Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-06] British Columbia. Supreme Court May 6, 1992

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 173  Submissions by Mr. Jackson  1  2  CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace  3  4 THE REGISTRAR:  Order in court.  5 MR. WILLIAMS:  May I just address the court for a moment to my  6 Lord Justice Wallace.  We had to do some juggling  7 here, and we had to move -- in order to accommodate  8 this, we had to move the television screen just a  9 little bit.  If you can't see it, my lord, we'll move  10 it back out.  11 WALLACE, J.A.:  A lot of use I am making of it.  It won't  12 interfere.  That's perfectly all right.  No problem.  13 THE REGISTRAR:  In the Court of Appeal for British Columbia,  14 Wednesday, May 6th, 1992.  In the matter of Delgamuukw  15 versus Her Majesty The Queen at bar, my lords.  16 THE COURT:  Yes, Mr. Jackson.  17 MR. JACKSON:  Before I pick up where I left off last evening, my  18 lords, there was just one point I wanted to come back  19 to, and it relates to a question asked of me by my  20 lord Mr. Justice Wallace in relation to a question of  21 what did I take from the fact that the Proclamation  22 reserves lands unpurchased and unsurrendered to the  23 Indians.  And your lordship will recall my response  24 was that that is not to be interpreted as a grant of  25 those lands but is a recognition of an existing,  26 pre-existing situation.  27 What I have handed up to Madam Registrar is a  28 proceedings of one of the covenant chained treaties,  29 which I think speaks very loudly of the construction I  30 placed upon it.  I referred to this yesterday.  These  31 are the proceedings of the Albany Congress which was  32 held in 1754, and it was upon the occasion when the  33 Iroquois had threatened to break the covenant chain  34 because of their apprehended lack of concern on the  35 part of the British for their land grievances.  This  36 was a conference which was called to unify the British  37 colonies under one treaty with all the Indians in  38 order to submit their alliance with the British  39 against the French.  40 In the course of these treaty proceedings the  41 Iroquois addressed the question of the importance of  42 drawing a line between the British settlements and the  43 Indian territories.  And I said yesterday that these  44 conferences in many way pre-figure the central  45 elements of the Royal Proclamation.  46 In this particular treaty conference the Indian  47 spokesperson, and I will take you to page 336, the 174  Submissions by Mr. Jackson  1 second paragraph down which is shadow highlighted  2 which begins "Brother".  Do your lordship's have that  3 on page 336?  4  5 "We desire you to give ear to what we are now  6 going to say: Land is grown very dear you know,  7 and is become very valuable.  We desire you  8 would content yourself with what we shall now  9 grant you.  We will never part with the land at  10 Shamokin and Wyomink, our bones are scattered  11 there, and on this land there has always been a  12 great Council Fire.  We desire you will not  13 take it amiss, that we will not part with it,  14 for we reserve it to settle such of our Nations  15 upon as shall come to us from the Ohio."  16  17 If you go from that, my lords, to page 338, one  18 page over.  Again this is the Iroquois spokesperson,  19 Chief Hendrick, and on the last three lines of page  20 338 Chief Hendrick addresses the assembled  21 commissioners of all the colonies and says to them:  22  23 "As to Wyomink and Shamokin and the lands  24 contiguous on thereto Sasquehanna, we reserve  25 them for our hunting ground."  26  27 My lords, those are the language -- that is the  28 language of the Royal Proclamation.  Again it  29 illustrates that the language of the Proclamation,  30 while in form emanating from the King's prerogative,  31 in effect is an amalgamation and a consolidation of  32 principles and contact which are themselves the  33 product of treaty making.  34 WALLACE, J.A.:  I'm sorry, I'm still a bit confused.  When you  35 say that they have expressed the view that they would  36 reserve certain grounds, was that in the context of  37 saying that in the terms of the treaty that portion of  38 the lands would remain with the Indian natives and the  39 other portion would be available to the settlers or --  40 MR. JACKSON:  What they were saying here, My Lord, is in terms  41 of British demands for lands the Iroquois, in the  42 interests of mutual accommodation, and to avoid  43 disputes, were proposing that a line be drawn,  44 eventually became the Proclamation line at the  45 Allaghanies, beyond which to the western side those  46 lands would be reserved for the Indians and not  47 available for settlement until such further time as 175  Submissions by Mr. Jackson  1 arrangements were made between aboriginal peoples and  2 the Crown to commit that on mutually convenient and  3 accommodating terms.  4 WALLACE, J.A.:  So that is a representation of how the  5 particular lands would be divided for the purpose of  6 settlement or use?  7 MR. JACKSON:  Yes, my lord.  8 TAGGART, J.A.:  Mr. Jackson, where would it be convenient to put  9 that?  In the red book?  10 MR. JACKSON:  Yes, my lord, it would be convenient to put it in  11 the red book.  12 TAGGART, J.A.:  Under tab?  13 MR. JACKSON:  It would be in the appendix.  If you could keep it  14 to one side, my lords, in the break I will find the  15 appropriate point, to minimize your lords some  16 inconvenience.  17 My lords, I had just begun discussion of Treaty  18 No. 3, and I had made the point that this treaty is of  19 special legal significance insofar as it is part of  20 the factual and legal matrix underlining St.  21 Catherine's Millings.  I omitted to take your  22 lordships to the text of the treaty, and I would  23 propose to do that.  If your lordship's can find that  24 in reference book R-16 at Tab 953.  25 TAGGART, J.A.:  Where are you in the factum?  26 MR. JACKSON:  The point I was at the factum was paragraph 957.  27 That was where -- 956 was the last paragraph I read to  28 your lordships.  2 9 But I just wanted to go back a moment.  I had  30 referred your lordships to the recitals of the treaty,  31 and just so your lordships can situate yourself.  If  32 you look at Tab 953, you will see it's headed the  33 "Northwest Angle Treaty No. Three", and on page 321 in  34 the passage sidelined you will see the recitals in  35 which Her Majesty's commissioner's outline the desire  36 of Her Majesty to open up the land for settlement and  37 the treaty protocol which is contemplated being  38 premised upon obtaining the Indians' consent.  39 You will also see further down the page the second  40 recital from the bottom which reads:  41  42 "And whereas the said Commissioners then and  43 there received and acknowledged the persons so  44 presented as chiefs and head men for the  45 purposes aforesaid of ..."  46  47 Signing the treaty. 176  Submissions by Mr. Jackson  1  2 "... the respected bands and Indians inhabiting  3 the said district hereinafter described."  4  5 And then in terms of the operative clauses of the  6 treaty:  7  8 "The Saulteaux tribe of the Ojibbeway Indians ..."  9  10 Over the page.  11  12 "... cede release, surrender and yield up to the  13 government of the Dominion of Canada, or Her  14 Majesty The Queen and her successors forever,  15 all their rights, titles and privileges  16 whatsoever to the lands situated included  17 within the following limits."  18  19 That was the form of the conveyance which was used  20 in all the numbered treaties and, with some very minor  21 variations, it was a standard form which was used,  22 including the negotiations and signing of Treaty No.  23 8, which, as your lordships knows, covers part of  24 British Columbia.  25 My lords, going back to the factum.  I had made  26 the point that the continuity between these treaties  27 in terms of the Crown's obligations and the treaty  28 protocol goes back to the covenant chained treaties  29 and the early treaties in British colonial territories  30 on the eastern seaboard, but what had changed was that  31 the circumstances of the Indians were very difficult.  32 They were facing, in many cases, starvation; they were  33 under enormous pressure in terms of their traditional  34 economy; and their need was to find an accommodation  35 with the colonists in very different circumstances  36 than those which the Sixth Nation had faced a century  37 before.  But the extent to which mutual accommodation  38 was of the essence of these treaties is very much  39 reflected in statements made both by the treaty  40 commissioners and by the Indian leaders.  41 And on paragraph 958 I've referred your lordships  42 to a passage from one of the speeches made by the  43 Indian chiefs, the Chief of the Lac Seule, where he  44 addressed the commissioners and said:  45  46 "We are the first that were planted here; we  47 would ask you to assist us with every kind of 177  Submissions by Mr. Jackson  1 implement to use for our benefit, to enable us  2 to perform our work; a little of everything and  3 money.  We would borrow your cattle; we ask you  4 this for our support; I will find whereon to  5 feed them.  The waters out of which you  6 sometimes take food for yourselves, we will  7 lend you in return ...  If you give what I ask,  8 the time may come when I will ask you to lend  9 me one of your daughters and one of your sons  10 to live with us; and in return I will lend you  11 one of my daughters and one of my sons for you  12 to teach what is good, and after they have  13 learned, to teach us."  14  15 So the spirit of mutual accommodation resonates  16 through these compacts and these treaties.  17 My lords, as I said, treaty making pursuant to the  18 Crown's lawful obligations took place after 1871, and  19 gradually treaties moved further westward.  Treaties 1  20 to 7, which are usually referred to as the settlement  21 treaties, because they were involved in that part of  22 the fertile belt of the prairies, what is now  23 Manitoba, Saskatchewan and Alberta, were desired and  24 entered into for the purpose of opening up the west to  25 settlement.  26 There was a hiatus after the last of the early  27 numbered treaties in 1876 until the next treaty was  28 signed, which was in fact Treaty No. 8, which takes in  29 northern Alberta, the southern part of the Northwest  30 Territories to the boundaries of Great Slave Lake and  31 British Columbia to the foothills of the Rockies in  32 the Fort St. John area.  They are also sometimes  33 referred to as the northern development treaties,  34 because their principal concern was to acquire the  35 Indian title, not so much to open up the land for  36 settlement, but as to open it up for resource  37 development.  38 In particular, in relation to Treaty No. 8,  39 reports have come in in the 1880's that the north was  40 floating on oil.  It wasn't the first time that  41 refrain has been used.  In this case it was the  42 prospect of development of the Athabasca tar sands, a  43 development, which in light of hindsight, was to take  44 almost another century to bring to market.  But in any  45 event, it wasn't that discovery which ultimately led  46 to Treaty No. 8 by a paradox of history, it was the  47 discovery of gold in the Klondyke which precipitated 178  Submissions by Mr. Jackson  1 the signing of Treaty No. 8.  It was the prospect and  2 the actuality of miners, both American and Canadian,  3 indeed miners from other parts of the world, making  4 their way through northern British Columbia and  5 northern Alberta down the Mackenzie Valley to the  6 head-waters of the Porcupine or Crow River and then  7 over to the Yukon and down into the Klondyke.  It was  8 that prospect of an invasion of miners which led to  9 the signing of Treaty No. 8.  10 In this case Indian peoples within British  11 Columbia took the same position as had been taken by  12 their predecessors on the prairies when surveyors  13 moved into Alberta for the purpose of staking lines  14 for the railway, an objection was taken by the Black  15 Foot to the fact that these lands had not been  16 surrendered, you have no right to make your surveys  17 without coming to an accommodation with us.  18 The Indians around Fort St. John took the position  19 that these incursions into their territory by  20 disorderly miners were objectionable, unlawful, and  21 the Crown had to come to them and deal with them prior  22 to any right-of-way being granted.  And it was in that  23 context that Treaty No. 8 was negotiated.  24 Treaty No. 8 is different not so much in its  25 language from the other treaties.  As I said, the  26 language of Treaty No. 8 is drafted in much the same  27 terms.  Provisions in the treaty in relation to  28 reserves are a little different, reflecting the fact  29 that reserve for agricultural purposes, which were  30 contemplated on the prairies, would not be terribly  31 useful in the northern climate.  32 What is different about Treaty No. 8, however, is  33 not so much what it says in the context of the Crown's  34 understanding, but Treaty No. 8 has been interpreted  35 by the peoples who signed it, both in northern British  36 Columbia, in northern Alberta and in Northwest  37 Territories, as not being a treaty of surrender.  They  38 have taken the position that the guarantees made to  39 them on the occasion of that treaty were in fact a  40 guarantee that they could continue to maintain  41 themselves on their territories without interference  42 from the Crown.  And it was in their view a  43 recognition of their rights rather than an  44 extinguishment of them.  45 In the event Canada has taken the position -- and  46 I say that particular view of the Treaty No. 8 was not  47 an extinguishment of rights, is something which has 179  Submissions by Mr. Jackson  1 received judicial approval, at least in an  2 interlocutory context in the decision in re Paulette,  3 but the fact of the matter is that the government of  4 Canada has now agreed to negotiate with the Dene of  5 the Northwest Territories in relation to their lands,  6 and in fact agreements in principle and a final  7 agreement has been signed just recently on the basis  8 that whatever the impact of Treaty No. 8, it is  9 appropriate and necessary to reach an accommodation,  10 and treaties have now been signed as it were without  11 prejudice to Treaty No. 8.  12 Treaty No. 8 was followed in 1921 by Treaty No.  13 11, which dealt with lands north of Great Slave Lake  14 to the Arctic Ocean.  That was the last of the  15 numbered treaties, and while there were adhesions to  16 earlier treaties for years thereafter, there was a  17 gap? a hiatus in treaty making from 1923 until quite  18 recent times.  19 That history, my lords, is summarized in part in  20 the Sparrow decision where Chief Justice Dickson and  21 Mr. Justice La Forest reviewed how in fact in the  22 years preceding the Calder decision government policy  23 was very fixed and focused on assimilation, the down  24 playing of treaty relationships, the suggestion that  25 it was somehow inaposite and inappropriate for one  26 part of the country to be making treaties with another  27 part of the country.  The whole idea of aboriginal  28 rights after a century, after two centuries, after  29 three centuries of it being a part of legal discourse,  30 part of the lexicon of lawyers and of statespersons,  31 went into a state of partial eclipse, a fact reflected  32 in the words of former Prime Minister, Mr. Trudeau, a  33 lawyer and a law professor, who as late as 1969 took  34 the position that aboriginal rights were far too vague  35 and nebulous a concept to be capable of any legal  36 vindication or recognition.  37 In Sparrow the court observed how in fact that  38 view of the fragility of aboriginal rights and the  39 irrelevance of treaty making was severely questioned  40 by the Supreme Court of Canada in affirming that  41 aboriginal rights existed as a matter of common law,  42 were part of a continuing discourse in Canadian law,  43 and how the federal government, in light of court  44 order, acknowledged its obligation to negotiate  45 treaties and land claim settlements for those whose  46 rights had not been extinguished in the past.  47 In the factum I have noted how Section 35 -- how 180  Submissions by Mr. Jackson  1 in fact the Supreme Court of Canada observed how  2 Section 35 is a clear repudiation of the idea of the  3 legal irrelevance of aboriginal rights.  They are  4 clearly part and an important part in the furtherment  5 of legal rights, of constitutional rights in Canada.  6 And furthermore, Section 35(3), which gives the status  7 of treaties to land claims agreements, hitherto  8 negotiated or hereafter to be negotiated, clearly  9 makes it very clear as a matter of constitutional  10 process that the expectation is that treaties will  11 continue to be made, that they will continue to be the  12 principal and principled process by which the Crown  13 and Indian Nations reached an accommodation and work  14 out their mutual coexistence.  15 And in the factum I have noted that since Section  16 35 has been promulgated, there have been a number of  17 modern land claims agreements.  Indeed if your  18 lordships saw The Globe and Mail just a couple of days  19 ago when there was one article about the proposed new  20 territorial division, there was a very interesting  21 side bar map of a number of the modern land claims  22 agreements in the Northwest Territories in terms of  23 the Inuviavit agreement in the Western Arctic, the  24 Gwitchen agreement in the Mackenzie/Delta area with  25 the Dene, who signed Treaty 11, but nevertheless still  2 6 signed a modern land claims agreement and agreements  27 in principle which are waiting ratification in the  28 Eastern Arctic, to which we can add agreements in  29 principle in the Yukon, again which are awaiting final  30 ratification.  31 And so treaty making continues apace.  And the  32 treaty making which is contemplated as part of the  33 resolution of these proceedings, a treaty making which  34 will be given contours and principles through these  35 proceedings is part and parcel of some 400 years of  36 principle and process which we say bespeak legal  37 obligation and bespeak legal rights.  38 LAMBERT, J.A.:  But do the concluded land claims to which you  39 are referring in their documentary form say "treaty"  40 on the front page or do they say something else?  41 MR. JACKSON:  They refer to them as land claims agreements.  I  42 believe some of them are in exhibits, my lord, and we  43 can perhaps provide your lordships with the front  44 cover and some of the introductory text of these  45 modern land claims agreements.  What they all recite  46 is that they are modern land claims agreements and  47 treaties within the meaning of Section 35 (3).  So 181  Submissions by Mr. Jackson  1 there is specific language bringing them into that --  2 LAMBERT, J.A.:  The thought had occurred to me that the use of  3 the word to be "treaty" in Section 35 (3) may be a sui  4 generis use of the word "treaty", and that one ought  5 not necessarily to take -- draw parallels from  6 international law in relation to those kinds of  7 treaties to the extent that it's relevant to the --  8 MR. JACKSON: I think, my lord, that's a point well taken  9 because, as your lordships know, if these treaties  10 were to be construed as international treaties in the  11 normal context of the term, they would require  12 domestic legislation for them to be part of the law of  13 Canada.  And the Supreme Court in all its decisions on  14 treaties, particularly in relation to the Simon  15 decision, in relation to the Grand Compact with the  16 Micmacs in 1752, and in most recently in the Sioui  17 decision the courts, of course, made the point that  18 while these were treaties with persons who had  19 international capacity, status as national bodies,  20 they were not to be treated as international treaties  21 for all purposes.  In part to ensure their recognition  22 in Canadian law without the necessity of going through  23 a legislative recognition.  One could interpret, of  24 course, Section 35 (3) as in itself a referential  25 incorporation in the constitution consistent with that  26 requirement that treaties be domesticated as part of  27 Canadian law.  But I think treaties are used in a sui  28 generis category paralleling the courts  29 characterization of aboriginal title and rights as sui  30 generis.  I think your lordship's point is well taken.  31 The last point I wanted to make in relation to  32 modern treaty making, my lords, is set out at  33 paragraph 976.  And I return to the beginning of this  34 part of the factum where I say that at the beginning  35 of this section we showed how the very earliest Indian  36 treaties demonstrated that aboriginal rights  37 encompassed ownership and jurisdiction.  The  38 continuing relationship between aboriginal rights,  39 ownership and jurisdiction in modern land claims  40 agreements was made explicit in the Federal Task Force  41 on Comprehensive Claims policy.  42 If your lordship's would go over to the second  43 page of this.  44  45 "To deal adequately with land, agreements must  46 address the question of the right to determine  47 what happens on that land.  Land and the 182  Submissions by Mr. Jackson  1 jurisdiction over it are bound up in  2 inseparably with the preservation of aboriginal  3 societies as distinct, self-sufficient, social  4 orders within Canada.  This distinction applies  5 particularly to aboriginal societies,  6 economies, religions, political systems,  7 education systems, and family relations are  8 established by reference to their traditional  9 lands.  An integrated approach will insure that  10 the claims process is not simply a real estate  11 transaction."  12  13 And I might add will insure that it is in fact the  14 kind of negotiation which insures accommodation and  15 coexistence into the future.  16 My lords, the last part of this factum, in terms  17 of the principle of consent as a constitutional  18 convention, I will be coming back to next week when we  19 address the whole issue of extinguishment, and what  20 constraints exist on the powers of the Crown to  21 extinguish aboriginal title.  