Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-05] British Columbia. Supreme Court Jun 5, 1992

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 1611  Submissions by Mr. Arvay  1  CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  2  3 Vancouver, B.C.  4 June 5, 1992.  5  6 THE REGISTRAR:  In the Court of Appeal for British Columbia,  7 Friday, June 5th, 1992.  In the matter of Delgamuukw  8 versus Her Majesty the Queen at bar, my lords.  9  10 MR. LOWES: My lords, we have another new face at the counsel  11 table.  This is Miss Paula Graham, who will be with me  12 for the balance of the case.  13 TAGGART, J.A.:  You're very welcome.  14 Yes, Mr. Arvay?  15 MR. ARVAY:  My lords, at the outset this morning I would like to  16 take the opportunity to attempt to answer Mr. Justice  17 Lambert's questions of May 15th, 1992.  I believe Mr.  18 Jackson characterized his response as tentative or  19 preliminary, or something of that sort.  If what he  20 meant by that was that he was going to follow it with  21 a more considered and final response, that's not what  22 I mean when I say my submissions are tentative.  They  23 would be tentative no matter how long I think I had to  24 spend on it, because the questions are very good  25 questions, they are fundamental questions, they are  26 very difficult questions to answer.  27 And so what I do provide to your lordships is our  28 best attempt, given the time frame that we had to work  29 on the questions, to assist your lordships in  30 addressing these fundamental points, which indeed are  31 at the core of the case, but for which, I confess,  32 there are no easy or simple answers.  33 We understood Mr. Justice Lambert to ask not two  34 questions, but three questions.  And the -- in  35 paragraph one of our written submissions we have  36 distilled those three questions as follows:  What  37 makes something a right?  What makes something  38 aboriginal?  The third question the other counsel did  39 not address but Mr. Justice Lambert did seek  40 information on is what differences, if any, exist  41 between aboriginal rights at common law and section 35  42 rights?  And that is found, if any reference is  43 needed, in Mr. Justice Lambert's question at page 3,  44 line 28 he says:  45  46 "Finally, as an additional problem the answer to  47 the questions that I have asked have to be 1612  Submissions by Mr. Arvay  1 related to section 35 of the Constitution Act  2 and to the aboriginal rights there referred to,  3 which include rights under land claim  4 agreements, different in their nature perhaps  5 from aboriginal rights generally.  The question  6 about whether aboriginal rights apart from  7 section 35 are the same as aboriginal rights  8 under section..."  9  10 Mr. Justice Lambert, there is a typographical --  11 not a typographical error, there seems to be an error  12 or an omission in the transcripts, it says section 5,  13 I understood that to mean section 35.  14 LAMBERT, J.A.:  I am sure that's right.  15 MR. ARVAY:  So you said:  16  17 "The question about whether aboriginal rights  18 apart from section 35 are the same as  19 aboriginal rights under section 35, and perhaps  20 therefore whether section 35 controls what we  21 must regard as aboriginal rights seem to me to  22 be important also."  23  24 So we have attempted to answer the three  25 questions.  We had a great deal of difficulty  26 attempting to answer question one as a distinct answer  27 to question two.  It was very difficult to  28 disaggregate the term "aboriginal right" and answer  29 what is a right without thinking about it in the  30 context of aboriginal rights.  And, indeed, in  31 fairness to Mr. Justice Lambert, I am -- I think you  32 have appreciated that, because in your question as  33 well, with respect to the first question when you said  34 "what makes something a right?" and I am reading now  35 from page 2 of your -- of the transcripts at line 26,  36 you say:  37  38 "I think my particular problem is two-fold:  The  39 first question is what makes an activity,  40 custom, practice or institution into a right in  41 the context of aboriginal rights generally and  42 in the context of section 35 of the  43 Constitution Act?  This question asks what  44 makes something a right?"  45  46 So your lordship appreciated, I believe, that it  47 is very difficult to -- it may be possible to answer 1613  Submissions by Mr. Arvay  1 the question in the abstract but it may not be very  2 helpful to answer the question in the abstract without  3 regard to the fact that the reason, without regard to  4 the fact that the question arises in a proceeding  5 which is searching for a meaning for aboriginal  6 rights.  Your second question is asked, you say this  7 question -- sorry.  The second question is:  8  9 "What makes an activity, custom, practice or  10 institution carried on by aboriginal peoples  11 into an aboriginal right?  This question asked  12 what makes a right aboriginal?"  13  14 As I said, we find it very difficult to provide  15 you with an answer which is going to be very useful by  16 focusing in an abstract way on what makes something a  17 right.  We have tried to answer that question in the  18 context of aboriginal rights in section 35 generally.  19 At paragraph 2 of our response we say that these  20 two inquiries are inextricably intertwined, just as  21 the nature of a right depends on whether it is a  22 contractual right, a constitutional right or a human  23 right, so too with aboriginal rights.  The nature of  24 aboriginal rights may be distinct from the nature of  25 other rights, simply because they refer to aboriginal  26 people.  27 And I cite a quote from Donnelly, Universal Human  28 Rights:  29  30 "From where do we get human rights?  The very  31 term 'human' rights points to a source:  32 humanity, human nature, being a person or human  33 being.  Legal rights have the law as their  34 source, contractual rights arise from  35 contracts, and thus, apparently, human rights  36 have humanity or human nature as their source."  37  38 So we do say that what makes something an  39 aboriginal right is because it is unique to aboriginal  40 peoples.  Indeed, we say that the right is unique, it  41 is sui generis, in at least three different ways:  It  42 is unique in its source, it is unique in its content,  43 and, most importantly, it is unique in its  44 relationship to the state.  45 Now, having said that it's very difficult to answer  46 the question in a way which we think would be helpful  47 to your lordships, by just focusing on what makes 1614  Submissions by Mr. Arvay  1 something a right in the abstract, we have attempted  2 to do that, because Mr. Justice Lambert asked that we  3 perform some analysis of the jurisprudential  4 formulation of the rights.  5 Now, there is a vast body of literature on the  6 jurisprudential formulation of the rights.  It would  7 be foolhardy for me particularly to attempt to present  8 to this court a coherent theory of rights that you  9 would accept, or would even purport to settle that  10 question, and so I don't attempt to do it.  I confess  11 my limitations in that area, and all I can do for you  12 is to go back to what I understand to be basically the  13 two broad formulations of rights in our -- in the  14 Anglo-Canadian-American legal system, and present it  15 to you in the hope that that will assist in answering  16 the questions before the court.  I say, however, that  17 I am not particularly optimistic that that inquiry  18 does assist very much, but I present it to you for  19 what it's worth.  20 And in the written response, at paragraphs six,  21 seven, eight and ten -- you didn't want to see what  22 was in nine -- we simply set out in almost an amalgam  23 form a summary of those two broad jurisprudential  24 formulations of right, which is positivism and natural  25 law.  The one article that I really did enjoy, because  26 I understood it, was was an article by Prof. Owen  27 Theissen, who started off by saying that in terms of  28 positivism, is that a positivist is someone who sounds  29 very positive.  And that's something that I will be  30 doing when I commence my submissions on remedies.  But  31 it's not something that I am going to be doing in this  32 part -- these parts of my submissions.  33 In any event, I don't wish to belabour the point  34 of what are the two basic jurisprudential formulations  35 of rights.  I think we all know that positivism is  36 essentially a conception of rights which provides that  37 they are the product of state action.  Typically, it's  38 the legislature, but it's also the judiciary, the  39 judiciary can be the source of law, a source of  40 rights.  Austin says they are rules established by  41 political superiors.  42 When I was reading a bit of Austin last night, I  43 found it quite amusing that after he got into about  44 three or four pages of his text on jurisprudence, he  45 says that he feared that he was going to be testing  46 the patience of his readers, looking down the line,  47 but he said that they should be cheerful or at least 1615  Submissions by Mr. Arvay  1 adopt some tolerance for him because it might be -- it  2 was him that had to perform the task of explaining his  3 theory of rights to them rather than vice versa.  I  4 won't test your patience because I am simply going to  5 present to you, in the most summary fashion, what I  6 understand to be these two jurisprudential  7 formulations of rights and then move on.  8 So in paragraph 6 we summarize positivism as being  9 a legal right which is the product of legislative or  10 judicial action.  And in the second jurisprudential  11 school of thought, which is natural law of theory,  12 postulates, I am at paragraph 8, that law is simply  13 not positive actions of the state but includes  14 explicit, normative considerations beyond mere legal  15 pronouncement.  16 And in paragraph 10 we say that there are  17 different conceptions of natural law.  Some find the  18 source of natural law in God.  Thomas Aquinas viewed  19 rationality as an expression of natural law which was  20 in turn an expression of God's will.  Crucial to his  21 conception of natural law is the notion of "natural  22 inclinations and reason."  Kantian scholars see the  23 source of natural law not in some divine source but in  24 self-reflection, in thought, in reason.  25 Now, the reason that these European conceptions of  26 rights may not be particularly helpful is because it's  27 difficult to transpose them to aboriginal systems,  28 aboriginal beliefs and aboriginal ideas of law.  29 Nevertheless, I try to seek out the source of  30 aboriginal law, using either positive law or natural  31 law conceptions.  And so if you wanted to put a sub  32 heading in this written response prior to paragraph  33 12, you might say "the source of aboriginal rights."  34 Now, one of the only ways we can determine the  35 answer to the questions is simply to look to see what  36 judges have said about aboriginal rights.  And that  37 may not be particularly instructive, unless the judges  38 who have expounded on aboriginal rights have thought  39 about the source in this way, by considering the  40 jurisprudential questions.  But, nevertheless, we  41 consider that probably the only way we can determine  42 what makes something a right, an aboriginal right, is  43 to look to see what judges have said about it.  44 And in paragraph 12 I have referred you to a  45 passage that you have seen many times from Calder, Mr.  46 Justice Judson, he says that this is what aboriginal  47 title means.  He says: 1616  Submissions by Mr. Arvay  1  2 "...the fact is that when the European settlers  3 came the Indians were there, organized in  4 societies, occupying the land their forefathers  5 have done for centuries."  6  7 WALLACE, J.A.:  But did he say aboriginal title was synonymous  8 with aboriginal rights?  9 MR. ARVAY:  No, that was the word he used, so it's the word I  10 will use now to be not necessarily coterminus with  11 aboriginal rights but certainly a subset of aboriginal  12 rights.  13 And in Guerin, Mr. Justice Dickson looked to  14 Calder, which he said:  15  16 "...recognized that aboriginal title was a legal  17 right which is derived from Indians' historic  18 occupation and possession of their tribal  19 lands."  20  21 He said it was an independent legal right that  22 pre-dated the Royal Proclamation.  23 WALLACE, J.A.: But didn't he say the title pre-dated the Royal  24 Proclamation at 335?  25 MR. ARVAY:  Yes, I believe it was Indian title was a -- I think  26 he used the word Indian title was an independent legal  27 right that pre-dated occupation.  That's right, my  28 lord.  Again, I am not going to, for the purpose of  29 these submissions, make a distinction between Indian  30 title and Indian rights or aboriginal rights.  31 WALLACE, J.A.:  But the point I am trying to make is whether a  32 right can exist pre-contact until -- can a right exist  33 until it's recognized by the European community?  34 MR. ARVAY:  That's exactly the inquiry.  35 WALLACE, J.A.:  And this seems to say it's a pre-existing right,  36 and I don't know how it can be pre-existing a system  37 that recognizes it.  38 MR. ARVAY:  Yes.  It's our -- at least it's an argument.  Again,  39 I am sort of reluctant to cast it as a position,  40 because I think it can only be an argument.  The  41 argument is, is that if it was an independent legal  42 right which pre-existed contact, let alone  43 sovereignty, then the source of the right is not in  44 Colonial law, let alone Canadian law, the source of  45 the right must be in aboriginal law.  And so the  46 position we take in this paper is that that is a  47 partial answer to my lord's question, which is what 1617  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Arvay  makes a practice a right in terms of an aboriginal  right, is the source of the right, is aboriginal law.  If it pre-dated contact, it can't find -- and yet we  call it a legal right, an independent legal right, it  must find its source in aboriginal law.  Now does that mean that the source of aboriginal  rights are founded on a conception of positive law or  natural law?  It can be either.  It can be founded on  positive law, so long as you're prepared to recognize  that aboriginal law, aboriginal systems of law,  qualify as being laws in the Austinian conception of  rights, as a positive law.  And it seems to me you  can.  It's a bit forced but you can.  Likewise, you  could probably say that the source of aboriginal  rights, given that they pre-date contact and come from  a system of law which is very different from, very  foreign to European systems of law, that it is founded  more on a natural rights conception of the law.  Does  that make it any less legitimate?  Only if you reject  natural law as a legitimate source of law and rights.  But aboriginal scholars have described their rights in  ways which suggest that they are founded on more of a  natural rights conception rather than positive law  conception.  And I have, in paragraph 14 of my written  response, a quote from an aboriginal scholar, and he  says this.  He says:  "What are aboriginal rights? They are the law  of the Creator. That is why we are here. He  put to..."  That is obviously wrong.  That quote, by the way,  is attached to the material you have.  TAGGART, J.A.:  I think "he put us to use."  MR. ARVAY:  "He put us in this land; he did not put the  white people here.  He put us here with our  families, and by that I mean bears, the deer  and the other animals.  We are the aboriginal  people and we have the right to look after all  life on this earth.  We share land in common,  not only among ourselves but with the animals  and everything that lives in our land.  It is  our responsibility.  Each generation must  fulfill its responsibility under the law of the  Creator.  Our forefathers did their part now we 1618  Submissions by Mr. Arvay  1 have to do ours.  Aboriginal rights mean  2 aboriginal responsibility, and we were put here  3 to fulfill that responsibility."  4  5 One might say that that's a natural rights  6 conception of aboriginal law.  We say, in paragraph  7 15, that, however, the court should be slow to  8 conclude that in any certain way, because that quote  9 itself suggests that the aboriginal legal systems  10 might collapse a distinction to the extent that their  11 positive laws are expressive of a natural ordering.  12 But we get this far, we look to cases like Guerin  13 and Calder and say that if aboriginal title, Indian  14 title, perhaps a subset of aboriginal rights, is an  15 independent legal right which finds its roots in  16 something that happened before contact, then the root  17 of aboriginal rights is aboriginal law.  And I can't  18 tell you what the root of aboriginal law is, because,  19 of course, not only is it because I don't know whether  20 it's positive or based on a positive conception of the  21 law or natural rights conception of the law.  We just  22 don't know enough about aboriginal law or aboriginal  23 legal systems.  But in order to recognize it as a  24 right in -- in order to recognize an aboriginal  25 practice, rather, as an aboriginal right, we say you  26 don't have to have proof that the practice is  27 authorized or blessed by some aboriginal legal system,  28 it would be very difficult for any aboriginal people,  29 I think, to prove that a particular aboriginal  30 practice is traced to some law, traced to some  31 aboriginal law, so we don't require that proof.  Plus  32 it might be very dangerous for our courts to purport  33 to rule on whether something is an aboriginal law or  34 not.  There is a real danger, a risk of  35 misinterpretation of their systems.  So we say in  36 order to satisfy, in order to answer the question of  37 whether a practice is a right, you have to be  38 satisfied that the practice comes from an organized  39 society, that evidence of the aboriginal people living  40 in an organized society is sufficient evidence that  41 they had some kind, some system of law.  And,  42 therefore, that's enough to make a connection  43 between -- that's enough to allow you to conclude that  44 the practice is a right.  45 MACFARLANE, J.A.:  It comes from and is recognized by an  46 organized society?  47 MR. ARVAY:  Yes, comes from and is organized by an organized 1619  Submissions by Mr. Arvay  1 society.  And I will try to do that again.  When you  2 ask what makes a practice into a right in the sense of  3 an aboriginal right, we say it's not just enough that  4 aboriginal people were engaging in this practice, not  5 all practices can be a right.  And yet it's too much  6 to ask aboriginal people to prove that there were  7 aboriginal laws which said that this thing that they  8 were doing was a right.  So we say that the  9 compromise, and it's a compromise, proof that they  10 lived in an organized society is sufficient to prove  11 that the practices that they engaged in were rights.  12 WALLACE, J.A.:  So that analysis turns then on its  13 characterization by the aboriginal society, not by  14 European society?  15 MR. ARVAY:  I think we have to be very sensitive to the  16 aboriginal peoples' understanding of what is or is not  17 a right, which practice does or does not qualify as a  18 right.  What we -- we add what is really a gloss, I  19 suppose, on what makes an aboriginal practice a right.  20 We say that the practice not only must find its source  21 in some organized society, but it also must be a  22 practice which is integral to their distinctive  23 culture.  That may be the best evidence that we would  24 have, that what they were doing is important enough to  25 be characterized as a right, absent proof that there  26 is an aboriginal law out there which says that  27 something we wouldn't think is a right.  So when we  28 talk about the source of aboriginal rights, yes, we  29 say the original source is aboriginal law.  We can't  30 ignore the fact that judges, courts, are putting  31 glosses on that law and deciding whether and when  32 something is a right, and so the source of aboriginal  33 rights is not only aboriginal law but is the common  34 law.  Every time a court opines on aboriginal rights,  35 to some extent that becomes the source of the right.  36 But what we are trying to do is get back to the root.  37 We say the root is probably aboriginal law and the  38 best evidence of the law is the practice.  And in  39 order to ensure that the practice, even in the  40 aboriginal society's conception of rights, is a right,  41 we say that the practice must be tied closely,  42 integrally to their distinctive culture.  And, yes, we  43 should be sensitive to the aboriginal society's idea  44 of what is integral and what is not.  45 Now, to answer the question, then, what makes an  46 aboriginal practice a right we say it is aboriginal  47 law.  And in order to be satisfied that there is an 1620  Submissions by Mr. Arvay  1 aboriginal law, we need some proof that the aboriginal  2 people lived in an organized society.  And  3 furthermore, the best evidence of whether the  4 aboriginal practice is a right is the practice  5 integral to their distinctive culture.  6 One wonders what would happen if someone from Mars  7 came to Canada and British Columbia and asked -- and  8 he wanted to know or she wanted to know, what makes  9 something a right in our society, if they didn't land  10 on the lawn of the legislative buildings, or if they  11 landed on the lawns of the legislative buildings in  12 Victoria they might know, it is all there.  13 MACFARLANE, J.A.:  Might never know.  14 MR. ARVAY:  Sorry?  15 MACFARLANE, J.A.:  Might never know.  16 MR. ARVAY:  Might never know.  But that would be the obvious  17 source of the right.  But they might wander around the  18 community to get a sense of what practices seem to be  19 really important to the culture, and those practices  20 may well be considered rights in our culture.  So  21 probably would understand we have a right not to be  22 assaulted and robbed, but other things that we do  23 which are less fundamental wouldn't qualify as a  24 right.  To some extent that's what we are doing.  It's  25 impossible to go back to pre-contact times in any  26 meaningful way, so we use proxies.  And aboriginal  27 practice is our proxy for aboriginal rights.  28 Now, to answer the question what makes a right  29 aboriginal, and again I appreciate that there is an  30 overlap.  Forgive me, I just have a very hard time  31 separating the two questions.  But what makes a right  32 aboriginal we say is because it's unique to aboriginal  33 people.  And that prompts the next question, well why  34 is it unique to aboriginal people?  