriginal rights.  3 9 MR. JACKSON:  No, my lord.  40 HUTCHEON, J.A.:  You see the difference?  41 MR. JACKSON:  Yes, I appreciate your lordship's points.  I think  42 there is no discussion of that because in the same way  43 as the Chief Justice in relation to the effect of  44 Crown grants said it never occurred to any man to  45 argue that these grants asserted more than a right  46 against other Europeans.  In the context of this case,  47 I am saying that it never occurred to anyone to argue 266  Submissions by Mr. Jackson  1 that the rights of the Cherokees were any less because  2 they had changed their economy; the fact that they no  3 longer were using the land the way they had once used  4 the land; the fact that they now sowed tobacco as  5 opposed to maize; the fact that they now traded with  6 other white neighbours as opposed to their aboriginal  7 neighbours; the fact that they now were a part of a  8 market economy.  9 HUTCHEON, J.A.:  That doesn't lessen their rights.  10 MR. JACKSON:  That doesn't lessen their rights, that doesn't  11 restrict their rights.  12 HUTCHEON, J.A.:  I don't disagree with that, but is it your  13 proposition that it increases their rights?  14 MR. JACKSON:  No.  My proposition, my lord, is that it is the  15 wrong test to apply to look at the aboriginal society  16 and its actual practices a long time before the  17 assertion of sovereignty.  The relevant date is to  18 look at the nature of the rights at the time of the  19 assertion of sovereignty, that those rights are not  20 frozen at that point to the particular practices which  21 aboriginal people undertook at that point.  Those  22 rights are capable of evolution and growth in the  23 context of other uses of the lands, other economic  24 modes of production.  That is my point, my lord.  25 HUTCHEON, J.A.:  Thank you.  26 MR. JACKSON:  And I agree the court doesn't directly address  27 that point.  My argument is that by necessary  28 implication, it never occurred to the court to seek  29 any restriction or diminution of the Cherokee rights  30 on the basis of a change in their modes of economic  31 production or their activities in their territories.  32 LAMBERT, J.A.:  You say that the Gitksan and the Wet'suwet'en  33 have an exclusive right of occupancy over the whole  34 area surrounded by the bold line on the map?  35 MR. JACKSON:  Yes, my lord.  36 LAMBERT, J.A.:  And that right has nothing to do with specific  37 practices, it comes from the fact that it was  38 recognized as between them, as among them, and it was  39 recognized by their neighbours outside the border that  40 the Gitksan and the Wet'suwet'en had the point of  41 exclusive occupancy to this area?  42 MR. JACKSON:  Yes, my lord.  43 LAMBERT, J.A.:  And questions of using it for berry-picking or  44 gathering food or fish, which were perhaps the  45 principal uses at pre-contact and at the time of  46 contact, have no real relevance.  It was -- it's the  47 right -- the aboriginal right is the right of 267  Submissions by Mr. Jackson  1 exclusive occupancy that has continued and how they  2 use the land is irrelevant; how they used it then and  3 how they've used it since and how they would use it  4 now.  5 MR. JACKSON:  Yes, my lord.  6 LAMBERT, J.A.:  That's your position?  7 MR. JACKSON:  That is our position.  My lord, at this point —  8 TAGGART, J.A.:  There is an aspect of your assertion that the  9 effect of the judgment at trial was to limit to the 45  10 acres -- or 145 acres, whatever it is, involved in the  11 allocation of reserves, the aboriginal rights.  But  12 that doesn't take account of the decision of the trial  13 judge that the plaintiffs were entitled to a  14 declaration that subject to the general law of the  15 province, they have a continuing legal right to use  16 unoccupied or vacant Crown land in the territory for  17 aboriginal sustenance purposes.  That may be too  18 narrow a construction of their aboriginal rights,  19 limiting it to sustenance purposes, but still it is a  20 recognition of some form of right in relation to  21 unoccupied Crown land.  22 MR. JACKSON:  I phrased the -- my statement the way I did, my  23 lord, because the trial judge was very clear that that  24 right which he said was a result of the promise made  25 to Indian peoples in British Columbia in colonial days  26 was not an aboriginal right.  It was a right which --  27 while they had, was not part of the package of  28 aboriginal rights which were recognized and affirmed  29 in Section 35.  It was a right in common with other  30 individuals.  31 And although its scope might be more extensive in  32 some ways than other individuals because of what he  33 saw as the fiduciary obligation limiting what the  34 province could do in some regards in relation to that  35 land, it was not an aboriginal right.  36 Your lordship is correct in saying that the trial  37 judge did not totally limit what aboriginal people  38 could do by way of sustenance, to the 45 square miles.  39 But I maintain that in terms of their aboriginal  40 rights, rights which have constitutional protection,  41 rights which have to survive the scrutiny of the  42 Sparrow justificatry test, are ones which are limited  43 to the 45 square miles except in the context, perhaps,  44 of fishing rights, which obviously are exercised in  45 areas other than the reserves.  46 My lords, I would at this point take you back to  47 the Factum to paragraph 87. 26?  Submissions by Mr. Jackson  1 TAGGART, J.A.:  You end off at paragraph 96 of Appendix A?  2 MR. JACKSON:  Yes, my lord, that was the last thing I read.  3 At paragraph 87, my lords, I make the point that  4 the trial judge, in rejecting the relevance of the  5 Marshall decisions, stated that these decisions really  6 were dependent upon treaties and specific provisions  7 of American statutes.  8 And I have already read your lordships the  9 passage in relation to his lordship's conclusions,  10 it's -- to remind your lordships, it's set out at  11 paragraph 69 of the Factum.  And we say that in  12 relation to that assertion, the trial judge erred.  13 That while it is true that the Cherokee cases arose in  14 the context of a series of treaties made with the  15 United States Government, while reference was made --  16 as in the passage I just cited to your lordships -- of  17 particular congressional legislation, read as a whole,  18 it is very clear that Worcester v. Georgia is not  19 dependent upon those treaties.  The treaties are seen  20 to use the words of Mr. Justice Dickson, as he then  21 was, in Simon, as providing additional protection to  22 what were pre-existing rights.  The whole shape of  23 Worcester v. Georgia, when read from start to finish,  24 makes it clear from its very structure, the Chief  25 Justice starts with pre-revolutionary law and policy  26 of the British.  He sees that as being the anchor for  27 his judgment and he proceeds upon that to build up a  28 foundation, a jurisprudential foundation in which the  29 treaties are examples of recognition of pre-existing  30 rights.  In some ways paralleling the Proclamation and  31 paralleling what has happened in Canadian treaties  32 where you have affirmation of pre-existing rights.  33 And we say at paragraph 88 that the Cherokee  34 treaties were not considered to have introduced or  35 asserted any new principles.  And I will be coming  36 back to that point, my lord, in relation to particular  37 passages of the judgment where Chief Justice Marshall  38 goes to the particular provisions of the Treaty of  39 Hopewell and says, "This is an example of British law.  40 Nothing new here."  It may be focused on the Cherokee,  41 but there is not any new principle being established  42 here.  The treaties, in other words, were, the way  43 I've characterized it in paragraph 88, the product  44 rather than the source of Indian rights.  Because the  45 Cherokees had pre-existing rights to self-government,  46 because they had a pre-existing right, an aboriginal  47 title to their lands, the treaties that they entered 269  Submissions by Mr. Jackson  1 into with the United States guaranteed those rights,  2 but the treaties were not the source of them.  3 And we say that's a very important point and the  4 trial judge was wrong in attributing the legal weight  5 of Johnson v. Marshall -- of Worcester v. Georgia to  6 the fact there were particular treaties.  And I've set  7 out a passage in paragraph 89 from the judgment, which  8 I think gives your lordships a sense of the approach  9 of the Chief Justice to these issues.  Chief Justice  10 said -- this is Chief Justice Marshall:  11  12 "The Indian Nations had always been considered  13 as distinct, independent political communities,  14 retaining their original natural rights, as the  15 undisputed possessors of the soil from time  16 immemorial, with the single exception of that  17 imposed by irresistible power, which excluded  18 them from intercourse with any other European  19 potentate than the first discoverer of the  20 coast of the particular region claimed: and  21 this was a restriction which those European  22 potentates imposed on themselves, as well as on  23 the Indians."  24  25 Indeed, my lords, Chief Justice Marshall noted  26 that prior to its enactment of the laws in issue in  27 Worcester, the State of Georgia itself, together with  28 other states of the union had acquiesced -- and I  29 emphasize these words, my lord, these are the words of  30 Chief Justice Marshall -- "in the universal  31 conviction" -- this is paragraph 90.  " the  32 universal conviction that the Indian nations possessed  33 a full right to the lands they occupied until that  34 right should be extinguished by the United States,  35 with their consent..."  36 Now that is a proposition, my lords, reached by  37 the Chief Justice after a review -- an exhaustive  38 review of colonial law and policy, the practice of the  39 Crown, the practice of the United States Government,  40 and is stated in very broad terms.  It's not stated as  41 a proposition imprisoned in time and place to the  42 State of Georgia.  It's that proposition which lies at  43 the heart of our submissions about the nature of  44 British common law principles.  They are not  45 principles which apply somewhere in the east.  Maybe  46 they apply in the western regions of Canada, but they  47 don't apply like this in British Columbia, because 270  Submissions by Mr. Jackson  1 somehow British Columbia is different.  There is some  2 juridical identity, in terms of British Columbia,  3 which enables this court or any court to somehow  4 disassociate itself from what we say are the first  5 principles as reflected in these judgments.  6 And at paragraph 91, my lords, perhaps rather  7 more pithily, I've tried to express that thought.  It  8 is this "universal conviction" that Indian nations  9 have proprietary and self-governing rights to their  10 territory, which cannot be extinguished except by  11 consent, which is the root of the common law.  The  12 appellants will submit that precisely because it is a  13 "universal conviction" this principle was entrenched  14 in the Royal Proclamation of 1763 and applied  15 prospectively to British Columbia both through the  16 Royal Proclamation and as a fundamental principle of  17 the common law.  18 And I would like at this point, my lords, to turn  19 your attention not to the United States, but to a  20 decision of the New Zealand Supreme Court, at that  21 time, the highest court in New Zealand, handed down in  22 1847, some 25 years after Worcester v. Georgia.  But  23 we say that this decision not only is important  24 because it affirms the fact that these principles of  25 the common law are of a general and universal  26 character, but also because it's a decision which at  27 the time was the highest court in the Commonwealth  28 which had addressed this issue, and is a decision just  29 two years prior to the establishment of the Colony of  30 Vancouver Island.  31 And so we say in terms of the decision in which  32 your lordships can sort of focus on a jurisprudential  33 statement of the common law close in time to the  34 formation of British Columbia, the decision of the New  35 Zealand Supreme Court is of some particular  36 significance.  37 My lords, I'm going to ask your lordships to go  38 back to the appendix, Appendix A, because I have a  39 fuller discussion of the Symonds case and I've set out  40 in greater detail the actual statements of Mr. Justice  41 Chapman who wrote one of the judgments, and it may be  42 easier for your lordships to follow the Symonds case  43 in that context.  It's paragraph 105 of Appendix A.  44 Before I get into the facts of Symonds, my lords,  45 I want to make a point which is set out in paragraph  46 105.  The trial judge took -- if I may characterize it  47 as such -- a rather restrictive view of the value of 271  Submissions by Mr. Jackson  1 comparative jurisprudence.  He felt that --  2 understandably, that he had enough on his plate in  3 terms of Canadian law, particularly in the context of  4 the recent spate of decisions of the Supreme Court.  5 And as your lordships may be aware, Sparrow and Sioui  6 both came down in the midst of final submissions in  7 this case, but he viewed Symonds and other cases in  8 other jurisdictions as not being particularly helpful  9 because he saw them like Worcester v. Georgia itself,  10 as being a decision which was founded not on the  11 Cherokee cases but on the Treaty of Waitangi.  And I  12 have some submissions to make about his lordship's  13 statement in that regard.  14 But at paragraph 105, I make this point in the  15 context of the utility and the importance of looking  16 at the decisions of other jurisdictions, particularly  17 other Commonwealth jurisdictions.  And I would address  18 your lordships to the statements made by President  19 Cooke of the New Zealand Court of Appeal just two  20 years ago, in the context of decisions of our Supreme  21 Court of Canada, and how they would be appropriately  22 referred to and relied upon by the New Zealand courts.  23 And President Cooke said:  24  25 "More recently in Canada Indian rights have  26 been identified as pre-existing legal rights  27 not created by royal proclamation, statute or  28 executive order.  It has been [suggested] that,  29 in some circumstances at least, the Crown is  30 under a fiduciary duty to holders of such  31 rights in dealings relating to their  32 extinction.  The judgments in Guerin...  33 delivered by Dickson, J. and Wilson, J. seem  34 likely to be found of major guidance when such  35 matters come finally to be decided in New  36 Zealand.  The approach of this court in the  37 Maori Council case to the principles of the  38 Treaty of Waitangi and the partnership and  39 fiduciary analogies there drawn are consistent  40 with them. ...  There are constitutional  41 differences between Canada and New Zealand, but  42 the Guerin judgments do not appear to turn on  43 these.  Moreover, in interpreting New Zealand  44 Parliamentary and common law it must be right  45 for New Zealand Courts to lean against any  46 inference that in this democracy the rights of  47 the Maori people are less respected than the 272  Submissions by Mr. Jackson  1 rights of aboriginal peoples are in North  2 America."  3  4 My lords, in the context of the Maori Council  5 case, your lordships may remember that in the Dick and  6 Alphonse case, Miss Morellato, acting for the  7 intervenor Musqueam Band, referred your lordships to  8 the Maori Council case in terms of certain principles  9 of partnership which she argued had relevance to the  10 question of sharing an allocation of fishing resources  11 in the context of that case.  And we will be coming  12 back to some of these New Zealand cases, some of the  13 contemporary jurisprudence of the New Zealand courts  14 when we address your lordships on the question of  15 remedy and the appropriateness of principles such as  16 mutual benefit, principles of protection, principles  17 of accommodation, which the New Zealand courts, like  18 this court, have had to grapple with in a contemporary  19 framework.  20 But my point is a simple one:  That looking at  21 the jurisprudence of these other countries which have  22 confronted similar problems as Canada, is one which  23 bears fruit and should not be rejected out of hand in  24 the manner in which the trial judge seems to have  25 done.  26 Returning to Symonds, the facts of it bear some  27 similarity to the Johnson v. M'Intosh case itself.  28 What happened was that Mr. Mcintosh in New Zealand  29 had --  30 MACFARLANE, J.A.:  Mr. Symonds?  31 MR. JACKSON:  No, there actually was a Mr. Mcintosh, the New  32 Zealand Mr. Mcintosh.  The similarities between the  33 cases is not just in terms of the facts, but also one  34 of the parties had the same name.  The Mcintosh clan  35 seemed to be all over the place.  36 MACFARLANE, J.A.:  The Scots get around.  37 MR. JACKSON:  Beg your pardon?  38 MACFARLANE, J.A.:  The Scots are everywhere.  39 MR. JACKSON:  So the New Zealand Mr. Mcintosh had effected a  40 purchase of lands from the Maori proprietors and he  41 had obtained a certificate from the Government of New  42 Zealand, Governor Fitz Roy, waiving the Crown's  43 exclusive right to buy lands from the Maoris.  The  44 Crown subsequently made a grant of the same lands to  45 another individual, and the individual -- and the  46 issue was as between the grant made by the Crown and  47 the grant obtained from the Maoris; which had 273  Submissions by Mr. Jackson  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  TAGGART,  LAMBERT,  priority?  