Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-22] British Columbia. Supreme Court Jun 22, 1992

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 2029  Submission  by Mr.   Wolf  1 VANCOUVER, B.C.  2 June 22, 1992  3  4  CORAM:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Monday, June 22nd, 1992.  Delgamuukw  8 versus Her Majesty the Queen at bar, my lords.  9 THE COURT:  Yes, Mr. Wolf.  10 MR. WOLF:  My lords, I hope to complete my submissions within  11 the space of about half an hour this morning to allow  12 Miss Koenigsberg the balance of the day in order to  13 give you our submissions on the nature and scope of  14 the right arguments and extinguishment, which she will  15 be giving you after I'm finished dealing with Appendix  16 4 and Appendix A of our factum.  And I was going to  17 take you through Appendix 4 in not a great deal of  18 detail, but I've now decided that that's not necessary  19 and I'm not going to make any further submissions with  20 respect to Appendix 4.  It's summarized, the relevance  21 of our arguments in that part of our factum are  22 summarized in the speaking notes which I dealt with at  23 the end of Friday.  And other than that, the  24 submission basically gets into the evidence in quite a  25 bit of detail.  The evidence concerns 21  26 territories -- or pardon me, the submission concerns  27 21 territories on the external boundary of the claimed  28 area, and four of those territories are dealt with in  29 a great deal of detail, the boundary evidence, the  30 ownership evidence.  31 At the very end of Appendix 4 there is a  32 submission in the form of an index comprised of 17  33 territories, again on the external boundary of the  34 claimed area, and we referred to some of the sources  35 of conflicting or contradictory evidence with respect  36 to ownership and boundaries.  And I'm not going to  37 take you through that.  38 Also, I should mention, in that section there is a  39 submission or description of the sources of the  40 various types of evidence which are referred to,  41 including the various maps for which you have  42 overlays, the interrogatory maps, the work of Marvin  43 George, Neil Sterritt, the land claims research  44 process is discussed and described in a limited way in  45 that appendix.  And, as I said on Friday, we submit  46 that this evidence relates to the ownership claim put  47 forward by the Appellants, and also whether an 2030  Submission by Mr. Wolf  1 external boundary exists with respect to an area that  2 the Gitksan and Wet'suwet'en, as opposed to an area  3 which they had aboriginal rights over.  This  4 submission is focused to the ownership aspect rather  5 than aboriginal rights.  So I'm going to leave  6 Appendix 4, now, my lords, and I'm going to refer you  7 to Volume 2 of my factum, or the Attorney General of  8 Canada factum.  9 Oh, pardon me, before I undertake Appendix A, I  10 should refer to the question posed or the inquiry  11 posed by my lord Justice Lambert regarding the  12 registered traplines.  And I can tell you, my lord,  13 that over the weekend we have started to look at the  14 registered trapline situation in the context of the  15 claimed territories, and it's a very difficult  16 problem, but we think that we will be able to provide  17 you a list of the registered traplines in the claimed  18 area together with the registered holder of that  19 trapline and the territory or territories in which  20 that trapline falls.  And we are able to do that  21 reasonably easily with respect to the early 1980's.  22 That information is in a form which can be compiled  23 quite easily.  However, to go before that time,  24 because there is, we estimate, in the range of 150 to  25 200 registered traplines in the area, each one of  26 those traplines is a separate research project to  27 trace back who held that trapline, where it was, who's  28 held it over time since it was originally registered.  29 And the biggest problem is that when traplines were  30 first registered we do not have a lot of terrific  31 maps.  The descriptions of the traplines were often  32 faze, they were given latitude and longitude  33 references, and you were given sketch maps sometimes,  34 and no effort was made in the early time to match all  35 these traplines up in a comprehensive way.  So we  36 don't have anything like that.  I don't think that we  37 can provide you with this more recent snapshot of what  38 the registered trapline holding system looks like as  39 of the early 1980's.  We may be able to get that  40 before the end of the day, but I kind of doubt it, so  41 it would be Tuesday or Wednesday probably.  42 LAMBERT, J.A.:  If you were able to get it by the time the  43 Appellants reply, that would be good enough, just so  44 that they can see it and think about it before they  45 reply, as far as I'm concerned, that would be fine.  I  46 thank you for doing that, because it's an avenue worth  47 exploring, and to the extent that you've been able to 2031  Submission by Mr. Wolf  1 do it, I'm grateful for you for doing it, and I  2 certainly understand the difficulties of doing it on a  3 historical basis.  4 MR. WOLF:  Unfortunately, it wasn't done in a comprehensive  5 fashion before the Chief Justice at trial.  There was  6 references made to the traplines and there are various  7 trapline disputes which took up a lot of paper and are  8 quite interesting historically and probably have  9 relevance to the case, but they were not dealt with in  10 a comprehensive fashion with the Chief Justice  11 unfortunately.  12 LAMBERT, J.A.:  Thank you, many thanks.  13 MR. WOLF:  So I'm now going to refer you to Appendix A of our  14 factum, which is in volume 2, and I'm going to ask  15 Madam Registrar to hand up some speaking notes.  16 TAGGART, J.A:  I have a volume here of Canada marked "Factum of  17 The Respondent the Attorney General of Canada On The  18 Cross-Appeal Counter-Claim".  That's disappeared, has  19 it not?  20 MR. WOLF:  That's gone, my lord.  21 TAGGART, J.A:  We can dispose of this?  22 MR. WOLF:  File it somewhere a long ways away.  23 Before I begin my submissions with respect to this  24 part of our factum, I'm going to hand up a new overlay  25 for the 1243 -- Exhibit 1243 base map, which is this  26 map right here, the one that we've been referring you  27 to.  