And to some extent  35 it may be because of the content, the practice, but I  36 don't think that's the complete answer.  Because there  37 are also many things that aboriginal people do or did,  38 practices, which non-aboriginal people do or did, the  39 right to hunt and fish, for instance.  There may be  40 aboriginal practices which of course are distinctive  41 to aboriginal communities:  feasts, potlatches, those  42 things.  But I don't think we can limit aboriginal  43 rights to practices which are unique to aboriginal  44 people.  And so I say that the -- probably the  45 fundamental reason about why aboriginal rights are --  46 one of the fundamental reasons why aboriginal rights  47 are unique is in their inter-relationship with the 1621  Submissions by Mr. Arvay  1 state.  2 It is because aboriginal rights find their source  3 in aboriginal law, something that pre-dated contact,  4 that you cannot find in the right any conception how  5 it inter-relates with the state.  The colonial state  6 is foreign to any system of aboriginal law.  And so  7 you -- if you ask, if someone says that aboriginal  8 rights create some sort of protection against the  9 colonial state, I say that can't be so if you accept  10 the premise that the source of aboriginal rights is  11 aboriginal law, for the obvious point that the  12 colonial authority wasn't around in pre-contact times  13 when the aboriginal law was created.  And so what  14 makes an aboriginal right somewhat unique is in the  15 fact that it doesn't have within it any protection  16 from the state.  It doesn't have within it any fetter  17 on state power, on colonial state power.  18 Now, you might say, well, even an aboriginal --  19 even in pre-contact times there were various  20 aboriginal communities, nations, and an aboriginal  21 people or nation may have a law which prevents other  22 aboriginal nations from invading their space, invading  23 their territory.  In this particular case, that wasn't  24 proven.  But even accepting for the sake of argument  25 that an aboriginal nation does have a law which  26 protects its community, its people from invasion from  27 strange or other aboriginal communities or nations,  28 that doesn't translate into a right which protects an  29 aboriginal community against colonial power, colonial  30 authority.  Because once you accept the sovereignty of  31 the colonial authority, which my friends do, you can't  32 accept the sovereignty of the colonial authority and  33 at the same time recognize that the aboriginal right  34 places a fetter on the colonial authority's sovereign  35 power, which seems to me to be a contradiction in  3 6 terms.  37 Aboriginal nations may have competed on some level  38 of equality.  But aboriginal nations do not compete  39 with the colonial authority as sovereign nations.  So  40 we say that, and I am at paragraph 19, in paragraph 19  41 of my argument, in the last sentence, aboriginal  42 rights in existence at the time of sovereignty place  43 no or minimal correlative duties on colonial authority  44 -- on colonial authority, and the common law of  45 aboriginal title prior to 1982 reflected this fact.  46 Indeed -- rather not indeed, we call aboriginal rights  47 a right, an independent legal right, because it is 1622  Submissions by Mr. Arvay  1 rooted in an aboriginal system of law.  But we  2 recognize it, the common law recognizes it as being a  3 legal right in our system.  But all that means, in my  4 submission, is that the state is prepared to give some  5 protection to the aboriginal people, to give some  6 recognition to the aboriginal right by ensuring that  7 it receives some protection from the state by the  8 state, when there are any encroachments on that right  9 by third parties, but not the state.  In other words,  10 the state, by recognizing it as a legal right, its  11 roots may be in aboriginal law, but it's recognized as  12 a legal right in our system, it's a legal right in our  13 system because its given some protection.  But the  14 protection that the aboriginal people enjoy by having  15 an aboriginal right is not protection from the  16 sovereign, from the state, it is protection from third  17 party interests, other aboriginal and non-aboriginal  18 people.  And that's the common law.  The common law is  19 that aboriginal people can look to the state for  20 protection to endorse their rights, but aboriginal  21 people cannot rely on their rights to fetter sovereign  22 power.  23 Mr. Bell's interpretation of the Royal  24 Proclamation yesterday, in my submission, is entirely  25 correct.  The Royal Proclamation is an example of the  26 state providing protection to aboriginal people, their  27 rights, from the settlers, but not in any way  28 suggesting that the state had somehow fettered its  29 sovereign power to deal with its land or the people or  30 with its subjects.  31 It may be that the state has imposed through the  32 courts some minimal correlative duty on itself vis-a-  33 vis aboriginal people, and that might find expression  34 in the law of extinguishment.  But before the state is  35 to be said to have extinguished aboriginal rights,  36 there must be an expression of the sovereign, which is  37 clear and plain, which is a clear and plain expression  38 of intent to extinguish the aboriginal right.  39 Chief Justice McEachern, and Mr. Justice Dickson  40 in Guerin as well, found some fiduciary relationship  41 between the state and aboriginal people as being yet  42 perhaps another fetter, to some extent, on the state.  43 But the fundamental proposition is that if the source  44 of the right is the aboriginal law, then we can't find  45 in the aboriginal law any fetters on the colonial  46 power, the sovereign authority.  If there have been  47 any fetters placed on the colonial authority, it has 1623  Submissions by Mr. Arvay  1 been by the sovereign himself or herself, through the  2 instrumentalities of the state, and as well the  3 courts, and we say that such limits are very minimal.  4 I find it useful in this part of my submissions,  5 because it ties into what I am going to be saying  6 shortly, to make two -- to make this observation at  7 paragraph 21, that while any correlative duties  8 superimposed on the aboriginal law by the common law  9 state were, therefore, minimal, and I refer to the  10 extinguishment test, the historical record does reveal  11 that "European" states, albeit in varying degrees,  12 attempted to "negotiate" the co-existence of the  13 aboriginal right within the non-aboriginal society by  14 way of treaties.  We don't say that this in any way  15 imposed a duty on the state to enter into treaties.  16 Treaty making at all times would be consensual and  17 voluntary by both parties.  But it does perhaps give  18 us another idea of how to conceptualize the aboriginal  19 right.  It was the right of a collective.  It was a  20 right which required co-existence of aboriginal and  21 non-aboriginal society.  A treaty was one way of  22 giving expression to the right.  23 Now, up to this point I say the source of  24 aboriginal rights is aboriginal law, and to some  25 extent the common law.  But in 1982 we say something  26 very important happened which altered both the nature  27 of the right, the source of the right, as well as the  28 content of the right.  In 1982 the Constitution now  29 added -- is a source of aboriginal rights,  30 notwithstanding the fact that it uses the language of  31 recognizing and affirming existing aboriginal rights,  32 we can't deny that the Constitution is yet another  33 source, another layer of -- another source to the  34 aboriginal right and it affected its very nature in an  35 important way, because it added an external dimension  36 to the right that it didn't enjoy before.  It now gave  37 the right some power against the state.  It said that  38 the aboriginal right could be used to fetter state  39 power.  And that obviously comes out of the Sparrow  40 decision.  41 As well, I say, because it's going to be apropos  42 what I am going to be dealing with next in paragraph  43 24, that because the right now has not only a  44 collective dimension but an external dimension, and  45 because the right doesn't fit easily in a non-  46 aboriginal society, the importance of treaty making is  47 heightened, is emphasized.  And I say that the 1624  Submissions by Mr. Arvay  1 inclusion of treaty rights and other rights obtained  2 by land claim agreements in section 35 is a further  3 indication that the interests in section 35 is  4 designed to protect includes this unique mix of  5 communication and negotiation.  I will come back to  6 that later.  7 I also add, at paragraph 25, that not only did the  8 constitution affect the nature of the right by giving  9 a collective dimension, it may well have affected the  10 content of the right.  And this is apropos your  11 question, Mr. Justice Lambert, about what's the  12 relationship between section 35 rights and common law  13 rights?  I am not certain about this, but I think the  14 answer is that there is no longer any need to talk  15 about common law aboriginal rights.  Whatever was a  16 common law aboriginal right is now constitutionalized.  17 The only way you would come to an opposite conclusion  18 is if you said that section 35 rights were limited to  19 land based rights.  We say aboriginal rights are sui  20 generis rights in respect of land.  But they may,  21 section 35 may go beyond that to talk about certain  22 practices, religious practices, for instance.  I don't  23 know for sure, and I don't know whether we need to  24 deal with it in this case.  If section 35 is limited  25 to land-based rights, then the common law of  26 aboriginal rights still has some place.  But if it's  27 not, then the common law has been subsumed into  28 section 35, which is why we call this case, we have  29 characterized this case as a constitutional case,  30 because given the province's very important concession  31 that there has not been a blanket extinguishment of  32 aboriginal rights, it means that any rights that  33 survived to 1982 have now been constitutionalized.  34 Chief Justice McEachern didn't have to worry about  35 section 35 because he said they never made it to 1982.  36 We say they made it to 1982.  Exactly where, exactly  37 what the content of which is certainly in dispute, but  38 they in large part made it to 1982.  So if section 35  39 is -- now subsumes the common law of aboriginal  40 rights, the other thing the constitution did, it may  41 well have affected the content, not just the nature  42 but the content of the right because the constitution  43 requires us to eschew any static formulation of the  44 right.  We have to allow the right to evolve.  45 Now, that's a very difficult question as to how it  46 evolves and at what rate and when evolution turns into  47 transformation.  We say an important consideration in 1625  Submissions by Mr. Arvay  1 the content and the extent to which it should be  2 allowed to evolve is the extent to which historically  3 it was exercised by -- the practice was one which one  4 was engaged in by an aboriginal people in an exclusive  5 and extensive way.  6 We say the challenge for the court, indeed the  7 parties, is to find an expression of the right that is  8 true to its historical origin, but at the same time  9 ensures the continued culture and existence of the  10 aboriginal peoples and not just at some bare existence  11 but in an important, in a healthy, strong way.  We say  12 that doesn't equate into a constitutional right to use  13 any of the territory in the claim as they see fit.  14 But it might translate into greater freedom to use  15 those areas which historically were used by them  16 exclusively and extensively, then it might, in those  17 parts of the territory where the use was non-  18 possessory, sporadic, which on the evidence seems to  19 be much of the territory.  20 So in summary, my lords, if you ask me what makes  21 something a right in the context of aboriginal rights,  22 we say aboriginal law, the common law, the  23 constitution at various stages of our history.  And in  24 answer to the question what makes a right aboriginal,  25 we say because it's unique to aboriginal people.  And  26 to answer the question, well what makes it unique to  27 aboriginal people, we say before 1982 is probably its  28 fragility vis-a-vis the state, and after 1982 is its  29 considerable strength as compared to rights of other  30 cultural and ethnic groups and, indeed, other common  31 law rights.  32 I don't know if that's been very helpful, my lord,  33 but that's my attempt to answer your question.  34 TAGGART, J.A.:  Thank you, Mr. Arvay.  It might be convenient to  35 take the morning break and then you can get yourself  36 organized for more plebian pursuits.  37  3 8 MORNING BREAK  39  40 TAGGART, J.A.:  Yes, Mr. Arvay?  41 MR. ARVAY:  My lords, for the purpose of my submission, I have  42 adopted the radical idea that I am going to use my  43 factum as my speaking notes.  44 TAGGART, J.A.:  Extraordinary.  45 MACFARLANE, J.A.:  Shocking.  46 TAGGART, J.A.: We are on the Delgamuukw case, are we?  47 MR. ARVAY:  I am at tab 7 of my factum.  I have prepared three 1626  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Arvay  volumes of the called white books, W-5, 6 and 7.  There are no exhibits, transcripts references or  anything in those three volumes.  All there are are  the excerpts from the cases that are referred to in  this part of the factum, so that you have some -- just  for convenience of the court they are at least in  three volumes rather than 30 or how many there are.  Where I have added a new case I have put in the entire  case with a couple of exceptions, because the entire  case wasn't added to the general book of authorities.  My lord, my job today is to endeavour to persuade  you to decide only part of this case, part of the  issues on the appeal, to stop short of completing what  otherwise, in an ordinary case, would be your job.  But to say to you that you should feel comfortable in  doing that because we are not asking you to decide  only part of the case and to go home and wash your  hands of the case.  We are asking you to decide part  of the case, to adjourn, and to retain jurisdiction,  not necessarily you individually on the bench, but for  this court to retain jurisdiction in the event that  the parties need to come back to you to have you  complete the task.  I will argue, my lords, that what I am asking you  to do is a principled approach to constitutional and  public law, law making, adjudication.  But I confess  to you that I do not have any clear precedent to  support what we ask you to do.  HUTCHEON, J.A.:  It may require a statutory amendment to the  Court of Appeal Act.  MR. ARVAY:  In my submission, it does not.  In my submission,  you have jurisdiction to do this and, in my  submission, there are strands of authority to support  what I am going to ask you to do.  All there is not is  a case that I can point to which precisely supports  our submission.  I was reminded by a quote that I saw some years  ago where a judge challenged Rufus Kohape(?), the  famous Massachusetts lawyer, to cite a precedent for  his argument before the court, and he replied: "I will  look it up, your honour, and endeavour to find a  precedent if you require it, though it would seem a  pity that the court would lose the distinction of  being the first to establish so just a rule."  LAMBERT, J.A.:  I would like to pursue the point that's just  been made by Mr. Justice Hutcheon just for a second.  MR. ARVAY:  Sure. 1627  Submissions by Mr. Arvay  1 LAMBERT, J.A.:  There is always the possibility that you might  2 not persuade us that we have the jurisdiction to do  3 that.  If there were legislation empowering us to do  4 it then the point would be beyond doubt.  But if we  5 were to conclude that we don't have the power to do  6 it, we can't just create such a power out of thin air,  7 then once we have rendered a decision to that effect,  8 the legislation, if legislation were thought  9 desireable, it couldn't affect this case, our decision  10 having already been rendered.  I just thought I would  11 mention it in pursuit of the point Mr. Justice  12 Hutcheon has raised.  13 MR. ARVAY:  I take your point.  But I submit that it's a  14 needless concern.  I say that you do have the  15 jurisdiction.  16 Let me start at paragraph 114 of my factum, because  17 I think what I have got in paragraph 114 is still very  18 serviceable of the order that we seek.  It may or may  19 not require some refinement, but when I looked at it  20 again last night I thought no, it still works.  We  21 seek a declaration that there was not blanket  22 extinguishment.  Not a particularly artful or  23 legalistic phrase, but one we now all understand, are  24 the appellants' aboriginal rights.  That's something  25 very important the court is being asked to do.  And,  26 again, I want to emphasize that we are of the view  27 that the court is being asked to do some very  28 important things in this appeal, even though the court  29 is being asked not to do as much as it could do.  30 The second declaration is that the appellants have  31 existing aboriginal rights with respect to an  32 undefined portion of the territory in question.  That  33 is a broad, very general declaration.  But in my  34 submission it is an appropriate one for the court to  35 make.  36 Now, in your reasons, I don't see that it's  37 necessary to put this in the order, although it could  38 be put in the order, but in the reasons we would urge  39 you to say both what aboriginal rights are not and  40 what aboriginal rights are.  We urge you to say that  41 aboriginal rights are not rights to ownership, as the  42 appellants say they are, ownership of the land, we  43 urge you to say that they are -- do not give the  44 appellants the right to jurisdiction in the sense that  45 they say, although we also recognize that the  46 appellants do have some rights of self-government, but  47 it is a right which is subject to federal and 1628  Submissions by Mr. Arvay  1 provincial law.  We urge you to say that the  2 aboriginal rights are not proprietary, at least not in  3 any common law sense of that word.  Even though they  4 may be a sui generis interest with respect to land,  5 they don't carry the baggage of the common law insofar  6 as the idea of a proprietary right is concerned.  We  7 urge you to say that the aboriginal rights are defined  8 as a sui generis interest in respect of land which are  9 highly context fact specific, tied to historical use  10 and practice, which is integral to a distinctive  11 culture, the precise scope and content of which will  12 depend upon that historical practice.  The extent to  13 which the activity, the practice was exclusive was  14 extensive, recognizing as well that it requires some  15 evolution in keeping with the purpose of the right as  16 is found in the constitution.  So we urge you to say a  17 great deal about what aboriginal rights are and what  18 they are not.  And that's a very, very important  19 reason for this appeal.  20 At the end of the day you are entitled to, though,  21 because of the province's concession that there has  22 been blanket extinguishment -- sorry, that there has  23 not been blanket extinguishment of aboriginal rights,  24 and because the rights are so context fact specific,  25 you are entitled to say that the appellants enjoy  26 aboriginal rights to an undefined portion or portions  27 of the territory of their claim.  That means a great  28 deal, even if it doesn't provide the appellants and  2 9 the province and the federal government and the  30 intervenors with as much information as perhaps some  31 people would like.  It provides enough information.  32 We say, if I go back to paragraph 114, my lords,  33 that the order should simply declare that a temporary  34 transition period exists in the anticipation that the  35 appellants's claim will be resolved and could go but  36 doesn't need to go on to say in the precise locations,  37 scope and content and consequences of their rights be  38 further defined and implemented by the parties through  39 negotiation.  40 I will come back to that, and the reason I would  41 put parentheses around the portion of paragraph (c)  42 about the precise location, scope, et cetera, is  43 because it's not exactly certain what will happen  44 during the transition period.  And I will talk about  45 that later.  46 And (d), allow the appeal in part, adjourn the  47 proceedings sine die, and retain jurisdiction over the 1629  Submissions by Mr. Arvay  1 matter in recognition that should agreement not be  2 reached by the parties, and the court will proceed to  3 address the issues.  4 HUTCHEON, J.A.:  This is a change from the two years?  5 MR. ARVAY:  The two years is a period of time that the province  6 and the appellants agreed to was a reasonable period  7 of time.  Of course, it's in your lordships' decision,  8 judgment, as to what should be the period of time.  9 Speaking for the province, two years is a minimal but  10 acceptable period of time.  11 So, while it may need some further clarification, I  12 say that paragraph 114 still describes the nature of  13 the order that we would request from the court.  14 Now, what we ask the court not to decide is what  15 part or parts of the territory the aboriginal right  16 exists, if any -- well, I shouldn't say if any, just  17 what part or parts of the territory aboriginal rights  18 exist, don't decide that, therefore don't decide the  19 extent of the territory; do not decide the content of  20 the right in any particular place in the territory; do  21 not decide whether the province has the authority to  22 specifically extinguish the aboriginal right in any  23 place in the territory, the constitutional authority.  24 Do not decide the test of specific extinguishment.  We  25 say with great confidence that fee simples extinguish  26 aboriginal rights but we say don't decide that, not  27 because we are fearful of your answer or less than  28 confident in our submissions, we are not.  We don't  29 need to know.  And we say the appellants don't need to  30 know.  And that's very important.  31 LAMBERT, J.A.:  I would like you to repeat the fourth point that  32 you --  33 MR. ARVAY:  The point being that do not decide the test of  34 specific extinguishment.  35 LAMBERT, J.A.:  Thank you.  36 MR. ARVAY:  And, therefore, do not decide whether there has been  37 any specific extinguishment or diminution of the  38 aboriginal right.  