Now, your lordships should be aware of the fact  that under the New Zealand Constitution, any grants of  Crown land were required to be made by patent.  And in  the event the court held that that resolved the issue,  one of the parties didn't have a patent.  He may have  had a grant from the Maoris, but he didn't have a  patent under the seal of the Colony of New Zealand,  and that was something which was important, was part  of the Constitution.  And the court also held that  Governor Fitz Roy, under his commission, had no power  to waive the right of the Crown to its right of  pre-emption.  So in that sense, as in some of these cases, my  lord -- and I don't try and glide over the point --  the court's statements went way beyond what was  necessarily in the technical sense of ratio.  That  properly applies to almost all of the cases your  lordships are considering.  When one looks at Sparrow  itself, when one looks at Guerin, one finds large  principles being espoused not simply for the purpose  of resolving the particular issue before the court,  but to give guidance to other courts as they come to  what is a very difficult question of adjudication of  aboriginal rights and conflicting rights of the Crown.  And that was exactly the approach taken by the court  in the Symonds decision.  Now I might ask your lordships to -- just to turn  to the Symonds decision, it's set out in Volume A-27.  J.A.:  Would it be convenient to take the break at this  time?  My brother Lambert has a question to pose just  before we take the break.  J.A.:  I would like to ask you not to answer this  question immediately, but perhaps after the morning  break or after lunch or tomorrow morning, but it is  fundamental to my understanding of your argument and  the points that are being made.  This morning, just a few minutes ago, I asked you  if your position was that the aboriginal right with  which we are concerned in this case is a right of  exclusive occupancy to the whole territory delineated  on the map.  I understood you to say, "Yes, that was  so."  And I understood, as I understand that argument,  it's that the right of occupancy was recognized before  contact by all the people whose recognition was in any  way relevant, both within these nations and their  neighbouring nations, and that occupancy was perhaps 274  Submissions by Mr. Jackson  1 asserted by various activities, but it was the right  2 of occupancy that was essentially recognized.  Now  3 that's the aboriginal right that was claimed in the  4 start of these proceedings.  That's how I understood  5 your question [sic].  6 Two days ago, I asked a question about the nature  7 of aboriginal rights, and I asked whether the right  8 that was asserted in this case was defined by the  9 kinds of activities that took place before contact,  10 and to which I understood the answer was yes.  And  11 then the next question was, "In that case, is the  12 aboriginal right in this case likely to be different  13 from the aboriginal right in relation to land that  14 would be asserted in another case for a different  15 Indian nation over a different territory?"  And my  16 understanding was that the answer that was asserted --  17 or that was given at that time was, "Yes, it would be.  18 The aboriginal right of the land would be different  19 from nation to nation and from place to place."  20 I am not quite sure how I reconcile what I  21 understood to be the answer today with what I  22 understood to be the answer two days ago and I would  23 like a very deliberate response to that, so that I can  24 put the whole thing in focus as we go along from here.  2 5 MR. JACKSON:  Yes, my lord.  26 LAMBERT, J.A.:  Thank you.  27 THE REGISTRAR:  Order in court.  Court stands adjourned for a  28 short recess.  29  30 MORNING RECESS  31  32 THE REGISTRAR:  Order in court.  33 TAGGART, J.A.:  Yes, Mr. Jackson.  34 MR. JACKSON:  Thank you, my lord.  35 Perhaps first, addressing my lord Mr. Justice  36 Lambert's question.  With your lordship's indulgence,  37 I will take the evening to reflect on that question  38 and I will address your lordship tomorrow in terms of  39 the conjunction of my previous statements --  40 LAMBERT, J.A.:  Yes.  41 MR. JACKSON:  -- in response to your lordship's need for  42 clarification.  43 LAMBERT, J.A.:  Thank you very much.  44 TAGGART, J.A.:  Mr. Jackson, I would just like to be clear about  45 the conflict in Symonds.  It was between title held by  46 a grant from the Maoris and title held by grant from  47 New Zealand? 275  Submissions by Mr. Jackson  1 MR. JACKSON:  Yes, my lord.  What happened was —  2 TAGGART, J.A.:  The latter being by way of letters patent?  3 MR. JACKSON:  Yes.  The — in terms of the grant from the  4 Maoris, Mr. Mcintosh, having gone to Governor Fitz  5 Roy, said, "I want to buy this land that's held by the  6 Maoris.  I want a certificate waiving the Crown's  7 right to buy."  He got the certificate, went to the  8 Maoris, in effect negotiated a private treaty and  9 relied upon that.  And subsequently, the government  10 made a grant under letters patent of the same lands to  11 someone else.  That was the conflict.  And as I said,  12 it was resolved in the context of the particular  13 requirement under the New Zealand law that letters  14 patent be required for a Crown grant.  15 In relation to what else the court said, I want  16 to take your lordships to the judgment of Mr. Justice  17 Chapman, and as I said, it's at tab -- Volume A-27,  18 tab 34.  19 I don't know why it is, my lords, that all these  20 mid-19th Century judgments are in such tiny type.  21 Perhaps people's eyes were a lot better then than they  22 are now, but I'll not keep your lordships in the --  23 this particular volume for too long because I have set  24 out the relevant passages in my appendix.  There is  25 just one passage which isn't in the Appendix which  26 addresses the point I'm just making, and you will see  27 that at page 388, the second page of the judgment.  28 LAMBERT, J.A.:  You referred us to tab 34.  29 MR. JACKSON:  I beg your pardon, my lord, it's — actually, I  30 think I may have given your lordships the wrong -- let  31 me look at my table of concordance.  32 I think I may have given you the wrong volume as  33 well.  The reference I think I gave you was to the  34 decision of Mr. President Cook.  35 LAMBERT, J.A.:  Yes, it is.  36 MR. JACKSON:  That's what it is.  My apologies, my lords.  It's  37 Volume A-18.  I think it's a slim volume, one of the  38 few, and it's at tab 42.  And I was referring your  39 lordships to page 388, and you will see at the first  40 full paragraph on page 388, Mr. Justice Chapman says:  41  42 "The question which this court has to  43 determine is, Did the claimant, Mr. C. Hunter  44 Mcintosh, acquire by the certificate and his  45 subsequent purchase [that's from the Maoris]  46 (admitted to have been in all respects fair and  47 bona fide) such an interest in the land, as 276  Submissions by Mr. Jackson  1 against the Crown, as invalidates a grant made  2 to another, subsequently to the certificate and  3 purchase?"  4  5 So that was the narrow issue and, as I've  6 explained to your lordships, it was resolved in a  7 narrow way.  8 Mr. Justice Chapman immediately thereafter,  9 however, says:  10  11 "As this question involves principles of  12 universal application to the respective  13 territorial rights of the Crown, the aboriginal  14 Natives, and the European subjects of the  15 Queen; as moreover its decision may affect  16 larger interests than even this court is up to  17 this moment aware of, I think it is incumbant  18 on us to enunciate the principles upon which  19 our conclusion is based with more care and  20 particularity than would, under other  21 circumstances, be necessary."  22  23 Quite clearly, the court was therefore embarking  24 upon a deliberate statement of principle for the  25 guidance both of the colony and of the judiciary.  2 6 And my lords, we can keep in the judgment where,  27 if your lordships would prefer, if we go back to  28 paragraph 107 of Appendix A, the type may be more to  29 your lordships' pleasure.  It certainly is to mine.  30 And at paragraph 106 of Appendix A at page 52,  31 Mr. Justice Chapman says as follows, and you can  32 follow this also at page 388 of the judgment.  At  33 paragraph 106:  34  35 "The intercourse of civilized nations, and  36 especially of Great Britain, with the  37 aboriginal Natives of America and other  38 countries, during the last two centuries, has  39 gradually led to the adoption and affirmation  40 by the Colonial Courts of certain established  41 principles of law applicable to such  42 intercourse.  Although these principles may at  43 times have been lost sight of, yet animated by  44 the humane spirit of modern times, our Colonial  45 Courts and the Courts of such of the United  46 States of America as have adopted the common  47 law of England, have invariably affirmed and 277  Submissions by Mr. Jackson  1 supported them; so that at this day, a line a  2 judicial decision, the current of legal  3 opinion, and above all the settled practice of  4 the colonial Governments, have concurred to  5 clothe with certainty and precision what would  6 otherwise have remained vague and unsettled.  7 These principles are not the new creation or  8 invention of the colonial Courts.  They flow  9 not from what an American writer has called the  10 'vice of judicial legislation', they are in  11 fact to be found among the earliest settled  12 principles of our law; and they are in part  13 deduced from those higher principles from  14 charters made in conformity with them,  15 acquiesced in even down to the charter to our  16 own Colony; and from the letter of treaties  17 with Native tribes wherein those principles  18 have been asserted and acted upon."  19  20 And my lords, I pause at that point to say that  21 the manner in which Mr. Justice Chapman is seeking to  22 describe what these principles are, very much is in  23 accord with what Chief Justice Marshall himself did in  24 Worcester v. Georgia.  It is also very much the  25 approach of Mr. Justice Strong in St. Catherine's  26 Milling case, of tracking back into the formation of  27 the common law, those principles which have received  28 universal assent in the colonies and form the basis  29 upon which the colonial governments acted in relation  30 to aboriginal peoples.  31 Mr. Justice Chapman then went on to characterize  32 the nature of native title to land in this way, and  33 it's at paragraph 107 at pages 390 and 391 of the  34 judgment:  35  36 "The practise of extinguishing Native titles by  37 fair purchases is certainly more than two  38 centuries old.  It has long been adopted by the  39 Government in our American colonies, and by  40 that of the United States.  It is now part of  41 the law of the land, and although the Courts of  42 the United States in suits between their own  43 subjects, would not allow a grant to be  44 impeached under pretext that the Native title  45 has not been extinguished, yet they would  46 certainly not hesitate to do so in a suit by  47 one of the Native Indians.  In the case of the 27?  Submissions by Mr. Jackson  1 Cherokee Nation v. State of Georgia, the  2 Supreme Court threw its protective decision  3 over the plaintiff nation, against a gross  4 attempt at spoliation;"  5  6 The passage I mentioned before.  7  8 "calling to its aid, throughout every portion  9 of its judgment, the principles of the common  10 law as applied and adopted from the earliest  11 times by the colonial laws.  Whatever may be  12 the opinion of jurists as to the strength or  13 weakness of Native title, whatever may have  14 been the past vague notions of the Natives of  15 this country, whatever may be their present  16 clearer and still growing conception of their  17 dominion over land, it cannot be too solemnly  18 asserted that it is entitled to be respected,  19 that it cannot be extinguished (at least in  20 times of peace) otherwise than by the free  21 consent of the Native occupiers.  But for their  22 protection, and for the sake of humanity the  23 Government is bound to maintain, and the courts  24 to assert, the Queen's exclusive right to  25 extinguish it.  It follows from what has been  26 said, that in solemnly guaranteeing the Native  27 title, and securing what is called the Queen's  28 pre-emptive right, the Treaty of Waitangi,  29 confirmed by the Charter of the Colony, does  30 not assert either in doctrine or in practice  31 anything new and unsettled."  32  33 And I would ask your lordships to remember those  34 words.  I'll be coming back to them in the context of  35 how the trial judge characterized the decision in  3 6 Symonds.  37  38 "...The legal doctrine as to the exclusive  39 right of the Queen to extinguish the Native  40 title, although it operates only as a restraint  41 upon the purchasing capacity of the Queen's  42 European subjects, leaving the Natives to deal  43 among themselves, as freely as before the  44 commencement of our intercourse with them is no  45 doubt incompatible with that full and absolute  46 dominion over the lands which they occupy,  47 which we call an estate in fee.  But this 279  Submissions by Mr. Jackson  1 necessarily arises out of our peculiar  2 relations with the Native race, and out of our  3 obvious duty of protecting them, to as great an  4 extent as possible, from the evil consequences  5 of the intercourse to which we have introduced  6 them, or have imposed upon them.  To let in all  7 purchasers, and to protect and enforce every  8 private purchase would be virtually to  9 confiscate the lands of the Natives in a very  10 short time.  The rule laid down is, under the  11 actual circumstances, the only one calculated  12 to give equal security to both races.  Although  13 it may be apparently against what are called  14 abstract or speculative rights, yet it is  15 founded on the largest humanity;...  16 Technically, it contemplates the Native  17 dominion over the soil as inferior to what we  18 call an estate in fee: practically, it secures  19 to them all the enjoyments from the land which  20 they had before our intercourse, and as much  21 more as the opportunity of selling portions,  22 useless to themselves, affords.  From the  23 protective character of the rule, then, it is  24 entitled to respect on moral grounds, no less  25 than to judicial support on strictly legal  2 6 grounds."  27  28 This, my lords, again, to go back to the  29 discourse of Johnson v. M'Intosh, Indians have a  30 legal -- a just right to retain their lands not just  31 simply a moral right.  The conjunction of the language  32 here in Symonds is relevant to that of Chief Justice  33 Marshall and presages that of Mr. Justice Strong and  34 Chief Justice Dickson in our own Guerin decision.  35 My lords, at paragraph 108, we say that the  36 decision of the New Zealand Supreme Court in Symonds,  37 at that time the leading decision in the British  38 Empire on aboriginal rights, affirmed as "principles  39 of universal application" that native rights to land  40 "cannot be extinguished otherwise than by the free  41 consent of the native occupiers" and correctly stated  42 the common law applicable to British Columbia at the  43 formation of the colony of Vancouver Island in 1849  44 and the formation of the mainland colony in 1858.  45 LAMBERT, J.A.:  But that principle is not consistent with the  46 recognition of sovereignty.  It's stated the common  47 law before sovereignty was exercised.  After 280  Submissions by Mr. Jackson  1 sovereignty was exercised and has been recognized,  2 then as I understand it, the appellants' position in  3 this case and the position in other cases in relation  4 to aboriginal rights, is that aboriginal rights could  5 be extinguished at least in the period up to 1982,  6 though it required an unequivocal sovereign act of  7 extinguishment to do it.  8 MR. JACKSON:  Yes, my lords.  I don't see that as being  9 inconsistent with what the principles of the common  10 law are.  Principles of the common law, of course, can  11 be overturned and overrided by legislative authority.  12 LAMBERT, J.A.:  Yes.  13 MR. JACKSON:  In that sense, the plaintiffs' argument and  14 acceptance that -- although we say, of course, the  15 consent originally as a common law principle took on  16 added content as a constitutional convention, we  17 accept that clear and explicit legislation may  18 extinguish, although you would do so in violation of a  19 constitutional convention.  But that is not  20 inconsistent, my lord, with the principles of the  21 common law as they are expressed by Mr. Justice  22 Chapman in Symonds.  All common law principles, of  23 course, are subject to legislative override in that  24 sense.  25 LAMBERT, J.A.:  Yes.  As I had understood the principles of  26 extinguishment up to now, they were that -- whereas  27 legislation is by far the best way to do something,  28 clearly, that if the act was a clear and unequivocal  29 sovereign act, then even though it would not  30 necessarily be identified as legislative in character,  31 it could nonetheless effect extinguishment, provided  32 it was the act of the sovereign power.  33 MR. JACKSON:  It is our position, my lord, that it has to be  34 expressed in legislation.  35 LAMBERT, J.A.:  Yes, I see.  Yes.  