I've shown this overlay to Appellant's counsel,  28 and what this overlay is is a rendition of Map 5 -- I  29 should say the information added by the Chief Justice  30 to our base map, and this is now Map 5 in the reasons  31 for judgment, and what it depicts is the -- you will  32 see what it depicts is the north and the south lines  33 drawn by the Chief Justice on our base map, Exhibit  34 1243, and also the line that he drew between the  35 Gitksan and Wet'suwet'en claim areas.  The Chief  36 Justice also added some place names, which we've also  37 reproduced, and we've also reproduced from Map 5 in  38 the reasons this legend, further copy of Map 2 showing  39 areas subject to Plaintiffs' aboriginal rights at the  40 time of British sovereignty.  41 And I will just describe how this Map 5 came into  42 existence.  Map 5, if you look at it in the judgment,  43 looks like this.  It has Exhibit 1243, the base map,  44 it has also the Indian reserves located in the claimed  45 area.  And what the Chief Justice did, I presume, is  4 6 that when he made Map 5, he took the base map and the  47 Indian reserves' overlay and made a photograph of that 2032  Submission by Mr. Wolf  1 and then drew the lines, which I have now provided on  2 this overlay to you, on top of that.  So what you have  3 is you have the external boundary of the claim area,  4 an earlier version of the external boundary, you had  5 the Indian reserves that are depicted on Exhibit  6 1243-D, and you have the new information that the  7 Chief Justice plotted.  And that plotting is what  8 we've reproduced for you, so you can see the areas  9 that the Chief Justice excluded in the extreme north  10 and the extreme south.  And it would make more sense  11 to you if you labelled -- at your leisure, you placed  12 the overlay of the Maps 9A and 9B, which show the  13 internal boundaries, and you will be able to see how  14 the Chief Justice drew these lines in relation to the  15 internal boundaries of the territories claimed by the  16 Appellants.  So it's provided as an aide memoire to  17 the court and it helps, I think, you understand the  18 judgment a little bit better and where the individual  19 territories that the Chief Justice excluded are  20 I'm now going to refer to Volume 2 of our factum,  21 Appendix A.  And I should also say that we have  22 prepared reference books for some of the references as  23 set out in this submission.  The only references,  24 because there is so many references in this  25 submission, we only reproduce those references which  26 refer to those territories in the extreme north and  27 the extreme south.  We have not reproduced the  28 references in volumes 23, 24 and 25 of our reference  29 book.  With respect to the territories which appear in  30 the area which the Chief Justice described as subject  31 to aboriginal or sustenance right, we've only  32 introduced the reference to the extreme north and  33 extreme south and in volumes 23, 24, and 25 of our  34 reference book.  It was purely we did that for a  35 couple reasons.  One is that we don't challenge the  36 Chief Justice's findings with respect to the area that  37 he said was subject to aboriginal or sustenance  38 rights.  We will be making more submissions about  39 that, but in basic form we're not challenging the  40 lines that the Chief Justice drew on the map.  And  41 part of my submission this morning is to show that we  42 think he was right in excluding the extreme north and  43 the extreme south from the areas which he said were  44 subject to aboriginal rights at one time.  45 So I will begin by referring to paragraph 1 of my  46 speaking notes, where I say that Appendix A is a  47 compilation of all the evidence of site specific use 2033  Submission by Mr. Wolf  1 and occupation.  2 LAMBERT, J.A.:  I'm sorry, I should know this, but if I may just  3 interrupt you, just at the end before you turn to your  4 speaking notes, you said something about the two areas  5 that the Chief Justice had excluded at the north and  6 the south.  Did I understand you to say that he  7 thought at one time they were subject to aboriginal  8 rights but were no longer subject to aboriginal  9 rights?  10 MR. WOLF:  No, no.  11 LAMBERT, J.A.:  Oh, I misheard you then.  12 MR. WOLF:  We are saying that in sum we support the Chief  13 Justice's drawing of the lines on the map.  14 LAMBERT, J.A.:  Yes.  15 MR. WOLF:  And describing this as the area which was subject to  16 aboriginal rights at one time and excluding -- in that  17 he was right in excluding the extreme north and the  18 extreme south.  19 LAMBERT, J.A.:  I see.  He says they're subject to aboriginal  2 0 rights at some time.  21 MR. WOLF:  Yes, the core area of Map 5.  22 LAMBERT, J.A.:  All right, thank you.  23 MR. WOLF:  Of course, he then goes on to find that they were  24 extinguished.  25 LAMBERT, J.A.:  All right.  It's not my recollection that he  26 goes on to find that they're extinguished, but rather  27 he has already dealt with the question of  28 extinguishment before he comes to the map, but it may  29 make no difference and I may be wrong anyway.  30 MR. WOLF:  I don't think it does make any difference.  The areas  31 which he says were subject to the sustenance rights  32 and not aboriginal rights was the same area that he  33 said that they had aboriginal rights as at the time of  34 contact, or 1846.  35 LAMBERT, J.A.:  Yes.  36 MR. WOLF:  I think that's correct.  37 LAMBERT, J.A.:  All right, thank you.  38 MR. WOLF:  In paragraph 1 of my notes, again, I say that it's a  39 compilation of all the evidence of site specific use  40 and occupation evidence for each of the territories  41 claimed by the Appellants.  It is drawn primarily from  42 the testimony of the lay witnesses and therefore  43 describes 20th century activities in the main.  44 The information summarized in Appendix A is  45 relevant for the following reasons:  The Chief Justice  46 made many findings of fact concerning Indian patterns  47 of use and occupation of the claimed areas.  Some of 2034  Submission by Mr. Wolf  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. WOLF  TAGGART,  MR. WOLF  TAGGART,  these findings are set out in part 18 of the reasons  which deals with Canada's submissions at trial on  abandonment.  And that section of the reasons, the  Chief Justice found that there had been no abandonment  in law of any of the claimed areas, but he commented  that he had "no doubt aboriginal activities had fallen  very much into disuse in many areas".  