And do not decide what, if any,  39 remedy the appellants are entitled to, if there has  40 been an extinguishment or diminution of their rights,  41 either before or after 1982.  42 First, we ask you what to decide then we ask you  43 to stop and not decide those things, but then we say  44 don't go away, at least figuratively.  And I know  45 that's a concern of your lordships, but we say that as  46 long as the court is here for the parties it's not  47 necessary that any individual member of this panel be 1630  Submissions by Mr. Arvay  1 here for the parties, because it's not necessary that  2 this panel indeed even be seized of the remaining  3 questions to be decided, if necessary.  4 LAMBERT, J.A.:  And you're going to be dealing later in your  5 argument with the powers of the new five or three, who  6 come in in relation to overruling anything that we may  7 say in the areas in which we have said them?  8 MR. ARVAY:  I address that point, my lord.  I don't -- I address  9 that point, I don't spend a long time on it.  But I  10 will deal with it and I would prefer to deal with it  11 later, if I may.  12 LAMBERT, J.A.:  Of course.  13 MR. ARVAY:  My lord, we say that the remedy is principled  14 primarily because it's consistent with the nature of  15 aboriginal rights.  It's consistent with the right,  16 the remedy is consistent with the right and the right  17 should drive the remedy.  And your jurisdiction is --  18 it's clear to give effect to the appellants'  19 aboriginal rights, and therefore you have jurisdiction  20 to fashion a remedy which gives effect to the  21 aboriginal rights.  And I will develop that.  22 I say, this is all by way of summary, it's also  23 consistent with your duty to uphold and vindicate the  24 values in the Constitution, because we are not asking  25 you to dismiss the appeal and send the parties off to  26 negotiate, we are asking you to decide some very  27 important constitutional questions here.  We are just  28 saying don't go as far as you might otherwise go.  29 We are -- we say it is an appropriate remedy  30 because not only is it consistent with your duty to  31 uphold the constitution but it's appropriately  32 sensitive to the legislative and the democratic  33 process to allow the governments an opportunity to  34 fulfill their constitutional duties and  35 responsibilities and otherwise act in the public  36 interest.  And this is important, given the fact that,  37 as I understand it, the appellants and the province  38 are in essential agreement with this approach.  And  39 there may be some, there may be some differences, and  40 I am not sure what they are.  But as I understand it  41 as I am sitting here today, we are in essential  42 agreement with this approach.  That makes my job, in  43 my submission, very easy, or at least relatively easy.  44 When we drafted the factum, we drafted it without  45 realizing or believing that we would have had the  46 appellants' concurrence with this approach.  We do  47 have their essential concurrence with this approach. 1631  Submissions by Mr. Arvay  1 And given that, not only does that make any advocate's  2 job easier, but in the context of this case, the  3 remedy is not only principled because it has regard to  4 the democratic process and the legislative process and  5 the job of governments, but it's respectful of the  6 appellants as First Nation peoples to determine their  7 own destiny as well.  Because it's not just the  8 province who wants to have a hand at determining how  9 the appellants and the aboriginal people should co-  10 exist in British Columbia society, but it's the  11 appellants themselves want to have a hand in that.  We  12 want to be able to use what the court gives us by way  13 of declaration of general entitlements, base line  14 entitlements, to then fashion a more complete remedy  15 by which the appellants and the province and other  16 interests in the province can find the means to co-  17 exist.  And I say that particularly because, although  18 my argument is not dependent upon the consent of the  19 appellants, but because the appellants and the  20 province are essentially ad idem on this approach, the  21 court should be very slow to not give effect to these  22 submissions.  23 I don't know what the position of the federal  24 government is on this matter, I don't know what the  25 position of the amicus is on this matter.  But I would  26 say to your lordships that opposition from either the  27 federal government or amicus, should it come, should  28 not be a reason to frustrate the joint request and  29 wishes of the appellants and the province with respect  30 to this remedy.  31 My lords, you mention that I should be given an  32 opportunity to reply to the appellants' written  33 submissions on remedy before their reply.  It would be  34 my respectful submission that I be given an  35 opportunity to reply only once, but it would be not  36 after receiving the appellants' written submissions  37 but it would be after hearing the submissions of the  38 federal government and the amicus, because I have  39 reason to believe, or suspect at least, that I will  40 find more resistance in -- from the amicus, and  41 perhaps the federal government, than I will from the  42 appellants.  And if we are to join issue and assist  43 the court it would be my submission that it would be  44 much more appropriate if you heard from me after the  45 federal government and amicus rather than before.  46 My lords, what I am proposing is innovative, yes,  47 but, in my submission, it is a model of judicial 1632  Submissions by Mr. Arvay  1 restraint.  It is, I would submit, a -- not a, the  2 just and appropriate remedy in all of the  3 circumstances.  And that it hopefully, hopefully, will  4 go a very long way to facilitate a final and just  5 resolution of a dispute which -- between aboriginal  6 peoples and the province, which should have been  7 settled a long time ago, wasn't, but which this  8 attorney-general is committed and this government is  9 committed to settling.  10 So, my lords, I would like to turn then back to the  11 factum, which is paragraph 115, and I suppose  12 paragraph 115 is maybe the most important part of my  13 submission.  And that is that constitutional remedies  14 should reflect the nature of the particular  15 constitutional right at stake.  And I cite from the  16 Gamble case on the bottom of that page:  17  18 "A purposive approach should, in my view, be  19 applied in the administration of Charter  20 remedies as well as to the interpretation of  21 Charter rights."  22  23 And the Gamble case is not on point in terms of  24 original concerns, it was a case in which the Supreme  25 Court of Canada applied the ancient writ of habeas  26 corpus in a way to give effect and vindicate Charter  27 values, Charter rights, even though at common law it,  28 because it was bound by very technical and restrictive  29 rules, would not have worked.  But the passage from  30 Gamble, in my submission, says we all know about the  31 purposive approach in the constitution, that we should  32 give the constitution a purposive approach in order to  33 determine the nature of the right, and the interests  34 that the right is designed to protect.  But Gamble is  35 important because it says you have to apply that  36 purposive approach as well to the remedy.  And, in my  37 submission, that statement from the Supreme Court of  38 Canada goes a very long way, if not all the way, in  39 establishing that you have the jurisdiction to do  40 whatever you understand to be necessary or proper to  41 give effect to the constitutional right at stake.  42 And, again, I emphasize this is primarily largely a  43 constitutional case, for the reasons I set out before,  44 even though there is obviously considerations of the  45 common law that have to be taken into account.  46 I would like to ask you to turn to the first  47 reference book, W-5 at tab 115, and the second 1633  Submissions by Mr. Arvay  1 reference in the second green page in, is the --  2 TAGGART, J.A.:  115?  3 MR. ARVAY:  115, yes.  4 TAGGART, J.A.:  Second tab?  5 MR. ARVAY:  It's the Osborne case, Osborne and Canada.  6 TAGGART, J.A.:  My second one is Millar.  7 MR. ARVAY:  Actually, I think it's called that as well.  8 LAMBERT, J.A.:  Yes, Osborne and Miller.  9 MR. ARVAY:  That's right.  Again, the facts and the legal — the  10 law in that case doesn't have anything to do with  11 aboriginal issues, it had to do with the provisions of  12 the Public Service Employment Act, which prohibits  13 public servants from engaging in work for a candidate  14 or a political party.  And the court had to decide  15 what to do with a provision which was over-reaching  16 and over-broad.  Mr. Justice Sopinka talked about the  17 reading down doctrine and how it was applied in  18 division of powers cases and how it should be applied  19 under the Charter.  Division of powers cases he says  20 that courts were engaged in somewhat of an illusory  21 search for the legislative intention, and would  22 attribute to parliament the intention to stay within  23 its constitutional boundaries, and that's the  24 presumption of constitutionality works and division of  25 powers, but that's not a necessary way of applying the  26 Charter.  But anyway at page 104 he says:  27  28 "The policy of restraint reflected in the  29 presumption of constitutionality arose out of a  30 traditional respect by the judicial branch for  31 the supremacy of the legislative branch.  32 Interpreting a statute by reading it in  33 accordance with the presumed intention of the  34 legislators was regarded as less of an invasion  35 of their domain by the court. In selecting an  36 appropriate remedy under the Charter the  37 primary concern of the court must be to apply  38 the measures that will best vindicate the  39 values expressed by the Charter and to provide  40 the form of remedy to those whose rights have  41 been violated that best achieves that  42 obj ective."  43  44 Of course, we are not dealing with a Charter  45 right, we are dealing with a constitutional right, but  46 the same, in my submission, applies.  Then he goes on  47 to say: 1634  Submissions by Mr. Arvay  1  2 "This flows from the court's role as guardian of  3 the rights and freedoms which are entrenched as  4 part of the supreme law of Canada.  The court  5 is given an express mandate to declare invalid  6 a law which, by virture of s.52 of the  7 Constitution Act, is of no force or effect to  8 the extent of its inconsistency with the  9 Charter.  There is no reason to disguise the  10 exercise of this power in the traditional garb  11 of interpretation.  At the same time, the court  12 must be sensitive to its proper role in the  13 constitutional framework and refrain from  14 intruding into the legislative sphere beyond  15 what is necessary to give full effect to the  16 provisions of the Charter.  In exercising its  17 broad discretion to fashion the appropriate  18 remedy that will achieve these objectives in a  19 Charter case, it is unnecessary to resolve the  20 question as to whether there is a presumption  21 of constitutionality.  By reason of the diverse  22 and novel problems which it will be called upon  23 to redress, the court must maintain at its  24 disposition a variety of remedies as part of  25 its arsenal.  Reading down may in some cases be  26 the remedy that achieves the objectives to  27 which I have alluded while at the same time  28 constituting the lesser intrusion into the role  29 of the legislature.  The same result may on  30 occasion be obtained by resort to the  31 constitutional exemption."  32  33 Again, the constitutional exemption somewhat of a  34 creation of the judiciary by virtue of -- since the  35 enactment of the Charter.  It's close cousin is the  36 reading down doctrine.  But the constitutional  37 exemption says that even though a law will have clear  38 application in most of -- will be valid in most of its  39 applications, there may be some individuals for whom  40 the law will have no application, and that person or  41 that individual will be entitled to an exemption from  42 the law.  That was a fashioning of a remedy that was  43 designed to give effect to the constitution, give  44 effect to the democratic will, and recognize the  45 unique circumstances of some individuals in Canadian  46 society for whom the law ought not to apply.  He says:  47 1635  Submissions by Mr. Arvay  1 "This remedy was adopted by the Ontario Court of  2 Appeal in R. v. Seaboyer, a case which is  3 pending in this court."  4  5 And Seaboyer did not give effect to the  6 constitutional -- did not provide, did not apply the  7 constitutional exemption doctrine in Seaboyer but  8 didn't say it wasn't a doctrine that was worthy of  9 being applied in that case.  10  11 "In such circumstances I see no particular  12 virtue in resorting to the language of  13 presumptions in order to disguise what is to  14 all intents and purposes a remedy.  When the  15 values of the Charter are not sacrificed  16 thereby, it is preferable to express deference  17 to the legislature as a factor in fashioning  18 the remedy rather than engaging in a fictitious  19 analysis that attributes to the legislation an  20 intention that it did not have."  21  22 Then he goes on paragraph f where he says  23 sometimes to give -- well, I will read it:  24 "In the final analysis, a law that is invalid in  25 so many of its applications will as a result of  26 wholesale reading down, bear little resemblance  27 to the law that Parliament passed and a strong  28 inference arises that it is invalid as a whole.  29 In these circumstances it is preferable to  30 strike out the section to the extent of its  31 inconsistency with s. 2(b). To maintain a  32 section that is so riddled with infirmity would  33 not uphold the values of the Charter and would  34 constitute a greater intrusion on the role of  35 Parliament."  36  37 So we see that the court is always struggling with  38 both its duties to uphold the values in the Charter  39 and the Constitution and at the same time notover step  40 its proper role, to be sensitive to the democratic  41 process.  And we see that in Charter cases all the  42 time.  And the same applies here, that the court  43 should be vigilant in upholding the values that the  44 Constitution, and particularly section 35, express,  45 but should be careful to not go further than is  46 necessary to give effect to those values.  And given  47 that both the appellants and the province are saying 1636  Submissions by Mr. Arvay  1 to the court that with the declaration that you give  2 as to what is or is not aboriginal rights, we are  3 saying to the court that that provides enough  4 expression, provides a sufficient account of the  5 constitutional values for our purposes right now.  And  6 we would like the court not to, in a sense, deny the  7 province, the aboriginal people, an opportunity to  8 give full expression to the values in the  9 Constitution.  Or at least not to deny us an  10 opportunity to try to work out our differences and  11 find a -- find the situation where there is co-  12 existence without further assistance from the court,  13 at least at this time.  14 My lords, the next few cases in the tab are just  15 other illustrations of how the court has been  16 innovative in providing a constitutional remedy, and  17 yes, these cases are Charter cases, but in my  18 submission they are not limited to the Charter.  19 Section 35 is a new constitutional right, which could  20 have been put in the Charter except it's a right which  21 is very difficult from a Charter right in the sense  22 that it's a collective right.  There are also  23 collective rights in the Charter but it's a very  24 different right than ones defined in the Charter but  25 it's not so different that it somehow suggests that  26 the court should be less innovative in fashioning a  2 7 remedy.  28 The Rahey decision is a case involving  29 unreasonable delay and what the appropriate remedy  30 should be.  And the -- at page 619, rather 618, Mr.  31 Justice Le Dain says that the appropriate remedy when  32 there is a violation of one's right to a trial within  33 a reasonable time, is not a speedy trial but rather  34 it's a stay.  35 In the Morgantaler case, what the court said what  36 was wrong with section 251, sub (4), was  37 unconstitutional, even though it was somewhat of an  38 exculpatory provision to be a proscription against  39 abortions. It provided for abortions in certain  40 circumstances.  The court said the section is  41 unconstitutional, the Attorney-General said just  42 strike out that subsection and leave the rest of  43 section 251 in place, which prohibited abortions, and  44 the court said no.  And at page 125 Mr. Justice Beetz  45 said:  46 "There is no saving s. 251 by simply  47 severing the offending portions of 251(4) . 1637  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Arvay  I am reading from the second paragraph from the  bottom on page 125.  HUTCHEON, J.A.:  I am sorry, 125?  MR. ARVAY:  Yes.  I am sorry.  HUTCHEON, J.A.:  I have got 600.  Wait a minute. I have gone too  far.  Thank you.  MR. ARVAY:  Third tab in.  Second paragraph from the bottom:  "There is no saving s. 251 by simply severing  the offending portions of s. 251(4).  The  current rule in s. 251, which articulates both  Parliament's principal and ancillary  objectives, cannot stand without the exception  in s. 251(4).  The violation of pregnant  women's security of the person would be  greater, not lesser, if s. 251(4) was severed  leaving the remaining subsections of s. 251 as  they are in the Criminal Code."  It was a rather common sense answer to the  problem, didn't require perhaps the kind of innovation  that I am asking the court, but nevertheless it  demonstrates a sensitivity to try and fashion the  facts to reality.  The Schachter decision at the next tab is a  very -- is an example where the court provided a very  innovative remedy.  And that was the case where the  natural parents were not provided the same child care  benefits under federal legislation as adoptive  parents.  It was an equality case.  And the Federal  Court of Appeal said that that's right, that the law  discriminated against natural parents by not providing  them the same benefit that was given to adoptive  parents.  And there was two ways of achieving  equality.  One might be characterized as equality with  a vengeance, which is to strike out the law because it  was -- because it discriminated.  It's equality with a  vengeance because then if would mean that neither  natural parents nor adoptive parents would have the  benefit.  And the court refused to do that.  What the  court did was extend the benefit to the natural  parents.  It was an innovative remedy.  And I will  take you to the text.  Then the court coupled that  with a temporary, the temporary period.  At page 644, Mr. Justice Heald, the first full  paragraph says: 163?  Submissions by Mr. Arvay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  'In the quotation from the Ontario Court of  Appeal in the Reference re An Act to Amend the  Education Act reference is made to the positive  right to equality conferred by s. 15(1).  A  mere declaration of invalidity is inadequate in  the circumstances at bar, because it would not  guarantee the positive right conferred pursuant  to s. 15(1) .  That positive right can only be  guaranteed by the fashioning of a positive  remedy.  That is precisely what the learned  trial judge attempted to do in the decision a  quo. "  LAMBERT, J.A.:  But may I say, I don't have section 24 in front  of me, but my understanding is that it says that the  court will award the remedy that it considers  appropriate.  It's an invitation to fashion a remedy  to suit the circumstances.  And it's a constitutional  provision that requires the court to do that.  I don't  think that the remedies that were being asked, as I  see them at the moment, are within the power of  section 24.  So we don't have that statutory  authorization to create remedies.  My answer to that question, my lord, is this:  That  you don't need -- yes, let me start again.  Section 24 is obviously an important section in the  Constitution with respect to the issue of remedies  but, in my submission, it is not necessary for the  court to have section 24 to do, in this case, or in  any other Charter case, to do what it does in Charter  cases.  Section 24 is essentially an expression of the  inherent power of a court which is called upon to  apply, interpret and expound a constitutional document  to give effect to the rights in that constitutional  document.  This court is a court of inherent  jurisdiction.  J.A.:  No, this court is a court of statutory  jurisdiction.  it is a court which finds its source in the Court of  Appeal Act, to that extent it's a court of statutory  jurisdiction.  But the Court of Appeal Act, in my  submission, clothes the court with all the powers of  the Supreme Court, which is a court of inherent  jurisdiction and therefore, for all intents and  purposes, you are a court with the same powers of a  MR. ARVAY:  LAMBERT,  MR. ARVAY 1639  Submissions by Mr. Arvay  1 court of inherent jurisdiction, even though it may be  2 inaccurate to say that you a court of inherent  3 jurisdiction.  And maybe I should deal with that point  4 now.  If you will just flip back to tab 114, the first  5 tab, first reference is the Court of Appeal Act and  6 section 9(4).  7 MACFARLANE, J.A.:  What tab number is that?  8 MR. ARVAY:  Tab 114, 114, the first tab in this book.  Section  9 9(4) says:  10  11 "The court my exercise any original jurisdiction  12 that may be necessary or incidental to the  13 hearing and determination of an appeal."  14  15 In section 9(9):  16  17 "For all purposes of and incidental to the  18 hearing and determination of any matter and the  19 amendment, execution and enforcement of any  20 order and for the purpose of every other  21 authority expressly or impliedly given to the  22 Court of Appeal, the Court of Appeal has the  23 power, authority and jurisdiction vested in the  24 Supreme Court and, where the appeal is not from  25 the Supreme Court, the power, authority and  26 jurisdiction vested in the court or tribunal  27 from which the appeal was brought."  28  29 In my submission, those are very broad words which  30 clothe this court with the same powers of the superior  31 court, which is a court of inherent jurisdiction.  32 MACFARLANE, J.A.:  We can make orders that could have been made  33 in the court below, that's as I understand the  34 section.  In the court below there is no problem in  35 hearing part of a case and another judge hearing the  36 other part.  