22 What I would now do is turn your lordships to Tab  23 3 of the factum.  And your lordships can put to one  24 side the reference books, except you might want to,  25 perhaps, keep them out, because I'll be giving you the  26 place in which to insert that one treaty.  27 I have some speaking notes, again I hope agreeably  28 brief, in relation to the junction between Tab 7 and  29 Tab 3, which Madam Registrar has.  30 TAGGART, J.A.:   Which red book was going to be used in relation  31 to this?  32 MR. JACKSON:  My lords, I think it will be 19.  I beg your  33 pardon.  I thought you meant in relation to the  34 treaty.  The red book in relation to Tab 3 consists of  35 nothing, save and except references to the trial  36 judgment, the reasons.  And what I was going to do, my  37 lords, was to take you directly to the actual main  38 reasons book rather than the individual tabs.  I think  39 it might be easier for your lordships note taking to  40 have the reasons rather than an individual page.  So  41 your lordships don't really need to have the red book.  42 TAGGART, J.A.:  You are going to give us a tab number for this?  4 3  MR. JACKSON:  Yes.  44 I wanted to address, my lords, the speaking notes  45 headed grey Tab 7/Tab 3.  46 The trial judge characterized aboriginal rights in  47 relation to land as "non-proprietary rights of 183  Submissions by Mr. Jackson  1 occupation for residence and aboriginal user which are  2 extinguishable at the pleasure of the sovereign".  3 In relation to aboriginal rights of jurisdiction,  4 the trial judge stated:  5  6 "That, in my view, is what happened in the  7 territory, that is, the aboriginal system, to  8 the extent it constituted aboriginal  9 jurisdiction or sovereignty, or ownership apart  10 from occupation for residence and use, gave way  11 to a new colonial form of government which the  12 law recognizes to the exclusion of all other  13 systems.  14 ... after that (the establishment of the  15 separate colony of British Columbia in 1858),  16 aboriginal customs, to the extent they could be  17 described as laws before the creation of the  18 colony, became customs which depended upon the  19 willingness of the community to live and abide  20 by them, but they ceased to have any force, as  21 laws, within the colony."  22  23 And as to the principle of consent, His Lordship  24 said:  25  26 "The underlying purpose of exploration,  27 discovery and occupation of the New World, and  28 of sovereignty, was the spread of European  29 civilization through settlement."  30  31 And that should be a period, my lords.  32  33 "For that reason, the law never recognized that  34 the settlement of new lands depended upon the  35 consent of the Indians."  36  37 And I have set out a series of interrogatories in  38 the next several pages, my lords.  And I ask:  39 How well do the trial judge's characterizations of  40 aboriginal rights fit with the Articles of Agreement  41 between the Five Nations and the British in 1664 when  42 the British colonial authorities provided for the  43 reciprocal punishment of the offences committed by  44 either the British or the Five Nations against each  45 others nationals?  46 And I say again:  47 How well do they fit with the legal assumptions 184  Submissions by Mr. Jackson  1 underlying the Covenant Chain treaties as exemplified  2 in the Treaties of Lancaster and Logstown in the 18th  3 century?  4 And I asked:  5 Had the representatives of the Six Nations been  6 told in 1751 on the occasion of the threatened breach  7 of the Covenant Chain that their rights to their lands  8 were reduced to a right of residence and aboriginal  9 user, indeed user which they would have to show long,  10 long before the assertion of British sovereignty, and  11 that those rights were extinguishable at the pleasure  12 of the sovereign, and furthermore, that their rights  13 to self-government had themselves been extinguished by  14 the assertion of British sovereignty, is there any  15 doubt that such an assertion would have been received  16 with ridicule and disbelief?  And furthermore, is  17 there any doubt that the result of such assertions by  18 the British as to the nature of aboriginal rights  19 would have led to a very different outcome of the  20 struggle between French and Imperial interests in  21 North America?  22 In fact I say, my lord, you would be looking at a  23 map of French North America.  24 And how well do the trial judge's  25 characterizations fit with the statements of Lord  26 Dorchester addressing the assembly of the confederated  27 Indian chiefs in Quebec in 1792?  28 And finally I say:  29 How well do they fit with the negotiation and  30 signing of treaties throughout the 19th century and  31 into the 20th century in what is now Ontario and in  32 the numbered treaties with Western Canada and the  33 Northwest Territories?  How well do these  34 characterizations fit with the statements made by  35 representatives of the Crown on the occasion of those  36 treaties and with the honour of the Crown?  37 And the appellants say, and come to no surprise to  38 your lordships, that the trial judge's  39 characterizations do not fit with this historical  40 matrix.  But that, of course, is only the beginning of  41 your lordships' inquiry.  42 The second part of that inquiry is whether the  43 trial judge's characterizations as to the nature of  44 aboriginal rights accord with those established by  45 courts of law.  And we say that the trial judge's  46 characterizations fit no better with the  47 jurisprudential matrix than they do with the 185  Submissions by Mr. Jackson  1 historical.  2 And of course it is to that jurisprudential matrix  3 and case law I would now turn your lordships in Tab 3.  4 I have another single page, and this will be the  5 last of my speaking notes for the rest of the week,  6 which should go into Tab 3.  I have refrained from  7 giving it to your lordships before so as not to impose  8 too much confusion in your papers.  It's a single page  9 which I would ask Madam Registrar to give to your  10 lordships.  I would propose, my lords, that the notes  11 I just addressed your lordships on go in at the very  12 beginning of Tab 3.  The page I have just handed up  13 should go in at page 56, opposite page 56 of the main  14 factum.  15 We are going to use our software here, my lords,  16 to put something on the screen.  Ms. Mandell and  17 myself and most of the legal team are probably the  18 most illiterate in terms of computers, which is  19 somewhat of a paradox that we are the ones first to it  20 try out.  21 At page -- I'll start with paragraph 1 of Tab 3.  22 And the first part of Tab 3, my lords, addresses the  23 errors of law of the trial judge as to the nature of  24 aboriginal rights.  At page 346 of his lordship's  25 judgment, Chief Justice McEachern stated:  26  27 "I can only conclude on the existing authorities  28 that St. Catherine's Milling is powerful  29 authority, binding on me, that aboriginal  30 rights, arising by operation of law, are  31 non-proprietary rights of occupation for  32 residence and aboriginal user which are  33 extinguishable at the pleasure of the  34 Sovereign."  35  36 And, my lord, the appellants say with great  37 respect that every element of the quoted passage is in  38 error.  39 LAMBERT, J.A.:  May I interrupt you, since we are just starting  40 on this.  It says at the top, as I see it, "91-3-WWR,  41 338", and yet the page that we have is 346.  Do I not  42 understand what the coding system is at the top?  43 MR. JACKSON:  It is definitely 346, my lord, in front of me, so  4 4 I don't know.  45  LAMBERT, J.A.:  That's the beginning of the section of the  4 6 judgment.  47  MACFARLANE, J.A.:  I understand the judgment is divided, and 186  Submissions by Mr. Jackson  1 there is four parts, and this part begins at page 338  2 on the computer.  3 LAMBERT, J.A.:  338 has a heading to the authorities.  So I  4 suppose that explains why.  All right.  That answers  5 my question.  Thank you.  6 MR. JACKSON:  Your lordship's concerns and comments have given  7 me added reinforcement not to employ this technology  8 in my submissions, perhaps, for the balance --  9 LAMBERT, J.A.:  Well, I wouldn't like to discourage you.  I was  10 only asking you questions that would enable me to go  11 with you in using the technology.  12 MR. JACKSON:  I appreciate that.  Yes.  13 My lords, we say that aboriginal rights are not  14 non-proprietary rights of occupation for residence and  15 aboriginal user.  And in my speaking notes I say that  16 the question whether the aboriginal rights are  17 proprietary rights in the sense of being an interest  18 in land is of legal significance, of great legal  19 significance.  Proprietary rights have always been  20 accorded more protection in the common law than mere  21 personal rights.  The secured creditor is preferred to  22 the unsecured, the right in rem is preferred to that  23 which is in personam.  The importance of proprietary  24 rights is not limited to the priority accorded them.  25 It is also reflected in the degree of formality and  26 solemnity attached to their creation and transfer and  27 the constraints on the state in relation to their  28 infringement.  That should be infringement, my lords.  29 And expropriation.  30 To characterize a right, therefore, as  31 non-proprietary carries in its train the subordination  32 of that right to competing proprietary interests and  33 contemplates that the right may be lost or  34 extinguished without notice, by implication and  35 without compensation.  36 By treating aboriginal title as something other  37 than an interest in land, it is possible, to use the  38 words of the intervenor, Coast Salish Nation, "To  39 treat aboriginal title as a mere shadow on the Crown's  40 title, surviving only at the pleasure of the Crown."  41 And we say, my lords, that contrary to the  42 conclusions of the trial judge, aboriginal title is  43 one of the bundle of compendium of aboriginal rights,  44 are sui generis and proprietary.  45 And at paragraphs 5 to 11 of the factum I have set  4 6 out a number of statements made by our Supreme Court  47 of Canada characterizing the nature of aboriginal 187  Submissions by Mr. Jackson  1 title.  And what I propose to do, my lords, is to take  2 you to the decision of CP and Paul which referentially  3 incorporates a number of these statements, and I think  4 it's a good place to start in terms of assessing the  5 characterization of the trial judge that aboriginal  6 rights are non-proprietary rights.  7 And, my lords, CP and Paul can be found in the  8 books of authorities in Volume A-l at Tab 14.  I will  9 ask your lordships to turn to that.  10 My lords, in this decision the court was faced  11 between a conflict between an interest claimed by CP  12 Rail in a right-of-way over an Indian reserve and the  13 interest of the Indian reserve, of the Indian band in  14 that reserve.  15 The court first characterized what the nature of  16 the right was that the railway had.  And the railway  17 had acquired by a succession of transactions and  18 released a right to the right-of-way.  The  19 right-of-way originally had been acquired as a result  20 of pre-confederation legislation which gave CP's  21 predecessor in title the right to take such lands as  22 was necessary for the purpose of construction of the  23 railway.  The court had to construe and interpret what  24 was the nature of CP's right in the right-of-way.  And  25 you will see at page 498 of the judgment, Madam  26 Justice Wilson, speaking for a unanimous court,  27 characterized the right of the railway.  28 TAGGART, J.A.:  Page again?  29 MR. JACKSON:  498.  The very last page.  30 LAMBERT, J.A.:  We didn't get the start of this case in the  31 authorities.  The note I made last time it was  32 referred to was that it was a judgment "by the court",  33 by which I understood to mean that it wasn't  34 attributable to any of the judges.  I take it my  35 understanding is wrong.  36 MR. JACKSON:  I think your lordship's — it is by the court,  37 yes.  38 LAMBERT, J.A.:  It seems that I am the only one who doesn't have  39 the first pages of this case.  40 MR. JACKSON:  My lord, it does say "by the court", and I am not  41 sure where my knowledge that it was penned by Madam  42 Justice Wilson comes from.  43 LAMBERT, J.A.:  We'll just assume it's wrong.  44 MR. JACKSON:  I'll make that assumption, my lord.  45 MACFARLANE, J.A.:  You don't want us to draw that inference.  46 MR. JACKSON: No, my lord.  But I believe I am not the first  47 person to have perpetrated that on your lordships.  I 188  Submissions by Mr. Jackson  1 think somewhere else in submissions made before your  2 lordships in the last several months that attribution  3 has been made.  I don't know whether that's the source  4 of my own.  5 But at page 498, as I say, in characterizing what  6 right CP Rail had, the court says:  7  8 "In the opinion of this court, the proper  9 construction to be drawn is that the Woodstock  10                   Railway Company ...",  11  12 The original company.  13  14 "... obtained the permission of the Crown to  15 take and hold the land over which the railway  16 passed including the eastern crossing.  The  17 right to take and hold land for the  18 construction and operation of a railway seems  19 to us to involve the grant of some kind of  20 proprietary interest in the land."  21  22 So the railway had a proprietary interest.  23 At page 499, the court in the third paragraph  24 beginning "it appears", characterized that proprietary  25 interest as a statutory right-of-way, that is an  26 easement.  27 The court then had to characterize what was the  28 nature of the Indian interest, and whether it had been  29 extinguished as a result of the grant of the  30 right-of-way to the railway.  31 Now, the court determined that for the purposes of  32 the case it was not necessary to make a decision as to  33 whether or not the Indian title had been extinguished.  34 The court endorsed the test of clear and plain  35 intention, which had been articulated by Mr. Justice  36 La Forest, as he then was in the court below, that  37 said that it didn't have to address that issue for the  38 purposes of deciding whether injunction should go.  39 And we'll be coming back to CP and Paul in the context  40 of the test for extinguishment.  41 But having made that point that it wasn't  42 necessary to determine whether the right had been  43 extinguished, the court did go into an extensive  44 discussion as to what was the nature of the interest  45 of the Indian band in its lands.  And it's that  46 discussion, my lords, I want to focus your lordships'  47 attention to. 189  Submissions by Mr. Jackson  1 At page 504 at the very top the court recited the  2 statement of Mr. Justice Dickson in Guerin, well-known  3 to your lordships:  4  5 "It does not matter, in my opinion, that the  6 present case is concerned with the interest of  7 an Indian band in a reserve rather than with  8 unrecognized aboriginal title in traditional  9 tribal lands.  The Indian interest in the land  10 is the same in both cases."  11  12 And then in the next paragraph the court goes on.  13  14 "Before turning to the jurisprudence on what  15 must be done in order to extinguish the Indian  16 interest in land, the exact nature of that  17 interest must be considered.  Courts have  18 generally taken as their starting point the  19 case of St. Catherine's Milling in which Indian  20 title was described as a 'personal and  21 usufructuary right'.  This has at times been  22 interpreted as meaning that Indian title is  23 merely a personal right which cannot be  24 elevated to the status of a proprietary  25 interest so as to compete on an equal footing  26 with other proprietary interests.  However, we  27 are of the opinion that the right was  28 characterized as purely personal for the sole  29 purpose of emphasizing its generally  30 inalienable nature; it could not be  31 transferred, sold or surrendered to anyone  32 other than the Crown."  33  34 My lords, pausing there, we say that in that  35 passage the Supreme Court has in clear terms  36 repudiated the idea that aboriginal title is a  37 personal right in juxtaposition to a proprietary  38 right.  It rejects the proposition that aboriginal  39 title cannot be elevated to the status of a  40 proprietary interest.  And yet the trial judge took  41 St. Catherine's to say exactly that.  We say that the  42 Paul decision stands as clear authority, binding on  43 His Lordship, to paraphrase his lordship's own words,  44 that aboriginal title is proprietary and not personal.  45 Later in his judgment, my lords, the trial judge,  46 and at page 383.  I would turn your lordships to page  47 383 of his lordship's judgment.  I'll perhaps just 190  Submissions by Mr. Jackson  1 read this to your lordships.  In relation to St.  2 Catherine's Milling the trial judge says at the very  3 bottom of page 383:  4  5 "It seems to me, with respect, that the Privy  6 Council ..."  7  8 In St. Catherine's Milling.  9  10 "... got it right when it described the  11 aboriginal interest as a personal right rather  12 than a proprietary one.  13  14 With all respect to the trial judge, my lords, we  15 say he got it wrong in suggesting that.  Paul stands  16 in unequivocal terms for the rejection of that  17 proposition.  It says, and I'll repeat:  18  19 "This has at times been interpreted as meaning  20 that Indian title is merely a personal right  21 which cannot be elevated to the status of a  22 proprietary interest so as to compete on an  23 equal footing with other proprietary interests.  24 However, we are of the opinion that the right  25 was characterized as purely personal for the  26 sole purpose of emphasizing its generally  27 inalienable nature; it could not be  28 transferred, sold or surrendered to anyone  2 9 other than the Crown."  30  31 In Paul, my lords, the court goes on in relation  32 to what "personal" means to say:  33  34 "That this too was recognized as early as 1921  35 ..."  36  37  HUTCHEON, J.A.:  I think it should be "so" there.  3 8  MR. JACKSON:  39  40 "This was so recognized as early as 1921, where  41 Mr. Justice Duff speaking for the Privy  42 Council, said, 'that the right recognized by  43 the statute is a usufructuary right only and a  44 personal right in the sense that it is in its  45 nature inalienable except by surrender to the  46 Crown'.  This feature of inalienability was  47 adopted as a protective measure for the Indian 191  Submissions by Mr. Jackson  1 population lest they be persuaded into  2 improvident transactions.  In Guerin this court  3 recognized that the Crown has a fiduciary  4 obligation to the Indians with a respect to the  5 lands it holds for them.  On the nature of  6 Indian interest, Madam Justice Wilson noted  7 that:  8 'The bands do not have the fee in their lands;  9 their interest is a limited one.  But it is an  10 interest which cannot be derogated from or  11 interfered with by the Crown's utilization of  12 the land for purposes incompatible with the  13 Indian title unless, of course, the Indians  14 agree."  15  16 The same case Mr. Justice Dickson elaborated on  17 the nature of Indian title.  18  19 "It appears to me that there is no real conflict  20 between the cases which characterize Indian  21 title as a beneficial interest of some sort,  22 and those which characterize it a personal,  23 usufructuary right.  Any apparent inconsistency  24 derives from the fact that in describing what  25 constitutes a unique interest in land the  26 courts have almost inevitably found themselves  27 applying a somewhat inappropriate terminology  28 drawn from property law.  There is a core of  29 truth in the way that each of the two lines of  30 authority has described native title, but an  31 appearance of conflict has none the less arisen  32 because in neither case is the categorization  33 quite accurate.  34 Indians have a legal right to occupy and  35 possess certain lands, the ultimate title to  36 which is in the Crown.  While their interest  37 does not, strictly speaking, amount to  38 beneficial ownership, neither is its nature  39 completely exhausted by the concept of a  40 personal right.  It is true that the sui  41 generis interest which the Indians have in the  42 land is personal in the sense that it cannot be  43 transferred to a grantee, but it is also true,  44 as will presently appear, that the interest  45 gives rise upon surrender to a distinctive  46 fiduciary obligation on the part of the Crown  47 to deal with the land for the benefit of the 192  Submissions by Mr. Jackson  1 surrendering Indians."  2  3 The lordships then cite from the judgment of Mr.  4 Justice Judson in Calder, which they characterize as  5 being helpful comments.  6  7 "... when the settlers came the Indians were  8 there, organized in societies and occupying the  9 land as their forefathers had done for  10 centuries.  This is what Indian title means and  11 it does not help one in the solution of this  12 problem to call it a 'personal or usufructuary  13 right'."  14  15 The court then comes to its conclusion.  16  17 "The inescapable conclusion from the court's  18 analysis of Indian title up to this point is  19 that the Indian interest in land is truly sui  20 generis.  It is more than the right to  21 enjoyment and occupancy although, as the Chief  22 Justice pointed out in Guerin, it is difficult  23 to describe what more in traditional property  24 law terminology."  25  26 My lords, when one goes back to the trial judge's  27 characterization that aboriginal rights are  28 non-proprietary rights of occupation for residence and  29 aboriginal user, we say they cannot stand four-square  30 with the characterization of the court in CP and Paul.  31 My lords, we also say that they cannot stand in  32 accord with your lordships' own statements in Pasco.  33 And I would take your lordships to that decision which  34 can be found also in Volume A-l at Tab 13.  35 HUTCHEON, J.A.:  Is this mentioned in the factum?  I don't see  36 it.  37 MR. JACKSON:  It's not, my lord, no.  