Well, there may be  36 differences, then, between that position and --  37 MR. JACKSON:  I think there is a clear distinction between our  38 position and what we understand the Province -- given  39 its revised Factum.  Because they do argue that an act  40 of sovereignty, which is an act of averse dominion  41 inconsistent with a continuation of aboriginal right,  42 may constitute extinguishment of particular lands.  We  43 challenge that statement of the law.  44 LAMBERT, J.A.:  The point you make in paragraph 108 strikes me  45 as being an aspect of international law, the law of  46 nations, which is part of the common law in that  47 respect.  But it's not so clear to me that its -- even 281  Submissions by Mr. Jackson  1 from the cases you've referred to -- and I haven't  2 studied them yet -- that it's a clear statement of a  3 principle of purely municipal law, as it were.  The  4 context of all these cases seems to be the context of  5 the law of nations.  And under the law of nations, it  6 cannot be extinguished otherwise than by free consent  7 or, I would suppose, by conquest.  But that doesn't  8 necessarily mean that as between a lesser nation than  9 a sovereign nation, this same principle would apply  10 or the consent is an essential element of  11 extinguishment, even at common law, a -- a sovereignty  12 is applicable.  13 MR. JACKSON:  My lord, in response to that question, I am in  14 agreement with your lordships that the principle of  15 consent initially emerges as a principle of  16 international law.  When I referred your lordships to  17 the writings of Vitoria, clearly the principle of  18 consent is embedded in his conception of the  19 relationships between the Indian Nations and  20 aboriginal peoples of the Indies.  21 When one looks at the judgments of Chief Justice  22 Marshall and the judgment of Mr. Justice Chapman, one  23 also sees that international law is prayed in aid.  24 What we say, however, my lords, is those principles of  25 international law have, in fact, become domesticated,  26 to use the term, as principles of the common law.  27 Originally, principles of international law have been  28 encoded and embraced by the common law in its  29 relationships with aboriginal people.  So we say they  30 are not simply external constraints.  To use the  31 language of the NIB/AFN in its Factum, it talks about  32 external and internal constraints of the Crown and  33 characterizes the law of nations as being a set of  34 external constraints.  We agree with that, but we say  35 also that the principle of consent has become  36 incorporated into the common law as well as a  37 principle of the common law not simply as a principle  38 of the law of nations.  39 My lords, when I get into the short analysis I'll  40 be doing of the Treaty of Waitangi that may, in fact,  41 clarify the extent to which the principle of consent  42 is something which is not there as an external  43 constraint, but in fact becomes part of the domestic  44 law of the colony.  45 LAMBERT, J.A.:  Yes.  46 MR. WILLIAMS:  My lord, may I ask a question for clarification  47 at this point?  I am still confused, if I may, in 282  Submissions by Mr. Jackson  1 respect of my learned friend's answer.  And do I  2 understand him to say that it has become domesticated  3 as part of the common law of Canada; is he saying  4 that?  5 LAMBERT, J.A.:  I share your confusion.  That is, I don't feel  6 that I completely understand whether it's part of the  7 common law as all the law of nations is, or whether  8 it's part of the municipal, internal common law.  Is  9 that your concern?  10 MR. WILLIAMS:  Yes, that is my concern.  11 LAMBERT, J.A.:  Yes.  I still don't feel that I have an answer  12 or that I understand the answer on that.  13 MR. WILLIAMS:  I just wondered whether he could state what his  14 position is on that.  Thank you.  15 MR. JACKSON:  My lord, both your lordship and Mr. Williams are  16 asking for a bright-line demarcation between  17 principles of international law, as it were, as free-  18 standing principles, and municipal common law.  My  19 response to my friend's question, in terms of  20 clarification, is that to the extent we are talking  21 about the relationships between aboriginal peoples and  22 the Crown, in the same way as we talk about their  23 rights as having a certain sui generis character, the  24 principle of consent, I think, occupies a parallel  25 role.  It is something which starts off from the law  26 of nations but becomes incorporated into the common  27 law.  Whether it technically is to be characterized as  28 the municipal law of the common law, that term usually  29 comes up, my lord, in the context of the introduction  30 of the common law into a settled colony.  Into a  31 colony, for example, in terms of the 1858 English Laws  32 Ordinance Act, the British common law is incorporated  33 into the colony.  That's usually the context of  34 domestic common law, the law of contract, the law of  35 torts.  36 We are not dealing here, my lord, in relation to  37 principles governing the relationship between  38 aboriginal peoples and the Crown, with private rights  39 in that sense.  We are talking both in terms of  40 private/public rights; we are talking in terms of  41 jurisdictional authority and, therefore, the  42 terminology drawn from private rights, as Mr. Justice  43 Dickson has, of course, said on a number of occasions,  44 it is somewhat inappropriate.  And I think the  45 distinction between the principle of consent as part  46 of the law of nations and as a principle of the common  47 law, doesn't bespeak the same kind of bright line as a 283  Submissions by Mr. Jackson  1 principle might in other contexts.  2 And I say that also in relation to the argument  3 I'll be addressing your lordships next week, in terms  4 of convention.  When we say that the principle of  5 consent has now the status of the constitutional  6 convention, that may not fit in exactly with  7 constitutional conventions as we've normally  8 understood them.  But one of the things about this  9 branch of the law is that we are trying to fit  10 concepts which are derived from inter-relationships  11 between aboriginal peoples and the Crown, into  12 language which is, in fact, the language of private  13 law, and sometimes it fits uncomfortably.  And I will  14 endeavour to come back to try and give your lordships  15 more of a bright line, but I think the search for the  16 bright line between international law and the common  17 law is something which will remain less than  18 highlighted in the way your lordship may be searching.  19 LAMBERT, J.A.:  It's crucially important, of course, in relation  20 to this issue of consent.  21 MR. JACKSON:  Oh yes, my lord, I know.  22 If I can leave it at this point, that I will come  23 back on this point as with your previous lordship's  24 comment, and try and give some greater clarification  25 of the appellants' position.  26 At paragraph 109, my lords, and this in fact will  27 take me some way into your lordship's sense of  28 international law and common law and the line between  29 them.  30 In the Symonds judgment, Mr. Justice Chapman made  31 reference to the Treaty of Waitangi.  And the trial  32 judge, in referring to the Symonds case, concluded  33 that -- and we say in error -- that Mr. Justice  34 Chapman's characterization of the nature of aboriginal  35 title and that it embraced all lands in the possession  36 of the Maori, was based upon his interpretation of  37 that Treaty.  38 My lords, I ask you to hold in memory, as it  39 were, what Mr. Justice Chapman said.  And we say that  40 the court in Symonds clearly based its decision upon  41 principles of colonial law applicable to New Zealand,  42 which were themselves incorporated into the Treaty of  43 Waitangi.  As Mr. Justice Chapman stated, the Treaty  44 "did not assert either in doctrine or in practice  45 anything new and unsettled".  46 The analysis of Mr. Justice Chapman, as I went  47 through it with your lordships, was to look at 284  Submissions by Mr. Jackson  1 principles of colonial law first, and he ended up by  2 saying that the Treaty adds nothing in the sense that  3 it contains no new principle.  4 The trial judge, with respect, misread the  5 essence of Symonds, and in suggesting that it was a  6 case based upon a treaty, did the same thing as he did  7 in relation to Worcester v. Georgia.  These cases,  8 while there may have been a treaty in the background,  9 are not cases which are predicated upon the Treaty.  10 We also say that the trial judge further erred in  11 rejecting Mr. Justice Chapman's views on the nature of  12 aboriginal title, based upon what that judge  13 understood to be the common law of the British  14 colonies.  The trial judge said:  15  16 "I am not satisfied his views ever were the law  17 in colonial and North America, particularly in  18 the original colonies, prior to the Royal  19 Proclamation."  20  21 And the appellants say that it is Mr. Justice  22 Chapman's and Chief Justice Marshall's legal analysis  23 which is to be preferred as an accurate statement of  24 the common law to that of the trial judge.  25 I should just point out to your lordships,  26 although I am not asking you to go back to the Factum,  27 but paragraphs 109 to 112 are, in fact, replicated in  28 a similar form in the Factum at paragraphs 95 to 98,  29 if your lordships want to make that cross-reference.  30 As I said, I am not asking your lordships to go back  31 to the Factum at this point.  32 The next point in relation to the relationship  33 between international law, the common law and  34 treaties, an analysis of the Treaty of Waitangi, while  35 it is not necessary to understand the Symonds case for  36 the reasons I've just given, in fact I think will  37 clarify somewhat -- and hopefully more than  38 somewhat -- this line between international and  39 domestic law.  40 And at paragraph 113, I say that although Mr.  41 Justice Chapman's statements in Symonds are not  42 dependant on the Treaty of Waitangi, that Treaty is  43 itself an important re-statement of the legal  44 principles governing relationships between aboriginal  45 peoples and the Crown.  In substance, the Treaty of  46 Waitangi resembles the Royal Proclamation of 1763, in  47 the sense that both were intended to establish a 285  Submissions by Mr. Jackson  1 framework for ordering relationships between  2 aboriginal peoples and the Crown, and both are based  3 upon guarantees of what are understood to be  4 pre-existing aboriginal rights.  They are different in  5 form.  The Proclamation, of course, is a statement by  6 the Crown.  The Treaty of Waitangi is a consentual  7 document, although we say not too much should be drawn  8 from that because, as we've submitted, the  9 Proclamation itself was the product of principles  10 which had been the result of Covenant Chain consentual  11 treaty-making process.  But because the Treaty of  12 Waitangi, in effect, is a comprehensive statement of  13 what we say are pre-existing aboriginal rights, we say  14 requires some particular examination.  15 We say that also, my lords, because again, when  16 we get to the question of remedies and the principles  17 upon what we say the co-existing title of the Crown --  18 the underlying title of the Crown and what we say are  19 the existing aboriginal rights of the appellants, the  20 basis upon which those rights can co-exist, we will be  21 referring to some of the New Zealand cases as  22 establishing certain principles which this court may  23 find of significance in formulating its own  24 jurisprudential platform.  25 Paragraph 114, and I will not remain long with  26 the Treaty of Waitangi, my lords, but in my  27 submission, it does provide at the time relevant to  28 what we are looking at in terms of British Columbia, a  29 statement by the British Crown dealing with aboriginal  30 peoples as to what their respective pre-existing  31 rights are.  The Treaty was signed in 1840 on behalf  32 of the Crown by Lieutenant-Governor William Hobson and  33 it was signed by over 500 Maori chiefs, most of  34 whom -- the great overwhelming majority of whom signed  35 it in a Maori-translated version, although 35 signed  36 in its English version.  37 If you go to paragraph 120 of the Appendix, my  38 lords, and the Treaty of Waitangi was filed as an  39 exhibit, but it may be more convenient to your  40 lordships, rather than to rummage around in your  41 appeal books, if I give to you -- not that you need to  42 refer to it at the moment -- copies of that exhibit.  43 At paragraph 120, my lord, of Appendix A, you  44 will see that under Article I of the English text, the  45 Maori chiefs ceded to the Crown:  46  47 "...absolutely and without reservation, all the 286  Submissions by Mr. Jackson  1 rights and powers of sovereignty which the said  2 confederation or individual chiefs respectively  3 exercise or possess, or may be supposed to  4 exercise or to possess, over their respective  5 territories, as the sole sovereigns thereof."  6  7 And so this is an acknowledgement of the  8 sovereignty of the Crown, an acknowledgement which the  9 appellants have made in this case and which the  10 appellants do not challenge.  11 In paragraph 121:  In return for what is ceded in  12 Article I, it is provided in Article II of the Treaty  13 that:  14  15 "Her Majesty the Queen of England confirms and  16 guarantees to the Chiefs and Tribes of New  17 Zealand, and to the respective families and  18 individuals thereof, the full, exclusive, and  19 undisturbed possession of their Lands and  20 Estates, Forests, Fisheries, and other  21 properties which they may collectively or  22 individually possess, so long as it is their  23 wish and desire to retain the same in their  24 possession but the Chiefs of the United Tribes,  25 and the individual chiefs, yield to Her Majesty  26 the exclusive right of pre-emption over such  27 lands as the proprietors thereof may be  28 disposed to alienate, at such prices as may be  29 agreed upon between the respective proprietors  30 and persons appointed by Her Majesty to treat  31 with them in that behalf."  32  33 And I say at paragraph 122, my lords, that the  34 English text of Article II is a more explicit  35 recognition of the aboriginal ownership which is  36 recognized and protected, we say, by the Royal  37 Proclamation and principles of the common law.  It  38 recognizes the beneficial interest of aboriginal  39 proprietors in all resources.  As you will see, my  40 lords, it does not refer to particular activities, it  41 is a general and very broad recognition of pre-  42 existing rights to beneficial enjoyment of lands and  43 resources.  44 It furthermore affirms that the Crown has the  45 right to -- the exclusive right to extinguish that  46 title, but such extinguishment is to be accomplished  47 through the process of treaty making in accordance 287  Submissions by Mr. Jackson  1 with the principle of consent.  In that sense, we say  2 that Article II is a very full guarantee of rights,  3 but a guarantee which we say accords with what we  4 assert are principles of the common law.  5 In relation to your lordships, here is an  6 example, we say, of international law principles  7 coming to roost, as it were, in the context of  8 particular principles and statements in a treaty with  9 aboriginal peoples and the Crown.  10 The third principle -- third article of the  11 treaty, my lords -- and I'm just going to jump over  12 the next few paragraphs, though I'll come back to  13 them.  If you go to paragraph 127 of the Appendix, you  14 will see that Article III of the Treaty provides that  15 "in consideration of the Maori agreement to articles 1  16 and 2, the Queen extends to the Natives of New Zealand  17 her Royal Protection" -- again, the language of the  18 Royal Proclamation -- "and imparts to them all the  19 rights and privileges of British subjects".  20 And so what you have here, my lords, is a  21 recognition that the Maoris are British subjects and  22 agreed to become British subjects under the protection  23 of the Crown, that in no way negates their  24 pre-existing rights as reflected in a very full way in  25 Article II.  26 The last thing I want to make about the Treaty of  27 Waitangi, my lords, is that I mentioned that the  28 Treaty exists in two forms: an English text and a  29 Maori text, and I've read to your lordships from the  30 English text.  The New Zealand Government established  31 in 1975 the Waitangi Tribunal, which was given a  32 mandate to consider disputes arising under the Treaty  33 and was given a mandate also to resolve differences  34 between the English and the Maori text.  It's an  35 advisory body.  That body, however, in approaching the  36 Treaty, has taken a position, in adopting principles,  37 in fact relying upon decisions of Canadian courts such  38 as Williams and Taylor and Simon that, in terms of  39 ambiguities, the text as understood by the aboriginal  40 peoples is to be preferred to the English text,  41 particularly in this context, since it was the Maori  42 text to which most chiefs subscribed.  43 And in relation to Article II, which in its  44 English version is still a very, very full definition  45 of aboriginal rights, in terms of full, exclusive and  46 undisturbed possession of lands, estates, forests,  47 fisheries and other properties, the Maori Submissions by Mr. Jackson  1 interpretation adds something in addition, and your  2 lordships will remember your -- this court's own words  3 in Pasco that aboriginal title and interest in land is  4 profitable possession.  