But you say that same principle applies  37 here?  38 MR. ARVAY:  Did you say there is no problem?  39 MACFARLANE, J.A.:  I say there is no problem, as I understand  40 it.  41 MR. ARVAY:  That's right.  There is no problem.  42 MACFARLANE, J.A.:   In other words, the liability issue can be  43 heard by one judge and the issue of damages can be  44 heard by another judge, and the rules of court provide  45 that issues can be segregated and heard by different  46 courts.  So your argument, I take it, must extend that  47 jurisdiction to this court? 1640  Submissions by Mr. Arvay  1 MR. ARVAY:  Yes, indeed.  2 MACFARLANE, J.A.:  But you say we can divide up issues.  3 MR. ARVAY:  Yes.  And where your rules are silent the rules of  4 court apply, and furthermore, other examples of  5 splitting issues in constitutional cases is splitting  6 the definition of the right from the section 1  7 analysis.  And you are also, because of 9(4), a court  8 of original jurisdiction, to the extent that that may  9 be necessary to the hearing and determination of the  10 appeal.  Insofar as if -- insofar as is necessary to  11 be a court of original jurisdiction.  I am not  12 convinced that it is.  I think it's sufficient that  13 you have all the powers that a superior court has and  14 could have exercised in this case.  15 If you turn to the next reference, the next green  16 sheet, there is a case from the Supreme Court of  17 Canada, Societe Des Acadiens Du Nouveau-Brunswick.  18 The case is interesting for two reasons, but on this  19 point it deals with similar language in the New  20 Brunswick legislation.  And if you turn to page 430,  21 this is the judgment of Madam Justice Wilson, but it's  22 the -- this portion of the judgment is shared by Chief  23 Justice Dickson and, I believe, I stand to be  24 corrected, on this point this is the decision of the  25 court.  Under the heading The Inherent Jurisdiction of  26 the New Brunswick Court of Appeal:  27  28 "Mr. Justice La Forest, as he then was, writing  29 for the New Brunswick Court of Appeal,  30 concluded that the court could, pursuant to its  31 inherent jurisdiction, grant the Association  32 leave to be added as a party for the purpose of  33 launching an appeal."  34  35 I thought that was an interesting idea, given at  36 the outset of this case we talked about whether  37 intervenors would have any rights of appeal, even if  38 they were not parties.  39  40 "According to Mr. Justice La Forest the inherent  41 jurisdiction of the New Brunswick Court of  42 Appeal is derived from Section 8(2) of the  43 Judicature Act, which reads as follows: 'The  44 Court of Appeal shall have and exercise  45 appellate jurisdiction, with such original  46 jurisdiction as may be necessary or incidental  47 to the determining of an appeal.' 1641  Submissions by Mr. Arvay  1  2 Very similar to our 9(2).  3 "...and shall have all the jurisdiction and  4 powers possessed by the Court of Appeal  5 immediately before September 4, 1979 with  6 appellate jurisdiction in civil and criminal  7 causes and matters, and with jurisdiction and  8 power to hear and determine motions and appeals  9 respecting any judgment, order or decision of  10 any judge of the courts."  11  12 Now that's far less a clear statement that the  13 Court of Appeal has an inherent jurisdiction, but what  14 the court did was it traced back the legislation to  15 find out that the Court of Appeal in earlier  16 legislation was given the power of the Court of  17 Chancery, and concluded that, therefore, the court, if  18 you go to page 432, the version of the Judicature Act  19 of 1952, reading from the middle of sub (2), it says:  20  21 "...and shall have all the jurisdiction and  22 powers possessed by the Court of Appeal  23 immediately before the commencement of this  24 act, with appellate jurisdiction in civil and  25 criminal causes and matters, and jurisdiction  26 and power to hear and determine motions and  27 appeals respecting any judgment, order or  28 decision of a judge of the Queen's Bench or  29 Chancery Division, and of any judge of the  30 Court of Appeal."  31  32 Now it's looking very much like our Court of  33 Appeal Act, giving it the powers of the Court of  34 Queen's Bench and Chancery Division.  35 The court concluded on page 435, the first full  36 paragraph:  37  38 "As may be seen from these statutes, the  39 jurisdiction of the New Brunswick Court of  40 Appeal is, except as modified by legislation,  41 essentially that exercised by the High Court of  42 Chancery in England.  Accordingly, it is  43 through an examination of the Chancery practice  44 that the scope of the court's jurisdiction in a  45 particular matter must be determined.  The  46 appellant society does not dispute the  47 relevence of Chancery practice.  Its position 1642  Submissions by Mr. Arvay  1 rather is that the present facts do not fall  2 within the principles laid down by the Chancery  3 courts.  Is it correct in this?  4 The concept of inherent jurisdiction has  5 been described as 'peculiar, amorphous,  6 ubiquitous and pervasive.'.  7  8 Then the quote from the Jacob article.  9  10 "Moreover, the term 'inherent jurisdiction of  11 the Court' is not used in contradistinction to  12 the jurisdiction conferred on the court by  13 statute.  The contrast is not between the  14 common law jurisdiction of the court on the one  15 hand and its statutory jurisdiction on the  16 other, for the court may exercise its inherent  17 jurisdiction even in respect of matters which  18 are regulated by statute or by rule of court,  19 so long as it can do so without contravening  20 any statutory provision.  There is,  21 nevertheless, an important difference between  22 the nature of the inherent jurisdiction of the  23 court and its statutory jurisdiction.  The  24 source of the statutory jurisdiction of the  25 court is of course the statute itself, which  26 will define the limits within which such  27 jurisdiction is to be exercised, whereas the  28 source of the inherent jurisdiction of the  29 court is derived from its nature as a court of  30 law, so that the limits of such jurisdiction  31 are not easy to define, and indeed appear to  32 elude definition."  33  34 And, Mr. Justice Taggart, you thought we had left  35 the airy-fairy law of jurisprudence, because I guess  36 that's describing a positive and natural law  37 conception of jurisdiction, at least it might be.  38 At the bottom paragraph:  39  40 "Despite the obvious difficulty in determining  41 the limits of the inherent jurisdiction of the  42 New Brunswick Court of Appeal, it is clear, I  43 believe, that it is not unlimited since its  44 invocation requires an exercise of judicial  45 discretion in accordance with accepted  46 principles.  These principles may be found in  47 statute or in inherited court practice. 1643  Submissions by Mr. Arvay  1  2 Now in my submission, this is, this is a complete  3 answer to any question that -- as to your, as to this  4 court's jurisdiction to do what we are asking you to  5 do.  And while there may not be cases on point which  6 provide you with clear examples and precedents, there  7 rarely is in any case, otherwise you are not usually  8 in court on any case if there is a clear precedent.  9 There are principles that we can derive from cases  10 which support what I am asking you to do, but most  11 importantly the principle which should guide the  12 exercise of your discretion should come from the  13 constitution.  And we say that the constitution, by  14 requiring you to give effect to the values, also  15 requires you to fashion a remedy which is sensitive to  16 those values in other institutions and people, and  17 peoples, who have some role to play in fashioning  18 giving meaning to our constitution.  And the  19 declaratory, the power of the court to give  20 declarations, is what is so suitable in that regard.  21 And I will move, I will be getting into that part  22 of my factum later.  I wanted to first simply  23 demonstrate why what I was asking you to do is  24 consistent with the right; later I was going to deal  25 with why you have the jurisdiction in a more technical  26 sense.  But I have done that to some extent now by  27 pointing out this case, that you are a court with  28 great power and authority, and your discretion should  29 only be -- is limited only by that which is not  30 principled, not because it hasn't been done before.  31 Now, just back to the Schachter case, my lord, I  32 didn't quite finish that, which is tab 115.  And I  33 think page 651, we can leave it at that.  What Mr.  34 Justice Strayer did in the court below is set out at  35 page 651, first full paragraph:  36  37 "Furthermore, the judgment of the Trial Division  38 merely provides a temporary remedy, leaving it  39 to... 'parliament to remedy the situation in  40 accordance with the Charter, either by  41 extending similar benefits to natural parents,  42 or by eliminating the benefits given to  43 adoptive parents, or by provision of more  44 limited benefits on an equal basis to both  45 adoptive and natural parents in respect of  46 child care.' The remedy given by Mr. Justice  47 Strayer does not in any way impinge on 1644  Submissions by Mr. Arvay  1 Parliament's preogative to choose amongst  2 constitutionally valid policy options in  3 enacting legislation which conforms to the  4 requirements of the Charter.  Since the remedy  5 here is a temporary one, it is unlikely that  6 parliament would find it necessary to rely on  7 section 33 of the Charter."  8  9 So what he did, as I understand it, is he extended  10 to natural parents a remedy which parliament chose  11 only to give to adoptive parents, but then said that  12 remedy is only going to be in place for a temporary  13 period.  I thought I read six months, whatever it was,  14 at which time -- it's up to Parliament, but the ball  15 is in Parliament's court, Parliament can decide to  16 keep the law the way it is -- well, Parliament  17 couldn't decide to keep the law the way it is, because  18 the law the way it it is unconstitutional, Parliament  19 could decide to amend the law and extend the benefit  20 to natural parents or repeal the law and give neither  21 type of parent any benefit.  So again, it was a very  22 innovative remedy but one which was designed to give  23 effect to the equality right.  24 MACFARLANE, J.A.:  I understand that you're not citing these  25 cases because they are right on point but because you  26 do refer to the temporary remedy in this case, that  27 brings back to my mind your 114 (c), declare that a  28 temporary transition period exists and dissipation, et  2 9 cetera.  And I want to be sure about what you're  30 asking.  Of course we are not granting any temporary  31 remedies here, we are making some declarations, if we  32 accept your submission, making some declarations and  33 not making other declarations which we would normally  34 make.  What you're really asking for is that the  35 appeal be adjourned.  Let me put it -- are you asking  36 that we order the parties to negotiate?  Because at  37 some time earlier on somebody said that that was the  38 nature of the application?  39 MR. ARVAY:  My answer, my lord, is we are not asking the court  40 to order the parties to negotiate.  We are asking the  41 court to adjourn to permit the parties the opportunity  42 to settle their differences, if they can, by whatever  43 means they can, in the hope, and to some extent  44 perhaps, using judicial suasion, guidance, urging that  45 the parties do make good use of the time.  46 MACFARLANE, J.A.:  Just a minute.  47 MR. ARVAY:  But we aren't asking for an order — 1645  Submissions by Mr. Arvay  1 MACFARLANE, J.A.:   Surely you're not serious in that.  I agree  2 that if we should accede to your submissions and  3 adjourn the appeal in anticipation that there will be  4 negotiations, because the parties say they want to  5 negotiate and would like an adjournment for that  6 purpose.  If we do that, that's fine.  I understand  7 that it's your submission that you could then come  8 back to the court from time to time to resolve other  9 legal issues relevant to the appeal which might arise  10 in the course of negotiations and which have to be  11 settled before you can carry on further with your  12 negotiations.  And it's in that sense, I take it, that  13 you talk about the court supervising the negotiations.  14 Because the court surely can't be involved in the  15 negotiations in any sense.  16 MR. ARVAY:  No, I agree with everything you say.  And I guess I  17 am a bit taken aback by your opening comment by  18 "surely you can't be serious."  What did you  19 understand me to say?  20 MACFARLANE, J.A.:  Well, I am sorry, I tend to be too blunt.  21 MR. ARVAY:  My feelings aren't hurt.  I just want to make sure I  22 am communicating and I don't think I am.  23 MACFARLANE, J.A.:  I didn't mean anything more than what I just  24 said, that I didn't think that you were saying to me  25 that the court ought to supervise the negotiations any  26 more than you would be saying that we ought to order  27 the parties to negotiate.  2 8 MR. ARVAY:  That's right.  29 MACFARLANE, J.A.:  And I understand that what you were saying,  30 what I just said, that if problems arise, you could  31 apply to the court then to settle legal questions  32 which might have arisen which would be relevant to the  33 appeal in any event.  34 MR. ARVAY:  Obviously I should have set out of my position more  35 clearly at the outset.  36 MACFARLANE, J.A.:  Sort of a swinging door application, you're  37 in, you're out, you're in, you're out, you're in.  38 MR. ARVAY:  That's something that I wanted to avoid.  In the  39 latter part of the factum I talk about what happens  40 during the transition period and what the role of the  41 court is.  The court, in order to maintain its duty, I  42 say, has to retain jurisdiction, at least on some of  43 the issues.  It's up to the court to decide what role,  44 if any, it wants to play during that transition  45 period, and whether it wants to, in any way, supervise  46 the negotiation process.  We don't ask the court to  47 get involved in any way like that.  We do say, though, 1646  Submissions by Mr. Arvay  1 that the court may want to let the parties know that  2 it is here if it is needed in order to assist the  3 parties in their task, but perhaps only by way of  4 setting timetables.  We can't imagine the court being  5 involved in any way in the negotiations.  We wouldn't  6 like to see the court adjourn the proceedings and then  7 allow either party to come back any time they get  8 frustrated at the bargaining table.  The court should  9 adjourn the proceedings and indicate that it's not  10 likely open for business for two years.  There may be  11 some compelling circumstances where the parties may  12 jointly need to come back to the court for further  13 definition.  14 MACFARLANE, J.A.:  Well, surely -- I was going to say surely you  15 can't be serious again, but we surely can't say to a  16 party that they can't come back to the court whenever  17 they want to, because surely we can't say that we will  18 have nothing more to do with this and wash our hands  19 of it for two years?  I mean, if we are retaining  20 jurisdiction then it seems to me that it follows that  21 either party at any time can invoke that jurisdiction.  22 MR. ARVAY:  Well, I suppose, my lord, it follows that any party  23 can at any time come back and make a pitch to the  24 court to be heard.  But I say that there is good  25 authority for courts to exercise their discretion to  26 refuse to give a remedy what a party might otherwise  27 be entitled to in law, if there are reasons for so  28 refusing to give relief.  29 MACFARLANE, J.A.:  We don't have to get into that because that's  30 a case by case situation.  We deal with it as we saw  31 fit at the time.  But the important thing is that what  32 I wanted to say to you is that I feel that it would be  33 open to either party at any time to come back and  34 invoke the jurisdiction of the court.  You don't argue  35 with that?  36 MR. ARVAY:  I don't argue with the right of any party to come  37 back and to ask the court to decide more, any party  38 has the right to do that, yes.  But what I say is that  39 the court has the right to do in response is because  40 the court is being asked to exercise its discretion in  41 giving declaratory relief, the court has a right to  42 say to a party, as it does in both administrative and  43 Constitutional law cases, the case is not ripe or  44 mature for final adjudication.  What I have in mind is  45 the decision that -- certainly your lordships are  46 aware of University of Regina and Harelkin, that's a  47 sort of seminal administrative law case where a party 1647  Submissions by Mr. Arvay  1 may well have been aggrieved by some administrative  2 tribunal, the administrative tribunal may well have  3 violated that party's rights to natural justice, but  4 the superior courts have a discretion not to give  5 effect, legal effect, to that party's right if the  6 party has failed to exhaust some other alternative  7 process or remedy in the administrative structure.  8 And the same principles apply in constitutional cases  9 and this court did it, at my behest, in a case,  10 Cecilia Moore and the province -- and I will come back  11 to that later in my argument -- even though the person  12 had perhaps a constitutional right that had been  13 violated by the government, the court said we have a  14 discretion to give effect to your -- that right, and  15 we don't choose to do it right now because you have  16 another remedy out there.  17 Now, if this court decides to go as far as  18 adjourning, retain jurisdiction in the hope and  19 expectation that the parties will and can settle their  20 differences through the negotiation process, it seems  21 to me that it's appropriate for this court to look  22 very carefully at an application by one of the parties  23 which is made before the two year period expires, to  24 look very carefully at the application to see whether  25 or not this court should invoke its jurisdiction,  26 should exercise its jurisdiction at the behest of that  27 party.  I think you have a discretion to say no.  28 LAMBERT, J.A.:  There are some remedies, such as a declaration,  29 such as the prerogative writ remedies that are truly  30 discretionary, and the law has long said they are  31 discretionary.  There are equitable remedies that  32 equity is treated as discretionary.  But there are  33 some remedies that you are entitled to ask for and if  34 you show that a right has been violated, you are  35 entitled, as a matter of law, to remedy, such as the  36 remedy of damages for the breach of a common law  37 right.  And the court has no power to say, yes, your  38 right has been broken, yes you have suffered damages,  39 but we are not going to award any, or we are going to  40 wait for a while.  I wouldn't have thought -- I mean,  41 I can certainly see that in all those areas which are  42 traditionally discretionary, then you can invite us to  43 exercise an unusual discretion.  But there are some  44 rights to remedies that people have that the courts  45 must grant if the circumstances are made up.  46 MR. ARVAY:  But the remedy that the plaintiffs have sought in  47 this case is declaratory. 1648  Submissions by Mr. Arvay  1 LAMBERT, J.A.:  Right.  And when they come back in six months  2 and say we want you to award us damages, then it may  3 be entirely different, we may have to look at  4 different factors then than the ones you are  5 enunciating now, if the claim is one for a remedy that  6 they have made out and are entitled to.  7 MR. ARVAY:  I take your lordship's point, but I don't think that  8 in the context of this case that the plaintiffs expect  9 anything other than, at most, a declaration of  10 entitlement to damages, not damages.  And the  11 plaintiffs' case is pitched, as I understand it, is to  12 seek declaratory relief.  The province's counter-claim  13 was likewise for declaratory relief.  That's all this  14 court can really be expected to do.  And because  15 declaratory relief is necessarily discretionary  16 relief, the court can refuse to give it, if there is  17 good reason.  18 MACFARLANE, J.A.:  Well, I think before we end this discussion I  19 would like to hear what issues really are of a nature  20 that they would come back to this court if they are  21 not settled by negotiations.  To mention one, damages,  22 damages were not assessed in the court below and I  23 can't imagine that this court would entertain an  24 application to assess damages.  So that would have to  25 go back to the trial court.  But that's the most --  26 beg your pardon?  27 HUTCHEON, J.A.:  A fee simple extinguishment might be -- the  28 province might come back and, as I understood, you  29 told us that.  30 MACFARLANE, J.A.:  I don't understand that.  31 HUTCHEON, J.A.:  Well, we were asked not to make any declaration  32 that the grant of a fee simple extinguishes the  33 rights.  34 MR. ARVAY:  That's right.  35 HUTCHEON, J.A.:  And I could conceive that in six months the  36 province may come back and say, we now want that  37 order.  38 MACFARLANE, J.A.: That's not my understanding of the argument.  39 I was going to mention that next.  I understood the  40 argument to be that there was such a mass of evidence  41 relating to specific extinguishment, and the problems  42 are so complex with respect to those issues, that the  43 problems are so site specific and so fact specific,  44 that this court would be -- it would be impossible --  45 that was the language used by counsel, I think -- for  46 this court to try and decide those issues, and that  47 they ought to be left for another time, perhaps 1649  Submissions by Mr. Arvay  1 another trial.  And as I see that particular problem,  2 I see a good example in the Alcan case.  3 Now, I may be wrong about this but it seems to me  4 that in the Alcan case you have to look at -- you have  5 to look at the specific agreement that there was  6 between the province and Alcan, what flows from that,  7 you have to look at the legislation and the  8 regulations which were put in place in respect of that  9 whole project, and then you have to hear a lot of  10 evidence to determine what are the aboriginal rights  11 in that area which are competing with Mean's claims?  12 And you have to assess all of that very carefully, in  13 a specific way, before a conclusion can be reached.  14 I see another situation relating to the claim in  15 the Queen Charlotte Islands.  Again, a site specific,  16 factually-based problem with its own legal context in  17 a situation that couldn't be resolved here.  