In paragraphs 4 to 11 we  38 were seeking to referentially incorporate, as it were,  39 Supreme Court of Canada judgments, and inexcusably we  40 passed over your lordships' judgment in Pasco.  41 MACFARLANE, J.A.:  What tab is it?  42 MR. JACKSON:  It's Tab 13.  43 MACFARLANE, J.A.:  Well, Supreme Court of Canada passed over it  44 too.   They didn't adopt what I had said in Pasco.  45 MR. JACKSON:  My Lord, on this point, nothing the Supreme Court  46 said which --  47 MACFARLANE, J.A.:  I didn't say it was wrong.  They just didn't 193  Submissions by Mr. Jackson  1 adopt it.  I think they were saying it's too early to  2 say.  3 MR. JACKSON:  The time is shortly coming when it will be time,  4 my lords, no doubt.  5 MACFARLANE, J.A.:  Yes.  6 MR. JACKSON:  Your lordships and My Lord Mr. Justice Macfarlane,  7 in characterizing aboriginal title, said at page 410  8 in the first full paragraph beginning "Similar  9 considerations":  10  11 "Aboriginal rights are said to constitute 'a  12 unique interest in land'.  While the Crown may  13 claim title to the land the Indians have a  14 different interest.  It involves the use,  15 enjoyment or profitable possession (of  16 something)."  17  18 And "profitable possession", my lords, we say is  19 in accord with the way the Supreme Court of Canada  20 expressed itself in Pasco.  Something more than a  21 right to enjoyment.  22 In the context of what "profitable possession"  23 might mean, in terms of what is it that is more than  24 simply possession and enjoyment, I would turn your  25 lordships to the judgment of Mr. Justice Hall in  26 Calder, which had something to say about this.  27 And that's to be found in Tab A-3 of the  28 authorities at Tab 64.  And I would ask your lordships  29 to have that before you.  It's Tab A-3.  Volume A-3,  30 Tab 64.  31 Your lordships are at Tab 64.  I would ask your  32 lordships to turn to page 173 of Mr. Justice Hall's  33 judgment.  34 Have I given your lordships the wrong reference?  35 HUTCHEON, J.A.:  Could I have the page again.  36 MR. JACKSON:  Yes.  Page 173.  Three lines up from the bottom of  37 the page where Mr. Justice Hall, in characterizing the  38 nature of the claim placed upon aboriginal title,  39 says:  40  41 "This is not a claim to title in fee but is in  42 the nature of an equitable title or interest, a  43 usufructuary right and a right to occupy the  44 lands and to enjoy the fruits of the soil, the  45 forest and of the rivers and the streams which  4 6 does not in any way deny the Crown's paramount  47 title as it is recognized by the law of 194  Submissions by Mr. Jackson  1 nations."  2  3 Also, my lordships, if you would turn again to the  4 judgment of Mr. Justice Hall at page 189, also in the  5 context of profitable possession and what that  6 connotes in terms of the nature of the right.  7 At the very bottom of page 189 Mr. Justice Hall  8 had just been reciting the colloquy between Mr. Wilson  9 Duff and the trial judge as to the nature of the  10 Nishga right, and the evidence which was given by  11 Wilson Duff as to the indices of ownership at common  12 law.  And this is a point we'll be referring to or  13 coming back to next week.  14 But in that context Mr. Justice Hall said:  15  16 "In enumerating the indicia of ownership the  17 trial judge overlooked that possession is of  18 itself proof of ownership.  Prima facie,  19 therefore, the Nishgas are the owners of the  20 lands that have been in their possession from  21 time immemorial and therefore the burden of  22 establishing that their right has been  23 extinguished rests squarely on the respondent."  24  25 LAMBERT, J.A.:  What page is that?  26 MR. JACKSON:  Page 189 at the bottom.  "Possession is of itself  27 proof of ownership".  28 And the last reference I want to take your  29 lordships to, and this gets us back into our factum,  30 is at paragraph 11 of our factum, which is a reference  31 to the Sioui decision.  32 So we have -- it's more than a right of enjoyment  33 and possession.  Your Lordship's statement is  34 profitable possession, and Mr. Justice Hall's  35 statements that it's the right to enjoy the fruits of  36 the soil, the forest, the streams, and possession is  37 itself indication and indicative of ownership.  And  38 then we have Mr. Justice Lamer in Sioui, speaking for  39 a unanimous court, saying, and I just set out the  40 passage at paragraph 11 --  41 TAGGART, J.A.:  Sioui is at?  Which volume and tab?  42 MR. JACKSON:  Sioui is set out in Volume A-2 at Tab 39.  I could  43 take your lordships to that.  It's just a single  44 sentence.  45 TAGGART, J.A.:  It's okay.  46 MR. JACKSON:  But the British Crown recognized that the Indians  47 had certain ownership rights over their land. 195  Submissions by Mr. Jackson  1 Now, my lords, my point in taking you through  2 these passages is to make this proposition:  That the  3 trial judge in characterizing aboriginal title and  4 aboriginal rights as non-proprietary is not consistent  5 with these decisions of this court and of the Supreme  6 Court of Canada as it has been expressed in  7 unequivocable terms in Guerin, in CP and Paul and in  8 Sioui.  Aboriginal rights are an interest in land, sui  9 generis, and they are proprietary.  10 Now, that, of course, is the beginning of the  11 inquiry.  But we say at the very beginning of his  12 inquiry the trial judge got it wrong, and we say that  13 that carries in its train further consequences and led  14 to further errors as to how he characterized their  15 rights and the manner in which he assessed evidence  16 which was not consistent with that characterization.  17 TAGGART, J.A.:  These cases, especially in recent times, used  18 the term sui generis as a shorthand description of the  19 interests that we are talking about here.  Has anybody  20 ever discussed the meaning to be given to sui generis  21 is unique and appropriate term, one of a kind?  22 MR. JACKSON:  There's been discussion in the academic  23 literature, my lord, although I can't say its come to  24 any consensus.  I think it reflects the court's  25 difficulty in giving a precise characterization.  26 TAGGART, J.A.:  Or you hide behind that when you don't know.  27 MR. JACKSON:  I think it somewhat begs the issue rather than  28 resolves the issue.  And what we'll be saying, my  29 lord, is that sui generis properly construed, not only  30 to make the point, but one should not be trapped by  31 language in looking at how ownership is defined or is  32 not defined according to the common law, but also in  33 understanding.  And Sparrow, I think, makes this one  34 quite clearly.  The courts have to make use of their  35 legal imagination in terms of striving for an  36 understanding of what more is it that aboriginal  37 rights is which is not expressable in conventional,  38 proper terms.  39 What we say, my lord, is that the clue, the  40 secret, although it's hardly a secret, the appropriate  41 judicial inquiry in order to understand the  42 distinctive nature of any Indian Nation's aboriginal  43 rights is to look at their society; is to look at the  44 nature of the rights accorded and recognized within  45 that society; the nature of their system; and out of  46 that understanding on the ground in the context of a  47 particular aboriginal nature one can come to a 196  Submissions by Mr. Jackson  1 characterization of what those rights are.  2 That is in fact the inquiry we undertook for the  3 trial judge; to characterize the rights initially as  4 sui generis but of an a proprietary nature, then to  5 look at the particular context of the Gitksan and  6 Wet'suwet'en's aboriginal rights, the histories of  7 their communities, the nature of the rights which were  8 mutually recognized amongst them, and in light of that  9 characterize that right.  And we say so characterized  10 it's a right of ownership.  Not a right which denies  11 the underlying title of the Crown, properly  12 characterized that right contains the rights of  13 jurisdiction.  Again, not so as to deny the  14 sovereignty of Canada or British Columbia acting  15 within its constitution competence.  16 And so sui generis in the air tells us very little  17 beyond the fact to avoid the trap of terminology.  18 LAMBERT, J.A.:  You go back to pre-contact to look at how the  19 Indians treated the land in that area, and that  20 defines the sui generis right that those Indians have  21 in that area?  22 MR. JACKSON:  Yes, my lord.  23 LAMBERT, J.A.:  So the nature of Indian title may be different  24 for different bands and in different areas?  25 MR. JACKSON:  Yes, my lord, in terms of its precise incidence  26 and the contours of the interest.  27 LAMBERT, J.A.:  So all Indian title is sui generis in the sense  28 that it forms a class in which nothing else appears  29 but Indian title, but even within that class there  30 are, as I understand it, different kinds of Indian  31 title, depending on the use that was made of the land  32 before contact?  33 MR. JACKSON:  Yes, my lord.  34 LAMBERT, J.A.  35 TAGGART, J.A.  36 THE REGISTRAR  Thank you.  All right.  We'll take the morning break now.  Order in court.  Court stands adjourned.  37  38 MORNING RECESS  39  40 THE REGISTRAR:  Order in court.  41 TAGGART, J.A.:  Yes, Mr. Jackson.  42 MR. JACKSON:  My lords, before continuing, I just wanted to  43 revert back to a question my lord Mr. Justice Lambert  44 addressed me before the break, in terms of the  45 distinction between a general characterization of  46 aboriginal title and the particular characterization  47 of the appellants' aboriginal rights based upon the 197  Submissions by Mr. Jackson  1 evidence in this case.  2 As I understand your lordship, you made a point  3 that in looking at the distinctive sui generis rights  4 of the appellants it would be appropriate to look at  5 the particular use the appellants made of their land.  6 That is not entirely correct in terms of our argument.  7 We do not say that one determines the distinctive sui  8 generis rights of the appellants simply by looking at  9 what use they made of the land, in the sense of what  10 lands did they use for hunting, what lands did they  11 use for berry picking, what lands did they use for  12 fishing.  What we say is one looks at the pre-existing  13 rights of the Gitksan and Wet'suwet'en system and what  14 rights did they recognize amongst themselves in terms  15 of lands.  16 And as authority for that, my lords, I would refer  17 the court to the passage this court itself cited in  18 Pasco in referring to Mr. Justice Mahoney's judgment  19 in Baker Lake.  And I'll just read it to your  20 lordships rather than turning your lordships to the  21 judgment.  Where Mr. Justice Macfarlane, in citing  22 Baker Lake, said, and this was in relation to the  23 importance of their being an organized society at the  24 time of the assertion of sovereignty:  25  26 "It is apparent that the relevant sophistication  27 of the organization of any society ..."  28  29 This is at page 411 of Pasco.  30  31 "It is apparent that the relative sophistication  32 of the organization of any society will be a  33 function of the needs of its members and the  34 demands they make of it.  While the existence  35 of an organized society is a prerequisite for  36 the existence of an aboriginal title, there  37 appears to be no valid reason to demand proof  38 of the existence of a society more elaborately  39 structured than is necessary to ...  "  40  41 And these are the operative words:  42  43 "... demonstrate that there existed among the  44 aboriginees a recognition of the claim rights  45 sufficient to define their recognition by the  46 common law upon its advent in the territory."  47 198  Submissions by Mr. Jackson  1 And that's a passage we'll be coming back to, and  2 I will be developing that point in considerable  3 length, but I just wanted your lordships to appreciate  4 that.  5 LAMBERT, J.A.:  Give me the page number again.  6 MR. JACKSON:  Yes, my lord.  It's the bottom of page 411, last  7 paragraph, and the first paragraph of page 412.  8 I am now at paragraph 13 of my factum, my lords.  9 And I have to make a correction here in paragraph 13.  10 The page references which you find there are to the  11 pages of the first edition, if I might call it so, of  12 his lordship's reasons, the big volume, and the actual  13 pages for the reasons in the Western Weekly, starting  14 in the first line, page 110 should be page 246.  And  15 then in the second line --  16 TAGGART, J.A.:  Hold on.  17 MR. JACKSON:  I apologize for this, my lords.  I just noticed  18 it.  19 TAGGART, J.A.:  Where in your factum?  20 MR. JACKSON:  Paragraph 13.  21 TAGGART, J.A.:  All right.  22 MR. JACKSON:  The first line of paragraph 13, page 110, should  23 be page 246.  The second line 193 is 345.  194 should  24 be 346.  197 is 350.  224 is 386.  229 is 394.  234 is  25 398.  And 235 is 399.  26 My lords, in those pages the trial judge  27 characterized Indian title as being held at the option  28 or pleasure of the Crown, and he held furthermore that  29 those rights were extinguishable at the pleasure of  30 the Crown.  And it is the appellants' contention that  31 in so holding he erred.  And we say that he erred  32 because characterizing aboriginal title as existing at  33 the pleasure of the Crown, we say, is contrary to the  34 fiduciary obligations undertaken by the Crown and  35 affirmed by the Supreme Court of Canada.  36 Quite simply our point is that in the context of  37 cases like Guerin, in the context of cases like  38 Sparrow, it is simply inappropriate and an inaccurate  39 characterization to say that aboriginal title exists  40 at the option or the pleasure of the Crown.  The whole  41 gravamen of the judgments in Sparrow and in Guerin is  42 to say that aboriginal title carries with it certain  43 protectorate fiduciary obligations.  The Crown  44 undertakes certain obligations when it deals with  45 aboriginal title, and they are legally enforceable.  46 Mr. Harvey, in the course of Dick and Alphonse, in  47 addressing some submissions made by Mr. Whitehall as 199  Submissions by Mr. Jackson  1 to the nature of aboriginal title, and this question  2 of whether they exist at the pleasure of the Crown,  3 said to your lordships:  4  5 "If the aboriginal title of the Musqueam Band  6 existed at the pleasure of the Crown",  7  8 And that was an appropriate way to characterize  9 the title.  10  11 "When they went to court seeking damages for  12 what they said was a breach of the Crown's  13 fiduciary obligations in entering into a  14 surrender and release of their lands in  15 appropriate terms, the answer would have been  16 'There is no right to sue the Crown.  The  17 rights exist at the pleasure of the Crown and  18 give rise to no legally enforceable duties.'"  19  20 Indeed, that was the argument of the federal  21 government.  As the court in Sparrow itself noted, as  22 late as the Guerin decision the federal government  23 came to court and said we cannot be sued for a breach  24 of these kinds of obligations, because they are trusts  25 or obligations of a political nature, trusts of a  26 higher nature.  They give rise to no legally  27 enforceable rights.  And of course that view was  28 unequivocably rejected by the Supreme Court of Canada.  29 Based upon the nature of aboriginal title, it was held  30 to give rise to fiduciary obligations, those fiduciary  31 obligations are enforceable in a court of law, they  32 are justiciable and they are inconsistent with a  33 characterization of aboriginal title existing at the  34 pleasure of the Crown.  35 Of course we'll be coming back to the whole  36 question of the proper tests for extinguishment, but  37 we say as a first principle, in the same way as to say  38 that aboriginal rights are non-proprietary, is  39 inconsistent with the true nature of those rights as  40 affirmed in recent Supreme Court of Canada decisions.  41 So we say also to characterize aboriginal title as  42 rights which exist at the pleasure of the Crown is an  43 inappropriate way to describe the true nature of those  44 rights as legal rights enforceable against the Crown.  45 I'll move now to paragraph 19 of my factum.  We  46 say here that in his lordship's analysis of the legal  47 nature and scope of aboriginal rights His Lordship 200  Submissions by Mr. Jackson  1 made two principal errors, the first being one of  2 commission, the second of omission.  3 In relation to the first errors, we say that he  4 erred in his reliance upon the St. Catherine's  5 Millings case.  According to the trial judge, the  6 decision of the Privy Council in St. Catherine's  7 Millings was a case "of fundamental importance"; "too  8 well established for me to challenge or question";  9 powerful authority, binding on me"; and "the leading  10 authority on aboriginal rights."  11 We say that St. Catherine's Millings is not the  12 leading case on the nature of aboriginal rights.  13 Indeed the Privy Council expressly declined to  14 pronounce in any definitive way upon the nature of the  15 Indian interest in land.  16 And to the extent the St. Catherine's Millings did  17 define aboriginal title in the context of the  18 particular issue before it, we say that the definition  19 and conceptual analysis of their lordship's judgment,  20 as reflected in the opinion of Lord Watson, is opposed  21 to the conclusions of the trial judge that aboriginal  22 rights are non-proprietary rights of occupation and  23 user.  24 That's the first set of errors we say the trial  2 5 judge made.  26 The second set of errors we say, the errors of  27 omission, is that His Lordship ought not to have  28 rejected the foundation cases, the foundation  29 principles established in what we referred to as the  30 "Marshall judgments".  That is a series of judgments  31 handed down by the court under the leadership of Chief  32 Justice John Marshall in the 1820's and 1830's, which  33 we say have provided guide-posts for Canadian courts,  34 and which the trial judge inappropriately rejected as  35 being of little relevance to a Canadian discussion and  36 analysis of the nature and scope of aboriginal rights.  37 I'll be dealing with those two issues separately.  38 I first want to get to the question of the trial  39 judge's misconstruction and misapplicaton of the St.  40 Catherine's Millings case.  41 In many ways that case was seen by the trial judge  42 as the loadstar in the jurisprudential firmament which  43 bound him inextricably to come to certain conclusions  44 regarding the nature of aboriginal rights.  And we  45 say, with respect to the trial judge, that he  46 misconstrued the true import of what St. Catherine's  47 Millings said and the language used in that case. 201  Submissions by Mr. Jackson  1 In paragraph 25 I make the point that the trial  2 judge relied upon St. Catherine's Millings for the  3 principal proposition that Indian rights to lands are  4 non-proprietary, personal user rights.  5 We say that St. Catherine's Millings neither holds  6 nor supports an inference that the Indian interest in  7 land is a non-proprietary right of user.  8 I want to just go into the background of St.  9 Catherine's Millings a little, my lords.  It did hold  10 such importance for the trial judge's analysis that I  11 feel obligated to devote some attention to the  12 background to the case.  13 As your lordships have no doubt become aware, St.  14 Catherine's Millings was a dispute between Canada and  15 Ontario as to the legal effect of a cession of lands  16 in Treaty No. 3.  The treaty I talked about this  17 morning.  No aboriginal persons or their advocates  18 were before the court.  This case mirrors some of the  19 early decisions in the United States to the extent it  20 was a case in which aboriginal persons' rights were at  21 issue, but they were not themselves before the court.  22 When the federal government negotiated Treaty No.  23 3 in 1873, it acted on the assumption that the lands  24 which were being ceded were within the old Hudson's  25 Bay territories and had been transferred to Canada  26 under the transfer in 1869.  Acting upon that  27 assumption, and on the basis that as a result of the  28 surrender it now held unburdened title to the lands,  29 it made a grant to the St. Catherine's Millings lumber  3 0 company.  31 The Province of Ontario took the view that parts  32 of the lands of the Saulteaux Nation lay within its  33 provincial boundaries, and they took the position that  34 the treaty, to the extent it surrendered the Indian  35 interest, inured to the benefit of the Province of  36 Ontario in relation to those lands within its  37 provincial borders.  The question of what were the  38 borders of Ontario and whether some of these lands  39 were within it or not was itself the subject of  40 separate litigation, and ultimately that issue was  41 resolved by the Privy Council in 1884 in favour of  42 Ontario.  It was held that indeed some of those lands  43 lay within the boundaries of Ontario.  44 Thereafter the Province of Ontario, again on the  45 basis that it benefited therefore from the treaty with  46 the Saulteaux Nation for their cession of their lands,  47 sought to enjoin St. Catherine's Millings from cutting 202  Submissions by Mr. Jackson  1 pursuant to its federal permit on the basis that the  2 federal government had no rights to grant St.  3 Catherine's Millings.  The land didn't belong to the  4 federal government.  So ultimately the issue was who  5 benefited from an Indian cession under a treaty made  6 with Indian consent.  That's the matrix of the  7 decision.  8 It's important, my lords, to understand the  9 competing arguments which were made in this case.  The  10 counsel for the St. Catherine's Millings and initially  11 up until the case went to the Privy Council the  12 federal government was not a party.  The federal  13 government was later granted intervention status even  14 later than some of my friends sitting behind me.  They  15 were granted intervention status at the Privy Council  16 level.  17 The lumber company argued, and the federal  18 government joined in this argument when it became part  19 of the appeal at the Privy Council, that the Saulteaux  20 Nation, who negotiated Treaty No. 3, had absolute  21 rights to the land.  