And in CP v. Paul, the court  5 said it's more than enjoyment and possession, although  6 what more is rather difficult to explain, Now, of  7 course, in that case the court didn't go on because it  8 was unnecessary to explain.  9 In terms of what more the aboriginal right might  10 be, the Maori interpretation of Article II, we say, is  11 instructive and clarifies and is confirmatory of the  12 kind of rights which the appellants assert in this  13 case and which is confirmatory also of the  14 pre-existing rights which Chief Justice Marshall in  15 Worcester v. Georgia also espoused as flowing from a  16 pre-existing situation.  17 And at paragraphs 123 through to 125, I've set  18 out in the context of a decision of Mr. Justice  19 Chilwell of the New Zealand High Court, the Maori  20 interpretation.  21 And whereas Article II of the Treaty focuses on  22 what we might call real estate rights, proprietary  23 rights, to lands and forests, the Maori interpretation  24 focuses on the recognition of all things treasured by  25 the ancestors, which includes not simply proprietary  26 rights in terms of lands and resources, but also  27 language, custom and religion.  28 But more to the point in terms of this case, I  29 would refer your lordships specifically to paragraph  30 125 of the Appendix where the Waitangi Tribunal, in  31 trying to figure out what the relationship was between  32 the surrender of sovereignty in Article I and the  33 retention of all things treasured by the ancestors in  34 Article II.  And this is the reconciliation which the  35 Waitangi Tribunal says.  And I'll go to 11.5.21, my  36 lords, in paragraph 125:  37  38 "11.5.21  The Maori text thus conveyed an  39 intention that the Maori would retain full  40 authority over their lands, homes and things  41 important to them, or in a phrase, that they  42 would retain their mana Maori.  That of course  43 is wider than the English text which guaranteed  44 'the full, exclusive and undisturbed possession  45 of lands, estates, forests, fisheries and other  46 properties' so long as the Maori wished to  47 retain them.  The Maori text gave that and 289  Submissions by Mr. Jackson  1 more.  2  3 "11.5.24  The present case is concerned with  4 land.  It is plain that land, which is  5 expressly referred to in both texts, is covered  6 by the Treaty.  The real question is the nature  7 and extent of the interest in the land secured  8 to the Maori.  In the Te Atiawa Report we  9 stress that 'rangatiratanga' and 'mana' --"  10  11 These are the Maori words used in the treaty.  12  13 "-- are inextricably related and that  14 rangatiratanga denotes the mana not only to  15 possess what one owns but, and we emphasize  16 this, to manage and control it in accordance  17 with the preferences of the owner.  We thought  18 the Maori text would have conveyed to Maori  19 people that, amongst other things, they were to  20 be protected not only in the possession of  21 their fishing grounds (the subject matter of  22 the Te Atiawa claim) but in the mana to control  23 them in accordance with their own customs and  24 having regard to their own cultural  25 preferences.  Clearly the same understanding  26 would have been held in relation to land.  27  28 "11.5.28  In recognising the 'tino  29 rangatiratanga' over their lands the Queen was  30 acknowledging the right of the Maori people for  31 as long as they wished, to hold their lands in  32 accordance with longstanding custom on a tribal  33 and communal basis."  34  35 And we say, my lords, in paragraph 126, that in  36 retaining "full authority over their lands, homes and  37 things important to them", the Maoris retained the  38 right to self-government, reflecting what we say is  39 the common law position articulated by Chief Justice  40 Marshall in Worcester.  41 And finally, the last point I would make on this  42 is at paragraph 129, a comparison between the Treaty  43 of Waitangi and the Royal Proclamation, which we say  44 puts in relief the argument which the appellants are  45 making to this court, and is set out in that  46 paragraph:  47 290  Submissions by Mr. Jackson  1 "Firstly, like the Royal Proclamation, the  2 Treaty recognized and guaranteed Maori title to  3 the whole of New Zealand.  It also guaranteed  4 tribal territorial integrity in the article II  5 phrase 'exclusive and undisturbed possession'.  6 Secondly, pre-existing Maori sovereignty was  7 clearly recognized in both the form of the  8 treaty and in specific provisions of article I.  9 Moreover, that sovereignty was modified by  10 article I but it was not extinguished.  In  11 essence a right to internal Maori  12 self-government... remained intact and was  13 protected by the terms of article II (in the  14 Maori text).  In return for that protection,  15 what remained of the sovereignty rubric was  16 transferred to the Crown pursuant to article I.  17 The so-called 'sovereignty' amounted to the  18 exclusive right to exercise governmental powers  19 in respect of the growing settler population.  20 As was expressly included in article II, it  21 also reserves to the British Crown the  22 exclusive right to purchase land held by their  23 tribes."  24  25 And so that comment, in fact, suggests that the  26 Crown obtained sovereignty vis-a-vis settlers.  The  27 Maori retained the right to self-government vis-a-vis  28 themselves, and they retained rights to their  29 resources, having agreed to a protocol for the  30 acquisition by the Crown of those lands required for  31 the settlement consistent with the principles of  32 accommodation and protection.  33 And we say, my lords, those are the principles  34 which are the first principles of the common law as  35 reflected in a peculiarly authoritative source in the  36 Treaty of Waitangi.  37 At this point, my lords, I would propose to go  38 back to the Factum.  I'm going to be starting a new  39 piece in terms of the argument that the appellants'  40 aboriginal rights include jurisdiction or the right to  41 self-government.  Now we are three minutes to the  42 break, my lords, but this would be a convenient time  43 if it's a pleasure to your lordships.  44 TAGGART, J.A.:  That would be at page 86?  45 MR. JACKSON:  Page 86, at the very bottom of the page.  46 TAGGART, J.A.:  All right.  Two o'clock.  47 THE REGISTRAR:  Order in court.  This court stands adjourned. 291  Submissions by Mr. Jackson  1 NOON RECESS  2  3  4 I hereby certify the foregoing to  5 be a true and accurate transcript  6 of the proceedings transcribed to  7 the best of my skill and ability.  8  9  10  11  12    13 Toni Kerekes,  14 Official Reporter  15 UNITED REPORTING SERVICE LTD.  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  47 292  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 TAGGART, J.A.:  Yes, Mr. Jackson.  4 MR. JACKSON:  Thank you, my lords.  I'm at the very bottom of  5 page 86 of the factum, and I'm in the section which I  6 have to some extent foreshadowed in my submissions  7 this morning, that the appellants' aboriginal rights  8 include jurisdiction.  9 The term jurisdiction is the term which is used in  10 the statement of claim, my lords.  As your lordships  11 will no doubt have observed in the context of our  12 factum and in the context of the province's revised  13 factum, and indeed in the context of the federal  14 respondent's original revised factum, self-government  15 is a term which has also been used in ways which are  16 almost interchangeable with jurisdiction.  And I don't  17 want your lordships to feel that the term jurisdiction  18 somehow is a term of art.  It was the term used in the  19 statement of claim, but when we talk about  20 self-government we really are talking about a parallel  21 concept.  22 We say as our first proposition that the trial  23 judge mischaracterized the appellants' claims under  24 this rubric as claims to sovereignty.  And we say that  25 the trial judge erred in asserting that the Crown's  26 sovereignty was an absolute concept.  And that he  27 further erred in stating that the appellants' claims  28 were themselves an assertion of such sovereignty.  In  29 the same way as we say that the Crown has an  30 underlying title to lands which are subject to the  31 aboriginal title of the appellants and are therefore  32 co-existing titles, so we say that the Crown  33 sovereignty in relation to the appellants' territories  34 co-exist with the appellants' rights to  35 self-government or jurisdiction.  36 We say that the essence of the trial judges' error  37 is captured at his conclusion at page 386 of his  38 reasons where he stated:  39  40 "After much consideration, I am driven to find  41 that jurisdiction and sovereignty are such  42 absolute concepts that there is no --"  43  44 And that should be half-way house.  45  46 "No court has authority to make grants of  47 constitutional jurisdiction in the face of such 293  Submissions by Mr. Jackson  1 clear and comprehensive statutory and  2 constitutional provisions."  3  4 And his lordship was referring there to the BNA  5 Act.  6  7 "The very fact that the Plaintiffs recognize  8 the underlying title of the Crown precludes  9 them from denying the sovereignty that created  10 such title."  11  12 And the appellants say that they have never  13 challenged the sovereignty of Great Britain, and do  14 not today challenge the sovereignty of the Canadian  15 Parliament.  They necessarily, and I say necessarily  16 in the context of the established jurisprudence,  17 accept as legal principles both the underlying title  18 to the land in the Crown and the right of the  19 sovereign to establish governments to deal with the  20 settler populations.  In the same way that the  21 appellants assert that their aboriginal title is a  22 pre-existing legal right which is a burden on the  23 underlying title of the Crown and limits what the  24 Crown can do with the land prior to the unlawful  25 extinguishment of that aboriginal title, so do the  26 appellants argue that their jurisdiction to govern  27 themselves and their territories is a pre-existing  28 right which prior to 1982 would not be limited by the  29 province and could be extinguished by Canada only with  30 Indian consent or by clear and plain legislation.  31 We say, my lords, that the Supreme Court both of  32 Canada and of the United States have affiremd the  33 co-existence between sovereignty and the underlying  34 title of the Crown with pre-existing and existing  35 aboriginal rights.  36 And I refer your lordships to the passage in  37 Sparrow at which the appellants rely upon, but which  38 was also relied upon by the trial judge for the very  39 proposition which we are contesting.  40 LAMBERT, J.A.:  This is not necessarily anything to do with  41 land.  That is, as I understand it, we've been talking  42 up until now about the rights of the two nations in  43 relation to land.  Now, as I understand it we're  44 talking about not an aboriginal right to control the  45 use of the land, but an aboriginal right to set for  46 themselves the institutions of the government and to  47 manage the institutions of the government. 294  Submissions by Mr. Jackson  1 MR. JACKSON:  Yes, my lord.  And those, of course, also extend  2 to establishing rules and making decisions regarding  3 the resources.  But your lordship is correct, it is  4 not limited to the land.  It's a broader concept than  5 that.  6 LAMBERT, J.A.:  Yes.  Certainly.  7 TAGGART, J.A.:  Can you some time, it needn't be now, say what  8 the specific declaration is that you sought in the  9 statement of claim and in your factum.  10 MR. JACKSON:  Yes, my lord.  The specific statement of claim we  11 are now seeking or the one we originally sought in the  12 statement of claim?  13 TAGGART, J.A.:  Well, the statement of claim has been much  14 amended, but in that -- in the statement of claim as  15 finally amended certain declarations are sought.  16 MR. JACKSON:  Yes.  17 TAGGART, J.A.:  I'd be interested to know how the statement of  18 claim describes -- I take it that what you want is a  19 declaration from this court in relation to this  20 subject matter.  21 MR. JACKSON:  Yes, my lord.  The declarations we're seeking from  22 this court are set out in Part 10 of the factum.  23 TAGGART, J.A.:  Do they parallel the statement of claim?  24 MR. JACKSON:  To a large measure, my lord.  The statement of  25 claim sought a number of declarations and what we have  26 sought to do in -- the declaratory relief we seek from  27 this court, my lord, is to synthesize the relief into  28 a number of more finite categories, and they are set  29 out at --  3 0 TAGGART, J.A.:  This would be two?  31 MR. JACKSON:  This would be two, my lord.  The appellants have  32 inherent aboriginal right to self-government over the  33 territories themselves and members of the houses  34 represented by the appellants in accordance with  35 Gitksan Wet'suwet'en political, legal and social  36 institutions.  37 LAMBERT, J.A.:  Is it theoretically possible in the context of  38 that claim that it's open to this court to find that  39 the aboriginal rights in relation to land and  40 territory are limited to particular areas, particular  41 ways, and yet at the same time to find a full  42 aboriginal right in relation to their own institutions  43 it has nothing to do with the limitation that the  44 court might have found on the territory.  Is that  45 theoretically possible or is it titled territory so  46 that they want -- can't have one without the other?  47 MR. JACKSON:  Out of an abundance of caution, my lords, I think 295  Submissions by Mr. Jackson  1 I would like to take that question under advisement  2 and perhaps address your lordship on it in the context  3 of the questions you addressed earlier.  4 LAMBERT, J.A.:  All right.  5 MR. JACKSON:  My reason for doing that, my lords, is I'd like to  6 address your lordships on the extent to which it's  7 theoretically possible and the extent to which it is  8 the appellants' argument that that is what we are  9 seeking, so your lordship is clear as to the  10 distinction of what we're seeking and what is  11 conceptually possible.  12 LAMBERT, J.A.:  Yes, that's right.  Assuming that — I'm sure I  13 understand what you're seeking here, but it's the  14 concept that's troubling me to understand your  15 flow-through argument now.  16 MR. JACKSON:  Yes.  17 Returning, if I may, to paragraph 103 of the  18 factum.  The Supreme Court in Sparrow said that:  19  20 "It is worth recalling that while British  21 policy towards the native population was based  22 on respect for their right to occupy their  23 traditional lands, a proposition to which the  24 Roayl Proclamation of 1763 bears witness, there  25 was from the outset never any doubt that  26 sovereignty and legislative power, and indeed  27 the underlying title, to such lands vested in  2 8 the Crown."  29  30 And so the court is quite clearly saying there  31 that the pre-existing aboriginal rights exist  32 consistent with and co-existing with the underlying  33 title of the Crown and sovereignty.  34 My lords, the province in its revised factum, and  35 I would make this reference at this point, in  36 paragraph 62 of the province's revised factum  37 referring to this very point they say that this  38 proposition does not in any way support the trial  39 judge's interpretation that the assertion of  40 sovereignty and the underlying title of the Crown  41 being in the Crown strips aboriginal people of all  42 vestiges of self-government.  And we say that the  43 concept of the Federal Government having legislative  44 authority in relation to Indians and lands reserved  45 for Indians, and the Crown either in right of the  46 province or in right of the Federal Government having  47 underlying title in no way is inconsistent with the 296  Submissions by Mr. Jackson  1 concept of a continuing right to self-government.  2 WALLACE, J.A.:  I have difficulty seeing how that reference  3 supports the argument of self-government.  I see it  4 referring to the right to occupy traditional lands,  5 but how does it support the premise of  6 self-government?  7 MR. JACKSON:  My lords, we don't say —  8 WALLACE, J.A.:  I'm missing something.  9 MR. JACKSON:  My lord.  No, my lord, you're missing something  10 that's not there, so in that sense you're not missing  11 anything.  In the context of Sparrow the issue facing  12 this court was not facing the Supreme Court of Canada.  13 They were dealing with the question of whether there  14 was an aboriginal fishing right.  What the case  15 supports, we say, is the idea, and what it rejects is  16 the trial judge's finding that if you had the  17 underlying title in the Crown that is necessarily  18 inconsistent with there being any continuing right to  19 self-government.  20 WALLACE, J.A.:  But does it refer to that at all?  21 MR. JACKSON:  No, it doesn't.  22 WALLACE, J.A.:  How can it support it?  23 MR. JACKSON:  It doesn't support it, my lord, but it doesn't  24 deny the possibility.  25 WALLACE, J.A.:  It doesn't refer to it at all.  26 MR. JACKSON:  No.  The trial judge relied upon it as a purpose  27 of demonstrating as a matter of law that the  28 appellants' submissions that there was a continuing  29 right to self-government were --  30 WALLACE, J.A.:  I see.  31 MR. JACKSON:  -- a priori misplaced.  They were fundamentally  32 flawed because Sparrow had said what it said there.  