The  18 Meares Island case may be another case of the same  19 nature.  And so, I had thought that I was being told  20 the other day that we ought not ever to attempt to  21 decide those specific extinguishment issues.  And  22 there are so many statutes out there that one has to  23 consider and so many problems.  So when I started all  24 this I was really asking you, because I knew we were  25 coming towards 12:30, that you might try and reveal to  26 me what it is that could come back to this court if we  27 give -- if we deal with the declaratory remedies that  28 are now sought.  29 Now, I mentioned two of them.  The other one  30 relates to external and internal boundaries.  It seems  31 to me that that's a subject which this court would  32 probably be reluctant to address, but I speak for  33 myself.  All right, you have asked us not to define  34 the precise locations, scope, content and consequences  35 of whatever aboriginal rights there are, if you are  36 right, that they haven't made out their ownership  37 rights.  Well, again, I understand that that whole  38 subject is one that wasn't -- I was going to say  39 wasn't canvased, of course it was canvassed -- but it  40 wasn't the subject of a careful judgment in the court  41 below.  And so, failing that, failing careful analysis  42 in the court below and so on, it seems to me that it  43 might be inappropriate for us to try and settle that  44 one.  45 Now, I have gone through the things you say don't  46 decide, I think, looking at the list that I made, and  47 I don't see any of those things as things that ought 1650  Submissions by Mr. Arvay  1 to come back to this court.  So I am beginning to  2 wonder whether what we really ought to be doing is  3 considering what declaratory remedies, declaratory  4 judgments should be made, and not acceding to your  5 submission that you should be allowed to come back,  6 adjourning the trial.  I see some difficulties.  I was  7 going to say great difficulties, and I think there  8 might be, in having some other panel come back into  9 this whole thing and try to settle some of these  10 questions.  But, again, you know, I may be quite wrong  11 about that.  I say all of that because I feel that I  12 would like to have answers to some of those questions.  13 WALLACE, J.A.:  I would like to add, since it is lunchtime, if  14 you could also after lunch explain to me the rationale  15 why you ask the court not to make a declaration with  16 respect to the constitutional authority of the  17 province to extinguish aboriginal title.  And perhaps,  18 indeed, the test of specific extinguishment, as my  19 notes indicate you asked the court not to decide  20 those.  21 MR. ARVAY:  That's right.  22 WALLACE, J.A.:  I know, and I felt the other declarations would  23 form a basis for your negotiations.  And I would have  24 thought the question of whether or not the province  25 had constitutional authority to extinguish might  26 indeed -- got that issue out of the way, it might also  27 be of some assistance in negotiations.  28 MR. ARVAY:  I will answer all of those questions after lunch, if  29 that's okay.  30 TAGGART, J.A.:  Have a nice lunch.  31  32 LUNCH BREAK  33  34  35  36  37 I hereby certify the foregoing to be  38 a true and accurate transcript of the  39 proceedings herein to the best of my  40 skill and ability.  41  42  43  44  45 Wilf Roy  46 Official Reporter  47 United Reporting Service Ltd. 1651  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 (PROCEEDING RESUMED 2:00 P.M.)  2  3 THE REGISTRAR:  Order in court  4 TAGGART, J.A.:  Yes, Mr. Arvay.  5 MR. ARVAY:  Let me start by answering Mr. Justice Macfarlane's  6 questions first.  You are quite right, my lord,  7 when -- or insofar as you say that you ought never to  8 be asked and therefore you need not retain  9 jurisdiction to determine whether there has been on  10 the ground either specific extinguishment or  11 diminution of the aboriginal right.  So that's not  12 something that this court need ever do, in my  13 submission.  However, it may well be your  14 responsibility, if you weren't to give effect to our  15 submission, to do some on the ground analysis of the  16 content of the right, and it may well be that the  17 province as well as the appellants would want you to  18 do that.  There was 318 days of evidence, umpteen days  19 of depositions and affidavits, all of which -- or much  20 of which went to the question of what was happening on  21 the ground.  22 Now, my friends pitched their case in this court  23 on a conception of aboriginal rights which doesn't  24 require, according to them, a detailed on the ground  25 analysis.  Their case is pitched that they own the  26 territory based on legal principles and adduces what  27 they say was enough evidence to demonstrate that  28 ownership interest.  But if your lordships reject that  29 conception of aboriginal rights and except instead the  30 conception of aboriginal rights that we put to you,  31 which is one which is very much context specific, it  32 may well be that all the evidence which was adduced at  33 trial ought to be looked at for the purpose of  34 determining on the ground wherein the territory the  35 appellants enjoy aboriginal rights and what the  36 content of those aboriginal rights are.  Neither the  37 appellants nor the province wish you to do that right  38 now.  But it may well be that both parties, and as  39 well as the Federal Government, would have the right  40 to come to this court and say, We haven't been able to  41 sort out our differences, we think there are no  42 aboriginal rights in this part of the territory, or if  43 there are -- or minimal aboriginal rights in that part  44 of territory, and the appellants are saying there are  45 a very rich bundle of rights in the territory, that's  46 evidence on the record, and that's something that this  47 court may have a duty to resolve. 1652  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 And so it's not fair to say, I don't think, that  2 beyond deciding the strict legal questions that this  3 court can wash its hands of the evidentiary matters.  4 I don't think that's the case.  But -- so we say that  5 if indeed you are going to do that kind of on the  6 ground analysis you probably would need to hear from  7 us as much greater length than you have, it's hard to  8 imagine, but you'd probably need to hear much more by  9 way of submissions in order to do that on the ground  10 analysis.  Because right now the way both the parties  11 are pitching their case on the appeal is somewhat  12 to -- at a more abstract level, and we're trying to  13 get the court to decide really what the nature of the  14 right is without asking the court to do any detailed  15 application of that right on the ground.  But it may  16 well be that given this -- that the extensive record  17 in this case, and I don't pretend to have any except  18 the most fleeting familiarity with it, that the  19 parties could come back to the court and say, okay  20 decide.  We say there are minimal aboriginal rights in  21 this area and the appellants differ, we may have a  22 right to do that.  But what -- but there is no way we  23 say that you would ever be required to go the next  24 step and determine how the right relates to various  25 governmental acts because it just -- as I understand  26 it, there is just not sufficient evidence adduced for  27 that purpose.  So that's why we say to you, we are  28 content now to have a fairly abstract -- a declaration  29 of rights which is fairly general, fairly abstract,  30 but it may well be that if this court was to complete  31 its task now the court would have to do more than  32 that, and we're saying, don't do more than that right  33 now.  Now this --  34 LAMBERT, J.A.:  May I interrupt you for a moment.  Before you  35 leave this question, if we were to decide that the  36 trial judgment contained an error of principle that  37 affected the question of boundaries, or error in  38 relation to the facts that affected the question of  39 boundaries, then in the ordinary way of the Court of  40 Appeal we are faced with the question of whether  41 having gone to set it aside whether we should  42 substitute our own view or send it back to the trial  43 judge.  If we are into any realm which requires much  44 more extensive examination than we are having now,  45 then surely there is something to be said for us  46 exercising the option to send it back to a trial judge  47 to either examine the existing evidence, if that's the 1653  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 way the parties want to do it, or new evidence and  2 settle the question.  3 MR. ARVAY:  I think that's right, my lord.  It may be that you  4 can send it to someone other than the trial judge,  5 maybe you can send it to a master or registrar,  6 someone specially designated for the task, but it  7 strikes me that if you did that at least this court  8 would continue to have jurisdiction, maintain  9 jurisdiction.  10 LAMBERT, J.A.:  Not if you send it to a trial judge, but if we  11 sent it to a master, yes.  12 MR. ARVAY:  Yes.  13 LAMBERT, J.A.:  And it seems to me that you would probably  14 choose the trial judge route over the master, if you  15 were satisfied that there was a clear error made by  16 the trial judge and questions of credibility have to  17 be taken into account in applying the right test.  18 He's seen all the witnesses, he's listened to all  19 their testimony, he's in a much better position than  20 this court would be to assess their credibility in  21 applying the test.  But the reason it goes back to him  22 is because he just applied the wrong test in the court  23 below, you give him the instructions as to what the  24 right test is and then he applies it to the evidence  25 as he recalls it.  That would be the reason to send it  26 back to the trial judge.  But if you are of the view  27 that -- that all those sort of criteria don't apply,  28 and that this court is in as good a position to apply  29 your test to the evidence because you're of the view  30 that credibility is not a central issue or an  31 important issue and yet recognize that you don't want  32 to be spending days and weeks and months doing that  33 kind of on the ground analysis, then it would more  34 likely call for delegating the task to a master, in  35 which case the court would still retain jurisdiction.  36 And it's difficult to know which is the proper course  37 without doing all the -- answering all the questions  38 that are raised by your question, but I think that's  39 an option, yes,  40 MACFARLANE, J.A.:  I have a couple more questions before you go  41 on.  What about the constitutional power of the  42 province to extinguish by legislation passed during  43 the period 1871 and 1982, do you want us to decide  44 that?  45 MR. ARVAY:  That was Mr. Justice Wallace's question.  46 MACFARLANE, J.A.:  All right.  Well then, you can answer it when  47 you come to him. 1654  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 MR. ARVAY:  I can answer it right now.  I'm ready.  2 MACFARLANE, J.A.:  All right.  3 MR. ARVAY:  Sure, I'll answer it now.  4 MACFARLANE, J.A.:  Could I add another question to it then maybe  5 as part of the same argument?  Do you want us to  6 decide what test to apply in relation to  7 extinguishment?  That is, whether it must be express  8 or implied?  9 MR. ARVAY:  And that I guess is Mr. Justice Hutcheon's question,  10 so let me cover them all right now.  To answer the  11 question about the province's constitutional authority  12 to extinguish, clearly the province is of the view  13 that they have the constitutional authority to  14 extinguish, and Mr. Taylor has given extensive  15 submissions in that respect.  There is two reasons why  16 that question, we say, shouldn't be answered right  17 now.  One is that both the appellants and the province  18 would prefer that it not be answered because it's not  19 necessary to be answered.  And the --  20 WALLACE, J.A.:  I see a lot of shaking of heads.  I don't know  21 whether it's directed to its not being necessary or  22 whether you agree.  23 MR. ARVAY:  Well, it's part of our list of —  24 MR. JACKSON:  Well, I think Mr. Arvay should not take it to be a  25 fixed position of the appellants.  26 MR. ARVAY:  In the list of issues that I was going to take you  27 through at the end of my submissions it is clear that  28 the parties had agreed that all questions relating to  29 specific extinguishment should not be decided by this  30 court, which the parties understand to mean including  31 the authority of the province.  If that's not the  32 agreement then I'd like to hear that from the  33 appellants.  34 My first submission is that it has been my  35 understanding until 15 seconds ago that neither side  36 wanted that issue decided right now, and because it  37 was not necessary to decide it, that given normal  38 rules in constitutional litigation courts ought not to  39 decide constitutional questions that are not necessary  40 to be decided.  And quite frankly, the reason is --  41 WALLACE, J.A.:  They are necessary in the long run, unless you  42 reach an agreement.  43 MR. ARVAY:  My lord, there is no question that some other party  44 in some other lawsuit as we speak right now could be  45 arguing --  46 LAMBERT, J.A.:  Oh, no, no, we have heard Alfonse and Dick and  47 that issue is squarely raised about whether the 1655  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 Wildlife Act extinguishs the aboriginal right to hunt  2 in both of those cases, and we will have to decide the  3 principles and apply them to the hunting situation in  4 order to decide those cases which we have now got on  5 reserve of this very panel.  6 TAGGART, J.A.:  And those are site specific, there they are, the  7 facts are there encompassed in the issues of law --  8 MR. ARVAY:  Well, you know, not being counsel on Alfonse and  9 Dick I don't know the extent to which what I say here  10 has application to Alfonse and Dick.  Obviously we  11 would like the court to be consistent in what it does  12 in this case and what it does in the other cases, both  13 substantively and procedurally.  14 LAMBERT, J.A.:  But those are criminal cases that have to be  15 decided, we have got no options about declarations or  16 anything like that in those cases.  17 MR. ARVAY:  It may be, my lord -- I guess I'd like to have an  18 opportunity to reflect on how this plays out in  19 Alfonse and Dick and whether you need to hear  20 submissions from the other parties in Alfonse and Dick  21 on this issue.  If I could just leave that aside for a  22 moment, I appreciate that's a tough question and I  23 don't have an answer to it.  It may well play itself  24 out in another day and another courtroom.  That's a  25 big win or big lose question.  There is --  26 WALLACE, J.A.:  Well, I asked for the rationale for not doing  27 it.  Is it -- are you free to enlighten us on that?  28 MR. ARVAY:  Well, the -- I guess simply what we are trying to do  29 in this litigation is to even the playing field to  30 some extent.  One of the reasons why this litigation  31 is going on is because when the Chief Justice -- and  32 my friends can correct me if I'm wrong, but my  33 understanding is one the reasons that this litigation  34 is going on is when the Chief Justice said that the  35 aboriginal people in this province have no aboriginal  36 rights, at least that are land-based, that it made it  37 impossible for the aboriginal people to come to  38 court -- sorry, for aboriginal people to negotiate in  39 any meaningful and effective way with the Provincial  4 0 Government or Federal Government.  We don't  41 necessarily accept that that's true, but we respect  42 their view.  43 And the whole purpose of Section 35, we say, is to  44 provide a meaningful base, constitutional base, from  45 which aboriginal people can negotiate with province  46 and federal governments.  It's a spring board, if you  47 will, to allow them to go into the treaty-making 1656  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 process, the negotiation process, on some measure of  2 equal footing with the government.  3 WALLACE, J.A.:  So you think that knowing the legal position  4 with respect to the provinces right to or authority  5 or -- to extinguish aboriginal title prior to 1982  6 would be an impediment, is that what you're saying?  7 MR. ARVAY:  It might be.  8 WALLACE, J.A.:  And that's the only reason?  9 MR. ARVAY:  That's the reason.  10 WALLACE, J.A.:  And is that the same reason that you don't want  11 to know what the test of specific extinguishment is?  12 MR. ARVAY:  Yes, that's exactly it.  That we believe if we can  13 go to the bargaining table and --  14 WALLACE, J.A.:  With neither side really knowing what their  15 rights are.  16 MR. ARVAY:  With neither side really knowing how strong a hammer  17 the other one has.  And I'm sure my friends are going  18 to say that -- you know, that they can succeed on that  19 issue, and you've heard us that we can succeed on the  20 issue.  We both feel very strongly about it.  It's  21 clearly a big win or lose issue though, we can't hide  22 that, it is.  And we would rather go into negotiations  23 and we believe the appellants would rather go into  24 negotiations, because that's what I understand is why  25 there was agreement on the list, in a position where  26 there is some relative equality of bargaining power,  27 and we think that if the court stops short of  28 answering that question there will be that measure of  29 equal bargaining power.  It's as simple as that.  30 WALLACE, J.A.:  Thank you.  31 MR. ARVAY:  And then I guess to answer Mr. Justice Hutcheon's  32 question and the last one that Mr. Justice Macfarlane  33 asked, we said that we would prefer that the court not  34 determine even the test of specific extinguishment as  35 well as not determine whether or not, for instance,  36 grants in fee simple extinguish.  I'm very firm on the  37 latter, that you ought not to decide, for instance,  38 whether a grant in fee simple extinguishes.  Again not  39 because we are afraid of the argument, I believe we  40 would win that argument, but I don't think you should  41 decide that argument.  42 It may be more difficult for you to avoid entirely  43 the test, because you're going to run very close into  44 it when you're dealing with the blanket extinguishment  45 part of the case.  In order to decide whether there is  46 blanket extinguishment or not, you probably have to  47 determine what the test of extinguishment is, so you 1657  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 might have to go as far as saying that there can be  2 specific extinguishment if the crown, the sovereign,  3 demonstrates complete adverse dominion by clear and  4 plain intention.  You may have to go that far.  Maybe  5 not.  Maybe you can say, We're satisfied that the  6 trial judge was wrong in saying that there was blanket  7 extinguishment.  We don't have to go the next step and  8 determine what constitutes extinguishment because it's  9 not before us.  That would be my preference.  You may  10 not be able to draw the line there and so you may have  11 to get into whether consent is a requirement or not  12 for extinguishment.  That's a point I don't have  13 strong feelings about.  And I think probably the  14 appellants will say you have to decide the issue of  15 consent.  Fair enough.  But I think you can stop at  16 that point and say as little as you absolutely have to  17 which is going to tip the scales one way or the other  18 on the issue of specific extinguishment or diminution.  19 I think that answers all sets of questions, unless  20 there is anything else arising?  Oh, sorry, there is  21 another answer to your question about specific  22 extinguishment, and that is this:  That much of Mr.  23 Taylor's submission to you on 91.24 was to the effect  24 that whether there is an invasion of 91.24, not so  25 much whether there's been extinguishment of aboriginal  26 rights -- well both, on both counts, whether there's  27 an extinguishment of aboriginal rights and whether  28 there's been an invasion of 91.24, may itself be  29 highly fact intensive.  30 And we talked about the core and we tried to come  31 up with examples.  The Supreme Court of Canada in a  32 number of cases have talked about constitutional  33 interpretation being contextual.  That courts should  34 avoid if at all possible highly abstract articulation  35 of the rights.  Madam Justice Wilson started the  36 debate -- and I can get this material for you if you  37 need it -- in a U of T law journal article, and it was  38 picked up by the court in the Edmonton Journal case,  39 and I think it was picked up by the entire court in  40 the Manitoba Law Society case in Pearlman.  These are  41 just cases I'm recalling now, in which the court said  42 you shouldn't decide constitutional cases except in  43 the context of all the facts.  And it may be very  44 difficult to even articulate the core doctrine without  45 doing so on the ground, so to speak.  Particularly as  46 Mr. Taylor put it, the date of the inquiry when you're  47 determining whether there's been an invasion of 91.24 1658  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 may be different than the date of inquiry when you're  2 determining whether there's been an extinguishment of  3 aboriginal rights.  And it gets real complicated  4 factually.  And that's another reason why it may be  5 difficult to answer that question.  6 LAMBERT, J.A.:  You made an offer in passing to give us the  7 material on the constitutional questions being  8 determined in a specific situation, in a context, and  9 speaking for myself I would like to take you up on  10 that offer.  11 MR. ARVAY:  Yes.  And I can tell you as well that in my  12 material, maybe in the -- I have these cases, if  13 you'll turn to Tab 141B -- supposed to be a B,  14 actually there is no B.  If you turn to Tab 141 you'll  15 see there is a Tab A -- it's really Tab A.  There are  16 three or four cases there which talk about the  17 importance of not deciding constitutional cases  18 without a proper factual underpinning, which is  19 similar to but may be a little bit different than  20 Madam Justice Wilson's approach to interpreting the  21 constitution which she said is contextual, but maybe  22 not very different.  But I'll just take you through  23 this very quickly.  The John Deere case I thought was  24 useful, it's an old division of powers case.  