It seems remarkable, in light of  22 the Federal Crown's present position, but in 1887 the  23 federal government did argue that the aboriginal  24 interest was a complete, plenary proprietary interest,  25 allodial interest in the land, that that right was a  26 right which existed at common law.  27 Alternatively, that full plenary right had been  28 granted to the Indians as a result of the Royal  29 Proclamation of 1763.  But on either ground, whether  30 it was a matter of common law or as a matter of the  31 Proclamation, the Indians had a full title.  And the  32 federal government argued that when it negotiated  33 Treaty No. 3, it got what the Indians had.  They had  34 the whole box, they had the whole title, and the  35 federal government got it.  There was nothing left for  36 Ontario.  37 The alternative argument made by the lumber  38 company and the Federal Crown was that aboriginal  39 title was a burden on the underlying title of the  40 Crown; that because under Section 91 (24) the federal  41 government was given jurisdiction over Indians and  42 lands reserved for the Indians, that conferral of  43 legislative authority also gave with it a proprietary  44 interest in the lands.  The federal government had the  45 underlying title in all lands reserved to Indians  46 either as a matter of common law or as a matter of  47 Proclamation subject to an Indian title.  As a result 203  Submissions by Mr. Jackson  1 of the treaty the Indian title was lifted and the  2 federal government was left with its underlying title,  3 no burden.  That was the federal government's  4 alternative arguments.  5 The Province of Ontario's position as to the first  6 argument of the federal government and the logging  7 companies that the Indians had a full title,  8 proprietary interest, complete proprietary interest,  9 was that as a matter of law the Indians had no legal  10 rights to their lands whatsoever, either as a matter  11 of common law or under the Proclamation.  Counsel for  12 the Attorney General of the Ontario argued there is no  13 Indian title at law or in equity.  The claim of the  14 Indians is simply moral and no more.  They have no  15 legal or equitable state in the lands.  And therefore  16 the treaty in fact got nothing.  17 They argued that as a result of Section 109,  18 that's the section which provides that all lands  19 situate within the old provinces which are now  20 situated within the new provinces by confederation  21 belong or are owned by the Province subject to any  22 existing trusts or any interest other than that of the  23 Province.  Their argument was Ontario owns these lands  24 under Section 109 and there is no other interest.  25 Alternatively, if the Indian interest is a legal  26 interest, at most it's an interest other than that of  27 Ontario, and is a burden on the underlying title of  28 Ontario.  When the federal government negotiated the  29 treaty it unburdened that underlying title and it,  30 Ontario, not the federal government, got the full  31 beneficial interest and the entitlement to make grants  32 in the land.  33 So that essentially is the context in which the  34 case took place.  35 Now, on that issue the trial judge agreed with  36 Ontario that the Indians had no enforceable rights to  37 their land, however, he also agreed with the  38 alternative argument that even if they did, they were  39 rights other than that of the province, and the  40 underlying title lay with Ontario.  41 That view of the issue was affirmed by the Supreme  42 Court of Canada.  They said the underlying title to  43 lands possessed by Indians is in the Province -- it's  44 in the Crown initially -- it's in the Province by  45 virtue of Section 109 and the Indian interest is an  46 interest other than that of the Province.  And on that  47 basis Ontario was right in arguing that it got the 204  Submissions by Mr. Jackson  1 benefit of the Indian cession, not the federal  2 government.  3 So the only proposition for which St. Catherine's  4 Milling is authority, and I should say that view was  5 affirmed by the Privy Council that the beneficial --  6 beneficiary of the treaty was the Province of Ontario  7 because the underlying title to lands within Ontario  8 was with the Provincial Crown pursuant to Section 109  9 and not in the Federal Crown.  10 The only proposition for which St. Catherine's  11 Millings is authority is that which the case purported  12 to decide -- in paragraph 30 of my factum -- that is,  13 the beneficial interest in Indians lands, after the  14 surrender or cession of the Indian interest therein,  15 is in the provincial rather than the Federal Crown by  16 reason of Section 109.  That proposition is not in  17 issue in the present appeal.  18 In essence, St. Catherine's Millings is a  19 constitutional case as between the federal and  20 provincial government as to who gets the benefit of an  21 Indian treaty in relation to the underlying title and  22 the unburdening of that underlying title.  23 However, in the course of the judgments throughout  24 this litigation arguments were made regarding the true  25 nature of the aboriginal interest, and it's those  26 arguments to which I would turn your lordships,  27 because the trial judge in his analysis of St.  28 Catherine's Millings looked at, in particular before  29 looking at the judgment of the Privy Council, looked  30 at two lines of analysis as to the Indian title which  31 was set out in the judgments of the Supreme Court of  32 Canada.  He juxtaposed them, as indeed the appellants  33 did at trial, and His Lordship adopted the view of Mr.  34 Justice Taschereau as being a view which expressed  35 itself in terms much closer to the ultimate decision  36 of the Privy Council.  37 So I want to look at the two alternative analyses  38 as to the nature of aboriginal title as they were  39 discussed in the judgments in the Supreme Court of  4 0 Canada.  41 I would turn your lordships first to the judgment  42 of Mr. Justice Strong.  43 WALLACE, J.A.:  Are these in the tabs?  44 MR. JACKSON:  Yes, my lord.  St. Catherine's Millings in the  45 Supreme Court of Canada is in Volume A-27 at Tab 33.2.  46 TAGGART, J.A.:  It's not here.  47 MR. JACKSON:  I did inform Madam Registrar of that case. 205  Submissions by Mr. Jackson  1 TAGGART, J.A.:  Oh, well.  You've got a fair amount of  2 quoting --  3 MR. JACKSON:  I was going to ask your lordships' advice in this  4 regard in any event.  Passages from the judgments in  5 the Supreme Court of Canada are set out in a number of  6 places obviously in the judgment -- set in the  7 judgment of the Supreme Court of Canada itself.  8 Passages are also set out in our factum and also most  9 of the relevant passages are set out in the reasons.  10 Since your lordships don't have the judgment, what  11 I'll do is where I need a passage which is set out in  12 the reasons I'll take you there.  13 TAGGART, J.A.:  It's probably around somewhere, but we can get  14 by.  What's the tab number?  15 MR. JACKSON:  It's A-27, Tab 33.2.  16 HUTCHEON, J.A.:  That's the Supreme Court of Canada?  17 MR. JACKSON:  That's the Supreme Court of Canada.  The Privy  18 Council judgment is A-23, Tab 2.  19 TAGGART, J.A.:  A-23, Tab 2?  2 0 MR. JACKSON:  Yes.  21 TAGGART, J.A.:  We have that one.  22 MR. JACKSON:  Good.  23 TAGGART, J.A.:  Tab 33.2?  24 MR. JACKSON:  Yes.  I looked at it, my lord.  It's a sort of  25 subdivided tab.  I think your lordships, between the  26 combination of the factum and the trial reasons, I  27 think we can make do.  28 Turning first to the views of Mr. Justice Strong.  29 I'm going to read just a very short passage from the  30 actual trial judgment, because that's not set out in  31 his lordship's reasons.  It's just a paragraph, so if  32 your lordships just want to make a note, it's at page  33 608 of the decision of the Supreme Court of Canada.  34 Mr. Justice Strong had reviewed the judgments of  35 the Supreme Court of United States in the Marshall  36 decisions, and I'll be coming back to what His  37 Lordship said about the relevance of those decisions  38 later on.  But having done that, he addressed himself  39 to the question of what was the nature of the  40 aboriginal interest in lands, and he said at page 608:  41  42 "This title, though not perhaps acceptable of  43 any accurate legal definition in exact legal  44 terms, was one which nevertheless sufficed to  45 protect the Indians in the absolute use and  4 6 enjoyment of their lands while at the same time  47 they are incapacitated from making any valid 206  Submissions by Mr. Jackson  1 alienation otherwise than to the Crown itself  2 in whom the ultimate title was in accordance  3 with the English law of real property  4 considered as vested."  5  6 He then went on, and this is the passage which is  7 set out in paragraph 33 of our factum, and your  8 lordships might note it's also set out at page 341 to  9 342 of the reasons of the trial judge.  I'll read from  10 the factum.  Mr. Justice Strong, having made that  11 introductory comment, in effect a rather precedent  12 statement about the sui generis nature of aboriginal  13 title, then continued:  14  15 "It thus appears, that in the United States a  16 traditional policy derived from colonial times,  17 relative to the Indians and their lands has  18 ripened into well established rules of law, and  19 that the result is that the lands in the  20 possession of the Indians are, until  21 surrendered, treated as their rightful though  22 inalienable property, so far as the possession  23 and enjoyment are concerned; in other words,  24 that the dominium utile ...",  25  26 And I'll be coming back, my lords, to explain what  27 I understand these Latin terms to mean in the context  28 of the civil law.  29  30 "... In other words, that the dominium utile is  31 recognized as belonging to or reserved for the  32 Indians, though the dominium directum is  33 considered to be in the United States.  Then,  34 if this is so as regards Indian lands in the  35 United States, which have been preserved to the  36 Indians by the constant observance of a  37 particular rule of policy acknowledged by the  38 United States courts to have been originally  39 enforced by the Crown of Great Britain, how is  40 it possible to suppose that the law can, or  41 rather could have been, at the date of  42 confederation, in a state any less favourable  43 to the Indians whose lands were situated within  44 the dominion of the British Crown, the original  45 author of this beneficent doctrine so carefully  46 adhered to in the United States from the days  47 of colonial governments?  Therefore, when we 207  Submissions by Mr. Jackson  1 consider that with reference to Canada the  2 uniform practice has always been to recognize  3 the Indian title as one which could only be  4 dealt with by surrender to the Crown, I  5 maintain that if there had been an entire  6 absence of any written legislative act  7 ordaining this rule as an express positive law,  8 we ought, just as the United States courts have  9 done, to hold that it nevertheless existed as a  10 rule of the unwritten common law, which the  11 courts were bound to enforce as such, and  12 consequently, that the 24th sub-section of  13 section 91, as well as the 109th section and  14 the 5th sub-section of section 92 of the  15 British North America Act, must all be read and  16 construed upon the assumption that these  17 territorial rights of the Indians were strictly  18 legal rights which had to be taken into account  19 and dealt with in that distribution of property  20 and proprietary rights made upon confederation  21 between the federal and provincial governments.  22 To summarize these arguments, which appear  23 to me to possess great force, we find, that at  24 the date of confederation the Indians, by the  25 constant usage and practice of the Crown, were  26 considered to possess a certain proprietary  27 interest in the unsurrendered lands which they  28 occupied as hunting grounds; that this usage  29 had either ripened into a rule of the common  30 law as applicable to the American colonies, or  31 that such a rule had been derived from the law  32 of nations and had in this way been imported  33 into the colonial law as applied to Indian  34 Nations; that such property of the Indians was  35 usufructuary only and could not be alienated,  36 except by surrender to the Crown as the  37 ultimate owner of the soil."  38  39 My lords, I would pause at this point to make the  40 comment that in reading Mr. Justice Strong's  41 characterization of aboriginal rights, there is a  42 contemporary ring to it.  He characterized aboriginal  43 rights as pre-existing rights, as their rightful  44 though inalienable property as far as the enjoyment  45 and possession are concerned.  This is the language  46 employed by this court in Pasco, it's the language of  47 Guerin, it's the language of CP and Paul.  Mr. Justice 208  Submissions by Mr. Jackson  1 Strong was expressing himself in terms which are very  2 close to those which are the contemporary expression  3 of aboriginal rights in decisions of the Supreme Court  4 of Canada in the 1980's and the 1990's.  And I think  5 it's fair to say that that characterization has been  6 endorsed by our Supreme Court.  7 In Guerin Indians have a legal right to possess  8 certain lands, their pre-existing rights.  This is the  9 idiom, the language of Mr. Justice Strong as he  10 expressed it in his judgment in the Supreme Court in  11 St. Catherine's Millings.  12 In fact the only point upon which Mr. Justice  13 Strong descented in terms of the ultimate decision of  14 the Privy Council, was that in Mr. Justice Strong's  15 view the underlying title upon which the aboriginal  16 title is a burden was with the federal government.  17 The Privy Council agreed with the majority of the  18 Supreme Court that it was with the Province.  But we  19 will say that the actual analysis of the Supreme Court  20 in Mr. Justice Strong's language is very close to that  21 employed by Lord Watson and Privy Council.  It  22 contrasts, my lords, the views of Mr. Justice Strong  23 with those expressed by Mr. Justice Taschereau in his  2 4 judgment.  25 And I would at this point ask your lordships to go  26 to the reasons of the trial judge where he has set out  27 in some length the views of Mr. Justice Taschereau.  28 And your lordships can find them at page 343.  It's a  29 long passage, my lords, but I will take you through it  30 because it is of some importance because of the trial  31 judge's findings about Mr. Justice Taschereau's  32 position.  33 And as the trial judge points out at the bottom of  34 page 342, Mr. Justice Taschereau had taken the  35 position that the treaty making was an expedient  36 policy.  As he put it:  37  38 "... the King himself deemed it cheaper or wiser  39 to buy (their rights) than fight them, but that  40 was never construed as a recognition of their  41 right to any legal title whatsoever.  The fee  42 and the legal possession were in the King or  43 his grantees."  44  45 And then Mr. Justice Taschereau, having looked at  46 the Royal Proclamation, continues:  47 209  Submissions by Mr. Jackson  1 "Did the sovereign thereby divest himself of the  2 ownership of this territory?  I cannot adopt  3 that conclusion, nor can I see anything in that  4 Proclamation that gives to the Indians forever  5 the right in law to the possession of any lands  6 as against the Crown.  Their occupancy under  7 that document has been one by sufferance only.  8 Their possession has been, in law, the  9 possession of the Crown.  At any time before  10 confederation the Crown could have granted  11 these lands, or any of them, by letters patent,  12 and the grant would have transfered to the  13 grantee the plenum et utile, dominium, with the  14 right to maintain trespass, without entry,  15 against the Indians ...  This Proclamation of  16 1763 has not, consequently, in my opinion,  17 created a legal Indian title ...  18 It was further argued for the appellants  19 that the principles which have always guided  20 the Crown since the cession in its dealings  21 with the Indians amount to a recognition of  22 their title to a beneficiary interest in the  23 soil.  There is, in my opinion, no foundation  24 for this contention.  For obvious political  25 reasons, and motives of humanity and  26 benevolence, it has, no doubt, been the general  27 policy of the Crown, as it had been at the  28 times of the French authorities, to respect the  29 claims of the Indians.  But this, though it  30 unquestionably gives them a title to the  31 favourable consideration of the government,  32 does not give them any title in law, any title  33 that a court of justice can recognize as  34 against the Crown.  If the numerous quotations  35 on the subject furnished to us by appellants  36 from philosophers, publicists, economists and  37 historians, and from official reports and  38 despatches, must be interpreted as recognizing  39 a legal Indian title as against the Crown, all  40 I can say of these opinions is, that a careful  41 consideration of the question has led me to a  42 different conclusion.  43 The necessary deduction from such a doctrine  44 would be, that all progress of civilization and  45 developments in this country is and always has  46 been at the mercy of the Indian race.  Some of  47 the writers cited by the appellants, influenced 210  Submissions by Mr. Jackson  1 by sentimental and philanthropic  2 considerations, do not hesitate to go as far.  3 But legal and constitutional principles are in  4 direct antagonism with their theories.  The  5 Indians must in the future, every one concedes  6 it, be treated with the same consideration for  7 their just claims and demands that they have  8 received in the past, but, as in the past, it  9 will not be because of any legal obligation to  10 do so, but as a sacred political obligation, in  11 the execution of which the state must be free  12 from judicial control."  13  14 LAMBERT, J.A.:   And you say that Guerin at least is directly to  15 the contrary on that last sentence?  16 MR. JACKSON:  Yes, my lords, we say Guerin is directly to the  17 contrary in most every part of that statement.  18 Clearly Guerin establishes that aboriginal title is a  19 legal interest in land.  It's a legal right to possess  20 certain lands.  That's what the Supreme Court says.  21 Mr. Justice Taschereau says they have no legal claim  22 as against the Crown, and Mr. Justice Taschereau says  23 that the Crown has to be guided by what he refers to  24 as a sacred political obligation.  That is in fact the  25 federal government's argument in Guerin, that the  26 obligation of the Crown was a political trust which  27 was not legally enforceable.  28 So the underpinnings of Mr. Justice Taschereau's  29 analysis of aboriginal title have in fact been  30 completely repudiated by the Supreme Court of Canada  31 in Guerin.  In the same way as we say that Mr. Justice  32 Strong's views have been affirmed, so we say the views  33 of Mr. Justice Taschereau have been repudiated.  34 Now, my lords, in relation to these competing  35 analyses, the trial judge characterized Mr. Justice  36 Strong's judgment as extreme views.  And you'll find  37 that reference at page 345 where he says:  38  39 "The extreme views of Strong and Gwynne were  40 fully argued by counsel for Canada but not  41 accepted in the Privy Council."  42  43 We say, my lord, that to characterize Mr. Justice  44 Strong's analysis as extreme is a mischaracterization.  45 Indeed, as I have said, it not only accords with the  4 6 judgments of our contemporary Supreme Court of Canada  47 but, as we know, hearafter show it is directly in 211  Submissions by Mr. Jackson  1 accord with the judgments of the Marshall decisions  2 upon which Mr. Justice Dickson explicitly relies in  3 Guerin and in subsequent decisions of His Lordship.  4 In addition to characterizing Mr. Justice Strong's  5 views as extreme, His Lordship also took the position  6 that the Privy Council in its judgment analyzed the  7 nature of Indian title in terms which were far closer  8 to those of Mr. Justice Taschereau than they were to  9 Mr. Justice Strong.  And we say that there too the  10 trial judge was wrong in so attributing that  11 conclusion to the Privy Council.  We in fact say that  12 the Privy Council's judgment is expressed in terms  13 which are directly analogous to those of Mr. Justice  14 Strong, the only difference being that their lordships  15 at the Privy Council felt that the -- held that the  16 underlying title was in the Crown federal, not in the  17 Crown provincial.  18 And what I would like to do is to now turn to the  19 judgment of the Privy Council in St. Catherine's  20 Millings.  And your lordships, as I say, can find that  21 judgment at Volume A-23 at Tab 2.  22 The first thing to note, my lords, is that having  23 heard the very elaborate argument regarding the nature  24 of aboriginal title, the Privy Council expressly  25 declined to rule definitively on that issue.  And  26 paragraph 36 of my factum I have set out what their  27 lordships said about this issue, but perhaps I'll take  28 your lordships directly to the judgment of Privy  29 Council at page 55.  Three lines down from the top of  30 the page, Lord Watson speaking for the Privy Council:  31  32 "There was a great deal of learned discussion at  33 the Bar with respect to the precise quality of  34 the Indian right, but their lordships do not  35 consider it necessary to express any opinion  36 upon the point."  37  38 In that sense everything that the Privy Council  39 said in relation to the nature of aboriginal title, of  40 course, was obiter.  I don't by that mean to suggest  41 that it should not have been considered by the trial  42 judge, quite to the contrary, but it makes it clear  43 that the Privy Council decision, as understood by Lord  44 Watson, was not intended to be the leading authority  45 on the nature of aboriginal title.  On that very issue  46 their lordships, having heard a very extensive  47 argument paralleling in many ways the argument placed 212  Submissions by Mr. Jackson  1 before the trial judge in this case, declined to rule  2 upon it.  3 The other thing your lordships should observe in  4 terms of St. Catherine's Millings in the Privy Council  5 is that even though the argument addressed to their  6 lordships had been framed in the alternative, that  7 Indian title existed as a matter of common law and  8 also as a matter of affirmation by the Royal  9 Proclamation.  