He also stated  that he did "not think there is very much aboriginal  activity in the territory".  And we say the evidence  outlined in Appendix A supports these findings.  If I can stop there and also say that we also  think this evidence is relevant to the credibility of  the anthropological witnesses, and Miss Koenigsberg in  her submissions last Thursday referred to our  submissions with respect to the anthropological  witnesses, and we would say these would be some of the  factual context in which the Chief Justice considered  the credibility of many of the things that Dr. Daly or  Dr. Mills or Mr. Brody said.  Paragraph 3, I say the second reason why this  evidence is relevant is related to the Chief Justice's  findings that commercial trapping was not an  aboriginal activity, and that the Gitksan and  Wet'suwet'en expanded into areas in the extreme north  and south of the claim area to take advantage of the  opportunities created by the fur trade during the  historic period.  The evidence supports the Chief  Justice's findings that these areas were used  primarily in the historic period for commercial  trapping.  Although some hunting and fishing went on,  there were no great fisheries or large permanent  villages in these remote areas.  The evidence that  people stopped using these remote areas when it became  uneconomical to do so in the 1940's and 1950's,  supports the inference that the Appellants' ancestors  first started using these areas as a result of the  economic opportunities created by Europeans during the  historic period.  If I can just depart from my speaking notes for a  moment and refer you to page 61 of the factum itself,  the appendix that I hope you have in front of you --  J.A:  Page 61?  Page 61.  J.A:  Of?  Appendix A.  It should be the first major tab in your  Volume 2.  J.A:  Okay. 2035  Submission by Mr. Wolf  1 MR. WOLF:  The way our submissions in Appendix A are organized  2 is by territory.  For each territory claimed by the  3 Appellants we summarized all of the evidence of the  4 site specific use and occupation, and it's all put  5 together territory by territory in quite a bit of  6 detail.  7 At page 61 we have the evidence with respect to  8 territory 13-C summarized, the Tsabuxsw, Red Creek  9 territory.  And just for your reference, that is the  10 territory directly north of Bear Lake on this map, and  11 I believe part of it spans both sides of the red line  12 drawn by the Chief Justice.  Part of it is above the  13 red line and part of it is below.  And Mr. Abel Samson  14 swore a territorial affidavit about this territory and  15 he was cross-examined, and I just wanted you to refer  16 to page 63 in the appendix, and Mr. Samson was someone  17 who lived at Bear Lake at one time, but they left Bear  18 Lake, it was in the 1940's or 1950's, and this is what  19 he had to say about why he left Bear Lake:  20  21 "The only reason how we can stay up there is  22 from trapping.  The trapping got so poor that  23 they had a store up there, and pretty soon you  24 can't afford to get the airplane in to pay for  25 stuff and we had to move into town."  26  27 That's at page 63, at the top of page 63.  And we  28 say that that evidence is consistent with our  29 submission that the presence in the extreme northern  30 territories and some of the extreme southern  31 territories, the presence of people there was for  32 activities such as commercial trapping, and that when  33 it no longer became economically viable to conduct  34 commercial trapping, those territories were no longer  35 used.  And we say that this supports the Chief  36 Justice's findings on that.  37 Referring back to my speaking notes, at paragraph  38 4 1 say the 20th century evidence also supports the  39 Chief Justice's findings regarding the non-exclusive  40 nature of the Appellants' use and occupation of the  41 claimed areas.  Although the evidence at trial focused  42 on the Appellants' use of the territories, there is a  43 significant amount of evidence, especially in the  44 south, of use and occupation by other native groups.  45 Of course, that's something that you've already  46 heard in detail from Mr. Macaulay in his submissions  47 with respect to the facts, and also to some extent by 2036  Submission by Mr. Wolf  1 Miss Russell.  And you will find further support for  2 that proposition in the summary of that which is  3 Appendix A.  4 In paragraph 5 I say that the review of 20th  5 century evidence on patterns of use and occupation  6 supports the view that the Chief Justice's choice of  7 Alternative 3 in Part 17 of the reasons -- and you  8 will probably remember that the Chief Justice  9 considered different alternatives as the likely  10 scenario of the amount of land that the Appellants'  11 ancestors used at the time of contact or sovereignty,  12 and he considered each of the three alternatives and  13 decided that Alternative number 3 was the most  14 appropriate one in terms of the expanse of area  15 actually used by the Appellants at the time of contact  16 or sovereignty.  And Alternative 3, of course,  17 encompasses all of the area between the north line and  18 the south line on this map, and of the three  19 alternatives considered by the Chief Justice, this was  20 the most generous territorially, it gave them the most  21 land.  Just referring back to:  Alternative 3 in Part  22 17 of the reasons regarding the lands subject to the  23 Appellants' rights was, in fact, generous.  And our  24 submission is we don't disagree with the -- I referred  25 to this earlier -- with the Chief Justice's plotting  26 of the lines on Map 5, but we say in fact that we  27 think that it was a generous plotting of land, and I  2 8 will tell you why in just a moment.  29 LAMBERT, J.A.:  Mr. Wolf, I would like to ask you a question, if  30 I could.  31 MR. WOLF:  Sure.  32 LAMBERT, J.A.:  In the van der Peet case we talked about the  33 commercial fishing as an aboriginal right, and there  34 was evidence that the Sto:lo had fished for as many  35 fish as they wanted to take, presumably they didn't  36 take anymore than they were capable of using, and they  37 traded upstream a little bit and downstream a little  38 bit on the Fraser all before contact.  And then at  39 contact the Hudson's Bay Company established a fort at  40 Langley, and there was trading for the sustenance of  41 the Hudson's Bay people at the fort.  