And even  25 there at page 338, it's the Privy Council speaking,  26 the bottom paragraph:  27  28 "The structure of sections 91 and 92, and the  29 degree to which the connotation of the  30 expressions used overlaps, render it, in their  31 lordships opinion, unwise on this or any other  32 occasion to attempt exhaustive definitions of  33 the meaning and scope of these expressions.  34 Such definitions, in the case of language used  35 under the conditions in which a constitution  36 such as that under consideration was framed,  37 must almost certainly miscarry.  It is in many  38 cases only by confining decisions to concrete  39 questions which have actually arisen in  40 circumstances the whole of which are before the  41 tribunal that injustice to future suitors can  42 be avoided.  Their lordships adhere to what was  43 said by Sir Montague Smith in delivering the  44 judgment of the Judicial Committee in Citizens  45 Insurance Co. vs Parsons case to the effect  46 that in discharging the difficult duty of  47 arriving at a reasonable and practical 1659  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 construction of the language of the sections,  2 so as to reconcile the respective powers they  3 contain and give effect to them all, it is the  4 wise course to decide each case which arises  5 without entering more largely upon an  6 interpretation of the statute than is necessary  7 for the decision of the particular question in  8 hand.  The wisdom of adhering to this rule  9 appears to their lordships to be of special  10 importance when putting a construction on the  11 scope of the words 'civil rights' in particular  12 cases.  An abstract logical definition of their  13 scope is not only, having regard to the context  14 of Sections 91 and 92 of the act,  15 impracticable, but is certain, if attempted, to  16 cause embarrassment and possible injustice in  17 future cases."  18  19 The next case is the Rio Hotel case.  Interesting  20 case as to whether persons who dance topless are --  21 enjoy freedom of expression.  And at page 83 of the  22 judgment, the last page in that green tab, Mr. Justice  23 Estey says:  24  25 "The record before the courts on this issue is  26 woefully inadequate and cannot serve as a base  27 upon which to build an argument that this law  28 violates the above provision of the charter.  29 The nature of the conduct, said to amount to  30 nude dancing, is not revealed in the record."  31  32 I don't know what he needed.  I won't say it.  33  34 "There is no description of any such conduct,  35 the extent of the alleged nudity, the nature of  36 the 'expression' in question, or anything else  37 of a factual nature germane to this issue."  38  39 The Manitoba -- MacKay and the Government of Manitoba  40 is the next case.  It's at page 361, under the  41 heading, "The Essential Need to Establish the Factual  42 Basis in Charter Cases.  I'll just read the bottom  43 paragraph:  44  45 "Charter decisions should not and must not be  46 made in factual vacuum."  47 1660  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 I know your lordships are aware of these principles.  2 The next case, the Supreme Court of Canada, re Danson  3 and AG of Ontario, same proposition was advanced.  So,  4 yes, I will indeed provide you with those other  5 references.  There may be something that's added by  6 them.  7 LAMBERT, J.A.:  Thank you.  8 MR. ARVAY:  So, where was I?  Madam Registrar tells me I'm still  9 on my first paragraph.  I told Mr. Macaulay I would be  10 finished by noon.  My apologies to Mr. Macaulay.  11 Paragraph 116 -- oh, by the way, you might want to  12 note the Manitoba Language case is in the white book  13 at Tab 115, that has tab -- and I put a blank tab  14 there just because I thought we might be referring to  15 it frequently, because I haven't reproduced Manitoba  16 Language every time it's been referred to in the  17 factum.  I only reproduced it in its entirety once.  18 LAMBERT, J.A.:  As far as that case is authority for the  19 respondents' part of the case and referring it back, I  20 was wondering to what extent that became possible if  21 that case becomes a reference rather than a piece of  22 litigation between parties.  23 MR. ARVAY:  I don't think that there is anything in the judgment  24 to suggest that it turned on that at all.  Indeed, in  25 the Dixon case, which I'll come to, which was a  26 decision of Madam Justice McLachlin when she was in  27 trial division, she applied Manitoba Language to do a  28 very similar thing and of course that was not a  29 reference, it was an action.  So I don't see why it  30 ought to -- there was nothing in the judgment that I  31 recall.  32 LAMBERT, J.A.:  No, but the terms of reference could let you do  33 it on a reference.  34 MR. ARVAY:  Terms of reference can let you do a lot of things on  35 a reference, that's right, but that wasn't called for  36 by the terms of reference.  37 HUTCHEON, J.A.:  The chief justice simply said on the question  38 of jurisdiction which was argued before him he was  39 satisfied we have jurisdiction, so there must have  40 been an argument based upon what jurisdiction they  41 had.  42 MR. ARVAY:  May have been, my lord, I don't know the answer to  43 that.  If you're asking me to try to find out, I'll do  44 that.  45 HUTCHEON, J.A.:  It occurred to me it might be useful to see  46 what that argument was.  It may raise what Judge  47 Lambert talks about, the language of the reference, 1661  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 but in that report we had last -- a year ago in the  2 1990 edition, that's all he said was, in the question  3 of jurisdiction we are satisfied we have jurisdiction.  4 MR. ARVAY:  I see.  I'll endeavor to get some background  5 information on that.  I mean, at one point it was the  6 position of the Attorney General that the court not  7 retain jurisdiction and just say, trust us, we will do  8 it.  And the court said, no, no, that would be  9 shirking our constitutional responsibility.  So I  10 think the court took jurisdiction.  I don't think it  11 was urged upon them, but I'll check into that.  12 116, I make the point that this purposive approach  13 to remedies and an innovative remedy is maybe  14 particularly called for when you're dealing with an  15 unusual right, an unique right.  16 And in paragraph 117 probably by way of summary I  17 say that the remedy that makes declarations concerning  18 the existence of aboriginal rights but relies upon  19 negotiation to give specific content and consequence  20 to these rights accords with the unique nature of  21 aboriginal rights, the text of the constitution, the  22 historical origins of aboriginal rights, the treaty  23 process, and the purpose and interests that those  24 rights are designed to protect.  25 Now, in order to understand that argument, of  26 course, you have to go back and look to -- at what we  27 said about the nature of the rights.  And I'm not  28 going to go over ground Mr. Williams went over, but I  29 just ask your lordships to make a note that back in  30 the first part of the factum, at paragraphs  31 essentially starting from paragraph 11, 12, 13, 14,  32 15, 16, 17, 18 and 19, there is a discussion of what  33 aboriginal rights are and the importance of looking at  34 their historical origin.  35 Let me just touch on some of the points made in  36 the first part of that factum.  In paragraph 12 and 13  37 you see that other parts of Section 35 demonstrate the  38 importance that the treaty-making process and  39 negotiations with aboriginal peoples have in our  40 society.  35(3) it constitutionalizes rights that are  41 acquired by way of land claim agreements.  And in  42 paragraph 13, 35.1 constitutionalizes constitutional  43 compenses to give more content and meaning to the  44 rights.  And those are places where people are going  45 to sit around the table and negotiate, negotiate the  46 content of rights.  47 There is no question that historically, as I said 1662  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 this morning, that colonial authorities to one extent  2 or another often attempted to negotiate co-existence  3 with aboriginal peoples, and you might -- you may not  4 call that aboriginal rights, but the rights of  5 aboriginal people to co-exist with non-aboriginal  6 societies was done in many cases by way of  7 negotiation.  8 Now, there is two ways of looking at Section 35  9 and I think they are both right.  I think the key to  10 what -- to this argument is found in the passage in  11 Sparrow which is found at paragraph 17 of the factum.  12 Mr. Williams read this to you, but I think it's  13 critical that it be emphasized.  And it's that Section  14 35(1) provide a solid constitutional base upon which  15 subsequent negotiations can take place.  And so its  16 very purpose in the constitution, or an important  17 purpose in the constitution is not to settle once and  18 for all through the judicial process what the rights  19 of aboriginal people are in Canadian society, but to  20 provide them with a base upon which they can engage in  21 meaningful negotiations.  22 And so that's why when I was talking at the  23 beginning of my submissions on this part about what  24 the purpose of the transition period is, it could be  25 for one of two reasons:  One reason is to allow the  26 parties to go off with their bundle of rights, each  27 side knowing what the basic rights of the aboriginal  28 people are, and negotiate a treaty.  And the treaty  29 may well be for -- to acquire benefits,  30 responsibilities, duties and what not, that have --  31 that would never be imposed by a court.  In other  32 words, the treaty may give to aboriginal people,  33 impose upon governments rights and responsibilities  34 that would never come from a court.  But nevertheless,  35 they then become constitutionalized by virtue of  36 Section 35(3), but they are then special, they are  37 different, they are treaty rights, they are not  38 aboriginal rights.  That's one reason for the  39 transition period.  It doesn't make the court's job  40 any less legimitate, if that's the reason, because the  41 purpose of Section 35 is to -- is to do that, to allow  42 the aboriginal people to go into negotiations with  43 enough rights to make those negotiations meaningful.  44 Another reason for the interim period -- and it's  45 the way the order is now framed as I've put it in Tab  46 7 at first paragraph I read to you, where we say the  47 transition period exists and the anticipation that the 1663  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 precise location, scope, content and consequences of  2 their rights will be further defined and implemented,  3 well, it may be that during the negotiations -- and I  4 don't want to second-guess how the negotiations are  5 going or in any way suggest how they should go -- but  6 it's possible that the transition period will be used  7 to not only acquire rights which are not strictly  8 speaking aboriginal rights, but to determine more  9 precisely what their legal rights are, and then come  10 back to the court and either with a joint submission  11 or perhaps not a joint submission, with more  12 information as to what the legal rights of the  13 aboriginal people are or not.  14 Remember, an important thing about Section 35  15 which distinguishes it from all the charter rights is  16 that Section 35 has built into it its own Section 1.  17 And -- so to speak.  Supreme Court of Canada in  18 Sparrow found in Section 35 the ability of the  19 government to infringe aboriginal rights, so long as  20 it met a certain standard of justification.  So the  21 right itself bespeaks reconciliation of both  22 aboriginal and non-aboriginal interests, right in the  23 right there is some balancing has to take place.  And  24 it may well be that -- and perhaps too often than not,  25 the part of the process which involves the  26 infringement of the right is done without the  27 aboriginal peoples being involved.  It's done in the  28 legislature or it's done in the offices of government,  29 but there is nothing to say that the -- there can't be  30 some negotiation about the nature of laws and  31 regulations and government acts which can or cannot  32 properly infringe the aboriginal right.  And that can  33 all -- that can all be happening during this  34 transaction period.  And so it may well be that during  35 the transaction period different things are happening,  36 but both of them are entirely legitimate, and the  37 court shouldn't feel in any way uneasy about being  38 party to it.  The court should be very proud about  39 being party to this historic and very important  40 process.  41 I'll move over to -- I'm going to try to pick up  42 the pace a bit if I may, my lord, I probably will have  43 made my point over after over again by now and I'll  44 try not to repeat myself.  45 Paragraph 118, 119, 120 again I think reflect what  46 I've already said.  Remember, in -- under Sparrow the  47 government has some duty to consult with aboriginal 1664  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 people before there has been a diminution of their  2 rights under Section 35.  And we're saying that you  3 can -- once the government now knows clearly that the  4 aboriginal people have rights in this province,  5 contrary to what the Chief Justice said, that the  6 government should be given an opportunity to consult.  7 It should be given an opportunity to do what has to be  8 done to ensure that the rights of aboriginal people  9 are respected before anything is foisted on them  10 through the court process.  11 Paragraph 121 emphasizes why this approach is  12 particularly appropriate where there are generalized  13 claims such as this case.  14 Again, my lord, Mr. Justice Lambert, I -- I'd like  15 to think some more about what we do about cases like  16 Alfonse and Dick where they are not, and it may be the  17 only answer is you may have to do what you have to do,  18 but don't do any more than that.  19 And in paragraph 122 I talk about how, even  20 outside of Section 35, in that case it was Section 7,  21 why there is balancing that takes place in the context  22 of rights.  23 And in 124 I take about the important role that  24 the court has in getting the parties started,  25 overseeing the process only by way of retaining  26 jurisdiction and then finishing the job.  And there is  27 a couple of quotes there from the Canadian Bar  28 Association which talk about why, if we really want to  29 have a lasting solution, it should be the parties that  30 are the authors of it rather than something that was  31 visited upon either party by virtue of judicial fiat.  32 Now, the next heading in my factum, the  33 appropriate role of declaratory relief, again goes to  34 the jurisdiction of the court to grant the relief.  35 I've covered quite a bit of the ground in this already  36 in answers to questions from the bench.  I start off  37 by saying you have jurisdiction, which is the same as  38 the jurisdiction of the superior court which is very  39 broad.  I talk in paragraph 125 about how flexible a  40 remedy declarations are.  There is a quote there from  41 Solosky v The Queen:  42  43 "Declaratory relief is a remedy neither  44 constrained by form nor bounded by substantive  45 content which avails persons sharing a legal  46 relationship, in respect of which a 'real  47 issue' concerning the relative interests of 1665  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 each has been raised and falls to be  2 determined...  Once one accepts that the  3 dispute is real and the granting of judgment is  4 discretionary, then the only further issue is  5 whether the declaration is capable of having  6 any practical effect in resolving the issues in  7 the case."  8  9 And we say clearly the -- this declaration would  10 have great practical effect for all the reasons I have  11 set out.  You should also take note of the Kelso  12 decision.  I'll just ask you to note the Kelso  13 decision at page 9, in which the court talked about  14 issuing a declaration even though they said the  15 declaration may not have practical result.  I mean,  16 they took it quite far.  17 Paragraph 126, again more discussion about how  18 declarations can be used as preventative measures,  19 where there may be a cognizable threat to a legal  20 interest.  I don't think you have a cognizable threat  21 to a legal interest, but I still think it's forward-  22 looking here, it's designed to deal with the  23 perspective.  It's forward-looking, it's perspective,  24 it's designed to assist the parties in reaching the  25 reconciliation of their competing interests in the  26 future as much as it is to address past wrongs.  27 The -- at paragraph 127 we state again fairly  28 obvious propositions, that courts grant declaratory  29 relief against governments all the time, knowing that  30 it doesn't mean that the government must obey, but  31 knowing that -- they do it because they know the  32 government will obey.  It's one of our traditions in  33 this country, unlike the United States, where it's  34 virtually unheard of -- there may be some  35 exceptions -- for governments not to give effect to  36 declaratory rulings by courts.  37 And a declaration from this court along the lines  38 that we submit will have a very salutory effect in  39 keeping governments moving in the direction that they  4 0 should be moving.  41 Paragraph 130 is the reference to the cases that I  42 touched on this morning:  Harelkin, Mills, Moore and  43 Badger, all cases in which the courts have declined to  44 give any relief, even though there may be some clear,  45 illegal conduct occurring.  Harelkin was an  46 administrative law case, but the Moore case was a  47 constitutional case. 1666  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 That was the case where Ms. Moore was fired by the  2 provincial government for failing to perform some  3 tasks that she said convened her freedom of religion.  4 I should take you to that one because I think it's  5 quite important.  That's Tab 130.  I see that three of  6 you are on that panel.  7 TAGGART, J.A.:  Are we going to re-visit that?  8 MR. ARVAY:  There were a number of issues in the case.  One the  9 issues in the case was, was Ms. Moore entitled to a  10 declaration that her charter rights had been  11 infringed, given that she could have gotten her job  12 back or a remedy by seeking -- by going to the Human  13 Rights Commission.  And one of the -- I mean, the  14 court said that the fact that the -- I mean, the  15 government was subject to the charter, notwithstanding  16 the fact that the government was acting qua-employer,  17 so there was clearly a charter issue before the court.  18 And Ms. Moore brought a declaration seeking -- rather  19 brought an action seeking a declaration that her  20 charter rights had been violated by the firing.  21 Our position was, and it was acceded to by the  22 court, that she had other remedies available to her.  23 One was to grief her firing through the collective  24 bargaining process, in which case the artibrator,  25 himself or herself, would have the power to take the  26 charter into account.  Now, that part of the judgment  27 isn't particularly on point to what I'm saying, but  28 the other part of the judgment which I'll take you to  29 more specifically, is dealing with the -- deals with  30 the Human Rights Act.  The court said, You also have a  31 remedy under the Human Rights Act.  Now, that wasn't a  32 charter remedy, it was a statutory remedy.  And her  33 counsel said, No, but I want my charter rights, I'm in  34 court.  And the court said, you have an adequate  35 alternative remedy to pursue through the Human Rights  36 Act.  If and only if you don't succeed there, then  37 come before the court.  38 The court is clearly the place where ultimately  39 charter or constitutional rights are vindicated, but  40 it's also the place of last resort.  And that's what  41 the Supreme Court of Canada said in the Mills case.  42 So in the Moore case at page 114, Mr. Justice  43 Macfarlane said:  44  45 "At the heart of the question is whether equally  46 effective remedies are available elsewhere.  47 The superior courts have discretion to decline 1667  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 jurisdiction where just and appropriate relief  2 can be granted by another tribunal, and will  3 exercise jurisdiction only where there is a  4 need to do so."  5  6 And then dealing with the Human Rights Act, that's  7 dealt with at page 117 in the second paragraph from  8 the bottom just above the heading.  The court said:  9  10 "Thus I conclude that it was open to Mr. Justice  11 Lander to hold the cause of action of the  12 appellant to be 'unnecessary because an  13 effective remedy is available under the Human  14 Rights Act.'  The judge was therefore entitled  15 to exercise his discretion under R.19(24)(b) in  16 striking out the plaintiff's claims."  17  18 And so there is an example of where the courts said,  19 We are not even going to listen.  Not that we are  20 going to only decide part-way, we are not going to  21 entertain your application right now.  22 I've heard it suggested that what I'm asking the  23 court for is an interim declaration.  I am not asking  24 the court for an interim declaration.  I'm asking the  25 court for a final declaration, and one that in indeed  26 could be appealed, although both sides I'm sure would  27 argue that leave shouldn't be granted until everything  28 is finished, but strictly speaking, it's a declaration  29 that is final and could be appealed.  It's not an  30 interim declaration, because an interim declaration  31 implies that the court can change its mind, and there  32 is clear authority that the court can't grant interm  33 declarations.  This is a final declaration, but it's  34 not as complete as it might otherwise be.  35 There is helpful authority in the language rights  36 cases -- and I'm at paragraph 132 of my factum -- in  37 which the courts have said, it's better to paint in  38 broad brush strokes rather than in fine strokes when  39 dealing with these rights.  And the language right  40 cases are helpful because they are collective rights,  41 like aboriginal rights.  They are new rights, like  42 aboriginal rights, and therefore caution is in order  43 before courts move to -- before courts decide more  44 than they -- caution is in order to -- so that courts  45 don't decide more than they need to.  46 And thirdly, the third distinction or similarity  47 about language rights is that they really do call upon 1668  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 other institutions of government other than the courts  2 to complete the -- in order to give meaning to the  3 rights, that courts alone cannot give meaning to  4 language rights.  