33 And our point, my lord, is that Sparrow in fact does  34 not preclude such an argument.  35 In paragraph 104 I make the point, and it's one  36 which I'll be expanding upon in a few moments, that  37 the Sparrow decision in affirming federal legislative  38 authority, and in affirming that as a result of the  39 doctrine of discovery the underlying title in lands  40 vested in the Crown parallels the situation in the  41 United States.  At the beginning of American history  42 after the Revolution the Federal Government there was  43 also given exclusive authority to deal with the  44 Indians in rather different terms, but the concept is  45 the same, it was given exclusive jurisdiction in  46 dealing with lands and trade with the Indians.  The  47 U.S. Supreme Court has affirmed that as a result of 297  Submissions by Mr. Jackson  1 that the U.S. Congress has what has been referred to  2 as plenary legislative authority in relation to  3 Indians.  As we have seen this morning the Supreme  4 Court has very clearly also affirmed that the  5 underlying title in the Crown is in the United States.  6 So that you have exactly the same parallel situation  7 as is envisaged in Sparrow.  The underlying title is  8 in the Crown, the United States.  The United States  9 either in its capacity as the states or Federal  10 Government, and as a federal plenary legislative  11 authority.  12 Consistent with those concepts the U.S. courts,  13 and this is the point I'll be developing, have  14 recognized flowing from Worcester v. Georgia a  15 continuing inherent right to tribal self-government.  16 The point is that there's nothing inconsistent with a  17 federal legislative authority and an underlying title  18 to the concept of recognition of a right to  19 self-government.  And we say for that reason the trial  20 judge was wrong in seeing Sparrow as having the  21 preclusive effect he thought it had.  22 In some ways, my lords, his reliance upon Sparrow  23 for this parallels his reliance upon St. Catherine's  24 Milling in seeing that as a result of St. Catherine's  25 Milling the arguments of the appellants about a  26 proprietary right were misguided.  We couldn't have a  27 proprietary right because St. Catherine's Milling  28 right at the beginning of the legal analysis says it's  29 not proprietary in the same way his lordship sought  30 our arguments in relation to jurisdiction as having  31 been, as it were, stopped at the very door of the  32 court as a result of this statement by the Supreme  33 Court in Sparrow.  And we say, with great respect,  34 that on both accounts he misconstrued the proper  35 import of both the Privy Council's in St. Catherine's  36 Milling and the Supreme Court of Canada's statements  37 in Sparrow.  38 And I summarize that point at paragraph 105 where  39 I say that the trial judge in citing from Sparrow that  40 there was from the outset never any doubt that  41 sovereignty and legislative power, and indeed the  42 underlying title to such lands vested in the Crown  43 wrongly concluded that this pronouncement foreclosed  44 any possible argument that the appellants had a  45 continuing right to jurisdiction or self-government.  46 Now, I turn at this point to the common law  47 recognition of inherent jurisdictional rights.  And we 29?  Submissions by Mr. Jackson  1 say the aboriginal right of self-government no less  2 than aboriginal title to land is based on the Indians'  3 historic occupation and possession of their tribal  4 lands.  Both rights pre-dated colonization by the  5 British, and we say that both rights survived the  6 assertion of British sovereignty.  7 My lords, in my submissions to you on Tuesday I  8 reviewed some of the treaty making, and your lordships  9 may recall that I pointed out that the hallmarks of  10 the early treaties were not only that they dealt with  11 the surrender and acquisition of land rights from  12 aboriginal peoples, but that they also dealt with the  13 question of rights to self-government.  And I referred  14 your lordships, and I'll just give you two  15 cross-references here, at paragraph 872 of tab 7 I had  16 referred your lordships to the Treaty of Middle  17 Plantation made between Royal Commissioners Virginia  18 and the Poet of Confederacy, and at paragraph 914 of  19 tab 7 I had referred to a post-proclamation treaty of  20 the Treaty of Augusta.  And those were but two of the  21 examples of the recognition of rights of  22 self-government in the context of treaty making.  23 Paragraph 108, and this is where I intend to dwell  24 for some moments, I say that this pre-existing right  25 to self-government co-existing with the assertion of  26 Crown sovereignty ripened into a rule of common law as  27 applicable to British colonies and was so recognized  28 by the U.S. Supreme Court in Worcester v. Georgia.  29 And, my lords, if I may at this point just come  30 back, although not in any definitive sense, to the  31 question raised by my lord Mr. Justice Lambert just  32 before the noon break in terms of the principle of  33 consent and its status as a rule of international law  34 or as a rule of municipal common law.  In just  35 reflecting over the noon it occurred to me that the  36 language used by Mr. Justice Strong in St.  37 Catherine's Milling, which I've adopted in the  38 paragraph 108, I think it appropriate to what we say  39 about the principle of consent that a principle  40 originally drawn from the law of nations, a principle  41 originally adopted as part of colonial state practice  42 ripened into a rule of the common law.  I think that  43 concept of Mr. Justice Strong perhaps most closely  44 approximates to what I see conceptually happening with  45 the principle of consent.  And what I'll be saying  46 next week is that in turn that ripened into a  47 constitutional convention.  As I say, that is not 299  Submissions by Mr. Jackson  1 intended to be a definitive, final answer but in terms  2 of my understanding at this point of your lordships'  3 questions I think that explains something to the  4 process which I envisage in terms of this -- this  5 concept or principle becoming part of the common law  6 enforceable by courts of law.  7 MACFARLANE, J.A.:  Can I ask a question.  In Sparrow the court  8 made it clear I think that even if there was  9 self-government, which they didn't address at all,  10 that there was a power to regulate the fisheries.  11 MR. JACKSON:  Yes, my lord.  12 MACFARLANE, J.A.:  And so I understand that if there was a  13 regulation made under the Fisheries Act and an Indian  14 band made a regulation not authorized under the  15 Fisheries Act, not a band bylaw, but its own law with  16 respect to that matter, that the federal regulation  17 would be paramount.  As a matter of fact the only  18 regulation in law to which could be given effect.  19 MR. JACKSON:  My lord, our position on that would be to the  20 extent that our submission is correct that there is an  21 existing right to self-government as an aboriginal  22 right, that right has been affirmed by Section 35 and  23 therefore to the extent that the federal Fisheries Act  24 did purport to regulate aboriginal fishery, and  25 aboriginal people themselves pursuant to their right  26 to self-government had sought to regulate, then what  27 the court would have to do would be to adopt the  28 process of justification.  29 MACFARLANE, J.A.:  Well, the Supreme Court of Canada missed that  30 point and yet you say they -- that their -- that the  31 decision in the Supreme Court of Canada parallels the  32 decision, the Marshall decision in the United States  33 in that respect.  I don't understand how that can be.  34 MR. JACKSON:  That particular issue was not directly raised  35 before the Supreme Court of Canada, my lord.  What I  36 am saying is if you have an exercise of  37 self-government by aboriginal peoples --  38 MACFARLANE, J.A.:  I understand what you're saying, but I find  39 it difficult to understand that that means so in view  40 of what is implicit in the Sparrow decision, and  41 indeed what is implicit in the other decisions over  42 the years which have dealt with the application of the  43 general laws to Indians.  I just want to move on.  It  44 was really leading me to -- I was trying to see where  45 this argument took you in terms of this case and so  46 here we are dealing with ownership of land and we're  47 dealing with resources, and so I expect that what 300  Submissions by Mr. Jackson  1 you're arguing is that the Indians can make their own  2 laws overriding provincial laws with respect to the  3 management and the taking of resources.  For instance,  4 you know, the Forest Act in British Columbia would  5 have no application to timber on the Indian lands, the  6 Mining Act would have no application to minerals on  7 the Indian lands, the Water Act would have no  8 application to waters on the Indian lands, and that's  9 where this argument leads it seems to me.  10 MR. JACKSON:  My lord —  11 MACFARLANE, J.A.:  Is that right?  12 MR. JACKSON:  In terms of where the ultimate resolution of those  13 questions of the potential conflict between the  14 exercise of an aboriginal right to self-government in  15 relation to forests, for example, in the context of a  16 provincial registry scheme, that issue we will be  17 addressing at a later point in our argument in context  18 of what are the provincial powers both in terms of  19 regulation or extinguishment in relation to existing  20 aboriginal rights.  21 MACFARLANE, J.A.:  Well, but I'm asking a general question now  22 so I can better understand your argument.  It would  23 seem to me that what you're saying, you're contending  24 that there's a right to self-government, and I'm  25 trying to see how that fits in with this case.  You  26 must be contending, it seems to me, that the --  27 insofar as the Indians have made or wish to make laws  28 respecting resources in their territories that they  29 have the exclusive right to do so and provincial laws  30 and federal laws, it would be mostly provincial laws,  31 have no application.  32 MR. JACKSON:  No, my lord, that's not the necessary implication  33 of our argument.  34 MACFARLANE, J.A.:  Well, where does it take us then?  35 MR. JACKSON:  The argument we are making is that the right to  36 self-government in relation to the resources does give  37 powers to aboriginal peoples in relation to those  38 resources.  We say, however, that those powers  39 co-exist with provincial and federal powers.  40 MACFARLANE, J.A.:  Which is paramount?  41 MR. JACKSON:   In relation to the right — rights which are  42 affirmed and protected by Section 35 we say those  43 rights necessarily have to be -- have to be subject to  44 the justificatory process as set out in Sparrow, at  45 least in relation to federal legislation.  The  46 question of what is the constraints on the powers of  47 the province -- 301  Submissions by Mr. Jackson  1 MACFARLANE, J.A.:  Well, that's if those justificatory standards  2 apply --  3 MR. JACKSON:  -- is a separate question.  4 MACFARLANE, J.A.:  -- in general as stated in Sparrow related to  5 the aboriginal right to fish, but the argument is made  6 to us that they ought not to be applied generally, and  7 other balances have to be struck in relation to other  8 matters as has been done in the United States.  9 MR. JACKSON:  We will be addressing this bench, my lord, on  10 precisely that question in the context of Sparrow-like  11 principles.  What are the appropriate principles to be  12 applied in working out the co-existence of what we say  13 is an existing aboriginal right to self-government,  14 the existing jurisdiction of the Provincial Government  15 in relation to lands and resources, and the  16 legislative authority of the Federal Government under  17 Section --  18 MACFARLANE, J.A.:  I'm glad you mentioned co-existence because I  19 was looking this morning briefly into the issues to be  20 argued and not to be argued in this appeal, and under  21 the heading of issues not to be argued is this issue  22 which is described as co-existence of Indian laws,  23 provincial laws and federal laws, but it wasn't put as  24 expressly as that, and I was puzzled as to what that  25 really meant.  Except I thought it meant what you just  26 said, that it meant that -- that in the end if your  27 argument fails that there will be -- there will be  28 Indian territories, provincial territories and places  29 where federal jurisdiction applies, and there will be  30 three sets of laws and those laws will have to  31 co-exist.  I mean, that's what's being argued out on a  32 constitutional basis now with respect to  33 self-government, I take it.  34 MR. JACKSON:  Yes, my lord.  And that could be one of the end  35 points.  36 MACFARLANE, J.A.:  That's where that issue goes, is it?  37 MR. JACKSON:  Yes, my lord.  That is not the only way of  38 co-existence though.  39 MACFARLANE, J.A.:  Let me — while we're on it I might as well  40 ask you.  I'm sorry to take your time.  I can't  41 understand this argument if I don't understand some of  42 these things.  It seemed to me when I looked at that  43 issue not to be argued this morning that -- that  44 that's an issue quite outside the ambit of this case,  45 the co-existence of Indian rights, provincial rights  46 and federal rights.  I don't see it pleaded, I'm  47 looking at the statement of claim here.  I don't 302  Submissions by Mr. Jackson  1 understand that it ever arose in the judgment in that  2 way.  I do understand that it's a matter of  3 constitutional discussion at the present time, but it  4 seems to me it is right outside the ambit of this  5 case.  I can understand that it is a prime subject for  6 negotiation, so I can think that if politicians sit  7 down around a table and say, all right, we have to  8 deal with aboriginal rights, what should be the  9 subject of negotiation, that's one of the first things  10 they look at, Indian self-government.  If so how does  11 it relate to Provincial Government and to Federal  12 Government.  But am I right in saying that that lies  13 entirely outside the ambit of this case?  Because I  14 don't -- you know, in the end it bears on that  15 question of remedies.  16 MR. JACKSON:  Yes, my lord.  17 MACFARLANE, J.A.:  Some of those remedies that you talk about.  18 Some of those issues not to be argued, while I'm on  19 the subject, appear to me to be things that have to go  20 back to trial court.  For instance damages, they don't  21 go back to this court at some later date at all.  That  22 one, co-existence, et cetera, is one that doesn't go  23 to any court.  It goes into the political sphere,  24 whether it be provincial or federal, as a  25 constitutional matter in negotiation, but it will  26 never come back to this court or the trial court  27 except in another action where it's directly raised  28 perhaps.  Am I right?  2 9    MR. JACKSON:  Yes, my lord.  30 MACFARLANE, J.A.:  Okay.  I got rid of that one then.  31 MR. JACKSON:  Well, my lords, the appellants in seeking the  32 declaration in relation to self-government are seeking  33 a declaration that their rights co-exist with  34 Provincial and Federal Government jurisdiction.  Your  35 lordships, and you have I think put your finger on the  36 nub of it, are not being asked to work out the nature  37 of that co-existence, the point where one ends and one  38 begins, the resolution of conflicts between them.  One  39 of the purposes of negotiations which have been opened  40 up between the appellants and the province is to do  41 that big tough job.  And it is a tough job.  42 MACFARLANE, J.A.:  Sure.  43 MR. JACKSON:  As far as this court is concerned all that was  44 envisaged was that your lordships might be addressed  45 on some of the principles of co-existence which might  46 guide the parties in those negotiations.  But that  47 also your lordships may feel is already going too far. 303  Submissions by Mr. Jackson  1 What we are seeking is a declaration of  2 self-government that it co-exists and acknowledgement  3 of federal and provincial authority and the parties  4 will then seek to resolve, as I say, the very  5 difficult job of accommodation.  If they fail then  6 ultimately cases may come back before this court as  7 to —  8 MACFARLANE, J.A.:  Not in this case.  9 MR. JACKSON:  Not in this case, but in other cases as to  10 conflicts between the exercise of aboriginal right to  11 self-government say in relation to the forests  12 vis-a-vis a provincial regulatory scheme.  13 MACFARLANE, J.A.:  Just one more thing before you leave that.  14 If you're asking this court to make a declaration with  15 respect to self-government it seems to me dealing  16 firstly that I would have to direct my mind to how  17 that direct -- how that declaration affected the  18 resources and the laws relating to resources in the  19 province.  And I take it somebody is going to finally  20 get to that.  21 MR. JACKSON:  Yes, my lord.  22 TAGGART, J.A.:  Because I wouldn't want to make that declaration  23 in a vacuum or leave one hanging in mid air.  It would  24 have to be -- it seems to me it has to be related to  25 the resources and to the provincial laws that apply in  26 respect to them.  27 MR. JACKSON:  I have your lordship's point and it will be  28 addressed.  29 MACFARLANE, J.A.:  And it's intended to — thank you.  I'm sorry  30 to have taken so much of your time.  31 MR. JACKSON:  Your lordship's questions are most helpful, as  32 always.  