And then shortly  42 after that there was large purchases by the Hudson's  43 Bay Company of fish which were salted and then sent to  44 Hawaii, where there was a market for them.  And the  45 argument was made there that the aboriginal right of  46 the Sto:lo, properly understood, was the right to take  47 as much fish as they needed, and that the way they -- 2037  Submission by Mr. Wolf  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  MR. WOLF  LAMBERT,  MR. WOLF  LAMBERT,  MR. WOLF  LAMBERT,  MR. WOLF  LAMBERT,  TAGGART,  MR. WOLF:  TAGGART,  MR. WOLF:  TAGGART,  the way the right was exercised post-contact, let's  say 20 years post-contact in relation to Fort Langley,  wasn't a post -- the exercise of a post-contact right,  but was the post-contact exercise of a pre-contact  right, the right to take as much fish as they wanted.  Now, if the Chief Justice's analysis in this case  is right, that is that the extensive use of these  territories for trapping, it was brought into being by  the demands of the fur trade starting, one supposes,  when Mr. Brown came in as a trader and continued for  eighty or a hundred years after that.  Why would you  not backtrack from that use in the fur trade to show  that the territories where the fur trading was done  post-1820 were the territories where the Gitksan and  Wet'suwet'en nations exercised ownership and  occupation and possession rights pre-contact?  What is  it that makes the break there that prevents you from  saying those fur trading areas used in the 1820's,  30's and 40's were areas that these nations moved into  rather than areas that they knew and understood they  had an exclusive possession of in pre-contact times?  I think Miss Koenigsberg is the best person to answer  that question, and she will be answering that  question, I think --  J.A.:  Well, I'm very well content to --  As part of her submissions.  J.A.:  It kind of grew out of your speaking notes.  Yes.  J.A.:  I am very happy to leave it with -- on that  basis.  To some extent, I'm hopefully setting up a factual  matrix for Miss Koenigsberg so she can make  submissions on the long-time user test, which is part  of our submission.  J.A.:  All right, thank you.  J.A:  Just apropos of the -- you used the term  "historic period".  I take it the historic period  begins with contact, and there are two dates that I  have heard about, I don't suppose it makes a great  deal of difference, one was about was it Harmon in  1910 — or 1810, thereabouts.  Yes.  J.A:  Yes  J.A:  And Brown around 1820, '22,  So if we used the larger of the two and go back  to 1810, or whenever Harmon came on the scene, would  that be appropriate for the commencement of the 2038  Submission by Mr. Wolf  1 historic period?  2 MR. WOLF:  Historic period, yes, my lord.  3 I was at the top of page 3 and I was just going to  4 refer to some examples, and I say that certain areas  5 within the core territory defined by the Chief Justice  6 on Map 5, and I say that there are places there where  7 there is little or no specific evidence of use, and  8 then I refer to some examples.  And this was in  9 support of the submission that the choice of  10 Alternative 3 was a generous one on the facts.  11 And Paragraph 6 I say the evidence of non-use and  12 non-occupation of the distant claimed territories  13 supports the Chief Justice's findings that the  14 Appellants did not control these territories in the  15 past and do not do so now.  16 Lastly, we submit this evidence bears on the  17 question of site specific extinguishment and whether  18 any government activity has extinguished, diminished  19 or modified aboriginal rights in the claimed area.  20 And, likewise, that's a question that I believe Miss  21 Koenigsberg will touch on in her submissions later on  22 today.  23 I say at paragraph 8 that these submissions are  24 supported by the following observations which can be  25 made from a review of the site specific use and  26 occupation evidence set out in Appendix A.  27 Firstly, for a significant number of territories,  28 there is little direct evidence that the areas  29 described were used by the Appellants.  And I refer  30 to -- I give you a number of examples there.  And I  31 say that a high proportion of this class of little  32 used or "unused" territories are found in the extreme  33 north and extreme south outside the lines drawn by the  34 Chief Justice on Map 5.  35 Very few of these territories have been used by  36 the Appellants on a regular basis through the 20th  37 Century.  However, there are some territories about  38 which there is considerable evidence of non-exclusive  39 use, including the Namox territory at Goosly Lake.  I  40 believe that's one that the Appellants refer to in  41 detail in their submissions, but I also refer to the  42 Knedebeas territory at Poplar Lake and the  43 Lutkudziiwus Madii Lii territory.  44 Paragraph 11 I say that for a large number of  45 these territories, there was some evidence of hunting  46 and trapping in the early 20th century lasting up  47 until the 1940's or 1950's.  Examples of this type of 2039  Submission by Mr.  Submission by Ms.  Wolf  Koenigsberg  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  WALLACE,  MR. WOLF  WALLACE,  MR. WOLF  WALLACE,  MR. WOLF  WALLACE,  MR. WOLF  pattern of use include the skiik'mlaxha territory at  Bowser Lake, the Twinin Nitxw territory on the  Slamgeesh River and the Woos territory at Smithers.  Another observation which can be drawn with  respect to the distant Gitksan territories in the  north, is that there are no permanent occupation sites  in any of these territories, although there is  evidence of a few instances of semi-permanent trapping  camps at a few locations which were used until the  general cessation of trapping in the mid-20th century.  And I give an example as the Chipmunk Creek territory  of Wiigyet.  And you will find the evidence about that  trapping camp in the summary of evidence at territory  3C in Appendix A.  And at paragraph 13 I say the  pattern of occupation and use in the distant  Wet'suwet'en territories is somewhat different because  the Bulkley Valley became more accessible when the  railroad was built in the early 1900's.  There is some  evidence of Wet'suwet'en presence in the extreme  south, but this evidence -- and that corresponds with  the facts that Mr. Macaulay referred you to -- but  this evidence must be compared with the extensive  evidence of white and non-Appellant Indian presence in  the area.  