Lord Watson, the Privy Council, chose  10 to deal with the case on the basis that whatever  11 Indian interest existed were as a result of the Royal  12 Proclamation, and therefore the rights were ones which  13 were seen to flow from the Proclamation, and His  14 Lordship didn't deal with the question of what rights,  15 if any, existed as a matter of common law.  16 It's now clearly established, of course, as a  17 result of Calder and Guerin, that aboriginal title  18 doesn't flow from the Proclamation.  The rights there  19 parallel and confirm, but for the purposes of St.  20 Catherine's Millings and the Privy Council, Lord  21 Watson shows to confine his analysis to the rights  22 flowing from the Royal Proclamation.  And that's made  23 clear if your lordships just go back one page in the  24 judgment to page 54, about two-thirds of the way down  25 the page there is a passage that begins:  26  27 "Their possessions such as it was  ..."  28  29 On page 54.  30  31 "Their possession such as it was ...",  32  33 And he is referring to, of course, Indian  34 possession.  35  36 "... can only be ascribed to the general  37 provisions made by the Royal Proclamation in  38 favour of all Indian tribes then living under  39 the sovereignty and protection of the British  40 Crown.  It would suggest in the course of the  41 argument for the Dominion that inasmuch as the  42 Proclamation recites that the territories  43 thereby reserved for Indians had never been  44 ceded to or purchased by the Crown, the entire  45 property of the land remained with them."  46  47 Of course that was the Indians' argument, the 213  Submissions by Mr. Jackson  1 Indian title was a complete, plenary proprietary  2 interest which was full and left room for nothing  3 else.  4  5 "That inference ..."  6  7 That it was that kind of right.  8  9 "... is, however, at variance with the terms of  10 the instrument, which show that the tenure of  11 the Indians was a personal and usufructuary  12 right, dependent upon the good rule of the  13 sovereign.  The lands reserved are expressly  14 stated to be 'parts of our Dominions and  15 territories;' and it is declared to be the will  16 and pleasure of the sovereign that, for the  17 present, they shall be reserved for the use of  18 the Indians as their hunting grounds, under his  19 protection and Dominion."  20  21 So his lordship's analysis was within the context  22 of the Royal Proclamation.  In relation to that your  23 lordships can see where the trial judge drew comfort  24 from ascribing the nature of aboriginal title as a  25 matter of the interpretation of the Royal Proclamation  26 as one existing at the pleasure of the sovereign.  27 That's the way Lord Watson described it.  Our  28 position, of course, is that Lord Watson in treating  29 the Indian rights under the Proclamation as contingent  30 in that way at the pleasure of the Crown misunderstood  31 the context of the Proclamation.  He took the words  32 out of context.  As I said yesterday, those words were  33 meant to describe the temporary nature of the  34 settlement line and were not words characterizing the  35 nature of the interest.  36 LAMBERT, J.A.:  But I am right in saying that there is no  37 authority in support of your argument, apart from Lord  38 Watson, perhaps nothing against it, but the way you  39 suggest that we should interpret the words "at the  40 pleasure of the Crown" has not been adopted by any  41 decision.  42 MR. JACKSON:  To my knowledge that's correct, my lord.  43 HUTCHEON, J.A.:  Well, what of the section in the Constitution  44 that recognized the Proclamation?  45 MR. JACKSON:  Well, Section 25 clearly recognizes rights under  46 the Proclamation, but I understood my lord Mr. Justice  47 Lambert's point in terms of judicial authority which 214  Submissions by Mr. Jackson  1 had construed the language of the Proclamation.  2 LAMBERT, J.A.:  Yes.  3 MR. JACKSON:  I am not aware of any case where this issue has  4 been addressed, in part because, of course, in most  5 cases because the Proclamation doesn't parallel the  6 common law, have been content to rely upon the common  7 law rather than the Proclamation.  8 LAMBERT, J.A.:  Well, what you say is that when Lord Watson says  9 it's "a personal and usufructuary right", and when he  10 says that the words "at the pleasure of the Crown"  11 indicate that it was readily defeasible, that was  12 obiter dicta of the judicial committee of the council  13 and was wrong?  14 MR. JACKSON:  Yes.  That's precisely our point.  15 TAGGART, J.A.:  Would it be convenient?  16 MR. JACKSON:  That would be convenient, yes, my lord.  17 TAGGART, J.A.:  Two o'clock.  18 THE REGISTRAR:  Order in court.  19  2 0 NOON RECESS  21 I HEREBY CERTIFY THE FOREGOING TO  22 BE A TRUE AND ACCURATE TRANSCRIPT  23 OF THE PROCEEDINGS TRANSCRIBED TO  24 THE BEST OF MY SKILL AND ABILITY.  25  26  2 7    2 8 LORI OXLEY  2 9 OFFICIAL REPORTER  30 UNITED REPORTING SERVICE LTD.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 215  Discussion as to timing  Submissions by Mr. Jackson  1 PROCEEDINGS RESUMED 2:00 P.M.  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  I've asked Miss Thompson to distribute to  5 counsel a proposal for allocation of time with respect  6 to the appeal.  I have assumed that we will be sitting  7 on May the 25th.  I understand that that is acceptable  8 to Mr. Williams and to Mr. Macaulay.  9 MR. WILLIAMS:  Yes.  10 TAGGART, J.A.:  Since the appellants will still be engaged in  11 the presentation of their aspects of the appeal.  12 MR. WILLIAMS:  I only have one reservation, and assuming that  13 the intervenors are still involved it will work and  14 I'm assuming that they will be.  If not, it could be a  15 problem for me.  16 TAGGART, J.A.:  That's my assumption as well.  As to the  17 allocation of time for the appellants and the  18 supporting intervenors I want it to be clear that  19 those are suggestions only.  That's a matter for them  20 to decide how they wish to apportion their time among  21 them.  Similarly with respect to the province and  22 Canada I've made no effort to apportion the time as  23 among counsel there.  I have assumed that Alcan and  24 the Coalition would require half a day each, but if  25 more time than that is required it will have to come  26 from the pool allotted to the province and Canada.  27 Amicus Curiae we have discussed among ourselves and  28 feel that three days will in all probability be fully  29 required for presentation there.  And as requested I  30 think by Mr. Rush we have allocated three days to  31 reply.  32 Now, counsel can consider those suggestions and if  33 there are changes I would like to have them as soon as  34 possible.  35 MR. WILLIAMS:  My lord, I just have one other thing to add.  36 Your lordship asked me to inquire about the Provincial  37 Government, the Provincial Crown's intervention or  38 possible interventions, and my instructions are that  39 they will not be intervening in this case at all on  40 any of the other parties to the other proceedings.  41 Provincial Crown will not be intervening.  42 HUTCHEON J.A.:  Sorry, I don't follow you.  43 MR. WILLIAMS:  Well, the —  44 TAGGART, J.A.:  They are a party to the appeal I take it.  45 MR. WILLIAMS:  No.  The suggestion was made I thought by your  46 lordship that there were other possible interventions  47 by the Provincial Crown. 216  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 TAGGART, J.A.:  Oh, I see.  In the guise of parties in the  2 earlier appeals.  3 MR. WILLIAMS:  Yes, my lord.  4 TAGGART, J.A.:  Alfonse and Dick.  5 MR. WILLIAMS:  Lest there been any confusion, they will not be  6 intervening.  7 TAGGART, J.A.:  They will not be coming under that, yes.  So far  8 we have heard only from Miss Hutchins and I think this  9 was in relation to Dick if I'm not mistaken.  10 MR. WILLIAMS:  I thought the smokehouse people were here.  11 TAGGART, J.A.:  No.  That's the only one we have had any  12 indication from so far and it may well that be we will  13 have to re-apportion a day if that's all we get.  14 All right.  Thank you.  Yes, Mr. Jackson.  15 MR. JACKSON:  Thank you, my lords.  Before the lunch break I had  16 just made the point that Lord Watson in dealing with  17 the nature of Indian title attributed to the terms of  18 the Royal Proclamation.  He then, as I've already read  19 to your lordships, made the point that there was a lot  20 of learned discussion at the bar regarding the nature  21 of the Indian title but their lordships did not find  22 it necessary to express any opinion on this point.  23 His lordship then in terms of his definitive  24 statement as to the nature of the interest for the  25 purposes of disposing of the appeal in St. Catherines  26 said this in paragraph 39 of the factum -- if your  27 lordships would prefer I can take you to the passage  28 in the actual judgment at page 55.  29  30 "It appears to them to be sufficient for the  31 purposes of this case that there has been all  32 along vested in the Crown a substantial and  33 paramount estate, underlying the Indian title,  34 which became a plenum dominium whenever that  35 title was surrendered or otherwise  36 extinguished."  37  38 And again we have the use of a Latin term to  39 conceptualize the nature of rights.  40 My lords, in paragraph 40 of the factum I say that  41 this language echoes the conclusion of Mr. Justice  42 Strong in the Supreme Court where, applying the  43 Marshall judgments, he described the dominium utile as  44 "belonging to or being reserved for the Indians" while  45 the dominium directum was in the United States.  46 By contrast Mr. Justice Taschereau in his judgment  47 was of the view that there were no fetters or 217  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 constraints upon the Crown making a grant of the  2 plenum at utile dominium, with the right to maintain  3 trespass, without entry, against the Indians.  4 Now, what this requires, my lord, is some  5 translation to understand exactly what their lordships  6 were referring to in using these terms of latin origin  7 which have primary reference in a civil law system.  8 At paragraph 41 I have given your lordships some  9 definitions drawn from Black's dictionary, which I  10 think makes it very clear what the conceptualization  11 in relation to the nature of the Crown's underlying  12 title and the aboriginal title is in terms of  13 co-existing rights.  Black's defines dominium directum  14 as "strict ownership."  The term also refers to  15 "property without use" and "the title or property  16 which the sovereign in England is considered as  17 possessing in all the lands of the Kingdom," the  18 underlying title.  Dominium utile is a civil law term  19 referring to "equitable or praetorian ownership" or  20 "beneficial ownership."  And dominium plenum is "full  21 ownership; the conjunction of the dominium directum  22 with the dominium utile."  23 Now, taking those terms what you find Mr. Justice  24 Strong saying is that the dominium directum, the  25 underlying title, is in the Crown.  The dominium  26 utile, the right to beneficial enjoyment, is in the  27 Indians.  Upon a surrender of the Indians' interest  2 8 the Crown has dominium plenum, it has all the  29 interests there are to have in the land and at that  30 point can make grants.  Mr. Justice Taschereau would  31 have found and did find that the Indian rights were  32 not legal rights, right from the beginning.  The Crown  33 had the dominium directum, it had both dominium  34 directum and the dominium utile, and could grant  35 rights which would convey an interest, which would  36 bring the granting of a right to maintain trespass  37 against the Indian.  That view quite clearly is  38 rejected by Lord Watson.  Only upon a surrender of the  39 dominium utile beneficial enjoyment does the Crown  40 have the rights which are characterized as plenary,  41 the dominium plenum.  42 And we say, my lords, that Lord Watson's analysis  43 is one which is congruent with that of Mr. Justice  44 Strong and a complete rejection of that of Mr. Justice  45 Taschereau.  46 Why in fact the Privy Council would perhaps  47 express itself in those terms may be explained by the 218  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 fact that Lord Watson was the law lord from Scotland  2 and in terms of the admittedly difficult and yet still  3 difficult task of describing the sui generis nature of  4 aboriginal rights would seek to use consents which  5 convey the nature of the split in ownership, the  6 extent to which titles co-exist, the extent to which  7 an underlying title is consistent with an Indian title  8 and they are co-existing rights.  9 Now, as I have said, my lords, the Privy Council  10 held ultimately that the underlying title in lands  11 within the Province of Ontario lay with the Provincial  12 Crown pursuant to Section 109, but the Indian  13 interest, the aboriginal title was an interest other  14 than that of the province and burdened the Crown's  15 underlying title, a burden which of course has been  16 relieved as a result of treaty number three and the  17 surrender of the Indian interest.  The question  18 remains of course, what is the nature of that Indian  19 interest within the context of Section 109?  The Privy  20 Council said the Indian interest until surrendered was  21 an interest other than that of the province.  What is  22 its character?  And their lordships expressed a view  23 on that which is set out in paragraph 43 of the  24 factum.  And their lordships expressed themselves this  25 way:  That the province pursuant to Section 109 had a  26 beneficial interest in those lands available to them  27 as a source of revenue whenever the estate of the  28 Crown is disencumbered of the Indian title.  29 Now, we say that by necessary implication until  30 the Crown's underlying title is disencumbered the  31 Crown does not have such beneficial interest which it  32 has available to it as a source of revenue.  And we  33 say that follows by necessary implication from the way  34 their lordships characterized the nature of Indian  35 title.  36 In terms of the nature of an interest other than  37 the province, an interest which their lordships  38 characterized Indian title to be, we have some further  39 guidance again from the Privy Council, again from Lord  40 Watson, writing for their lordships some eight years  41 later in the Indian Annuities case.  And in that case,  42 my lords, it was a case which arose as a result of the  43 Robertson treaties.  These were the treaties  44 negotiated in 1850, following a discovery of minerals  45 around the north shores of Lake Superior and Huron,  46 treaties described as being the paradigm for the  47 subsequent numbered treaties.  Under the terms of 219  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 those treaties provision was made for and annuities to  2 be paid to the Indian peoples who had surrendered  3 their lands and a question arose as to the  4 responsibility or liability of the Province of Ontario  5 for those annuities.  The dominion government had  6 taken the position that since as a result of St.  7 Catherine's Milling the province got the benefit of  8 that surrender, the Indian interest having been  9 surrendered, the underlying right to the confederation  10 was to the province.  They had got the benfit of that  11 surrender and the Federal Government said, "So you  12 should have the burden of paying the annuities."  The  13 province demerred and said, "It's your  14 responsibility."  And so the question was the nature  15 of the liability for the annuities.  And the argument  16 which was made was that the annuities were a charge on  17 the land, that they were an interest other than the  18 province and therefore the provincial title was  19 burdened by them.  And in that case their lordships  20 said, no, the right to the annuities amounted to a  21 personal right.  It was not a real right, it was not  22 an interest other than that of the province.  And in  23 so concluding their lordships said, and I've cited the  24 passage at paragraph 44 of the factum:  25  26 "That to be an interest other than that of the  27 province within the meaning of Section 109,  28 there had to be some right or interest in a  29 third party independent of and capable of being  30 vindicated in competition with the beneficial  31 interest of the old province."  32  33 That is language, my lords, not that dissimilar to  34 the language --  35 HUTCHEON J.A.:  I don't understand that.  I've just read it for  36 the first time.  You'll have to tell me, if you wish,  37 what it means.  38 MR. JACKSON:  What their lordships are saying there, my lord, to  39 be an interest other than that of the province  40 requires the interest to be one which competes with,  41 is capable of being competing with and vindicating in  42 competition between the proprietary interest of the  43 province.  What we say is it necessarily bespeaks that  44 it is itself a proprietary right.  What their  45 lordships were saying there is that if the right is a  46 merely personal right, a right to money, it is not a  47 right which has the status of a Section 109 right and 220  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 therefore cannot be an encumbrance on the title of the  2 province.  While Indian title itself is such a right  3 of a proprietary nature capable of being vindicated in  4 competition with the underlying title of the province,  5 a right to annuities because it's a right to money is  6 not such a right.  And we say that is further evidence  7 that the Indian title as distinguished from a right to  8 monies under the treaty is a proprietary interest.  9 In relation to CP and Paul your lordships will  10 recall when I went to that case I made the point that  11 their lordships had rejected the idea that aboriginal  12 title could not be elevated to a status in which it  13 can compete with other proprietary interests.  That  14 language is very much the language in the Indian  15 Annuities case which requires an interest other than  16 that of the province to be of that kind of character,  17 and as in that case as in CP and Paul both the Privy  18 Council and the Supreme Court of Canada have clearly  19 conceived of aboriginal title as being of that  20 character, of being able to be vindicated in  21 competition with the underlying title of the Crown  22 until surrendered.  23 And we say, my lords, at paragraph 45 of the  24 factum it is evident that the Privy Council regarded  25 aboriginal title as a proprietary right.  Lord Watson,  26 like Mr. Justice Strong in the court below, addressed  27 the Crown's title before surrender of Indian interest  28 as a bare title subject to the beneficial ownership of  29 the Indians and rejected Mr. Justice Taschereau's  30 position that their possession has been, in law, the  31 possession of the Crown.  32 And furthermore in paragraph 46 we say that the  33 Supreme Court in Guerin has unequivocally rejected  34 that position, that the possession of the Indians has  35 all along been the possession of the Crown.  36 At paragraph 47, my lord, I address two points:  37 We say that the Privy Council's characterization of  38 aboriginal title is personal and usufructuary is  39 consistent with an interest in land.  The first part  40 of that, it's characterization is personal, I think  41 I've already dealt with.  I already cited the trial  42 judge's statement set out in paragraph 47 wherein  43 referring to the Marshall decisions and certain other  44 American decisions he said.  45  4 6 "... that they do not overcome the binding  47 authority of St. Catherine's Milling about the 221  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 nature of non-proprietary aboriginal interests.  2 It seems to me, with respect, that the Privy  3 Council got it right when it described the  4 aboriginal interests as a personal right rather  5 than a proprietary one."  6  7 And in paragraphs 48 through to paragraph 52 I've  8 summarized the argument I made this morning that in  9 Guerin and CP and Paul building upon the Star Chrome  10 case, the courts have clearly said that the  11 characterization as personal was not in contra-  12 distinction to proprietary.  It was for the sole  13 purpose, to use the words of the court in CP and Paul,  14 to describe the inalienable quality except by  15 surrender to the Crown of aboriginal title.  And I  16 don't wish to belabor that point any more.  17 What I do want to address is the second part of  18 Lord Watson's statement about it being personal and  19 usufructuary, because the trial judge took from that  20 language an implication that aboriginal title was not  21 proprietary and was not an interest in land, and we  22 say in so inferring his lordship erred.  23 And at paragraph 54, my lord, I make the point  24 that in relying upon a usufructuary analysis Lord  25 Watson adpoted the reasoning of Mr. Justice Strong in  26 preference to that of Mr. Justice Taschereau.  Mr.  27 Justice Strong, just to summarize the passages I read  28 to your lordships this morning, drew from the  29 commentaries of Chancellor Kent in the Marshall  30 decision to characterize the Indian interest as a  31 usufructuary title in the Indians to all unsurrendered  32 lands which usufructuary referred to as a certain  33 proprietary interest in the unsurrendered lands.  34 Referring to them, the lands in the possession of  35 Indians, are until surrendered treated as their  36 rightful though inalienable property.  37 And it's quite clear from the context in the  38 judgment that position of these terms that Mr. Justice  39 Strong in referring to a usufructuary title was not in  40 any way distinguishing this from a proprietary right.  41 In fact, he saw them as being examples of each other.  42 A usufructuary right was an example of a proprietary  43 right.  44 By contrast to both Lord Watson and Mr. Justice  45 Strong, Mr. Justice Taschereau, a Supreme Court judge  46 from Quebec who would have been intimately familiar  47 with usufructuary interests, refrained from adopting 222  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 that language in characterizing the nature of Indian  2 title.  