It requires the cooperation of  5 governments at all levels.  Unless courts in Canada  6 want to engage in the kind of detailed supervision of  7 schools and hospitals and penal institutions that is  8 engaged in in the United States, and of course we are  9 not suggesting that at all.  So in Canada the  10 tradition so far has been for the court to give rather  11 broad declarations as to what the language rights mean  12 leaving it for the governments to implement the right,  13 apply the declarations and implement the rights.  14 Let me -- before I read to you from paragraph 132,  15 I'd like to take you back to Tab 114, if I may, in the  16 reference back to the Societe case, because this goes  17 to the similarity between language rights and  18 aboriginal rights.  Similarly I think it is warranted.  19 At Tab 114 at page 425 Mr. Justice Stratton says:  20  21 "While legal rights as well as language rights  22 belong to the category of fundamental rights,  23 it would constitute an error either to impart  24 the requirements of natural justice into  25 language rights or vice-versa, or to relate one  26 type of right to the other.  Both types of  27 rights are conceptually different.  To link  28 these two types of rights is to risk distorting  29 both rather than re-enforcing either.  30 Unlike language rights which are based on  31 political compromise, legal rights tend to be  32 seminal in nature, because there are rooted in  33 principle.  Some of them, such as the one  34 expressed in Section 7 of the charter, are so  35 broad as to call for frequent judicial  36 determination.  37 Language rights, on the other hand,  38 although some of them have been enlarged and  39 incorporated into the charter, remain  40 nonetheless founded on political compromise.  41 This essential difference between the two  42 types of rights dictates a distinct judicial  43 approach with respect to each.  More  44 particularly, the courts should pause before  45 they decide to act as instruments of change  46 with respect to language rights.  This is not  47 to say that language rights provisions are cast 1669  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 in stone and should remain immune altogether  2 from judicial interpretation, but in my opinion  3 the court should approach them with more  4 restraint than they would in construing legal  5 rights."  6  7 Now, I'll come in a moment to the Mahe decision  8 where the court commented on that passage, but I just  9 want to pause there to say that aboriginal rights are  10 similar, not the same, but there are certain  11 similarities between aboriginal rights and language  12 rights, in the sense that -- as Chief Justice Dickson  13 says in Sparrow, they -- Section 35 is a culmination  14 of a long and difficult struggle in both the political  15 forum and the legal forum.  And indeed, he said in  16 Sparrow that aboriginal rights for a long time had  17 been ignored in Canadian society, and I don't think  18 that anyone can deny that aboriginal rights are to  19 some extent the result of political compromise.  The  20 very fact that they are rights which attempt to  21 reconcile the interest of aboriginal peoples, First  22 Nations, and provincial and Canadian governments,  23 indicates that they are to some extent the result of a  24 political compromise.  So I think that that passage is  25 Societe is worth pointing out.  26 I said I would bring you to the Mahe decision  27 which comments on that.  28 TAGGART, J.A.:  If we are going to get into that subject matter,  29 would it be appropriate to take five minutes?  3 0 MR. ARVAY:  Certainly.  31 THE REGISTRAR:  Order in court.  Court stands adjourned.  32  33 AFTERNOON RECESS TAKEN  34  35 THE REGISTRAR:  Order in court.  36 TAGGART, J.A.:  Yes, Mr. Arvay.  37 MR. ARVAY:  If you could turn to Tab 127, my lords, I think  38 that's in W-5.  And there is two blank tabs, the  39 second blank tab -- no -- yes, two blank tabs.  The  40 first blank tab is the Dixon case, you might even want  41 to write that in the tab.  And the second black tab is  42 the Mahe case.  43 Again the Manitoba Language, Dixon and Mahe are  44 three very important decisions for the purpose of my  45 submission and so I reproduced them once in their  46 entirety in this book.  And specifically pages 84 and  47 85. 1670  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 TAGGART, J.A.:  Of Mahe?  2 MR. ARVAY:  Of Mahe.  84 and 85.  The court looks back at what  3 was said by Mr. Justice Beetz in the Societe case --  4 quote that I read to you -- and said at the bottom of  5 page 84, last paragraph:  6  7 "I do not believe that these words support the  8 proposition that Section 23 should be given a  9 particularly narrow construction or that its  10 remedial --"  11  12 TAGGART, J.A.:  Sorry, page again?  13 MR. ARVAY:  Page 84.  14 TAGGART, J.A.:  Yes.  15 MR. ARVAY:  16 "I don't believe the words should be given a  17 particularly narrow construction or that its  18 remedial purposes should be ignored.  Beetz J.  19 makes is clear..."  20  21 And on the next page, page 85:  22  23 "Beetz J.'s warning that the courts should be  24 careful in interpreting language rights is a  25 sound one.  Section 23 provides a perfect  26 example of why such caution is advisable.  The  27 provision provides for a novel form of legal  28 right, quite different from the type of legal  29 rights which courts have traditionally dealt  30 with.  Both its genesis and form are evidence  31 of the unusual nature of Section 23.  Section  32 23 confers upon a group a right which places  33 positive obligations on government to alter or  34 develop major institutional structures.  35 Careful interpretation of such as section is  36 wise:  However, this does not mean that the  37 court should not 'breathe life' into the  38 express purpose of the section or avoid  39 implementing the possibly novel remedies needed  40 to achieve that purpose."  41  42 I think that those words are directly applicable to  43 Section 35.  44 You can keep Mahe open.  If you'll go back to the  45 factum, paragraph 135 where I left off, I have a quote  46 from Mahe which, if you want to go to it in the text,  47 is at page 106.  Here again this is a case of where 1671  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 the court spoke in rather broad brush terms.  At  2 paragraph starting at letter D on page 106 in Mahe,  3 the court says:  4  5 "For these reasons I think it best if the court  6 restricts itself in this appeal to making a  7 declaration in respect of the concrete rights  8 which are due to the minority language parents  9 in Edmonton under Section 23.  Such a  10 declaration will ensure that the appellants'  11 rights are realized while, at the same time,  12 leaving the government with the flexibility  13 necessary to fashion a response which is suited  14 to the circumstances.  As the Attorney General  15 for Ontario submits, the government should have  16 the widest possible discretion in selecting the  17 institutional means which by its Section 23  18 obligations are to be met; the courts should be  19 loath to interfere and impose what will be  20 necessarily procrustean standards, unless that  21 discretion is not exercised at all, or is  22 exercised in such a way as to deny a  23 constitutional right.  Once the court has  24 declared what is required in Edmonton, then the  25 government can and must do whatever is  26 necessary to ensure that these appellants, and  27 other parents in their situation, receive what  28 they are due under Section 23.  Section 23 of  29 the charter imposes on provincial legislatures  30 the positive obligation of enacting precise  31 legislative schemes providing for minority  32 language instruction and educational facilities  33 where numbers warrant.  To date, the  34 legislature of Alberta has failed to discharge  35 that obligation.  It must delay no longer in  36 putting into place the appropriate minority  37 language education scheme."  38  39 Now, the only thing that's different about Mahe  40 and other cases like it from this case is that in  41 those cases the court has gone as far to say that the  42 government has violated the citizen's constitutional  43 rights, but stops short of telling the government how  44 it can act consistent with the citizen's  45 constitutional rights.  46 In this case, the reason why this case is  47 different is that we are not asking the court -- 1672  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 indeed, we are asking the court not to say that the  2 government violated the appellants' constitutional  3 rights.  We are asking the court to say that the  4 appellants have constitutional rights.  We are not  5 asking the court to say that the government violated  6 those constitutional rights.  7 I -- I consider it important to point that out,  8 because that's why this case is different from Mahe  9 and it's different from the electoral boundaries case  10 of Dixon which I'll refer to in a moment, and it's  11 different from a number of cases.  But nevertheless  12 it's -- the declaration is still consistent with the  13 judicial function, because you are declaring what  14 rights the aboriginal people have without further  15 determining the extent, if at all, to which those  16 rights had been violated.  But it's probably a fairly  17 obvious proposition to say that if the aboriginal  18 people have -- if the appellants have aboriginal  19 rights throughout the portions of the territory that  20 they claim, then after 1982 at least there probably  21 will be some interferences with those rights and it  22 may be, I don't know, it may be that some  23 interferences are characterized as undue in the  24 language of Sparrow and it may or may not be that  25 those interferences can be justified.  26 So it says a great deal to say that the appellants  27 enjoy aboriginal rights to an undefined portion of the  28 territory, without conceding for a moment that those  29 rights have been violated by either the Provincial or  30 the Federal Government.  But I wish to point out that  31 that's the only difference between this case and Mahe,  32 because in Mahe the court said that the plaintiff's  33 rights had been violated by the facilities that were  34 or were not given to school children in the Province  35 of Alberta, but it left it to the government to come  36 up with a scheme by way those rights could properly be  37 met.  Because there is -- to borrow a phrase -- many  38 ways of skinning a constitutional cat.  39 In paragraph 136, from an article by Madam Justice  40 McLachlin in -- written by the learned justice, she  41 said, commenting on Mahe:  42  43 "The court was faced with a choice.  Should it  44 itself draft legislation which would meet the  45 constitutional requirements of Section 23, in  46 effect filling the vacuum, or should it leave  47 the legislation temporarily in place, calling 1673  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 upon the legislature to do what it should have  2 done in the first place?  The court chose the  3 second alternative.  Mindful of a concern not  4 to infringe on legislative functions, the court  5 sets out factors which they deemed should be  6 taken into account and then issued a  7 declaration to the effect that the legislation  8 should be changed to take into account these  9 concerns.  In short, the court instructed the  10 legislators to draft the appropriate law.  The  11 use of a general declaration instead of  12 specific instructions, while it may be (and  13 was) criticized as offering insufficient  14 guidance to lower courts, had the merit of  15 allowing the government the flexibility to  16 fashion an appropriate response which may be  17 more sensitive and more appropriate to local  18 concerns than any which a court could fashion.  19 Once again we see a solution predicated on  20 recognition of the complementary roles of the  21 courts and legislatures and on the belief that  22 governments will in good faith comply with  23 court directives."  24  25  26 Now, in paragraph 137 is an example, the Marchand  27 case where the court actually said more than it  28 probably needed to say.  And if I can just take you to  29 137 in Marchand.  The trial judge found that the  30 plaintiff's rights under Section 23 of the charter  31 were violated.  Mr. Justice Sirois made declarations  32 of the plaintiff's entitlement to rights, the  33 corresponding duties of the defendant -- and this is  34 important -- including a mandatory order or injunction  35 against the defendant school board to improve  36 facilities in a particular school.  They told the  37 school board to improve the facilities in L'ecole  38 Secondaire Le Caron, so that it complied with the  39 standards of Section 23 of the charter.  40 What happened was that the --in a subsequent  41 motion the same judge held that a different remedy  42 which the school board -- or rather a government body  43 called FLEC, French Language Education Council, had  44 prescribed, which was simply moving the students to  45 another facility was good enough.  So -- and he ended  46 up blessing that, saying that meets my concerns.  47 And that's an example how the negotiation process 1674  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 may itself shape rights and give content to rights.  2 It's not just courts who do that.  Parties,  3 governments, are entitled to play a role in that.  4 Courts are the ultimate arbitor rights, but not the  5 sole player in the constitutional game.  6 And in paragraph 138 the Marchand case is  7 commented on by Professor Fairly as a example of where  8 negotiated demployment of governmental fiscal  9 resources and the capital resources of the Simcoe  10 Board were accepted and enforced by the court.  11 Paragraph 139 is the Dixon case.  That was the  12 case where Madam Justice Dixon held that the  13 provincial electoral boundaries law contravened  14 Section 3 of the charter because it didn't provide for  15 sufficient portionality of the voting power.  She said  16 that the law was in contravention of the charter, but  17 she left it for the legislature to fix the law.  And I  18 think I should take you to the Dixon case.  That's in  19 that same tab, 127, it's the first tab of 127.  If you  20 turn first to page 294 at the bottom of that page, she  21 says.  22  23 "I agree with the Attorney General that it is  24 not the role of the courts to decide which  25 factors and considerations are to be applied to  26 each individual riding and with what degree of  27 relative weight.  This task is within the  28 responsibilities of the legislature.  However,  29 this court, if called upon, must examine the  30 results of the efforts of the legislature to  31 see whether in individual ridings the deviation  32 from the electoral quota can be justified."  33  34 And then likewise at page 311, she says at the  35 second paragraph:  36  37 "The second problem concerns the mechanics of  38 formulating a provision for electoral  39 districting which will satisfy the requirements  40 of the charter.  The first step in this process  41 lies in the court's domain."  42  43 The first step.  44  45 "It is for the court to articulate an objective  46 and manageable standard by which the  47 legislature can be guided. 1675  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1  2 While the decision is for the legislature, I  3 may be so bold as to suggest it may be aided by  4 the efforts of the Fisher Commission."  5  6 And there was already in existence a royal commission  7 that had considered it.  Here the process is just  8 slightly different, the time frame is different.  What  9 we have is the impending establishment of the Treaty  10 Commission, which will oversee and supervise  11 negotiations with aboriginal people, but I think what  12 this shows is sort of the hand and glove or the close  13 relationship, at least, that courts and other  14 institutions of government have in fashioning, giving  15 shape to constitutional rights.  16 Now, at page 312 she says:  17  18 "If the legislature acts to adopt a scheme  19 similar to that proposed in the Fisher  20 Commission report within the time specified by  21 the court for amendment of Section 19 of the  22 Constitution Act and Schedule 1, the court's  23 involvement will be at an end.  I need not  24 enter on the speculative question of what might  25 happen if remedial legislation were not passed  26 with such time period as may be specified.  I  27 confine myself to the general enjoinder that  28 just as the courts have a duty to measure the  29 constitutionality of legislative acts against  30 the charter guarantees, so they are under an  31 obligation to fashion effective remedies in  32 order to give true substance to these rights.  33  34 It is my conclusion that this court cannot  35 escape its constitutional obligation to review  36 the validity of Section 19 and Schedule 1 of  37 the Constitution Act, and must declare those  38 provisions to be contrary to the Charter of  39 Rights and Freedoms.  Pending submissions on  40 what time period may reasonably be required to  41 remedy the legislation and the expiry of that  42 period, the legislation will stay provisionally  43 in place to avoid the constitutional crisis  44 which would occur should a precipitate election  45 be required.  46  47 I add that I am not seized of this matter. 1676  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 Submissions as to the appropriate period during  2 with the legislation remains valid and any  3 other matters arising from these reasons or the  4 case may be brought before any justice of the  5 Supreme Court."  6  7 And indeed that happened, it was brought back  8 before the Civil Liberties Association, was frustrated  9 the government wasn't moving fast enough and they went  10 back before Mr. Justice Meredith, and -- and he  11 carried on where Madam Justice McLachlin left off.  12 And that decision is referred to in my factum at  13 paragraph 173.  14 So in the Dixon case you see again strands of  15 authority for my submission, not directly on point  16 admittedly but pretty chose.  Close enough to  17 demonstrate that what we are asking you to do is  18 consistent with principle.  Broad declarations of  19 right leaving it for other institutions to fill in the  20 details, declaring a transaction period, not seized of  21 the matter.  Dixon provides, in my submission,  22 comfortable authority for this court.  23 Now, I'm at 141 in my factum, and just before I  24 move to the transaction period I want you to make a  25 note that in Tab 141A of the reference book, there is  26 a case called R v Zelensky, 1978, 2 SCR 940.  You  27 don't need to turn to it because when I turned it this  28 morning it didn't have the right page, but that case  29 is one of many cases for the proposition that courts  30 should not decide constitutional issues unless it's  31 necessary to do it.  32 Another authority while I'm thinking of it is Law  33 Society of Upper Canada in Skapinker, one of the very  34 first charter cases.  35 Now, heading C on page 58 of my factum, the  36 transaction period, this is where -- this is of course  37 the -- the course that was set by the Supreme Court of  38 Canada in the Manitoba Language case.  That's one of  39 the first cases in which the courts ordered a  40 transition period.  And in the Manitoba Language case,  41 which is probably familiar to everybody by now, the  42 transition period was allowed to enable the Manitoba  43 legislature to re-enact all of its laws in both  44 official languages, because as they were written in  45 only English the court said that all of the laws of  46 Manitoba were unconstitutional, and many other things  47 dire may flow from that. 1677  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 It's clear that the Manitoba Language case  2 presented a situation where a transition period was  3 necessary.  I mean, the court there had to give effect  4 to the rule of law.  If the transition period wasn't  5 ordered -- it had to say that the laws were  6 unconstitutional, because they were.  It had to order  7 a transition period and effectively deem the laws  8 valid during that period, because otherwise there  9 might have been anarchy in Manitoba.  But merely  10 because that was a situation that might be  11 characterized as being one where some -- where chaos  12 may have flowed if they didn't act, doesn't mean that  13 in order to order a transition period there has to be  14 that measure of concern.  15 What's interesting about Manitoba Language, my  16 lords, is that the courts did more there than I'm  17 asking you to do.  The courts there deemed what is  18 clearly an unconstitutional law valid and effective  19 for a period of time, which meant that the source of  20 the law's validity was no longer the constitution as  21 it should be, but the judiciary.  Now, that's, in my  22 submission, an exercise of judicial power and an  23 example of judicial activism, if I can use that not  24 very nice phrase, that is not commonly found by our  25 judiciary.  What I'm --  26 LAMBERT, J.A.:  It's only found in the Supreme Court of Canada  27 because they are the only people where it can't be  28 said they are wrong.  They do it and it's the law.  29 TAGGART, J.A.:  Not because they are right, but because they are  30 final.  31 MR. ARVAY:  I don't think I want to engage in this debate.  32 MR. HUTCHEON:  What's your next point?  33 MR. ARVAY:  What I am urging the court calls for much more  34 restraint.  Similar innovation but more -- it's on the  35 restraint side rather than the activist side.  I'm  36 saying to the court, don't decide that the law is --  37 that there is a situation of unconstitutionality going  38 on in this province, don't decide that, decide that  39 the appellants have rights and stop there.  That's a  40 course of restraint, not a course of activism.  But  41 the principle of allowing a transition period is, in  42 our case, flows to some extent at least from the  43 Manitoba Language case.  44 Now, in that part of the factum, paragraphs 142 to  45 147, you'll see that transition periods are becoming  46 very fashionable in the Supreme Court of Canada.  47 We can move through my factum fairly quickly on 1678  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 this.  The Brydges decision at paragraph 145, the  2 court proclaimed a 30-day transaction period in order  3 to allow police departments to respond to the  4 declaration that the right to counsel in Section 10(b)  5 included a right to be informed of the availability of  6 legal aid.  7  8 "This transition period is needed to enable the  9 police to properly discharge their new burden,  10 more specifically to take into account the  11 reality that police officers often use printed  12 cards from which they read the caution given to  13 detainees.  