And I say that the pattern of use and  occupation of the extreme southwest portion of the  Wet'suwet'en claim area is similar to the Gitksan  evidence.  And I refer you there to the -- this  portion of the territory which is similarly remote as  is the extreme north for the Gitksan.  J.A.:  When you say it's similar to the Gitksan  evidence, what do you mean by that?  I mean --  J.A.:  In what respect?  The patterns of use and occupation are similar. It's  a remote area that people used for commercial trapping  at one time.  J.A.:  But it's similar to the use by the Gitksan; is  that what you're saying?  Yes. The Wet'suwet'en use of that area is similar to  the use the Gitksan made of the extreme north.  J.A.:  Oh, I see.  My final submission is that another observation which  can be made is that certain activities such as  homesteading, logging and mining have had substantial  impact on the pursuit of certain activities such as  hunting and, especially, trapping.  And I should have  added there that that's in specific areas, mainly in 2040  Submission by Ms. Koenigsberg  1 the settled areas.  On the other hand, the development  2 of the network of roads in the claimed area seems to  3 have facilitated both Appellant and non-Appellant  4 hunting in certain areas.  There is a -- we did not  5 collect all of the evidence of inconsistent  6 activities, there was not a great deal of evidence led  7 at trial regarding logging, trapping and its  8 interference.  There was some, but it's often not site  9 specific, and so it's very difficult to tell where  10 those places have taken -- or where those activities  11 have taken place and where those activities have  12 interfered with the exercise of any rights enjoyed by  13 the Appellants.  14 In Appendix B to our factum, which I believe Miss  15 Koenigsberg will also refer briefly to this afternoon,  16 there is a summary, I believe it's at B-5 in the  17 volume that you have in front of you, of the  18 territories of three chiefs.  One of them is  19 Delgamuukw, I know, and it includes the references  20 there to the hunting -- or pardon me -- the activities  21 such as homesteading or ranching or mining or logging,  22 which have interfered with aboriginal rights in those  23 territories.  Unfortunately, we did not collect all  24 the evidence, but there is a flavour of what we call  25 the site specific extinguishment or modification or  2 6 diminishment evidence set out in that part of Appendix  27 B, if you're interested in looking at that.  28 And unless you have any further questions, my  29 lords, I'm going to hand the court to Miss  30 Koenigsberg.  31 TAGGART, J.A:  All right.  Thank you, Mr. Wolf.  32 MS. KOENIGSBERG:  My lords, you will need reference books 26, 27  33 and 28.  I'm certain we won't get to 28 until this  34 afternoon, I hope we will get to 27 before this  35 afternoon.  These reference books all relate to tabs 3  36 and 4 in the factum, but I'm going to attempt not to  37 use the factum so I don't have to flip back and forth,  38 and we will go with the factum as it's reproduced  39 paragraph by paragraph in the reference books.  We'll  40 begin with volume 26.  In volumes 26 and 27 are the  41 paragraphs and references which deal essentially with  42 aboriginal rights as claimed aboriginal rights, as we  43 say they can be claimed in Canadian jurisprudence, and  44 volume 28 deals with extinguishment or tab 4.  45 I am going to deal with the issue, and I think  46 it's most important, of the aboriginal rights as  47 claimed by the Appellants.  Those rights are 2041  Submission by Ms. Koenigsberg  1 characterized as ownership and jurisdiction, and those  2 rights as claimed were dismissed as claims by the  3 trial judge.  And we say he was correct in doing so,  4 and we say he was correct in doing so both in fact and  5 in law.  6 The trial judge went on, however, to define or  7 give a definition of aboriginal rights which I think  8 we could loosely call use and occupancy rights.  And  9 that definition, in our submission, he based  10 essentially on pre-contact use and occupancy as he  11 gleened it from the evidence.  We say he was  12 essentially correct in so defining the rights and in  13 attributing that particular content to it.  And I'm  14 going to of course go into the details of that, and it  15 is that body of evidence and those issues that I wish  16 to deal with.  17 And if you just begin at tab 257, you will see  18 that we say there:  It is submitted that aboriginal  19 rights in law and in fact in the claim area did not  20 and do not embrace any concept of sovereignty,  21 jurisdiction, ownership or title analogous to the  22 concept of ownership in fee simple at common law.  And  23 I say to your lordships that, as claimed, the words  24 "ownership" and "jurisdiction", as used by the  25 Appellants, in our submission, do amount to  26 sovereignty or a form of sovereignty, and it is on  27 that basis that we say the trial judge was correct in  28 dismissing them, both in fact and in law.  29 Turning over to the next paragraph, 258:  The  30 Appellants say that their aboriginal rights consist of  31 ownership of their traditional lands in a manner  32 approximating an estate in fee simple (but not derived  33 from the Crown) and jurisdiction over those lands and  34 over the people who inhabit them.  The Appellants  35 assert "pre-existing powers of self-regulation or  36 self-government".  And they rely on a series of  37 jurisprudence, if we can put it that way, in  38 particular those deriving from the Marshal decisions,  39 those in New Zealand, and in part on the Royal  40 Proclamation.  And I don't mean to leave anything out,  41 but I think I've generally covered it.  I do not  42 propose to go into our response in a detailed way to  43 that basis for their claim.  A summary of our response  44 is contained in tabs 259 to 270.  I'm going to skip  45 over them.  The summary of our response to that is  46 that those decisions, those American decisions, where  47 they relate to ownership as claimed and jurisdiction 2042  Submission by Ms. Koenigsberg  1 as claimed by the Appellants, are based on a different  2 and distinguishably different historical context and  3 on statutes and treaties, which are not part of the  4 Canadian legal regime.  