33 I was at the point, my lords, in the argument  34 where I had made the submission that the right to  35 self-government was a pre-existing aboriginal right  36 and was recognized as such as a matter of common law  37 in Worcester v. Georgia.  And I would like your  38 lordships now to turn to Worcester v. Georgia, and I'm  39 going to have to apologize for taking your lordships  40 to the actual judgment itself, this will be the only  41 time I'll do it, but the passages which are set out in  42 the factum are not sufficiently full for my purposes.  43 And Worcester v. Georgia can be found in Volume A3 of  44 the authorities at tab 61.  I think your lordships  45 will understand why for a long time scholars and  46 lawyers, I think, just assumed what everyone said  47 about Worcester v. Georgia was true so as not to 304  Submissions by Mr. Jackson  1 actually go to the report and read this tiny print.  2 I want to take your lordships to the -- to some  3 particular passages some of which are set out in  4 paragraphs 109 and 110 of the factum.  And I would  5 start with the reference at page 496.  And I'll be  6 using the pages, my lord, at the bottom, the  7 right-hand bottom of the page.  And at page 496 in the  8 left-hand column, the very last paragraph, there is a  9 passage which I referred to this morning, but I'll  10 read it again in context, the context that is of the  11 other passages.  12  13 "Certain it is, that our history furnishes no  14 example, from the first settlement of our  15 country, of any attempt on the part of the  16 Crown to interfere with the internal affairs of  17 the Indians, farther than to keep out the  18 agents of foreign powers --"  19  20 And then it goes on over to the top of the next  21 column:  22  23 "-- but never intruded into the interior of  24 their affairs, or interfered with their  25 self-government, so far as respected themselves  26 only."  27  28 And I would ask your lordships now to turn to page  29 498.  And this is an example, my lord, of how Chief  30 Justice Marshall looked at the particular treaty with  31 the Cherokees and deduced from it not an obligation  32 which drew its strength from the treaty, but was a  33 principle which itself pre-dated the treaty, albeit  34 was reflected in the treaty.  And in that sense the  35 treaty being a product rather than a source of the  36 rights.  37  38 "The third article —"  39  40 And this is the Treaty of Hopewell.  41  42 "-- acknowledges the Cherokees to be under the  43 protection of the United States of America, and  44 of no other power.  45  46 This stipulation is found in Indian treaties  47 generally.  It was introduced into their 305  Submissions by Mr. Jackson  1 treaties with Great Britain; and may probably  2 be found in those with other European powers.  3 Its origin may be traced to the nature of their  4 connection with those powers; and its true  5 meaning is discerned in their relative  6 situation.  7  8 The general law of European sovereigns,  9 respecting their claims in America, limited the  10 intercourse of Indians, to a great degree to  11 the particular potentate whose ultimate right  12 of domain was acknowledged by the others.  This  13 was the general state of things in time of  14 peace.  It was sometimes changed in war.  The  15 consequence was that their supplies were  16 derived chiefly from that nation, and their  17 trade confined to it.  Goods, indispensable to  18 their comfort, in the shape of presents, were  19 recieved from the same hand.  What was of still  20 more importance, the strong hand of government  21 was interposed to restrain the disorderly and  22 licentious from intrusions into their country,  23 from encroachments on their lands, and from  24 those acts of violence which were often  25 attended by reciprocal murder.  The Indians  26 perceived in this protection only what was  27 beneficial to themselves - an engagement to  28 punish aggressions on them."  29  30 This is the important point.  31  32 "It involved, practically, no claim to their  33 lands, no dominion over their persons.  It  34 merely bound the nation to the British Crown as  35 a dependent ally, claiming the protection of a  36 powerful friend and neighbor, and receiving the  37 advantages of that protection, without  38 involving a surrender of their national  39 character."  40  41 And I would ask your lordships now to just turn  42 the page to page 500, the second column, the last  43 paragraph on that column which begins "The Indian  44 nations."  45  46 "The Indian nations had always been considered  47 as distinct, independent political communities, 306  Submissions by Mr. Jackson  1 retaining their original natural rights, as the  2 undisputed possessors of the soil from time  3 immemorial, with the single exception of that  4 imposed by irresistible power, which excluded  5 them from intercourse with any other European  6 potentate than the first discoverer  of the  7 coast of the particular region claimed: and  8 this was a restriction which those European  9 potentates imposed on themselves, as well as on  10 the Indians.  The very term 'nation,' so  11 generally applied to them, means 'a people  12 distinct from others.'  The Constitution, by  13 declaring treaties already made, as well as  14 those to be made, to be the supreme law of the  15 land --"  16  17 Not unlike Section 35(3).  18  19 "-- has adopted and sanctioned the previous  20 treaties with the Indian nations, and  21 consequently admits their rank among those  22 powers who are capable of making treaties.  The  23 words 'treaty' and 'nation' are words of our  24 own language, selected in our diplomatic and  25 legislative proceedings, by ourselves, having  26 each a definite and well understood meaning.  27 We have applied them to Indians, as we have  28 applied them to other nations of the earth.  29 They are applied to all in the same sense."  30  31 And, while I'm on page 501 if your lordships could  32 go further down that first column to the next  33 paragraph but one.  34  35 "In opposition to this original right,  36 possessed by the undisputed occupants of every  37 country; to this recognition of that right,  38 which is evidenced by our history, in every  39 change through which we have passed, is placed  40 the charters granted by the monarch of a  41 distant and distinct region, parcelling out a  42 territory in possession of others whom he could  4 3 not remove and did not attempt to remove, and  44 the cession made of his claims by the Treaty of  45 Peace."  46  47 I suppose referring to the Treaty of Versailles. 307  Submissions by Mr. Jackson  1  2 "The actual state of things at the time, and  3 all history since, explain these charters; and  4 the King of Great Britain, at the Treaty of  5 Peace, could cede only what belonged to his  6 crown.  These newly asserted titles can derive  7 no aid from the articles so often repeated in  8 Indian treaties; extending to them, first, the  9 protections of Great Britain, and afterwards  10 that of the United States.  These articles are  11 associated with others, recognizing their title  12 to self-government.  The very fact of repeated  13 treaties with them recognizes it; and the  14 settled doctrine of the law of nations is that  15 a weaker power does not surrender its  16 independence - its right to self-government, by  17 associating with a stronger and taking its  18 protection.  A weak State in order to provide  19 for its safety may place itself under the  20 protection of one more powerful without  21 stripping itself of the right of government and  22 ceasing to be a State."  23  24 And the last passage I would take your lordships  25 to is page -- back to actually page 498.  I'll explain  26 while I'm going back.  If your lordships just for a  27 moment can go back to the factum of paragraph 110 I'll  28 explain the next reference to Worcester v. Georgia.  29 What Chief Justice Marshall did throughout this  30 judgment was to construe the particular terms of the  31 treaty in the context of this general discussion of  32 the relationship between aboriginal peoples and the  33 Crown and subsequently the United States, and he  34 looked at on page 498 a particular provision of the  35 Treaty of Hopewell which seemed to bear on the  36 question of what rights of self-government existed  37 amongst the Cherokees, and the argument was made that  38 this treaty in fact indicated they had given up their  39 rights of self-government to the United States.  And  40 at page 498 in the second column, just after half-way  41 down the page, there's a paragraph that begins "The  42 ninth article."  If your lordships have that.  43  44 "The ninth article of the Treaty of Hopewell is  45 in these words:  'For benefit and comfort of  46 the Indians, and for the prevention of injuries  47 or oppressions on the part of the citizens or 30?  Submissions by Mr. Jackson  1 Indians, the United States in Congress  2 assembled, shall have the sole and exclusive  3 right of regulating the trade with the Indians,  4 and managing all their affairs, as they think  5 proper.'"  6  7 And, of course, on one construction that could be  8 a plenary grant to the Federal Government to manage  9 the affairs of the Indians.  10 Chief Justice Marshall said of that construction:  11  12 "To construe the expression 'managing all their  13 affairs' into a surrender of self-government,  14 would be, we think, a perversion of their  15 necessary meaning, and a departure from the  16 construction which has been uniformly put on  17 them.  The great subject of the article was the  18 Indian trade.  The influence it gave made it  19 desireable that Congress should possess it.  20 The commissioners brought forward the claim,  21 with the profession that their motive was 'the  22 benefit and comfort of the Indians, and the  23 prevention of injuries or oppressions.'  This  24 may be true as respects the regulation of their  25 trade, and as respects the regulation of all  26 affairs connected with their trade, but cannot  27 be true as respects the management of all their  28 affairs.  The most important of these are the  29 cession of their lands and security against  30 intruders on them.  Is it credible that they  31 should have considered themselves as  32 surrendering to the United States the right to  33 dictate their future cessions, and the terms on  34 which they should be made or to compel their  35 submission to the violence of disorderly and  36 licentious intruders?  It is equally  37 inconceivable that they could have supposed  38 themselves, by a phrase thus slipped into an  39 article on another and most interesting subject  40 to have divested themselves of the right of  41 self-government on subjects not connected with  42 trade.  Such a measure could not be for their  43 benefit and comfort or for the prevention of  44 injuries and oppression.  Such a construction  45 would be inconsistent with the spirit of this  46 and of all subsequent treaties; especially  47 those articles which recognize the right of the 309  Submissions by Mr. Jackson  1 Cherokees to declare hostilities and make war.  2 It would convert a treaty of peace covertly  3 into an act annihilating the political  4 existence of one of the parties.  Had such a  5 result had been intended, it would have been  6 openly avowed."  7  8 And, my lords, what I say is that that analysis is  9 in the context clearly of a pre-existing right of  10 self-government, and the question was did the treaty  11 give it up, and if so to what extent.  The analysis  12 makes no sense except on the premise that the  13 Cherokees had a pre-existing right to self-government.  14 WALLACE, J.A.:  Were there articles in the treaty recognizing  15 the right of the Cherokees to wage war?  16 MR. JACKSON:  Recognizing the Cherokees to what, my lord?  17 WALLACE, J.A.:  To wage war?  Make war.  18 MR. JACKSON:  It would — I can — I can check on that, my lord.  19 I have a copy of the Treaty of Hopewell.  I'll do that  20 and get back to your lordship.  It certainly would  21 appear so from what The Chief Justice says there.  22 My lord, the point of my testing your eyesight so  23 severely is set out at paragraph 111.  Inherent Indian  24 jurisdiction, and that's the term which has become  25 something of a term of art in the American  26 jurisprudence, as a principle of federal common law  27 has been the subject of much litigation in the United  28 States since Worcester v. Georgia.  It draws its  29 inspiration from that judgment.  In referring to  30 subsequent jurisprudence, to the very limited extent  31 I'm going to do it, my lords, the appellants adopt the  32 same position as they have done with reference to the  33 Marshall decisions themselves.  It is tendered to  34 demonstrate that pre-existing aboriginal rights to  35 jurisdiction or self-government are part of the common  36 law and have deep historical roots and contemporary  37 significance in the law of aboriginal rights.  It is  38 not, and addressing myself to the point made yesterday  39 by my lord Mr. Justice Wallace, it is not to say track  40 the American cases through to the present and that's  41 what this court should embrace.  We are making some  42 reference to contemporary American decisions in  43 relation to an existing right to self-government as  44 part of the federal common law to demonstrate that the  45 courts have not been discomforted by adopting that  46 principle as part of federal common law in the United  47 States.  It has been judicially manageable, it is 310  Submissions by Mr. Jackson  1 subject to justiciable principles, and has so been for  2 150 years since the doctrine was first enunciated by  3 Chief Justice Marshall.  4 And, of course, my further point is that in its  5 enunciation by Chief Justice Marshall as a principle  6 of federal common law in the United States it draws  7 its inspiration and its legal source from rules,  8 principles of British Colonial State practice which we  9 say ripened into a rule of common law as applicable in  10 Canadian territories as it was in American  11 territories.  12 I don't know whether that would be a convenient  13 point for your lordships to take the break.  14 TAGGART, J.A.:  All right.  Five minutes.  15 THE REGISTRAR:  Order in court.  Court stands adjourned.  16  17 (PROCEEDINGS RESUMED PURSUANT TO SHORT RECESS)  18  19 TAGGART, J.A.:  Yes, Mr. Jackson.  20 MR. JACKSON:  My lords, I'm at paragraph 112 of the factum.  21 In the century and a half since Worcester v.  22 Georgia was handed down the American Indian policy has  23 gone through some very distinct phases fluctuating  24 from efforts to assimilate tribes into the mainstream  25 of American society, and going back and forth from  26 that to a policy of restoration of full tribal status  27 and recognition of tribal self-government and  28 self-determination.  And I've given your lordship some  29 references there including a reference to the report  30 of Tom Berger in relation to the Alaska land claims  31 review process.  32 My point, however, is not to take your lordships  33 through that ebb and flow of American Indian policy,  34 but to make the point which is set out in paragraph  35 113.  That is cogent evidence of the extent to which  36 the concept of inherent tribal government is embedded  37 in federal common law in the United States, that  38 despite these shifts in policy the common law  39 recognition of inherent tribal sovereignty has  40 survived, has substantive legal content, and has  41 contemporary references and is in fact part of a  42 vibrant federal Indian common law in the United  43 States.  And the law in relation to inherent tribal  44 sovereignty is a complex area of the law, as one would  45 expect, in terms of different jurisdictions.  And we,  46 of course, have the same complexity in relation to  47 federal and provincial jurisdictions. 311  Submissions by Mr. Jackson  1 I set out one passage from one of the leading  2 cases, again not to suggest that these are the  3 contours of or parameters of inherent tribal  4 government as a concept in Canada.  We say preferably  5 that concept is one to be negotiated in terms of its  6 contours, but negotiated on the basis that it is a  7 right.  And that's the reason why we're seeking the  8 declaration we're seeking.  But this passage gives you  9 a sense of how in fact a pre-existing aboriginal right  10 to self-government is part of contemporary common law  11 in the United States, and how in fact it draws its  12 inspiration back to Worcester v. Georgia.  13 The context of this case is quite important in  14 terms of understanding how this came about.  In the  15 Wheeler case Mr. Wheeler had been tried for an offence  16 in the Navajo tribal court system.  One of the  17 implications of inherent tribal government in the  18 United States is that the tribes had established and  19 have jurisdiction in certain areas in relation to  20 their self-governments, and that's reflected  21 judicially.  Your lordships will recall this morning  22 that the Cherokees themselves had set up a quite  23 elaborate tribal court system.  So have the Navajos.  24 It includes appellate review of law court decisions.  25 And Mr. Wheeler had been tried in the Navajo court and  26 convicted.  Subsequently he was tried in Federal  27 Court, U.S. Federal Court under the U.S. Federal Code.  28 And, perhaps not unnaturally, he pleaded double  29 jeopardy.  He said that this subsequent prosecution  30 was prohibited under the double jeopardy rules of the  31 Fifth Amendment.  