3 We say that all the judges in this case would have  4 understood the analogy of usufruct to comprehend a  5 proprietary interest in land.  6 And in paragraph 59 we say that in describing the  7 aboriginal title as usufructuary the Privy Council  8 selected an analogy to a civil law concept which is an  9 interest in land.  And I make the point I just gave to  10 your lordships, that Lord Watson as the civil law lord  11 from Scotland, would have been intimately aware of the  12 implications of using the term "usufruct."  13 Paragraph 60, we say that the usufruct is most  14 closely analogous to the common law life estate, which  15 is of course is a freehold interest in land.  The  16 usufruct in favour of a group of persons would last  17 until the expiration of last member of the group.  18 Like a life estate, the usufruct give its beneficiary  19 almost unlimited use of the property in question,  20 although it may be specifically limited by the terms  21 of the instrument creating it.  And the civil law  22 distinguishes a usufruct from a mere right of use and  23 habitation.  Rights which the trial judge saw as being  24 the limits, the outer limits of aboriginal title.  25 At paragraph 60, my lords, I've referred your  26 lordships to a number of civil law authorities dealing  27 with usufruct.  I would, with your lordships'  28 indulgence, take you to one of them.  And it's to  29 Marler, "The Law of Real Property" which your  30 lordships will find in Volume A28, Tab 59.  31 Tab 59, my lord, start with the heading "Chapter  32 9, Usufruct."  I'm afraid the reproduction has not  33 given you the first page of this text.  34 It is my understanding from my civil law friends  35 in Quebec, as confirmed by Mr. Hutchins and I, that  36 Marler is one of the standard and leading texts on the  37 law of real property in Quebec.  And I would take your  38 lordships to the definition drawn from the Quebec  39 civil code:  40  41 "Usufruct is defined as the right of enjoying a  42 thing of which another has the ownership as the  43 proprietor himself but subject to the  44 obligation of preserving the substance  45 thereof."  46  47 And the comment says that: 223  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1  2  3 "This definition indicates two persons having  4 concurrent rights in the same thing.  One of  5 them called the usufructuary, having the right  6 to enjoy it as the proprietor himself, and the  7 other the proprietor of the thing.  The  8 co-existence of these two persons is of the  9 essence of usufruct."  10  11 A clearer statement that ownership in other words  12 is split, that the split is co-existing, would be  13 difficult to find.  14 Carrying on --  15 WALLACE, J.A.:  You say the ownership is split.  That paragraph  16 doesn't say that though.  17 MR. JACKSON:  No, my lord, but the passage I'm going to take you  18 to next do.  19 WALLACE, J.A.:  Oh, all right.  20 MR. JACKSON:  And if your lordship would go in fact to the  21 second paragraph of 186 starting:  22  23 "In fact, when usufruct has been established on  24 a thing the ownership of that thing is split up  25 into two distinct fragments, it is right of the  26 usufructuary and the right of the proprietor.  27 And since the usufructuary has the right to  28 enjoy the things as if he were the proprietor  29 of it, the right of the proprietor himself so  30 long as such enjoyment lasts is almost nominal.  31 He has a property without the enjoyment of it  32 and his right is reduced to what is called the  33 bare ownership, la nue propriete, the ownership  34 divested, to continue the metaphor, of the  35 useful rights attributed to it."  36  37 And then again when one goes back to Lord Watson's  38 characterization in St. Catherine's Milling and Mr.  39 Justice Strong's use of the dominium utile, the  40 beneficial enjoyment is what is being analogized to  41 the usufructuary interest and the dominium directum,  42 the underlying title the bare ownership, but without  43 the right to make beneficial use of the territory  44 until the right has been surrendered becomes clear and  45 comes into sharp focus.  And you'll see at paragraph  46 187, my lord, "usufruct is a real right, temporary  47 real right in a thing. 224  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 Now, I'm not of course, my lords, making the point  2 that the ways in which your lordships characterize the  3 sui generis interest in land is to say it's  4 usufructuary.  That is not my point.  In fact, the  5 courts have been very clear that using the  6 usufructuary right doesn't take it much further in  7 terms of understanding the true nature of aboriginal  8 title except to say that the trial judge saw the  9 description by Lord Watson of the aboriginal title as  10 usufructuary as being a demonstration that the right  11 could not be a proprietary right.  And for that  12 purpose understanding what usufructuary means makes it  13 very clear, in my submission, that Lord Watson was  14 talking about a proprietary right in characterizing  15 the relationship between the underlying title of the  16 Crown and aboriginal title, the usufruct and the split  17 of ownership was an analogy which made some sense in  18 that context.  19 TAGGART, J.A.:  How are these in relationship to usually, how do  20 they come into being?  What sort of documentation, a  21 will, a trust?  22 MR. JACKSON:  That is my understanding, my lord, usually a  23 usufruct in favour of an individual and of course that  24 is usually how they are termed, do come by way of  25 device or via inter vivos.  That's -- but they  26 required that formality to be created as a appropriate  27 to legal rights.  28 TAGGART, J.A.:  Can they exist for a term, a month, a year?  29 MR. JACKSON:  Yes, my lord, I understand that they can exist.  30 As -- I have in fact in addition to the authorities,  31 I've given you the ones I've just cited, there is a  32 number of other authorities which I have given you  33 which refer to --  34 HUTCHEON J.A.:  The following page discusses that.  35 MR. JACKSON:  Yes, my lord.  How and what is established.  36 TAGGART, J.A.:  All right.  37 MR. JACKSON:  As I said, I'm not trying to take your lordship  38 deep into the heart of the law of usufructuary, my  39 point is a much more limited one, in characterizing  40 the nature of that right and why it would have been  41 used in the way it was used in St. Catherine's  42 Milling.  Not to differentiate it from a proprietary  43 right but to make clear its relationship to the  44 underlying title, the bare ownership, la nue propriete  45 as Marler refers to it, of the Crown.  Until  46 surrendered the title --  47 WALLACE, J.A.:  I take it you're not quoting that to support the 225  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 proposition, that it is a proprietary right.  2 MR. JACKSON:  I am citing —  3 WALLACE, J.A.:  As to support the proposition that usufructuary  4 right is a proprietary right.  5 MR. JACKSON:  Yes, my lord.  I'm citing it for two reasons, one,  6 to say that in using the terms usufructuary Lord  7 Watson clearly had in mind that aboriginal title was a  8 proprietary right because that is the nature of a  9 usufructuary right as a matter of civil law.  What I'm  10 not saying is that all the elements of usufructuary  11 are imported into the incidence and scope of an  12 aboriginal title.  13 And I take it by Mr. Justice Taggart in talking  14 about raising the question of how long can it last,  15 there are some limits on usufructuary rights.  As I  16 understand the civil code it can only last for a  17 certain period of time.  Not akin to the law against  18 perpetuities in terms of the common law, in order to  19 ensure that land is not tied up indefinitely.  20 My point is not to bring that law in and say  21 understand usufruct and simply attract and attach it  22 to the incidence of aboriginal title.  It was -- and  23 in searching for analogies as Mr. Justice Strong made  24 it clear in St. Catherine's Milling in the Supreme  25 Court, it is a difficult task to come up with the  26 appropriate analogy in common law or civil law terms,  27 and this was their lordships' attempt to characterize  28 the right in a way which reflected its essence.  29 In terms of its nature as against the underlying  30 title of the Crown and the co-existence of an Indian  31 interest in land.  This question of the analogy to  32 usufruct is one which the Privy Council returned to in  33 a case which is of great importance to the appellants  34 appeal and a case I'll be coming back to in some  35 greater detail tomorrow or Friday morning and it's the  36 case of Amodu Tijani.  37 And I have set out at paragraph 62 what the Privy  38 Council in that case had to say about usufruct in the  39 context of a native interest in land.  And I preface  40 that paragraph with what I say in paragraph 61.  His  41 lordship at page 345 of his reasons made the point  42 that Lord Watson in talking about the Indian interest  43 as a usufructuary interest used language which are  44 hardly descriptive of a proprietary interest.  In  45 other words, the trial judge felt that Lord Watson's  46 preference for that term was by way of distinguishing  47 the interest from a proprietary interest.  In talking 226  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 about it being a burden, and Lord Watson described it  2 as a burden on the Crown, that would hardly be  3 descriptive of proprietary interest.  And we say the  4 trial judge misunderstood that language in the context  5 of a usufructuary right.  6 If your lordships have that on the screen, do you?  7 Lord Watson says:  8  9 "... it was not necessary to express any opinion  10 upon the precise quality of the Indian right,  11 the description of being a burden on the  12 Crown's title is hardly descriptive of a  13 proprietary interest."  14  15 My lord, at paragraph 62 in response to that  16 understanding of the trial judge an implication from  17 Lord Watson's use those words, we say that the analogy  18 of a usufruct to a life estate is made in Amodu Tijani  19 where the Privy Council adverting to its earlier  20 discussion in St. Catherine's Milling described the  21 Scottish "life estate" as a burden on a right of full  22 property.  In the civil law, unlike the common law,  23 ownership is not divided into estates.  Anything less  24 than the full ownership is necessarily therefore  25 characterized as a burden on that right.  In that  26 sense a usufruct is a burden on the bare ownership of  27 the proprietor, as the statement from Marler makes  28 clear.  29 And if I could take your lordships to Amodu  30 Tijani, your lordships will find it in Volume A-4.  31 WALLACE, J.A.:  Tab number?  32 MR. JACKSON:  I beg your pardon, Tab 70 and at page 403.  Their  33 lordships are adverting here to the character of the  34 native title to lands in Southern Rhodesia -- Southern  35 Nigeria.  I will be coming back to that passage, but  36 in terms of their lordships contemplating the nature  37 of native title, starting about a third of the way  38 down the page:  39  40 "A very usual form of native title is that of a  41 usufructuary right, which is a mere  42 qualification of or burden on the radical or  43 final title of the sovereign where that exists.  44 In such cases the title of the sovereign is a  45 pure legal estate, to which beneficial rights  46 may or may not be attached.  But this estate is  47 qualified by a right of beneficial user which 227  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 may not assume definite forms analogous to  2 estates, or may, where it has assumed these,  3 have derived these from the intrusion of the  4 mere analogy of English jurisprudence.  Their  5 lordships have elsewhere explained principles  6 of this kind in connection with the Indian  7 title to reserve lands in Canada."  8  9 That is a reference to St. Catherine's Milling.  10  11 "But the Indian title in Canada affords by no  12 means the only illustration of the necessity  13 for getting rid of the assumption that the  14 ownership of land naturally breaks itself up  15 into estates, conceived as creatures of  16 inherent legal principle.  Even where an estate  17 in fee is definitely recognized as the most  18 comprehensive estate in land which the law  19 recognizes, it does not follow that outside  20 England it admits of being broken up.  In  21 Scotland a life estate imports no freehold  22 title, but is simply in contemplation of  23 Scottish law a burden on a right of full  24 property that cannot be split up.  In India  25 much the same principle applies."  26  27 And the Privy Council there in describing a  28 usufructuary title as a burden is making it clear that  29 that is not by way of differentiating it from a  30 non-proprietary interest.  It's simply that in other  31 systems the concept of estates is not known and in  32 those systems anything less than the dominium plenum,  33 as it were, is a burden on the title of the ultimate  34 owner.  35 This is made clearer in the same judgment in Amodu  36 Tijani, my lords, where their lordships later in the  37 judgment describe the nature of -- at paragraph 63 of  38 my factum, where their lordships describe the nature  39 of the community usufructuary interest of the Legos  40 chiefs in Southern Nigeria.  41 As I say, I will be coming back to this point, but  42 for present purposes I would have your lordships note  43 at paragraph 63 that in Amodu Tijani in describing the  44 community usufructuary interest their lordships talked  45 about it as the ownership rights of private land  46 owners, right of property and the beneficial ownership  47 of the land.  Indeed, in the context of Southern 228  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 Nigeria and the title of the Lagos chiefs, they held  2 that the community usufruct was a title to land which  3 might be so complete as to reduce any radical title in  4 the sovereign to one which only extends to  5 comparatively limited rights of administrative  6 interference.  7 And again, my lords, if one goes back to Marler  8 where he talks about the bare ownership, when you look  9 at the idea of the dominium directum as defined in  10 Black's law dictionary as the ownership devoid of the  11 right to make beneficial use of the territory, one  12 finds here that a usufructuary interest is a very full  13 interest, and that in referring to a community  14 usufruct, it was in contradistinction to the bare  15 underlying title of the Crown.  16 We say, my lords, that properly understood Lord  17 Watson's judgment in St. Catherine's Milling as  18 subsequently interpreted in Amodu Tijani, gives no  19 comfort and no support whatsoever to the trial judge's  20 conclusion that on the basis of St. Catherine's  21 Milling the Indian interest is a non-proprietary right  22 of occupation for residence and aboriginal user.  23 At paragraph 65, my lords, we say that in the  24 alternative if our understanding of St. Catherine's  25 Milling is wrong, if St. Catherine's Milling does  26 stand for the proposition that aboriginal title is not  27 an interest in land, we say that in light of the  28 contemporary jurisprudence of the Supreme Court of  29 Canada in Guerin, CP and Paul and Sioui, that it has  30 been overruled to that extent.  Those cases cannot  31 stand foursquare with that interpretation of the  32 nature of aboriginal title.  33 But our primary point is, my lord, that properly  34 understood, St. Catherine's Milling is quite  35 consistent with the argument that aboriginal title is  36 a proprietary interest in land and the trial judge was  37 wrong in concluding to the contrary.  38 Now, that completes, my lord, my submissions --  39 and I apologize for their length -- on St. Catherine's  40 Milling.  As I alerted your lordships in the morning  41 it does assume such large proportions in the trial  42 judge's judgment that the appellants consider its  43 proper understanding to be central to your lordship's  44 considerations as to the nature of the trial judge's  45 fundamental error at the very beginning of his legal  46 analysis.  47 What I now wish to turn to is the second error we 229  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 say the trial judge made, which is his failure to give  2 proper consideration to the judgments of the Marshall  3 court.  And I address this argument beginning in  4 paragraph 69 of my factum.  And I start with setting  5 out what the trial judge said about these judgments.  6  7 "I am dubious of the usefulness of American  8 authorities because they arose in a historical  9 context so different from this province.  The  10 earlier American cases were largely decided in  11 the practical context of defensive treaties  12 with warlike peoples on the frontier and the  13 Royal Proclamation figures in some of the  14 important ones.  15  16 American authorities are also concerned largely  17 with treaties which are absent here.  18 Furthermore, and most importantly, some of the  19 great decisions of Chief Justice Marshall's  20 court upon which the plaintiffs rely so heavily  21 treated the Indian peoples with whom they were  22 concerned as 'diminished sovereign nations' or  23 'domestic dependent nations.'  Whether that  24 characterization was adopted in order to give  25 jurisdiction to the United States Supreme Court  26 or otherwise is of no particular importance.  27 The fact is that the law never granted  28 aboriginals that status in this country or  29 province.  30  31 I recognize that many Canadian cases, including  32 decisions of the Supreme Court of Canada, have  33 often referred to decisions from other  34 countries.  I regard those cases as unhelpful  35 to the extent they rely upon treaties,  36 statutes, proclamations or recognition of the  37 Indian peoples as sovereign or semi-sovereign  38 nations."  39  40  41 Paragraph 70, my lord, we say that the Marshall  42 decisions are an authoritative statement of the  43 principles of English common law relating to the legal  44 relationship between aboriginal peoples and the Crown.  45 And the trial judge erred in rejecting the relevance  46 of this body of law.  47 In paragraph 71 I have placed before your 230  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 lordships the statement of Mr. Justice Strong who, in  2 the course of his judgment in St. Catherine's Milling,  3 went to the Marshall judgments as a source for his own  4 legal analysis.  And it's important to understand why  5 he did that.  And as explained by Mr. Justice Strong  6 himself, he said:  7  8 "The American authorities, to which reference  9 has already been made, consist of several  10 decisions of the Supreme Court of United States  11 from which three, Johnson v. M'Intosh,  12 Worcester and the State of Georgia and  13 Mitchell, may be selected as leading cases."  14  15 And they are the cases, my lord, which the  16 appellants focus on as well.  And this is the  17 important part:  18  19 "The value and importance of these authorities  20 is not merely that they show that the same  21 doctrine as that already propounded regarding  22 the title of Indians to unsurrendered lands  23 prevails in the United States, but, what is of  24 vastly greater importance, they without  25 exception refer to its origin to a date  26 anterior to the revolution and recognize it as  27 a continuance of the principles of law or  28 policy as to Indian titles then established by  29 the British government, and therefore identical  30 with those which have also continued to be  31 recognized and applied in British North  32 America."  33  34 Put another way, my lord, the appellants in taking  35 your lordships to the Marshall decisions are not in  36 any way seeking to Americanize the common law.  That  37 is not the purpose for this reference to these  38 decisions.  What we say, relying upon the same  39 analysis as Mr. Justice Strong, is that the Supreme  40 Court of United States in the 19th century in  41 grappling with this very difficult conceptual problem  42 of the relationship, the legal relationship between  43 aboriginal peoples and the Crown, went back to first  44 principles.  It went back to the principles  45 established by the British Crown and said that those  46 had been inherited as part of the jurisprudential  47 context in which these issues were to be resolved 231  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 judicially in the United States.  And of course what  2 Mr. Justice Strong is saying, no less is required in  3 Canada.  Those cases go back as their font or source  4 to British common law principles.  And they must be as  5 relevant and as compelling in a Canadian context as  6 they were found to be in a American context by the  7 Marshall court.  8 And paragraph 72 through to 75 I have referred  9 your lordships in very summary form to the fact that  10 the Supreme Court of Canada in its contemporary  11 jurisprudence has in Calder, in Guerin and in Sioui,  12 referred to the Marshall principles as an  13 authoritative source for first principles in resolving  14 matters relating to aboriginal rights.  And I will be  15 coming back to those references.  16 Paragraph 76, I won't read it to your lordships,  17 but I would refer you to a comment made by Professor  18 Slattery who refers to the Marshall courts as  19 performing for the common law in relation to the  20 principles relating to aboriginal peoples and the  21 Crown and hence the United States the same kind of  22 function as Lord Mansfield's decision in Campbell and  23 Hall did in relation to common law principles relating  24 to the formation of colonies and the rights consequent  25 thereto.  It took together a combination of custom, of  26 practice, of authoritative statement, practice and  27 common law and shaped it into what would otherwise be  28 a difficult use and unshapely, somewhat amorphous  29 group of rules and gave it coherence.  And that's what  30 we say the Marshall decisions do, they give this body  31 of law some coherence.  And it's because of that that  32 they have been relied upon in Canadian courts.  