We rely and have adopted the  5 Province's earlier factum submissions on those points,  6 and I would recommend them to your lordships.  They  7 are found at tab 9 and Appendix 8 of the Province's  8 earlier factum, and they are reproduced in our Volume  9 3.  And I believe that, at least in part, Amicus will  10 be dealing with those.  11 WALLACE, J.A.:  Excuse me, tab 9, what did you say?  12 MS. KOENIGSBERG:  It's tab 9 and Appendix 8.  They're two  13 separate submissions that happen to be called by those  14 numbers.  15 TAGGART, J.A:  They're in your —  16 MS. KOENIGSBERG:  They are reproduced in Volume 3 of our factum.  17 Appendix 8 deals with the Marshal decisions in  18 particular, and tab 9 deals with all three.  I think  19 you recall the three pillars of the basis for the  20 claim.  Coming back, if I may, however, to what it is  21 that is claimed, the Appellants claim -- before I get  22 to what the Appellants claim, because I have it all  23 detailed for you with the references, let's turn to  24 tab 269 briefly.  25 HUTCHEON, J.A.:  269?  26 MS. KOENIGSBERG:  269.  The Appellants rely on the common law in  27 support of their contention that aboriginal rights in  28 Canada involved the right to jurisdiction as described  29 by them.  30 And I'm just going to go over to 270.  It is our  31 submission in general, and we will be getting into it  32 in particular, of course, that the decisions of the  33 Privy Council of the Supreme Court of Canada and of  34 the British Columbia and Ontario Courts, to which  35 reference is made, in which aboriginal rights are  36 defined in the varying contexts of the particular  37 issues that were before those Courts constitute the  38 common law of Canada on that subject.  None of those  39 decisions supports, even by inference, the Appellants'  40 position on jurisdiction as claimed.  On the contrary,  41 the definitions of aboriginal rights pronounced by  42 Canadian Courts during the last hundred years are  43 entirely inconsistent with the notion that ownership  44 and jurisdiction as described by the Appellants is an  45 aspect of aboriginal rights in Canada.  And you will  46 find, just for reference, that our submission on  47 self-government, and what in our submission it can 2043  Submission by Ms. Koenigsberg  1 comprise, is found in Appendix C to our revised  2 factum, which is in Volume 3 -- it might be Volume 2,  3 but I will come to it.  4 I now would like to just start with paragraph 273.  5 I say that the factual foundation in support of the  6 submission that ownership of land and jurisdiction  7 over it were not rights exercised by the Appellants is  8 contained in Part 1.  These rights as claimed by the  9 Appellants were not rights recognized by the  10 aboriginal society pre-contact.  And I will of course  11 be coming to a discussion of our submission that in  12 order for rights to be recognized by the common law of  13 Canada, they must have been rights recognized in the  14 regime that came before it.  And I will come to that  15 in somewhat more detail, because I think that it is  16 both essential, central and, in part, an answer to my  17 Lord Lambert's question regarding what are rights.  18 We submit that the factual nature of the organized  19 society in part dictates the nature of the use and  20 occupancy rights held and vice versa.  That is, an  21 understanding of the extent of organization in the  22 society is evidence relevant to the nature and extent  23 of the rights.  24 And it is Mr. Justice Mahoney's dealing with that  25 very issue in the Baker Lake case which I think has  26 withstood the test of time, so to speak, and if you  27 turn over to paragraph 275 I set it out there.  As Mr.  28 Justice Mahoney said:  29  30 "It is apparent that the relative sophistication  31 of the organization of any society will be a  32 function of the needs of its members, the  33 demands they make of it.  While the existence  34 of an organized society is a prerequisite to  35 the existence of an aboriginal title, there  36 appears no valid reason to demand proof of the  37 existence of a society more elaborately  38 structured than is necessary to demonstrate  39 that there existed amongst the aborigines a  40 recognition of the claimed rights" --  41  42 And here again, the importance of the word "claimed",  43 and we will come to it when we come to Bear Island --  44 Bear Lake -- Bear Island decision, and, in my  45 submission, it is central to the Attorney General of  46 Canada's position on the claimed rights in relation to  47 what must be proven and that those rights must be: 2044  Submission by Ms. Koenigsberg  1  2 "-- sufficiently defined to permit their  3 recognition by the common law upon its advent  4 in the territory."  5  6 In my submission, there he is not talking about a  7 rigid or even a formal definition in law, but a  8 definition in terms of the organization.  9 LAMBERT, J.A.:  If something rather less in scope than what is  10 claimed is thought to have been proven, then I suppose  11 that the court could order a declaration of those  12 rights that are slightly less than those claimed.  I  13 don't quite understand why you're insisting on this  14 part, that these are the rights that is claimed and  15 they have not been proven, and the Chief Justice said  16 they have not been proven.  I wonder if your reply  17 then is that then is the end of --  18 MS. KOENIGSBERG:  No, no.  19 LAMBERT, J.A.:  No no, you're not?  20 MS. KOENIGSBERG:  I'm not.  They are lesser included rights, I  21 think -- in fact, of course, the Chief Justice went on  22 to consider them.  23 LAMBERT, J.A.:  Yes, right.  24 MS. KOENIGSBERG:  Although one could say that was obiter, I  25 don't think that it amounts to obiter.  I think that  26 it is the question of concentrating on what is claimed  27 in relation to what is proved is, in my submission,  28 the only way that your -- well, it's the only way I  29 can keep track of the relevance of the evidence, and  30 to separate the problem of words from reality.  You  31 can use the word "ownership" in law and have a pretty  32 clear understanding of what we mean, but we can talk  33 about ownership in terms of concept in the society  34 non-legal, and it has different meanings.  So we have  35 an anthropological meaning, we have a meaning in  36 relation to the people claiming -- the actual people  37 claiming it uninformed by a legal claim, or that just  38 the lay use of the word.  