32 Now, the American courts have developed a  33 jurisprudence around double jeopardy which doesn't  34 preclude a subsequent trial by a different sovereign.  35 Thus if the state government prosecutes you for an  36 offence that does not preclude the Federal Government  37 from subsequently prosecuting you without running in  38 conflict with the Fifth Amendment.  And Mr. Wheeler  39 said:  Well, that doesn't apply in my case because the  40 Navajo tribe are a distinct sovereign.  Their powers  41 are subject to a federal plenary legislative  42 authority.  The Federal Government can make laws in  43 relation to the tribes.  They're an emanation of the  44 Federal Government.  They're not a distinct sovereign  45 and therefore that sovereign doctrine doesn't apply.  46 I'm entitled to pray in aid the benefit of the double  47 jeopardy rule. 312  Submissions by Mr. Jackson  1 The U.S. Supreme Court said you're wrong.  2 Notwithstanding that the Federal Government has  3 legislative authority over the tribes, and in fact can  4 legislate in derogation of existing rights to  5 self-government, the jurisdiction of a tribal court as  6 an emination of the tribe itself is based upon their  7 pre-existing right to self-government.  And that means  8 that for the purposes of the double jeopardy clause  9 they are a separate sovereign.  They don't have  10 sovereignty in the full sense of it, but they have  11 sufficient sovereignty in terms of their inherent  12 rights to self-government.  So that the subsequent  13 prosecution was not precluded because the original  14 prosecution was from a different sovereign exercising  15 powers of self-government.  16 So that's the background of the case, and what the  17 court actually said about aboriginal self-government  18 in a contemporary context is set out here.  I'll just  19 take your lordship to several of the passages.  20  21 "The powers of Indian tribes are, in general,  22 inherent powers."  23  24 And inherent, my lord, has sort of taken on some  25 kind of connotation.  It's a buzz word.  Somehow your  26 lordships will be submitted with the fact as these  27 discussions go on is it inherent.  My understanding of  28 inherent is that it's pre-existing.  It's something  29 which is not derived from a grant, it's not given to  30 someone, it's a pre-existing right.  And Mr. Justice  31 Dickson in Guerin in describing aboriginal rights as  32 pre-existing rights could have said they're inherent  33 rights.  Perhaps had he said they were inherent rights  34 we wouldn't be having some of the political  35 machinations we now have over the word.  But I  36 understand inherent to mean pre-existing and not  37 derived from a grant.  It's not given to anyone, it is  38 something which is theirs as their birth right, as  39 their pre-existing rights.  40  41 "The powers of Indian tribes are, in general,  42 inherent powers of a limited sovereignty which  43 has never been extinguished."  44  45 And that's citing from Felix Cohen, a former  46 assistant solicitor general of the United States whose  47 handbook I think has been cited to your lordships in 313  Submissions by Mr. Jackson  1 previous appeals as an authoritative text on federal  2 Indian law in the United States.  3  4 "Before the coming of Europeans, the tribes  5 were self-governing, sovereign political  6 communities... Like all sovereign bodies, they  7 then had the inherent power to prescribe laws  8 for their members and to punish infractions of  9 those laws.  10  11 Indian tribes are, of course, no longer  12 possessed of the full attributes of  13 sovereignty.  Their incorporation within the  14 territory of the United States, and their  15 acceptance of its protection, necessarily  16 divested them of some aspects of the  17 sovereignty which they had previously  18 exercised.  By specific treaty provision they  19 yielded up other sovereign powers; by statute  20 in the exercise of its plenary control,  21 Congress has removed still others.  22  23 But our cases recognize that the Indian tribes  24 have not given up their full sovereignty.  We  25 have recently said:  'Indian tribes are unique  26 aggregations possessing attributes of  27 sovereignty over both their members and their  28 territory.  29  30 The sovereignty that the Indian tribes retain  31 is of a unique and limited character.  In sum,  32 Indian tribes still possess those aspects of  33 sovereignty not withdrawn by treaty or statute,  34 or by implication as a necessary result of  35 their dependent status.  36  37 The areas in which such implicit divestiture of  38 sovereignty has been held to have occurred are  39 those involving the relations between an Indian  40 tribe and non-members of the tribe.  Thus,  41 Indian tribes can no longer freely alienate to  42 non-Indians the land they occupy."  43  44 Of course that was part of the original Doctrine  45 of Discovery.  The lands could only be alienated to  46 the sovereign making the discovery in the name of the  4 7 Crown. 314  Submissions by Mr. Jackson  1 "They cannot enter into direct commercial or  2 governmental relations with foreign nations."  3 That also was part of the original Doctrine of  4 Discovery.  The discovering nation had the exclusive  5 right to enter into trade and diplomatic relations  6 with aboriginal peoples.  7  8 "And, as we have recently held --"  9  10 And this is in reference to a more recent  11 jurisprudence of the U.S. Supreme Court.  12  13 "-- they cannot try non-tribal members in  14 tribal courts.  15  16 These limitations rest on the fact that the  17 dependent status of the Indian tribes within  18 our territorial jurisdiction is necessarily  19 inconsistent with their freedom independently  20 to determine their external relations.  But the  21 powers of self-government including the power  22 to prescribe and enforce internal criminal  23 laws, are of a different type.  They involve  24 only the relations among members of a tribe.  25 Thus, they are not such powers as would  26 necessarily be lost by virtue of a tribe's  27 dependent status."  28  29 And, again, that quotation is not to be taken as  30 an invitation to your lordships or as a submission  31 that those are the appropriate parameters of a right  32 to self-government as a matter of federal common law  33 in Canada.  They are cited to your lordships as an  34 example of the contemporary resonance of that concept,  35 and the fact that it is something the courts have had  36 no trouble with, they have accepted, they have  37 endorsed, and that it has deep roots, the same roots  38 we assert are the roots of the doctrine which is  39 applicable in Canada.  40 Now, paragraph 114, my lords, I make the assertion  41 that this dual aspect of aboriginal rights as  42 encompassing both rights to land, the traditional  43 jurisprudence in Canada, and rights to self-government  44 has been acknowledged most recently by the Supreme  45 Court of Canada in Sioui where Mr. Chief Justice Lamer  46 after citing explicitly from the judgment of Chief  47 Justice Marshall in Worcester in relation to 315  Submissions by Mr. Jackson  1 pre-existing rights to self-government makes the  2 point:  3 "The British Crown recognized that the Indians  4 had certain ownership rights over their land,  5 it sought to establish trade with them which  6 would rise above the level of exploitation and  7 give them a fair return.  It also allowed them  8 autonomy in their internal affairs, intervening  9 in this area as little as possible."  10  11 WALLACE, J.A.:  Do you have a reference for the Wheeler case?  12 MR. JACKSON:  Yes, my lords.  It's A27, tab 35.  13 WALLACE, J.A.:  Thank you.  14 MR. JACKSON:  Wheeler as I recall was 19 —  15 HUTCHEON, J.A.:  '78.  16 MR. JACKSON:  '78, yes.  17 My lords, we say in paragraph 115, the heading  18 prior to that is the aboriginal jurisdictional right  19 to self-government survived the assertion of Crown  20 sovereignty.  The trial judge concluded that  21 aboriginal jurisdiction as a concept vanished either  22 with the establishment of the mainland colony or at  23 the very latest with the clear and comprehensive  24 statutory and constitutional provisions of the BNA  25 Act.  His argument was that after dividing up all that  26 there was to divide up there was nothing left.  There  27 was no scope left for aboriginal self-government.  He  28 cited in relation to that the passage I've already  29 read to your lordship, but I'll read it again in this  30 particular context.  31 Paragraph 116, having referred to the Privy  32 Council decision in Southern Rhodesia he said:  33  34 "That, in my view, is what happened in the  35 territory, that is the aboriginal system, to  36 the extent it constituted aboriginal  37 jurisdiction or sovereignty, or ownership apart  38 from occupation for residence and use, gave way  39 to a new colonial form of government which the  40 law recognized to the exclusion of all other  41 systems.  42  43 After that (the establishment of the separate  44 colony of British Columbia in 1858) aboriginal  45 customs, to the extent they could be described  46 as laws before the creation of the colony,  47 became customs which depended upon the 316  Submissions by Mr. Jackson  1 willingness of the community to live and abide  2 by them, but they ceased to have any force, as  3 laws, within the colony."  4  5 My lords, that proposition, we say, is  6 inconsistent with the whole concept of aboriginal  7 self-government as it's set out in the American  8 jurisprudence.  The passage from Wheeler makes it very  9 clear the American constitution also divides up  10 everything between the Federal Government and the  11 states.  It does it in a different way than the  12 British North America Act, but it divides things up.  13 That has not been seen at any time as having a  14 preclusive effect on their being a scope for a  15 continuing right of self-government.  And we say the  16 trial judge was wrong in seeing the British North  17 America Act as having that kind of preclusive effect.  18 We also say that his lordship's views that  19 aboriginal jurisdiction died, in effect, a sudden  20 death with the establishment of the mainland colony is  21 inconsistent with the principle of continuity.  The  22 principle that the assertion of sovereignty does not  23 affect pre-existing rights.  That proposition has been  24 affirmed by Mr. Justice Dickson in Guerin and by Madam  25 Justice Wilson in Roberts.  And I've set out both  26 passages in sections -- in paragraphs 118 and 119 of  27 the factum.  I'll just read the passage from Madam  28 Justice Wilson's judgment in Roberts, which your  29 lordships, of course, will recall establishes that the  30 law of aboriginal title, which was the issue in that  31 particular case, is part of the federal common law.  32 In that sense our Supreme Court has embraced the very  33 term which the U.S. Supreme Court has used in which  34 the relationships between aboriginal peoples and the  35 Crown is part of federal common law in the United  36 States.  And Madam Justice Wilson said in Roberts:  37  38 "In Calder this Court recognized aboriginal  39 title as a legal right derived from the  40 Indians' historic occupation and possession of  41 their tribal lands.  As Dickson J. (as he then  42 was) pointed out in Guerin, aboriginal title  43 pre-dated colonization by the British and  44 survived British claims of sovereignty.  The  45 Indians' right of occupation and possession  46 continued as a 'burden on the radical of final  47 title of the sovereign': 317  Submissions by Mr. Jackson  1  2 And we say that no less so an aboriginal right to  3 self-government as a common law right survives.  4 There's no conceptual problem, there's no conceptual  5 impediment to the survival of an aboriginal right to  6 self-government through the mere assertion of  7 sovereignty.  8 And at paragraph 120 I go back to the Georgia  9 Indian laws and I say that it is legally significant  10 that in 1830 the Georgia Indian laws had declared that  11 all laws, usages, customs made, established and  12 enforced in the said territory by the said Cherokee  13 Indians be, and the same are hereby on and after June  14 the 1st, 1830, declared null and void.  And it was  15 these laws which the Supreme Court in Worcester  16 declared be contrary to the constitutional --  17 constitution laws and treaties of the United States.  18 And yet I say with respect, my lords, that according  19 to the view of the law taken by the trial judge the  20 establishment of the Colony of British Columbia  21 accomplished ipso facto what the state of Georgia's  22 Indian laws had sought to do.  The trial judge said as  23 of that moment all laws in force in the appellants'  24 territory ceased to have effect as laws.  That was  25 what was prescribed by the Supreme Court in Worcester  26 v. Georgia.  27 And at paragraph 121 I say that the trial judge's  28 conclusions on how Britain's assertion of sovereignty  29 in British Columbia affected the appellants'  30 pre-existing rights of self-government would  31 legitimate as a matter of Canadian law what the U.S.  32 Supreme Court so clearly repudiated based on what it  33 described as the principles of common law as applied  34 and adopted from the earliest times by the colonial  35 laws.  36 And, furthermore, in support of our argument that  37 the trial judge was wrong in seeing the assertion of  38 sovereignty as ipso facto extinguishing, abolishing  39 any pre-existing rights of self-government which the  40 appellants had, we refer this court to a decision  41 which I understand Mr. Woodward addressed you on in  42 the course of the Dick and Alphonse appeal, the  43 decision of Connelly v. Woolrich.  Particularly  44 appropriately given that this was a decision decided  45 just nine days after Canadian Confederation in light  46 of the trial judge's view that somehow that date, if  47 it hadn't already happened, eviscerated whatever 31?  Submissions by Mr. Jackson  1 aboriginal jurisdiction or self-government rights  2 there may have been prior to that.  Your lordships may  3 recall that the issue in Connelly v. Woolrich was  4 whether the law in Lower Canada would recognize a  5 marriage between a clerk of the North-West Company and  6 a Cree Indian woman, which had been entered into in  7 1803 in the Athabasca District in accordance with Cree  8 custom.  In reviewing the transcripts of that I notice  9 that my lord Mr. Justice Lambert made -- took -- made  10 a well taken point that wasn't this really a conflict  11 of laws case.  And, indeed, it was a conflict of laws  12 case.  And under the conflict of laws in relation to  13 marriage the common law will recognize a marriage if  14 it is celebrated in accordance with the formalities of  15 the lex celebrationis, the law of the place of the  16 celebration of the marriage, and if it also met  17 certain other parameters.  It couldn't be polygamous,  18 and it had to last for life, and it had to be  19 voluntary.  But the legal question here was what was  20 the law of the place where the marriage was  21 celebrated.  And the issue was was it a common law.  22 Is that what Mr. Connelly took with him when he went  23 into the Cree territory or was it the law of the Crees  24 in relation to marriage.  So that was the context in  25 which the case had to be resolved.  And what's  26 important about the decision of Mr. Justice Monk is  27 that in the course of deciding whether or not Cree law  28 was the law of the place where this marriage took  29 place his lordship relied upon exactly the same  30 principles which the appellants have placed before  31 this court derived from the Marshall jurisprudence.  32 And that's why I say the analysis is particularly  33 important.  It's the adoption by a Canadian court of  34 the Marshall principles as principles of common law,  35 not as American law.  And what Mr. Justice Monk  36 concluded was that the assertion of British  37 sovereignty did not affect the pre-existing  38 territorial rights, nor the pre-existing customary law  39 of the Cree nation.  And his lordship posed and  40 answered the following question which I've set out at  41 paragraph 123.  42  43 "... will it be contended that the territorial  44 rights, political organization such as it was,  45 or the law and usages of the Indian tribes were  46 abrogated -- that they ceased to exist when  47 these two European nations (France and England) 319  Submissions by Mr. Jackson  1 began to trade with the aboriginal occupants?  2 In my opinion, it is beyond controversy that  3 they did not -- that so far from being  4 abolished, they were left in full force, and  5 were not even modified in the slightest degree  6 in regard to the civil rights of the natives.  7 As bearing upon this point, I cannot do better  8 than to cite the decision of the learned and  9 august tribunal - the Supreme Court of the  10 United States.  In the celebrated case of  11 Worcester against the State of Georgia Chief  12 Justice Marshall - perhaps one of the greatest  13 lawyers of our times - in delivering the  14 judgment of the Court, said --"  15  16 And, my lords, if you look in the original  17 judgment, and your lordships can find it in Volume A25  18 at tab 14, you'll see an extensive discussion of  19 Worcester v. Georgia containing a number of the  20 passages which I've cited in my factum and recited to  21 you today.  Having gone through Worcester v. Georgia  22 Mr. Justice Monk continued.  