33 In paragraph 77 I have set out in summary form  34 what I say are the principles which form the heart of  35 the Marshall judgments.  Principles which we say have  36 been referred to or adopted by judgments of our  37 Supreme Court of Canada.  And I set them out in a  38 series of propositions, and I'll be coming back to  39 each one of them in more detail, but they are as set  40 out there:  That aboriginal title is a pre-existing  41 right, not created by or dependent upon any act of the  42 European sovereign.  And aboriginal title is not  43 terminated by the assertion of European sovereignty.  44 Some of these propositions at this point, my lord,  45 may seem trite, to the extent they have now been  46 restated again and again by our own Supreme Court of  47 Canada, but my point is to take you to the source of 232  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 some of these principles and the context in which they  2 were formulated.  3 The second one, aboriginal title encompasses  4 rights to the beneficial enjoyment of the tribal  5 territory in accordance with tribal land tenure.  6 That the principle of discovery vested in the  7 discovering colonial government, the ultimate fee in  8 the underlying title in the lands in the special sense  9 that it had, as against other European governments,  10 the exclusive right to purchase Indian land.  11 The fourth principle, that the sovereign having  12 the underlying title could acquire a possessory  13 interest, a beneficial interest in the lands by  14 voluntary cession through treaty making.  15 And the fifth principle, each Indian nation had  16 powers of self-government within its territories and  17 the colonial governments through the doctrine of  18 discovery acquired the exclusive right to negotiate  19 political and trade relationships with those Indian  20 nations.  21 Now, a point I make at paragraph 78, my lord, is  22 one of some importance.  The Marshall decisions were  23 delivered over the course of some 25 years and they  24 bear witness to an evolution of the Supreme Court's  25 understanding on aboriginal rights.  Therefore certain  26 statements made in the earlier judgments are modified  27 and in some cases overtaken by statements in later  2 8 judgments.  The judgments, in other words, have to be  29 read as a whole.  30 Now, this perhaps is also somewhat trite when your  31 lordships think back on the parallel development in  32 Canada, when one thinks back to pre-1973, pre Calder  33 when aboriginal rights were viewed as so amorphous as  34 not to be capable of legal recognition and really were  35 not part of any legal discourse amongst the bar of  36 British Columbia or elsewhere for that matter and how  37 in the course of some 20 years the courts, both this  38 court and the Supreme Court of Canada, have evolved  39 their thinking and have grappled with increasingly  40 difficult issues and have tried to give greater shape  41 and coherence to the nature of aboriginal rights, the  42 situations, the context, their scope and the  43 circumstances under which they can be extinguished.  44 The Marshall decisions bespeak a very similar and  45 parallel development and evolution of thinking.  46 WALLACE, J.A.:  Are you saying that we should accept as a  47 reflection of the common law the Marshall decisions as 233  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 they evolved or prior to -- the original ones prior to  2 their --.  3 MR. JACKSON:  My lord, what I'm saying is the Marshall  4 judgments --  5 WALLACE, J.A.:  What I'm getting at, are you accepting -- are  6 you saying we should accept the American law as it  7 developed as distinct from the earlier decisions which  8 you say reflected the common law of England?  9 MR. JACKSON:  No, my lord.  My purpose of bringing your  10 lordship's attention to the Marshall decisions is not  11 to say the American courts got this right in 1820 and  12 1830, and all your lordships have to do is follow what  13 the American courts have done since and you'll have a  14 contemporary statement of aboriginal rights.  That's  15 not my purpose.  As I say, my purpose is not to  16 Americanize your lordship's determination.  I'm sure  17 your lordships would be fiercely resistant and  18 appropriately resistant to that suggestion.  My point  19 is to see how these principles evolved in the common  20 law in the 1820s, in the 1830s.  I'll then be taking  21 your lordships to a statement which we say is  22 authoritative of a common law in New Zealand in 1847,  23 the Simons case, which apply these principles in a  24 contemporary context to the formation of British  25 Columbia.  And we say those are the -- were the  26 principles which came into British Columbia in 1858.  27 We are not saying, my lord, that necessarily those  28 principles were fixed, inflexible and in a sense were  29 frozen for all time at that point, any more than we  30 endorse the idea of the trial judge that aboriginal  31 rights are frozen at that point to the uses to which  32 aboriginal peoples at 1848 or whenever the appropriate  33 date is, actually -- the practices to which they  34 actually put their lands and territories.  35 The common law of course can evolve but we say its  36 core principles were shaped in this time and we say  37 those core principles have not in fact changed.  They  38 remain as relevant and as contemporary in the  39 accommodation of the interest of first nations and  40 aboriginal peoples.  And of course a point is that the  41 trial judge should not have rejected them as a  42 statement of the common law relevant and appropriate  43 and something which should have been taken into  44 account in determining the nature of relationships  45 between the appellants and the Crown at the time of  46 the assertion of sovereignty in British Columbia.  47 My lords— 234  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 TAGGART, J.A.:  Would it appropriate to take five minutes now?  2 MR. JACKSON:  Yes.  3 THE REGISTRAR:  Order in court.  Court stands adjourned.  4  5 AFTERNOON ADJOURNMENT TAKEN  6  7 THE REGISTRAR:  Order in court.  8 TAGGART, J.A.:  Yes, Mr. Jackson.  9 MR. JACKSON:  Thank you, my lords.  Your lordships will notice  10 at the very end of paragraph 78 of the factum which is  11 on page 78 as well I make the note that Appendix A to  12 our factum contains a detailed chronological review of  13 the Marshall judgments.  And I would ask your  14 lordships at this point to go to that appendix.  It is  15 in Volume 2 of the factum, Appendix A, the first  16 appendix in Volume 2.  And in my discussion of the  17 Marshall judgments I will be moving back and forth in  18 a manner which I hope will be understandable to your  19 lordships between the main factum and Appendix A.  20 Although it is not the first of the Marshall  21 judgments I want to begin with the case of Johnson  22 and M'Intosh.  Johnson and M'Intosh and Worcester and  23 Georgia are the two leading decisions and I want to  24 spend some time on looking at their relationship one  25 to the other.  26 At Appendix A in paragraph 15 your lordships will  27 find your lordships will find a review of the facts  28 underlying Johnson and M'Intosh, which are of some  29 importance.  I would review those with your lordships.  30 The lands in dispute in Johnson and M'Intosh lay  31 within the Indian country created by the Royal  32 Proclamation of 1763, means they were lands to the  33 west of Allegheny Mountains.  They were lands in the  34 possession of Illinois and Pinkeshaw Indian nations.  35 And in 1773 and 1775 those nations had made grants to  36 certain private land speculators.  And those grants  37 were transferred and ultimately ended up in the hands  38 of the defendant Mr. M'Intosh.  After that event,  39 after the Indians had made those grants to private  40 individuals and after the American revolution,  41 Virginia ceded all of its western lands to the United  42 States.  And the United States then entered into a  43 treaty with the same Indians in relation to the very  44 same lands they had previously ceded to private  45 individuals.  And Mr. Johnson who received a grant  46 from the United States sued Mr. M'Intosh who was, as I  47 say, was a successor in title to one of the original 235  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 grantees under the first grant.  2 HUTCHEON, J.A. :   Well, according to —  3 MR. JACKSON:  Have I got it the other way around?  United States  4 sold part of the ceded lands to the defendant  5 M'Intosh.  Yes, I beg your pardon, that's right.  I  6 did get it the wrong way round.  But the case is  7 essentially therefore was a dispute between two  8 individuals, as in St. Catherine's Milling Indian  9 nation was not parties to the litigation nor were they  10 represented.  Both parties however claimed rights from  11 the same source, both claimed title ultimately to an  12 Indian grant.  The one party claiming directly under a  13 grant from the Indians, the other party claiming under  14 a grant from the United States which itself had  15 obtained the rights pursuant to a Treaty of Cession  16 between the United States and the Indian nations.  17 And Chief Justice Marshall in defining the issue  18 before the court made the point which is set out in  19 paragraph 16 of the inquiry:  20  21 "There is in great measure contained to the  22 power of Indians to give and of private  23 individuals to receive a title which can be  24 sustained in the courts of this country."  25  26 Now, on this issue, my lord, the court held that  27 the title obtained by the original grantees could not  28 be sustained in the courts.  Now, one of the reasons  29 and it may seem to be the most obvious reason, was  30 that this was lands within the great Indian territory  31 established by the Royal Proclamation and of course,  32 as your lordships know, that enjoined any private  33 purchasers of land within the Indians save and except  34 on the basis of a treaty entered into by  35 representatives of the Crown and authorized by the  36 Crown.  And on that basis alone the grant could not be  37 sustained and Chief Justice Marshall referred to the  38 proclamation as additional reason why in fact the  39 courts could not take cognizance nor would they give  40 effect to that original grant.  It was in violation of  41 the terms of the Royal Proclamation.  42 There was a second reason for the courts failing  43 or refusing to give effect to the original grant by  44 the Indians, and this is a reason which has gone very  45 little noted in subsequent cases but which we say is  46 of some moment in terms of jurisdictional rights of  47 aboriginal peoples and their pre-existing laws.  And 236  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 I've set it out in paragraph 80 and I would take your  2 lordships to it.  I have -- and I don't propose, my  3 lords, to take you to the original report, I can do  4 that, but as your lordships may already have become  5 aware of these reports in the series in which they are  6 published are in very, very small print.  And while I  7 will of necessity have to take you to passages in  8 Worcester and Georgia, I have for the most part  9 preferred to rely upon the text in the factum just  10 because it's more readily readable from my point of  11 view and I'm sure your lordships's point of view, but  12 if your lordships would refer it I'm quite referred to  13 take you to the original text of these judgments.  14 Paragraph 18 the Chief Justice stated:  15  16 "The title of the Crown, whatever it might be,  17 could be acquired only by a conveyance from the  18 Crown.  If an individual might extinguish the  19 Indian title for his own benefit, in other  20 words, might purchase it, still he would  21 acquire only that title.  Admitting their power  22 to change their laws or usages so far as to  23 allow an individual to separate a portion of  24 their lands from common stock and hold it in  25 severality, still it is part of their territory  26 and is held under them by a title dependant on  27 their laws.  The grant derives its efficacy  28 from their will and if they choose to resume it  29 and make a different disposition of the land,  30 the courts of the United States cannot  31 interpose for the protection of title.  The  32 person who purchases land from the Indians  33 within their territory incorporates himself  34 with them, so far as respect to the property  35 purchased; holds their title under their  36 protection, and subject to their laws.  If they  37 annul the grant we know of no tribunal which  38 can revise and set aside the proceedings.  By  39 the treaties concluded between the United  40 States and the Indian nations whose title the  41 plaintiff's claim, the country comprehending  42 the lands in controversy had been ceded to the  43 United States without any reservation of their  44 title.  Their cession of the country, without a  45 reservation of this land, affords a fair  46 presumption that they considered it as of no  47 validity. 237  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1  2 And in paragraph 59 I've tried to restate what I  3 understand the Chief Justice to be saying.  Chief  4 Justice Marshall recognized that the rights adhering  5 to the Indian title derive from a distinct tenurial  6 system based on original Indian jurisdiction.  That is  7 that he says.  What the court in effect was saying is  8 that the Indian nations acting within their own legal  9 prerogatives had granted rights to land within their  10 territory and at a later date had made a cession of  11 those same lands to the United States without a  12 reservation of the earlier prior rights.  The prior  13 rights were therefore annulled and consequently the  14 United States had received an unencumbered transfer of  15 the territory.  16 Now, within that passage, my lord, one has a  17 recognition of pre-existing laws, a recognition of a  18 pre-existing tenurial system.  And that is a  19 proposition which is later developed by the Chief  20 Justice in his decision in Worcester and Georgia.  21 We say that it stands in some opposition to the  22 conclusions of the trial judge that on the assertion  23 of sovereignty, and this was certainly territory over  24 which both Virginia and subsequently the United States  25 had asserted sovereignty, yet the Supreme Court quite  26 clearly contemplated the continuation of their laws.  27 There is no cognizance or recognition here of the  28 trial judge's position that as of the moment the Crown  29 asserted sovereignty the pre-existing laws of the  30 aboriginal peoples ipso facto were nullified as laws  31 and became customs, and that alone quite clearly Chief  32 Justice Marshall does not contemplate that as the  33 legal regime and the relationship between aboriginal  34 peoples and the Crown notwithstanding the assertion of  35 sovereignty.  36 Johnson and M'Intosh, my lords, even though it  37 could have stopped at those points as being sufficient  38 reason to reject the claim of Mr. Johnson goes far  39 beyond those narrow confines.  And the court took the  40 occasion to elaborate on the relationship between  41 aboriginal title and the Crown's rights on the  42 assertion of sovereignty.  And it's those passages  43 which have been most often cited in subsequent cases  44 and upon which reliance has been placed by courts in  45 referring to the Marshall judgments.  And I would at  46 this point take you back to the main factum to  47 paragraph 79 where I at this point go into what Chief 238  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 Justice Marshall said about the nature of the legal  2 relationship.  3 Paragraph 79 says that Chief Justice Marshall  4 rooted the Crown's title to land in North America in  5 the doctrine of discovery.  This was first propounded  6 in Johnson and M'Intosh and it was further elaborated  7 upon in Worcester and Georgia.  And I would take your  8 lordships directly to the passages in the two cases  9 which I think can be conveniently considered together  10 in understanding what exactly the doctrine of  11 discovery confers about the Crown.  12 Paragraph 81 the Chief Justice stated:  13  14 "On the discovery of this immense continent, the  15 great nations of Europe were eager to  16 appropriate to themselves so much of it as they  17 they could respectively acquire.  Its vast  18 extent offered an ample field to the ambition  19 and enterprise of all; and the character and  20 religion of its inhabitants afforded an apology  21 for considering them as a people over whom the  22 superior genius of Europe might claim an  23 ascendancy.  But as they, the European nations,  24 were all in pursuit of nearly the same object,  25 it was necessary in order to avoid conflicting  26 settlements and consequent war with each other,  27 to establish a principle which all should  28 acknowledge as the law by which the right of  29 acquisition, which they all asserted, should be  30 regulated as between themselves.  This  31 principle was that the discovery gave title to  32 the government by whose subjects or by whose  33 authority it was made, against all other  34 European governments, which title might be  35 consummated by possession."  36  37 And Chief Justice continues:  38  39 "The exclusion of all other Europeans  40 necessarily gave to the nation making the  41 discovery the sole right of acquiring the soil  42 from the natives, and establishing settlements  43 upon it.  It was a right with which no  44 Europeans could interfere...  45  46 In the establishment of these relations, the  47 rights of the original inhabitants were, in no 239  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 instance, entirely disregarded; but were  2 necessarily, to a considerable extent,  3 impaired.  They were admitted to be the  4 rightful occupants of the soil, with a legal as  5 well as a just claim to retain possession of  6 it, and to use it according to their own  7 discretion; but their rights to complete  8 sovereignty, as independent nations, were  9 necessarily diminished, and their power to  10 dispose of the soil at their own will, to  11 whomsoever they pleased, was denied by the  12 original fundamental principle that discovery  13 gave exclusive title to those who made it."  14  15 In Worcester the Chief Justice expanded upon the  16 implications of the doctrine of discovery and in the  17 context of so doing described the rights of aboriginal  18 peoples in somewhat less enigmatic terms in Johnson  19 and Mcintosh.  In Worcester Chief Justice Marshall  20 said:  21  22 "America separated from Europe by a wide ocean  23 was inhabited by a distinct people, divided  24 into separate nations, independent of each  25 other and of the rest of the world, having  26 institutions of their own and governing  27 themselves by their own laws.  It is difficult  28 to comprehend the proposition that the  29 inhabitants of either quarter of the globe  30 could have rightful original claims of dominion  31 over the inhabitants of the other, or over the  32 lands they occupied; or that the discovery of  33 either by the other should give the discoverer  34 rights in the country discovered which annulled  35 the pre-existing rights of its ancient  36 possessors.  37  38 The discovery principle gave to the nation  39 making the discovery, as its inevitable  40 consequence, the sole right of acquiring the  41 soil and of making settlements on it.  It was  42 an exclusive principle which shut out the right  43 of competition among those Europeans who had  44 agreed to it; not one which could annul the  45 previous rights of those aboriginals who have  46 not agreed to it.  It regulated the right given  47 by discovery among the European discoverers, 240  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 but could not affect the rights of those  2 already in possession, either as aboriginal  3 occupants or as occupants by virtue of a  4 discovery made before the memory of man.  It  5 gave the exclusive right to purchase, but did  6 not found that right on a denial of the right  7 of the possessor to sell.  8  9 And in paragraph 83, my lord, also in Worcester  10 and Georgia the Chief Justice having noted that the  11 United States succeeded to whatever rights the British  12 Crown had, both territorial and political, necessarily  13 there to review what those rights were.  And in so  14 doing he embarked upon an analysis of the nature of  15 the original royal grants to British North American  16 colonies, and he held consistent with his analysis of  17 the principle of discovery that those grants did not  18 affect the pre-existing rights of aboriginal peoples.  19 And I've cited parts of this previously in my argument  20 yesterday.  21 I'll go to the third sentence:  22  23 "The extravagant and absurd idea that the feeble  24 settlements made on the sea-coast or the  25 companies under whom they were made, acquired  26 legitimate power by them to govern the people  27 or occupy the lands to from sea to sea, did not  28 enter the mind of any man.  They ..."  29  30 That is the royal grants,  31  32 "... were well understood to convey the title  33 which, according to the common law of European  34 sovereigns respecting America, they might  35 rightfully convey and no more.  This was the  36 exclusive right of purchasing such lands as the  37 natives were willing to sell.  The Crown could  38 not be understood to grant what the Crown did  39 not affect to claim, nor was it so understood.  40  41 These grants asserted a title against Europeans  42 only, and were considered as blank paper so far  43 as the rights of the natives were concerned."  44  45 And, my lord, if I can just take you back to  46 paragraph 80 where I've attempted to synthesize what  47 these passages state in terms of legal propositions, 241  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 first I say that these passages make it clear that the  2 principle of discovery bound only the European nations  3 who had agreed to it.  4 And I say secondly the discovery did not prejudice  5 the pre-existing rights of the Indians to their land  6 and those rights were stated to be a legal as well as  7 just claim to retain possession of the land and to use  8 it according to their discretion.  9 And thirdly that the right conferred upon European  10 nations by discovery was the exclusive right to  11 purchase the rights of aboriginal peoples.  