And, in my submission, those  39 get very confused as we wander through this vast  40 amount of evidence and this large body of  41 jurisprudence, and we -- it informs the problem of  42 trying to define aboriginal rights in terms of whether  43 they're property law rights, and we'll come to that.  44 But, in my submission, we cannot lose site of the fact  45 of the reality of the ownership claimed.  And the  46 ownership claimed, and it is at this point that I have  47 set out where the Appellants have claimed it, is a 2045  Submission by Ms. Koenigsberg  1 claim akin to fee simple put forward through the  2 vehicle of the House represented by the hereditary  3 chief to discrete territory.  And the discreteness or  4 the boundaries of the territory on the theory of  5 ownership as claimed by the Appellants is essential.  6 It's essential because it is said to be evidenced by  7 laws of trespass, for instance, and not only, of  8 course, laws of trespass, and, in my submission, what  9 this case has to grapple with is the difference  10 between ownership in the legal sense and its  11 ramifications and exclusive possession as a reality  12 and less than exclusive possession but some other kind  13 of possession and try and determine on the ground what  14 actually was there, what the institutions of the  15 society related to in terms of those various kinds of  16 possession or occupancy, and then come to a legal  17 conclusion.  And so when I say that it's the rights  18 claimed that we must focus on, it is because the  19 rights claimed, in my submission, are quite great and  20 were not proven.  21 LAMBERT, J.A.:  You would include in that exclusive occupancy  22 and non-exclusive occupancy, perhaps shared occupancy  23 rights, as within the rights claimed.  24 MS. KOENIGSBERG:  Yes.  25 LAMBERT, J.A.:  Though of course they weren't explicitly spelled  26 out in that way there, they were kind of included in  27 the right, sorry?  28 MS. KOENIGSBERG:  Yes, my lord, that's true, but I think it's  29 important that there is an inconsistency in the rights  30 claimed with non-exclusive rights, because there are  31 two kinds of non-exclusive rights.  And Baker Lake is  32 a good example of it, so maybe we can explore it  33 loosely in the vicinity.  Non-exclusive rights can be  34 rights which are permitted, for instance, and I think  35 that the evidence bears me out, and I can't give you a  36 specific reference to it, but I would say that the  37 evidence relating to the use of the Nass River between  38 the Nishga and the Gitksan may be an example of  39 social-organization related non-exclusive use.  It  40 is -- there was evidence that the two peoples had  41 rules about how they used the fishery on the Nass, and  42 that in fact there's some evidence, though there's  43 some contradictory evidence, but there's some evidence  44 that the Gitksan actually had a place within what was  45 by them considered to be Nishga territory and that  46 they used it.  And, in my submission, that evidence  47 can go to a lot of things, but one thing it 2046  Submission by Ms. Koenigsberg  1 demonstrates for us is that it's possible to have  2 non-exclusive use of a resource in a place, a  3 described place, that is related to the social  4 organization and, therefore, could be said to be a  5 non-exclusive aboriginal right if the definition, and  6 I say this is an essential aspect of the definition of  7 a right, an aboriginal right, is that there must be an  8 orginization from which it springs.  And there are  9 distinctions to be made between rights, aboriginal  10 rights and activities.  They will have -- you will  11 have a very large overlap, but that we must make  12 distinctions between wandering over an area with  13 nobody caring whether you're there, they may know  14 you're there but they don't care you're there, and  15 having permission to go to that area and having that  16 related to the organization to which you belong which  17 makes the rules.  18 And I say that the Nishga situation, the Nass  19 River situation, may very well, if we parsed it all  20 down, be an example of non-exclusive use which  21 nevertheless is an aboriginal right because it springs  22 from the organization.  There is a right, there is an  23 understanding in relation to the institutions of the  24 organization about how that resource will be used.  25 Contrast that, in my submission, with the Bear  26 Lake area or other parts that we've heard about in the  27 northeast, where, in my submission, there is no  28 apparent organization which directs the use of the  29 area, and it is -- there is evidence of use in  30 competition.  And, in my submission, when you have  31 non-exclusive use which is in fact use in competition,  32 it cannot be a declared aboriginal right of one of the  33 competitors.  And that, in my submission, is the  34 situation at Baker Lake, and that is where that test  35 on exclusivity springs from, in my submission, and I  36 say it's a test of both principle and primary  37 evidence.  38 Let me give you the position of Baker Lake.  In  39 Baker Lake you were dealing with a people who were  40 extremely isolated, and it was simple from a point of  41 view, a simple life from the point of view of  42 analysis, because there was essentially one resource,  43 caribou, full stop.  They didn't even fish.  I mean  44 there's seven feet of ice on the lake in April, so  45 they don't have much opportunity to fish.  And they  46 were inland, this particular group of Inuit people,  47 and we're in the tundra, there is -- there are no 2047  Submission by Ms. Koenigsberg  1 trees, there's nothing, it's just white, and there are  2 Indian people who live -- are known to occupy the area  3 which fringes on the tundra, and they live -- they're  4 the tree people, the boreal people.  The evidence was  5 that as of 1670, or the time at which the Charter came  6 into effect, that sovereignty for that area, as of  7 1670, there was known to be some occupation by Inuit,  8 as opposed to Indians, because there was a citing in  9 one of the journals of one of the ships that made it  10 up the Baker Lake inlet.  And then there is a lot of  11 archaeological evidence through the watersheds of the  12 use of the caribou by Inuit, and archeologists could  13 determine, surprisingly, whether the remains that they  14 found were occupation by Inuit or Indians, because  15 they utilized the land and the resource differently.  