23  24 "Though speaking more particularly of Indian  25 lands and territories, yet the opinion of the  26 Court as to the maintenance of the laws of the  27 Aborigines is manifest throughout.  The  28 principles laid down in this judgment (and Mr.  29 Justice Story as a member of the court  30 concurred in this decision), admitted no doubt.  31  32 ... I have no hesitation in saying that,  33 adopting these views of the question under  34 consideration... the Indian political and  35 territorial rights, laws, and usages remained  36 in full force - both at Athabasca and in the  37 Hudson Bay region, previous to the Charter of  38 1670 and even after that date, as will appear  39 hereafter."  40  41 And it was to the hereafter that his lordship next  42 addressed his attention, what happened after the  43 Hudson's Bay Charter, which quite clearly was the  44 assertion of sovereignty by the British Crown over  45 that part of North American territories.  46  47 "But admitting for the purpose of conceding to 320  Submissions by Mr. Jackson  1 the defendant all that can be granted, that in  2 1803, the Athabasca district was included  3 within the western limits of the Hudson's Bay  4 territories, still that portion of the Common  5 Law of England which would prevail there had a  6 very restricted application.  It could be  7 administered and enforced only among, and in  8 favour of, and against those 'who belonged to  9 the Company or were living under them.'  It did  10 not apply to the Indians, nor were the native  11 laws or customs abolished or modified, and this  12 is unquestionably true in regard to their civil  13 rights.  It is easy to conceive, in the case of  14 joint occupation of extensive countries by  15 Europeans and native nations or tribes, that  16 two different systems of civil and even  17 criminal law may prevail."  18  19 Again you have here his lordship embracing as not  20 being that unusual or novel the idea of co-existing  21 legal systems, co-existing jurisdictions.  22  23 "History is full of such instances, and the  24 dominions of the British Crown exhibit cases of  25 that kind.  That Charter —"  26  27 That's the Hudson's Bay Charter.  28  29 "-- did introduce the English law, but did not,  30 at the same time, make it applicable generally  31 or indiscriminately - it did not abrogate the  32 Indian laws and usages.  The Crown has not done  33 so.  Their laws of marriage existed and exist  34 under the sanction and protection of the Crown  35 of England and Mr. Connelly might find himself  36 as well by that law, as by the common law of  37 England."  38  39 And in paragraph 125 I say that the judgment of  40 Mr. Justice Monk in Connelly parallelling the judgment  41 of Mr. Justice Strong in St. Catherine's Milling  42 recognized that the survival of pre-existing  43 aboriginal rights and the continued legal validity of  44 essential aspects of aboriginal internal  45 self-government were principles of British common law  46 and were to be applied in Canadian territories as they  47 had been in what are now American territories. 321  Submissions by Mr. Jackson  1 At paragraph 126 I say that the Supreme Court of  2 Canada in its judgment in Sioui, in approving the same  3 passages from Worcester v. Georgia as those relied  4 upon by Mr. Justice Monk in Connelly, has now affirmed  5 that Worcester v. Georgia is a statement of British  6 colonial law and practice equally applicable in  7 American and Canadian colonies.  8 And I would just note, my lords, that both my  9 friend Mr. Williams in the Province's revised factum,  10 and the National Indian Brotherhood AFN make reference  11 to Connelly v. Woolrich, and in pith and substance are  12 in accord with these submissions in relation to  13 Connelly.  14 HUTCHEON, J.A.:  Isn't there a Supreme Court of Canada case  15 dealing with native marriage?  We had reference to it  16 recently when we were discussing the validity of  17 common law marriages in this province.  It is a  18 judgment of Mr. Justice Cumming in which he, I'm quite  19 sure, refers to what the significance is.  My memory  20 is that the Supreme Court of Canada recognized the  21 native law marriage as being in accord with the common  22 law right.  23 MR. JACKSON:  Yes, my lord.  There was a series of — I don't  24 have knowledge of the particular case your lordship is  25 referring to.  There is a series of cases which in  26 fact are cited by my friends in their factum.  27 HUTCHEON, J.A.:  Well, I'll get to them.  28 MR. JACKSON:  Which draw from Connelly.  The cases of Mr.  29 Justice Sissons and Mr. Justice Morrow in the  30 Northwest Territories Supreme Court.  But I can  31 perhaps make inquiries as to what the judgment may be  32 your lordship is referring to.  33 HUTCHEON, J.A.:  Okay.  Thank you.  Your statement on page 93 in  34 115, I must say that I listened to your argument but I  35 was misunderstanding it.  You seem to emphasize 1867,  36 but the trial judge's emphasis was 1858, wasn't it?  37 MR. JACKSON:  Yes, my lord.  His principle conclusion --  38 TAGGART, J.A.:  Was 1858.  3 9 MR. JACKSON:  1858 went out the door.  40 HUTCHEON, J.A.:  As you say at the very latest 1878.  41 MR. JACKSON:  Yes.  Since it was an alternative argument if it  42 hasn't gone by then it certainly went in 1867.  43 HUTCHEON, J.A.:  Yes.  He placed it all on the direction of the  44 government as I read page 386.  There's a quotation  45 right at the top that according to Sir James Douglas  46 in 1858 and then a direction to him and that's when  47 the trial judge says after that. 322  Submissions by Mr. Jackson  1 MR. JACKSON:  Yes, my lord.  There's a reference to Southern  2 Rhodesia, then there's part of the passage I read, and  3 then citing from the Deadman's Island case and the  4 fact that his lordship saw Governor Douglas as  5 being -- in fact given autocratic powers as Viceroy.  6 HUTCHEON, J.A.:  The laws between customs.  7 MR. JACKSON:  That's right.  And Ms. Mandell and Mr. Rush will  8 be addressing that particular issue in the context of  9 extinguishment in relation to Governor Douglas' powers  10 and whether or not he was given those powers and  11 whether or not he was capable of exercising them in a  12 way which would extinguish aboriginal rights.  That's  13 the subject of a particular and distinct submission in  14 relation to constraints on Governor Douglas' powers.  15 My lords, I'll now turn to the next and last  16 Section of tab 3.  Just one moment, my lords.  My  17 lord, this section deals with two points which we say  18 were further errors arising from the trial judge's  19 mischaracterization of aboriginal rights.  And we say  20 again that the errors are both of commission and  21 omission.  The first issue which I'll start to address  22 this afternoon is that his lordship developed what we  23 say is an unprecedented and unprincipled test as an  24 element of proof of a non-proprietary aboriginal  25 subsistence right.  And the second point, which I'll  26 be addressing tomorrow morning, is that his  27 misconceived reliance on St. Catherine's Milling and  28 his characterization of aboriginal rights as  29 non-proprietary precluded him from analyzing the sui  30 generis rights of the appellants based on the evidence  31 before him.  There are two points and I'll address  32 them separately although they have an interconnection.  33 The first issue then as set out in the heading  34 before paragraph 128 is we say that the trial judge  35 applied an unprecedented test of long aboriginal user.  36 The trial judge erred in holding that there was a  37 definite long aboriginal use which is required for  38 proof of aboriginal rights and by requiring that  39 rights pertain to practices that would be free from  40 European influences.  41 Paragraph 129 I've set out again how the trial  42 judge defined aboriginal rights as a non-proprietary  43 interest.  He defined them at page 391 of his reasons  44 as:  45  46 "Sustenance practices and the gathering of all  47 those products of the land and waters of the 323  Submissions by Mr. Jackson  1 territory I shall define which they practised  2 and used --"  3 And these are the important words.  4  5 "-- before exposure to European civilization  6 (or sovereignty) for subsistence or survival,  7 including wood, food and clothing, and for  8 their culture and or ornamentation - in short,  9 what their ancestors obtained from the land and  10 waters for their aboriginal life."  11  12 To conduct this inquiry, my lords, the trial judge  13 created a new test to prove aboriginal rights.  And I  14 would take your lordships to page 388 of his  15 lordship's reasons.  In this section you see at the  16 very top of the page under the Section 5 Aboriginal  17 Rights his lordship says:  18  19 "As already mentioned, the plaintiffs' claims  20 for aboriginal rights must depend upon  21 indefinite, long aboriginal use of specific  22 territory before sovereignty."  23  24 His lordship then recites the well-known tests  25 from Mr. Justice Mahoney in the Baker Lake case.  And  26 you'll see in the third paragraph, the second  27 paragraph up from the bottom, his lordship very  28 self-consciously determined that there was a fifth  29 test, an additional test to be added to the Baker Lake  30 test.  This court in Pasco looked at the Baker Lake  31 tests and seemed to accept them, at least for the  32 purposes of that -- the issue before the court in that  33 case, as being the appropriate baseline tests.  The  34 trial judge states that:  35  36 "I also think a further requirement must be  37 added to the test formulated by Mahoney, J."  38  39 That's Mr. Justice Mahoney.  40  41 "What the law protects does not bear presence  42 on all activities, but rather aboriginal  43 practices carried on within an aboriginal  44 society in a specific territory for an  45 indefinite or long, long time.  This relates to  46 what I've just said about commercial trapping."  47 324  Submissions by Mr. Jackson  1 And in terms of what a long, long time might be,  2 if your lordships would go to page 371, and the second  3 paragraph up from the bottom of the page.  In relation  4 to what he said about trapping this is what he said in  5 the context of what this test means.  6  7 "With regard to new lands used after contact  8 for commercial trapping, particularly in the  9 far north and south extremities of the  10 territory, it is my view that such would not be  11 an aboriginal use, and those new lands would  12 not be aboriginal lands even if they were also  13 used for sustenance after contact.  This is  14 because, firstly, commercial trapping is not an  15 aboriginal practice, and secondly, because the  16 use of these new lands even partly for  17 aboriginal purposes under European influences  18 after contact does not constitute the kind of  19 indefinite long time use which is required for  20 aboriginal rights."  21  22 This is the important part, my lords.  23  24 "In such matters a user period of 20 to 50  25 years or so is of no importance."  26  27 The implication which the appellants draw from  28 that is that the long, long indefinite user test prior  29 to the assertion of sovereignty addition of the trial  30 judge requires proof of an aboriginal practice for a  31 period considerably in excess of half a century.  His  32 lordship doesn't define how long, but we know that 20  33 to 50 years is of no relevance, of no legal  34 significance.  35 HUTCHEON, J.A.:  What's the starting date?  Can you tell from  36 that?  1846?  37 MR. JACKSON:  18 -- his lordship, while he felt it unnecessary  38 to make a precise determination in terms of the date  39 of the assertion of sovereignty was prepared to accept  40 it was 1846, and the appellants' position is that is  41 the relevant date.  42 HUTCHEON, J.A.:  That's what he's taking, 1846?  43 MR. JACKSON:  Yes.  So his lordship is saying in order to prove  44 aboriginal rights to a particular territory and what  45 constitutes an aboriginal right the burden is on a  46 claimant to show a period of use for in excess of at  47 least a half a century prior to that, and if you can't 325  Submissions by Mr. Jackson  1 do that you don't have rights to that territory, and  2 you don't have a right to that economic activity.  3 We say a number of things about this test, my  4 lords.  The first of them is that it is unprecedented.  5 It has not been put forward as an appropriate test  6 before in any case in Canada.  Baker Lake has been the  7 subject.  As I recall, my lord, Mr. Justice Lambert's  8 question during van der Peet your lordship asked  9 whether or not the Baker Lake tests had ever been  10 endorsed by the Supreme Court of Canada, and your  11 lordships view I think was right, they haven't.  But  12 certainly no one has ever suggested that there should  13 be an additional test which adds an even greater  14 burden on an aboriginal claimant to aboriginal title.  15 It is also a test which we say is unprincipled.  16 And I want to develop those points.  In paragraph 132  17 we say that the long aboriginal use test is a  18 corollary to the proposition that aboriginal societies  19 are frozen at a certain point in a development.  20 Now, the appellants have already addressed your  21 lordships in their intervention in NTC Smokehouse  22 regarding the errors of principle made by the trial  23 judge in his application of the frozen rights  24 analysis, and we adopt those submissions in this  25 appeal.  It is not my intention to go into the errors  26 we say exist in a frozen rights analysis.  I know your  27 lordships have been addressed on these issues in all  28 the appeals so far, and as I say I don't intend to  29 belabour the point except to say this, the frozen  30 rights test as we understand it says that aboriginal  31 rights are limited to those activities carried on at  32 the time of the assertion of sovereignty.  Albeit they  33 may perhaps be exercised in modern form, hunting can  34 take place with modern weapons, but if that's what you  35 did at the time of the assertion of sovereignty then  36 that's what you get in terms of an aboriginal right,  37 is a right to hunt albeit in a contemporary form with  38 modern weapons.  39 The trial judge embraces that concept, aboriginal  40 rights are rights to sustenance and aboriginal user.  41 But what he does is he back dates the frozen -- the  42 point of freezing.  He says the rights are not frozen  43 at the time of the assertion of sovereignty, they're  44 frozen a long, long indefinite time prior to that.  45 Before an aboriginal right has in some way been  46 tainted or affected by contact with European  47 civilization.  What his lordship seems to be looking 326  Submissions by Mr. Jackson  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  for is a pristine, uncontaminated aboriginal society.  And we say, my lord, that the reason why that is  unprincipled, and I set this out in paragraph 133, we  say there is no precedent for the new test and there  is no justification for it in principle.  My lords, I can tell your lordships that I am in  fact ahead of my original schedule. This would be a  convenient time for your lordships to take the break.  TAGGART, J.A.:  All right.  Adjourn now until ten tomorrow.  LAMBERT, J.A.:  I would like to say something, if I may.  TAGGART, J.A.:  Yes.  LAMBERT, J.A.:  I have a lot of unresolved problems about the  nature of aboriginal rights, the connection between  the customs and practices of aboriginal peoples before  a contact or sovereignty, and the nature of the  rights.  I don't see why practices should be  descriptive of rights.  And we talked in other cases  about for instance if there was an aboriginal practice  of building canoes does the modern version entitle you  to something like Burrard Shipyards?  Why should --  and Mr. Justice Wallace in a previous case said if  there is an aboriginal practice of playing games of  chance before contact does that give you an aboriginal  right to run a casino nowadays.  I'm still as  perplexed now as I was earlier about this.  You're  tackling an area of saying things that are  conceptually wrong in the Chief Justice's reasons, and  it would help me in dealing with the question of why  they're conceptually wrong to have your views first of  what is conceptually right about delineating  aboriginal rights.  MR. JACKSON:  Yes, my lord.  Thank you.  LAMBERT, J.A.:  Yes.  TAGGART, J.A.:  Another example that was given I think at one  stage of the argument in one of the fishing appeals,  as I recall it, was the right of a member of a tribe  or a band or a nation to practice medicine in a sense  which generally reduced -- that is to say curing.  It  came, and that example was given in connection with  frozen rights being used in 1750.  But to practice  medicine among some of the bands must have been pretty  primitive, but they're not frozen.  And could they now  practice using modern rights?  MR. JACKSON:  Yes, my lord, I understand.  LAMBERT, J.A.:  Entirely unregulated by the College of  Physicians and Surgeons.  MR. JACKSON:  Yes, I understand the point, my lord. 327  Proceedings  1 THE REGISTRAR:  Order in court.  Court stands adjourned until  2 ten o'clock tomorrow morning.  3  4      (PROCEEDINGS ADJOURNED TO MAY 8, 1992 AT 10:00 a.m.)  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings transcribed to  9 the best of my skill and ability.  10  11  12  13  14    15 Peri McHale,  16 Official Reporter,  17 UNITED REPORTING SERVICE LTD.  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-


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