It gave a  12 right of preemption but did not give an immediate  13 right of beneficial ownership.  14 WALLACE, J.A.:  How does that coincide with Appendix A,  15 paragraph 21, page 9, the last paragraph of Chief  16 Justice Marshall's judgment?  17 MR. JACKSON:  The last paragraph?  18 WALLACE, J.A.:  Page 9 of Appendix A, paragraph 21.  19 MR. JACKSON:  Yes.  "While the different nations of Europe,"  20 that paragraph?  21 WALLACE, J.A.:  Yes.  "... asserted the element of dominion to  22 be in themselves and claimed as an exercise of this  23 consequent upon a power to grant the soil while yet in  24 possession of the natives subject only to the Indian  25 right of occupancy."  26 MR. JACKSON:  My lord, it squares, because what Chief Justice  27 Marshall is saying is that the doctrine of discovery  28 gives in effect the underlying title to land to the  2 9 Crown.  30 WALLACE, J.A.:  To the extent of being able to grant that title  31 subject only to Indian occupancy.  32 MR. JACKSON:  That's right, my lord.  33 WALLACE, J.A.:  All right.  34 MR. JACKSON:  So the Crown has the underlying title which it can  35 grant, and of course that's exactly what was done with  36 the royal charters.  However, to the extent the  37 Indians have a right of occupancy, a right of  38 beneficial enjoyment to use the land according to  39 their discretion, until that title is surrendered the  40 grant in fact cannot take effect in possession.  And  41 that is, we say --  42 WALLACE, J.A.:  It doesn't say that, does it?  43 MR. JACKSON:  Well, my lord, he doesn't say that there, but in  44 terms of the character of the right which is a right  45 to -- a legal right to retain possession, it seems to  46 be a necessary implication flowing from the Indians  47 the Indians have a legal as well as a just right to 242  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 retain possession and use it according to their  2 possession.  What a grantee from the Crown gets is the  3 rights which the Crown has to grant, which are the  4 underlying title.  That parallels the St. Catherine's  5 Milling analysis, my lord, the Crown as the dominium  6 directum, the underlying title, and can make a grant.  7 However, no beneficial enjoyment passes until the  8 Indian dominion utile, beneficial enjoyment has been  9 surrendered.  10 WALLACE, J.A.:  Well, is that inconsistent that the Indian title  11 is a title of the enjoyment of the land?  12 MR. JACKSON:  Inconsistent with what, my lord?  13 WALLACE, J.A.:  With the proposition that Indian interest is one  14 of enjoyment of the land?  that is occupied and  15 enjoyed.  16 MR. JACKSON:  Is that inconsistent with it being a title?  I'm  17 not sure I understand.  18 WALLACE, J.A.:  Well, I'm trying to see if that also limits the  19 nature of the Indian title, that proposition that the  20 underlying title can be granted by the Crown to  21 whosoever it wishes, subject only to the occupancy and  22 enjoyment of the land.  23 MR. JACKSON:  My lord, the way occupancy and enjoyment is  24 defined by the Marshall court is a very full right.  25 That is made clearer in the context of the subsequent  26 decision in Mitchell.  And your lordship might want to  27 just look at that, at paragraph 84.  Perhaps I'll take  28 your lordships to that.  29 WALLACE, J.A.:  Well, don't let me put you off.  I was just  30 thinking of the Johnson case at that stage, the first  31 step.  32 MR. JACKSON:  I think this will clarify your lordship's point  33 because one of things about these cases, my lord, and  34 I think your lordship has put your finger on one of  35 the problems about these cases, if you look at Johnson  36 and M'Intosh and sort of freeze it and say, Okay,  37 that's what Indian title is, let's understand this,  38 and draw conclusions, you may in fact draw too much  39 from the case.  If you go to Worcester and Georgia  40 you're given some further ideas and concepts which  41 explain Johnson and M'Intosh.  When you go to the  42 third case of Mitchell further content is poured into  43 the nature of the right.  44 And therefore, my lord, I would in fact take you  45 to paragraph 84 which I think addresses your  46 lordship's point in a very focussed kind of way as to  47 what is the relationship between the Crown's right to 243  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 underlying title and its right to make a grant with  2 the pre-existing right of the Indians to occupancy or  3 to retain possession.  4 And in that case in a judgment written by Mr.  5 Justice Baldwin which is think is what the court had  6 to say, reading from page 82 of the factum:  7  8 "One uniform rule seems to have prevailed from  9 their first settlement, as appears by their  10 laws..."  11  12 And that was in reference to the British regime,  13  14 "... that friendly Indians were protected in the  15 possession of the lands they occupied, and were  16 considered as owning them by a perpetual right  17 of possession in the tribe or nation inhabiting  18 them as their common property from generation  19 to generation, not as the right of the  20 individuals located on particular spots.  21  22 Subject to this right of possession, the  23 ultimate fee was in the Crown and its grantees  24 which could be granted by the Crown or colonial  25 legislatures while the lands remained in  26 possession of the Indians, though possession  27 could not be taken without their consent.  28  29 By this union of the perpetual right of  30 occupancy with the ultimate fee, which passed  31 from the Crown by the license, the title of the  32 purchaser became complete."  33  34 By acquiring the Indian interest the underlying  35 title became a plenum dominium, the full nature of the  36 interest underlying title plus the Indian title and  37 therefore the grantee would have the right to  38 possession.  Prior to the surrender of the Indian  39 interest the grantee got a bare title which did not  40 entitle him or her or it to beneficial enjoyment of  41 the territory.  And I think that is made very clear in  42 Mitchell.  43 TAGGART, J.A.:  Is there anything here in these cases discussing  44 the scope of the word "possess"?  45 MR. JACKSON:  My lord, if you go to the —  46 TAGGART, J.A.:  If the tribe said we claim all of the lands west  47 of the Alleghenies and so far as the Mississippi, if 244  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 that were challenged you can claim it, but you're not  2 in possession of it.  3 MR. JACKSON:  Okay.  Let me direct your attention, my lord, to  4 the next propositions asserted by Mr. Justice Baldwin  5 in Mitchell, which I think also answers your  6 lordship's point.  In paragraph 85 of the factum his  7 lordship then addressed the very point your lordship  8 is raising, what is this perpetual right of possession  9 which he has defined as being the aboriginal title,  10 the aboriginal interest to which any grant is subject.  11 And his lordship said:  12  13 "Indian possession or occupation was considered  14 with reference to their habits and modes of  15 life; their hunting grounds were as much in  16 their actual possession as the cleared fields  17 of the whites.  And their rights to its  18 exclusive enjoyment in their own way and for  19 their own purposes were as much respected,  20 until they abandoned them, made a cession to  21 the government, or an authorized sale to  22 individuals.  Such too was the view taken by  23 this court of Indian rights in the case of  24 Johnson and M'Intosh which has received  25 universal assent.  26  27 The merits of this case do not make it  28 necessary to inquire whether the Indians within  29 the United States had any other rights of soil  30 or jurisdiction.  It is enough to consider it  31 as a settled principle that their right of  32 occupancy is considered as sacred as the fee  33 simple of the whites."  34  35 So according to the Marshall court, my lord,  36 Indian possession was to be defined by reference to  37 the Indians' habits and modes of life in the context  38 of their own particular economies.  There is other  39 distinctive economies and not in the context of any  40 preconceived notions of the common law that rights had  41 to be exercised in the context of cultivation or some  42 other specific utilization common and traditional in  43 an European context.  The one looked at the context,  44 the economic and social context of aboriginal peoples.  45 That proposition, my lord, was one adopted by Mr.  46 Justice Mahone in the Baker Lake case in the context  47 of understanding the rights, the aboriginal rights of 245  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 the Inuit of Baker lake.  2 TAGGART, J.A.:  On the utilization of that concept, was the  3 whole of the -- well, since we are talking American  4 the United States experience let's confine it to that.  5 MR. JACKSON:  Yes.  6 TAGGART, J.A.:  On the application of that concept to the United  7 States, was the whole of the territory claimed by the  8 United States from Atlantic to Pacific occupied by  9 aboriginals?  10 MR. JACKSON:  I don't think I can give your lordships a global  11 answer to that, but I think it would be fair to say  12 that a large part of it was.  There were areas, my  13 lord, in which as a result of disease, areas had been  14 depopulated and therefore there were large parts of  15 North America in which no one lived, in which no one  16 pursued and used as an economic zone, and therefore  17 there would be areas which were not the subject of  18 aboriginal claims, but I think it is fair to say that  19 large parts of North America would, under this theory,  20 be subject to aboriginal title but not all of it.  21 If your lordships -- when I skipped over dealing  22 with the situation in Massachusetts, for example, the  23 experiences there was that very early on there were  24 areas around Salem and Boston which had been  25 depopulated which in fact no one made claims to.  And  26 that certainly became more and more the situation as  27 disease took its hold in North America.  But the  28 general answer for your lordship's question is that on  29 that theory of occupation, on that theory of  30 possession, significant areas of North America were  31 subject to aboriginal title.  32 My lord, what I want to go to now is to look at  33 the second and third of the Marshall judgments which  34 are collectively known as the Cherokee cases.  And I  35 want to go into the background of these cases a little  36 bit because I say that the factual context of these  37 cases is of some significance to the resolution of  38 issues before your lordships.  And I would at this  39 point take your lordships back into the appendix,  40 paragraph 34 at page 16.  41 Paragraph 34, my lord, we say that Worcester and  42 Georgia provides the clearest and most comprehensive  43 judicial articulation of the concept of aboriginal  44 rights to be found in the common law.  Ambiguities in  45 the previous attempts to formulate principle, for the  46 adjudication of disputes involving aboriginal rights  47 were directly addressed and resolved.  And we say the 246  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 case stands as the culmination of an evolving doctrine  2 on aboriginal rights and is the judicial centrepiece  3 of that law.  4 In his judgment, as I've already indicated, Chief  5 Justice Marshall examines in detail the doctrine of  6 discovery, Crown charters, the system of Crown  7 property grants, British and American law and policy  8 regarding aboriginal land rights and the national  9 character and jurisdiction of Indian nations.  Most  10 importantly, the judgment also articulates the  11 principle that Indian consent to any changes in the  12 territorial integrity of Indian nations is required by  13 law.  14 The factual context of the Cherokee cases, my  15 lord, we say is also of significance to the legal  16 issues facing this bench because it speaks directly to  17 one of the principle holdings of the trial judge, that  18 aboriginal rights were limited to -- and I'm at the  19 top of page 17 of the Appendix -- limited to all those  20 sustenance practices and the gathering of all those  21 products of the land and waters of the territory which  22 they, that is the appellants, practice and used before  23 exposure to European civilization sovereignty, for  24 subsistence or survival.  Including wood, food and  25 clothing for their culture or ornamentation, in short,  26 what their ancestors obtained from the land and waters  27 for their aboriginal life.  28 My lord, your lordships will realize this is in  29 the context of his lordship's mention of an additional  30 test to Baker Lake, which is that in order to have an  31 aboriginal title it is necessary to show that the land  32 utilized was utilized for a long, long time prior to  33 European contact and that that utilization was not  34 contaminated by or in consequence of European contact.  35 And we say that the affirmation of the aboriginal  36 rights of the Cherokee nation by the Supreme Court in  37 Worcester and Georgia, notwithstanding the very  38 dramatic changes that took place in the traditional  39 activities of that nation in the 18th and 19th  40 centures, well after, indeed centuries after exposure  41 to European civilization, stands as the clearest  42 repudiation of the conclusions of the trial judge.  43 My lord, in the next page I have given your  44 lordships an outline of some of the more dramatic  45 changes that took place in Cherokee territory from the  46 time of their first contact.  And I've made the point  47 that initially the Cherokees, like the Gitksan and 247  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 Wet'suwet'en, with no centralized political system.  2 They lived in some 60 settlements which were called  3 towns by the English and each town was self-sufficient  4 and self-governing.  The nature of the Cherokee social  5 cultural network bears some similarities to those of  6 the appellants.  The Cherokees in terms of their  7 tribal cohesion, most of that came from the clan  8 system.  Cherokees in addition to being members of  9 particular towns also were members of one of seven  10 clans.  And each of those clans was distributed in  11 each of the towns and therefore there was an  12 interconnectedness because between Cherokees of a  13 particular town by reference to their kin  14 relationships in other towns.  And that gave both in  15 terms of the clan relationships, in terms of the  16 language, in terms of the cultural content, that's  17 what gave them their tribal cohesion.  That's why they  18 were a nation, not simply an amalgamation of a bunch  19 of towns.  20 In paragraph 39 I make the point, my lord, that  21 the Cherokees made dramatic changes in the nature of  22 their traditional economy.  That originally their life  23 was a very stable one, it was hunting, gathering, some  24 small subsistence farming and an internally oriented  25 communal order.  That changed with the acquisition of  26 guns and metal tools in the 18th and 19th centuries  27 and they rapidly became involved in the trans-  28 continental fur trade.  That brought about dramatic  29 changes to their economy and they became part of a  30 market economy in which free trade was of the order.  31 And the changes, my lord, which the Cherokees went  32 through in the 18th century are not unlike some of the  33 changes your lordships have heard about in some of the  34 previous cases this bench has heard, for example in  35 van der Peet, in the context of the advent of the  36 Hudson Bay and the new market opportunities which that  37 brought about and how in fact adaptations were made in  38 the economy from being an intertribal trading economy  39 became an economy which very much focussed in some  40 respects outside of itself and took advantage of new  41 markets.  So did the Cherokee.  The Cherokee very much  42 changed their traditional orientation in terms of  43 economic opportunity to focus on the outside and  44 developed much more intensive agriculture.  They  45 started employing their territories for tobacco  46 farming.  The Cherokees adopted slaves for that  47 purpose as well.  And in many cases adapted their 248  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 economy to new influences.  In the 18th century, my  2 lord, the Cherokees entered into treaties of cession  3 with the British colonies.  4 And in paragraph 4 0 I've made mention of the fact  5 that following the Royal Proclamation one of this  6 series of treaties which was negotiated by the British  7 pursuant to the proclamation for determining the line  8 between the colonial settlements and the Indian  9 country were treaties negotiated with the Cherokee.  10 And I've referred to some of those yesterday.  It's  11 not surprising therefore that when war broke out  12 between the British and the Americans, the Cherokee  13 took the side of the British.  14 After the revolution the Cherokees continued to  15 make treaties with the United States and ceded more of  16 their lands.  The very first treaty in fact made by  17 the United States after the revolution was made with  18 the Cherokee nation and was made under the terms of  19 the Treaty of Hopewell.  The Treaty of Hopewell is  20 significant because its terms are construed in the  21 context of Worcester and Georgia.  22 And in paragraph 43 I've indicated that in brief  23 terms the treaty defined the boundaries of the  24 Cherokee nation and provided for the eviction of white  25 settlers who had unlawfully located themselves within  26 those boundaries.  The treaty acknowledged that the  27 Cherokees were under the protection of the United  28 States and that the United States had the sole and  29 exclusive right of trading with the Cherokees.  That  30 again, what that meant what did the Cherokees  31 surrender in placing themselves under the protection  32 of the Crown was one of the points which Chief Justice  33 Marshall considered in Worcester and Georgia.  34 However, the Treaty of Hopewell proved to be a  35 weak reed upon which to defend Cherokee integrity.  36 Subsequent treaties were negotiated, principally the  37 Treaty of Holston, which became the subject of con  38 Tony in Worcester and Georgia.  39 My lord, paralleling the cessions which the  40 Cherokees were making with the United States, the  41 State of Georgia also entered into a treaty with the  42 United States whereby it gave up all of its western  43 lands in return for an undertaking by the United  44 States that it would extinguish all aboriginal rights  45 within the State of Georgia.  In other words, as the  46 quid pro quo for Georgia giving up its western lands,  47 it took from the United States an undertaking pursuant 249  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 to the United States exclusive right to deal with the  2 Indian tribes, the undertaking that they would enter  3 into treaty of cessions with the Cherokees in order  4 for Georgia to make beneficial use of all the Cherokee  5 lands.  It was that undertaking which precipitated the  6 lists in the Cherokee cases, because the Cherokees at  7 this point came to a determination that they had given  8 up as much land as they could give up.  They had ceded  9 land, they had ceded land in 1805, there was a cession  10 of the last of their hunting grounds.  And I've set  11 out in paragraph 46 the implications of that.  12 Even though hunting was no longer the principle  13 occupation of the Cherokees the loss of the last of  14 their hunting ground was, in the words of Professor  15 McLoughlin, was what it would be for a Catholic to  16 lose the mass.  The possibility of pursuing hunting,  17 of following the traditions of their ancestors of  18 establishing one's identity as a hunter was gone  19 forever.  And the Cherokees at that point determined  20 that they had given up as much of their land to  21 settlement as they could tolerate, that no more lands  22 would be ceded.  23 At the same time the Cherokees went through what  24 has been referred to as a Renascence.  They sought in  25 what they regarded as the last of their home lands to  26 build up and revitalize their communities and their  27 economy and their political structure.  And in the  28 next two decades, the first two decades of the 19th  29 century, they went through a remarkable  30 transformation, they prepared a series of laws which  31 were an amalgamation of American federalism, including  32 overlaying many aspects of Anglo-Saxon jurisprudence  33 on Cherokee customary law, retaining communal rights  34 to property but permitting allocation in the territory  35 to other Cherokee.  They developed a bicameral  36 legislative system, they developed a way of writing  37 their language, developed a printing press, they  38 introduced the first bilingual newspaper in America  39 and that consolidated their determination that no more  4 0 lands could be given up.  41 The State of Georgia however, took the position  42 that these were lands which they had a rightful  43 expectation that they would receive pursuant to the  44 Federal Government's undertaking to extinguish  45 aboriginal rights.  And it was in the context of that  46 clash between the Cherokees revitalization and attempt  47 to maintain and sustain themselves as a Cherokee 250  Submissions by Mr. Jackson  Submissions by Mr. Jackson  1 nation in the last of their home lands and the  2 determination of the State of Georgia that those lands  3 were their lands, which led to the contest which  4 ultimately came before the Supreme Court of the United  5 States in the Cherokee cases.  6 That would be a convenient time both in where I am  7 at and your lordship's timetable to end the day.  8 TAGGART, J.A.:  Thank you.  Mr. Jackson we will adjourn now to  9 ten o'clock tomorrow.  10 THE REGISTRAR:  Order in court.  Court stands adjourned to ten  11 o'clock tomorrow.  12  13 PROCEEDINGS ADJOURNED 4:00 p.m.  14  15 I hereby certify the foregoing to  16 be a true and accurate transcript  17 of the proceedings herein to the  18 best of my skill and ability.  19  20 B.M. March,  21 Official Reporter  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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