In my view a period of 30 days from  14 the date of this judgment is sufficient time  15 for the police forces to react and to prepare  16 new cautions.  I note, in passing, that the  17 imposition of a transition period is not  18 unusual.  In Mills v The Queen, for example, I  19 stated that a transitional period was  20 appropriate in the context of an application of  21 the principles developed under Section 11(b) of  22 the charter.  In addition, in reference re  23 Manitoba Language Rights, this court  24 established a period of temporary validity for  25 the acts of the Manitoba legislature in order  26 to allow for the translation, re-enactment,  27 printing, and publishing of previously  28 unilingual legislation."  29  30 Next paragraph, in the Swain case, that was a case  31 which said that the provisions dealing with the  32 detention of mentally ill was unconstitutional,  33 because of the risk of dangerous people acquitting on  34 the ground of insanity being released, otherwise  35 unconstitutional legislation should be given temporary  36 validity for six months and be subject to interim  37 guidelines provided by the court.  38 Next case, Bain, held that a provision of the  39 Criminal Code provided the Crown with 48 stand-asides  40 in jury selection violated Section 11(d) of the  41 charter and should be declared invalid.  42 Mr. Justice Cory said:  43  44 "The declaration of invalidity resolves all  45 future problems.  However in order to avoid a  46 hiatus the declaration should be suspended for  47 a period of six months.  This will provide an 1679  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 opportunity for parliament to remedy the  2 situation if it considers it appropriate to do  3 so.  The suspended declaration does not leave  4 the defence without a remedy during the  5 interim.  The accused may always attempt to  6 demonstrate there has been an abuse of the  7 stand-by provisions by the prosecution."  8  9 And I'll remind you again of the Schachter  10 decision, where there was a transition period to allow  11 parliament to consider its position as to what to do  12 with child care benefits, no emergency, it's -- the  13 only question before the court is whether there is a  14 good reason, a principle reason to invoke the -- this  15 idea of a transition period.  16 Now, in paragraph 148 and 149 I refer to some  17 American cases.  Now, I'm far from urging upon this  18 court any modeling of what the U.S. courts are doing  19 in the constitution.  Because there, rightly or  2 0 wrongly, the courts have become very much involved in  21 supervising what governments are to do in assuring  22 that they meet their constitutional obligations.  They  23 issue structural injunctions to tell prison officials  24 what colour the walls should be in prisons and how  25 many toilets on the floor of a hospital.  26 I don't present those cases for that purpose.  I  27 present them for, I guess, two purposes:  One is to  28 tell you that in the United States at least the courts  29 are now exercising considerably more caution.  I think  30 they see that by moving as fast as they did they  31 caused more problems than they solved.  And so it's  32 that lesson that's being learned there that is useful  33 and instructive for our courts.  And I think that fits  34 nicely with my main point here, is that the courts  35 should exercise restraint in devising a remedy.  But  36 the other purpose of the -- particularly the articles  37 referred to in paragraph 150 of my factum, is to I  38 guess make the obvious point that public litigation is  39 different than private law litigation.  And courts  40 should get comfortable in that reality and recognize  41 that what might work in the private litigation model  42 doesn't necessarily work in the public litigation  4 3 model.  44 I'd ask you to turn to the article at Tab 150 by  45 Professor Chayes, which is sort of a similar article  46 in this field.  At page 1282 he talks about -- he  47 gives five reasons why, five ways of describing 1680  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 private litigation, civil adjudication.  The  2 lawsuit -- page 1282:  3  4 "1.  The lawsuit is bipolar.  Litigation is  5 organized as a contest between two individuals  6 or at least two unitary interests,  7 diametrically opposed, to be decided on a  8 winner-takes-all basis.  9  10 2.  Litigation is retrospective.  The  11 controversy is about an identified set of  12 completed events, whether they occurred, and if  13 so, with what consequences for the legal  14 relations of the parties.  15  16 3.  Right and remedy are interdependent.  The  17 scope of relief is derived more or less  18 logically from the substantive violation under  19 the general theory that the plaintiff will get  20 compensation measured by the harm caused by the  21 defendant's breach of duty - in contract by  22 giving the plaintiff the money he would have  23 had absent the breach; in tort by paying the  24 value of the damage caused.  25  26 4.  The lawsuit is a self-contained episode.  27 The impact of the judgment is confined to the  28 parties.  If plaintiff prevails there is a  29 simple compensatory transfer, usually of money,  30 but occasionly the return of a thing or the  31 performance of a definite act.  If defendant  32 prevails, a loss lies where it has fallen.  In  33 either case, entry of judgment ends the court's  34 involvement.  35  36 5.  The process is party-initiated and party  37 controlled.  The case is organized and the  38 issues defined by exchanges between the  39 parties.  Responsibility for fact development  40 is theirs.  The trial judge is a neutral  41 arbiter of their interactions who decides  42 questions of law only if they are put in issue  43 by an appropriate move of a party."  44  45 And then if you move over to page 1302, he  46 provides what he calls "a morphology of public law  47 litigation."  He says: 1681  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1  2 "1.  The scope of the lawsuit is not exogenously  3 given but is shaped primarily by the court and  4 parties.  5  6 2.  The party structure is not rigidly  7 bilateral but sprawling and amorphous."  8  9 To wit.  10  11 "3.  The fact inquiry is not historical and  12 adjudicative, but predictive and legislative.  13  14 4.  Relief is not conceived as compensation for  15 past wrong in a form logically derived from the  16 substantive liability and confined in its  17 impact to the immediate parties; instead it is  18 forward-looking, fashioned ad hoc on flexible  19 and broadly remedial lines, often having  20 important consequences for many persons  21 including absentees.  22  23 5.  The remedy is not imposed but negotiated.  24  25 6.  The decree does not terminate judicial  26 involvement in the affair; its administration  27 requires the continuing participation of the  28 court.  29  30 7.  The judge is not passive, his function  31 limited to analysis and statement of governing  32 legal rules; he is active, with responsibility  33 not only for credible fact evaluation but for  34 organizing and shaping the litigation to ensure  35 a just and viable outcome.  36  37 8.  The subject matter of the lawsuit is not a  38 dispute between private individuals about  39 private rights, but a grievance about the  40 operation of public policy."  41  42 Now, without taking from that that you ought to do  43 therefore everything that happens in the United  44 States, I don't say that at all.  I do say though that  45 the reality is that public litigation does have many  46 of these features and certainly this case has many of  47 these features, and therefore this case does call for 1682  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 innovative, creative remedy, that otherwise you  2 wouldn't even consider for a moment in a private law  3 case.  4 And as well in that tab is another interesting  5 article by Professor Sturm, "A Normative Theory on  6 Public Law Remedies.  And if I could just ask you to  7 note at page 1357, her opening paragraph which is  8 useful.  9 And at paragraph 151 there is a reference to U.S.  10 and Washington.  It is a passage from the Canadian Bar  11 Association where they say that they have been  12 impressed by the American judicial experience in  13 combining the power and authority of the court in  14 negotiations to resolve complex details.  And they  15 refer to not only well-known desegregation in  16 environmental cases, but the U.S. and Washington Boldt  17 decision in resolving Indians treaty rights to fish in  18 the Pacific Northwest.  And portions of that decision  19 are excerpted at Tab 151.  Again we find a very  20 activist court there prescribing what should or  21 shouldn't be done in negotiation process.  And I'm not  22 suggesting for a moment that you go that far, but it  23 just demonstrates how other courts have wrestled with  24 these difficult problems.  25 And in paragraph 152, another article from Madam  26 Justice McLachlin.  She wrote two articles, very  27 similar articles, and they are both referred to in  28 paragraph 152.  She says with respect to the Dixon  29 case -- if I could just read from my factum:  30  31 "The courts call to the government to correct  32 the defective legislation was heeded in Dixon,  33 the case with which I was concerned.  The  34 government moved to introduce legislation in  35 conformity with the charter and the legislation  36 was promptly passed.  The case illustrates how  37 the court and the legislature, each acting  38 within the bounds of its proper responsibility,  39 can efficaciously resolve a difficult issue."  40  41 And in paragraph 154 again is not directly on  42 point but somewhat helpful, the case is the Osborne,  43 Seaboyer and Hunter and other cases dealing with  44 reading-down doctrine, the constitution exemptions  45 that I already read to you.  The court struggles with  46 sort of just finding that right place, drawing the  47 line in the right place to balance its duty to uphold 1683  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 the constitution without intruding too far into the  2 legislative ground.  3 And at Tab 155A I have two cases that you should  4 note.  You might want to note it in the factum.  155A  5 has the Erwin Toy case and the McKinney case.  Erwin  6 Toy is a case involving a commercial expression  7 advertising and McKinney is the mandatory retirement  8 case.  And without taking you to those cases I'll just  9 tell you the page numbers that you might want to make  10 a note of on your factum.  For Erwin Toy would be at  11 page 993 and 994.  And McKinney would be at page 669.  12 Both of those cases are included just to  13 illustrate the concerns that the courts have when  14 interpreting Section 1 of the charter.  Canadian  15 courts have come quite a distance from where they  16 started in early days of charter interpretation.  We  17 are still in the early days of charter interpretation,  18 but clearly the courts in the last number of years  19 have seemed to have a greater recognition of the  20 difficulties there are in deciding whether or not  21 legislation meets Section 1 tests or not, and the  22 courts are very sensitive about substituting their  23 judgment on what is a reasonable means of infringing a  24 charter right for that in the legislature.  Clearly  25 the courts have the ultimate say, but in cases like  26 Erwin Toy and McKinney they are expressing greater  27 deference, I say, to the legislative process.  That's  28 the only reason that those cases are there, because  29 just -- in Section 35 there is, as I say, a Section 1  30 kind of analysis that has to be applied.  And in a  31 case of a generalized claim like this case, it would  32 be very, very difficult for the court to ever attempt  33 to reconcile on the ground whether or not provincial  34 laws and government action unduly interfere with  35 aboriginal rights and if so whether there's been a  36 justification.  So at least at the outset the courts  37 should be -- allow the government to react and provide  38 a solution to the problem, rather than having the  39 court do so first.  40 And at paragraph 159 I simply say that we have no  41 factual basis to determine the extent of a  42 transitional period during which the implementation of  43 the appellants rights should be left to a consensual  44 process.  The transition period should be long enough  45 to allow meaningful negotiation of the content and  46 consequences of the appellants aboriginal rights, but  47 for a limited period in order to allow for the 1684  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 ultimate judicial enforcement of the appellants  2 rights.  The respondents suggest that an appropriate  3 time period might be two years.  4 Now, the next part of the factum deals with  5 retention of jurisdiction.  I don't think I need to  6 spend a lot of time on that.  Essentially the reason  7 why we say that you must retain jurisdiction is in  8 order to meet your duty as the court, it seemed to us  9 that if on the one hand we're saying only give a  10 partial declaration, it's encumbent upon us to say  11 therefore you must retain jurisdiction to complete the  12 task if the parties come back before you and ask you  13 to do so.  The court could only walk away from the  14 matter if in fact it has finished its task, and if the  15 court gives effect to our submissions then the court  16 has not finished its task or may not have finished its  17 task.  It may be that at the end of the two-year  18 period, and hopefully it would be at the end of the  19 two-year period, the parties come back to the court  20 and say, thanks but no thanks.  21 In paragraph 162 I refer you to the Supreme Court  22 of Canada decision in Morin, which was one of these  23 Askov II, which was the unreasonable delay case, in  24 which they said there a transition period was not  25 appropriate because it would have constituted a  26 moratorium on the individual's constitutional rights.  27 And there the government was pleading institutional  28 resources as a reason for delay.  29 That case, in my submission, is not in any way --  30 does not create any obstacle for what we are asking  31 this court to do.  We are not suggesting that during  32 the period the appellants rights will be defeated or  33 claims were violated or claims will be defeated.  34 Because at this point all that the court can  35 meaningful do is determine that the appellants do have  36 aboriginal rights, not that the government has  37 violated their rights.  38 I obviously feel obligated to bring to your  39 attention the decision of this court in Delgamuukw  40 which is referred to at page 166, which was decided  41 December 5 -- that should say December 5 in the  42 factum, 1986, not March 5.  43 TAGGART, J.A.:  The date is incorrect, did you say?  44 MR. ARVAY:  The date is incorrect.  It should say December 5,  45 1986.  In that case the government -- it's in this  46 case the government applied to strike a paragraph in  47 the plaintiff's claim.  It's at page 6 of the 1685  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 decision, at Tab 166, bottom of page 6, it says:  2  3 "In the appeal the plaintiffs seek to amend  4 their Statement of Claim by adding these two  5 paragraphs to the prayer for relief.  The  6 declaration that the plaintiffs have a  7 constitutional right to negotiate a land claims  8 agreement with respect to the territory with  9 the defendants, and the defendants are  10 constitutionally obligated to negotiate with  11 the plaintiffs a settlement of the relationship  12 between the plaintiffs and the defendants based  13 on the plaintiff's rights.  14 A direction that the defendants meet with  15 the plaintiffs forthwith to negotiate a good-  16 faith settlement of the relationship between  17 the plaintiffs and the defendants based on the  18 plaintiffs rights as set out in the declaration  19 17.  Before the judge in chambers paragraph 7  20 was in a different form and made no reference  21 to an obligation of the defendants to negotiate  22 with the plaintiffs.  As far as an agreement  23 that we should consider paragraph seven in the  24 form as set out.  I note that paragraph seven  25 looks to the period of time following the  2 6 judgment.  I notice while Mr. Rush who spoke as  27 counsel for the plaintiffs in this part of the  28 appeal acknowledged that paragraph 7 was based  29 upon the success by the plaintiffs in obtaining  30 one or more of the six declarations set out in  31 the prayer for relief.  The wide scope of those  32 declarations is illustrated by the first one.  33 That reads:  34  35 1.  A declaration that the plaintiffs have a  36 right to ownership of the jurisdiction over the  37 territory.  38  39 All of the declarations that are sought flow  40 from number one.  If the plaintiff is  41 successful then it would follow without more  42 that they would have the right to negotiate a  43 land claims agreement with respect to the  44 territory.  45  46 I can find no jurisdiction in law and in my  47 view the Supreme Court has no jurisdiction to 1686  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 declare that the defendants are obligated to  2 negotiate.  No one doubts however that that  3 must of necessity be done.  Still as the  4 Supreme Court has the power to direct the  5 defendants to meet with the plaintiffs and  6 negotiate in good faith as sought in paragraph  7 15, prayer for relief.  8  9 If the plaintiffs are successful, the trial  10 judge has available a variety of ways in which  11 to implement the judgment, but I am satisfied  12 that declarations sought in paragraph seven and  13 directions sought in paragraph 15 are not among  14 them."  15  16 Now, we say, my lords, with respect to this case  17 that we are not asking the court to issue any order  18 that the parties have a duty to negotiate.  In light  19 of the province's new position and its -- and its  20 willingness to negotiate, we ask the court to invoke  21 its discretionary remedial power to decline to provide  22 full -- I say in paragraph 166 a full or final  23 definition of the scope and consequences of the  24 appellants' right at this time.  I think that's right.  25 Certainly to decline to provide a full definition of  26 the scope and consequence of the appellants' rights at  27 this time, as well as the final definition of their --  28 of the scope and consequences.  But what you are being  29 asked to decide is final.  I want to make that clear,  30 it's not interim, it is final.  31 In paragraph 167 I deal with what happens during  32 the interim period and I think I've already addressed  33 that this morning with my lord, Mr. Justice  34 Macfarlane.  And I note in paragraph 168 through to  35 169, 170, that what's happened in the Supreme Court of  36 Canada in the Manitoba Language case, the court has  37 now heard a number of different motions as a result of  38 its initial decision to order the transition period.  39 And each time the court has met there's been a  40 different panel or some members of the panel have been  41 different, indicating that that this panel, in support  42 of my submission that this panel is not necessarily  43 seized of the issues.  44 The rest of this part of the factum simply  45 provides other examples where the court has retained  46 jurisdiction and I leave it to you to read.  47 Paragraph 176 there is an interesting quote from 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  1687  Submissions by Mr. Arvay  Submissions by Mr. Arvay  Professor Sharp's text on injunctions and specific  performance where he relates the court's undertaking  and on-going role in private law litigation, which is  in principle similar to the kind of role that courts  engage in public law litigation and what we are asking  the court to do.  He says in paragraph one -- I see  the time.  My lord, I'm very, very close to finishing,  but rather than me rush through I would be obliged if  I could have probably no more than half an hour at the  opening of the next day's section simply to complete  my submissions.  THE COURT:  All right, thank you.  We will adjourn now to Monday  week, we'll hear you.  LAMBERT, J.A.:  Just before we go, I raised earlier on today the  question of what happens if there is a different group  of judges here and you've referred to the Supreme  Court of Canada cases where the group has changed, but  the situation in the Supreme Court of Canada is very  different.  They can certainly agree among themselves  not to reverse each other and to do it progressively  and they can do that in the back room, but this court  might have a completely different panel, we are such a  big court in numbers, that it would be appropriate to  think of a judicial committee working in that way,  what's more, the law can change in other provinces and  as declared by the Supreme Court of Canada, and the  new group will come in, whether they want to or not,  may be obliged to change our views.  So I'm still  interested on the question of how you conceive that  our orders made -- the ones you want us to make, could  be final rather than merely interlocutory and how that  the panel would be bound to continue as if our  decisions were locked in stone, when it doesn't seem  to me that they would be.  I've glanced through the rest of your factum and  it didn't see seem to me that those specific points  were dealt with and they are certainly continuing to  trouble me.  MR. ARVAY:  I'll address them at the resumption of this hearing.  MR. MACAULAY:  Before we adjourn can I ask that a time be fixed  by which the appellants deliver to the other parties  the material concerning the nature of the relief  sought?  TAGGART,  LAMBERT,  TAGGART,  J.A.  J.A.  J.A.  I thought we had fixed that.  Had we not?  Yes, I —  Close of the registry, I believe, next Friday.  Am I not correct in that? 1688  Submissions by Mr. Arvay  Submissions by Mr. Arvay  1 MR. JACKSON:  That's our understanding, my lord.  2 TAGGART, J.A.:  All right.  3 THE REGISTRAR:  Order in court.  Court is adjourned until ten  4 o'clock, Monday, June the 15th.  5  6 PROCEEDINGS ADJOURNED 4:05 P.M.  7  8 I hereby certify the foregoing to  9 be a true and accurate transcript  10 of the proceedings herein to the  11 best of my skill and ability.  12  13 B.M. March,  14 Official Reporter  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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