16 And there was evidence of an anthropological  17 sociological nature that the Inuit and the Indians who  18 came up into the area could not co-exist, they did not  19 co-exist.  It was said and concluded to be on the  20 evidence that if one group was there the other wasn't  21 because they would kill each other.  It was in that  22 context that there was then a finding that there were  23 Indian remains in approximately one half of the  24 originally claimed area.  It's about 60,000  25 kilometres, I think, and about 30,000 of it was found  26 to be the subject of aboriginal rights of Inuit  27 people, not the other 30,000, because of the knowledge  28 that the Indians utilized that area, and if the  29 Indians were using that area the Inuit could not be.  30 And it's in that sense, my lords, that I say that  31 you have to inquire what is the nature of the  32 non-exclusive use.  And if the non-exclusive use is  33 competitive, then it's evidence that the Inuit didn't  34 use a given area, at least not continuously.  And,  35 again, that word "continuously" becomes important,  36 because continuously is a question of pattern, of  37 course, not how long you've been doing it only, and  38 for the Inuit, the competing use by the Indians meant  39 that for extended periods of time they could not use  40 it.  41 So in what sense were they entitled to a  42 declaration of a common law enforceable as against  43 everybody else, but it was theirs.  And, in my  44 submission, that is a correct analysis of the law that  45 is the background for Baker Lake, and that is what  46 informs the test for exclusivity and the test for  47 continuity. 2048  Submission by Ms. Koenigsberg  1 LAMBERT, J.A.:  Well, I'm a little uncertain about that  2 analysis, that is just because it seems strange that  3 if the Nishgas and the Gitksan had a pre-contact  4 competing claims to an area, I don't quite understand  5 why the law should be now that neither of them has a  6 claim and that it's owned by the Province of British  7 Columbia and that neither of them has any interest in  8 it.  9 MS. KOENIGSBERG:  Well, my lord, I think — my answer to that is  10 what is it that's being claimed, and what is it --  11 what's being claimed is a right as against all other  12 people, and including the Province of British  13 Columbia.  14 LAMBERT, J.A.:  Maybe the right that's being claimed is a right  15 against everyone but the Nishgas.  16 MS. KOENIGSBERG:  Well, in my submission, it's not.  17 LAMBERT, J.A.:  Well, it's a lesser right.  I mean you were  18 saying that the claimed rights must encompass all  19 lesser rights.  And surely that right, which is a  20 lesser occupancy right, it's a right to occupy and  21 exclude everyone except in the Gitksan's case, the  22 Nishgas, and I just don't understand why that's  23 analytically incorrect.  24 MS. KOENIGSBERG:  Well, I think I've missed you somewhere.  My  25 submission to you is that if we were talking about the  26 Nishga on the Nass, we would say that it is capable of  27 a lesser claim, it's a shared resource, it's  28 comparable to --  29 LAMBERT, J.A.:  Both of the social organizations you say are  30 recognized and understood the rights of the other to  31 be there.  32 MS. KOENIGSBERG:  That's right, it's pre-existing.  33 LAMBERT, J.A.:  And I'm saying the Nishga — let's take it away  34 from the Nishgas, let's go to the Carrier-Sekani.  35 MS. KOENIGSBERG:  Yes.  36 LAMBERT, J.A.:  All it is is that two Indian nations asserted  37 rights to exclusive occupancy against each other,  38 neither of them entirely successfully in pre-contact  39 times.  I don't understand why their dispute should  40 mean now that neither of them is entitled to any  41 interest.  I would have thought that their competing  42 interest pre-contact and recognition of both societies  43 that were claiming that area but they're not giving up  44 their claim, and shouldn't be carried forward into  45 modern times as a right that must be divided in some  4 6 way between the two competing claimants, and I don't  47 understand why one has to say that neither of them 2049  Submission by Ms. Koenigsberg  1 have any aboriginal right in that land, the right is  2 entirely in the Crown.  3 MS. KOENIGSBERG:  I think it has to do, my lord, with again what  4 is the nature of the thing being claimed and what is  5 it that's being asked of the common law in terms of  6 protection, and what's being asked is that a right --  7 we will recognize a right, in my submission, if in  8 pre-existing -- the pre-existing regime could give  9 effect to it, and by giving effect to it we mean  10 recognize it, enforce it if necessary, and protect it.  11 Those are the essential features of the institutions  12 which make law out of anarchy.  And if the evidence is  13 that the rights claimed were not enforceable, were not  14 recognized, were not protected, in what sense can you  15 then say but today in the common law, bingo, it has  16 all those attributes.  And, in my submission, the  17 competitive nature is not the full test, find  18 competition and you're out, but it is evidence which  19 goes to, and in some cases it is compelling, it goes  20 to whether the right was in any legal-regime sense  21 recognized, protected or enforced, and it's in that  22 sense that I say that you can't -- you must make the  23 inquiry, because the inquiry leads you to an  24 evaluation of the evidence as to whether what's being  25 asked for today, whether the attributes of the right  26 being asked for or being asked to be recognized today,  27 were in fact recognized.  And my submission to you is  28 it is that on the evidence, and we will go through  29 bits of it, of an example of like Bear Lake, none of  30 those attributes are there.  There just isn't any  31 evidence of a pre-existing right to utilize the area.  32 There is some evidence, though not of great antiquity,  33 of actual use from time to time in that area by  34 Gitksan or Wet'suwet'en people.  I hope that answers  35 your inquiry, but --  36 LAMBERT, J.A.:  I believe I understand your submission, but it  37 doesn't seem to me to be self-evident just by  38 propounding it that it's true in law, but I don't know  39 that -- I believe that we've explored this area enough  40 for my purposes.  41 MS. KOENIGSBERG:  Well, let me just go back to Baker Lake for  42 one brief moment to tell you why I think it has force,  43 and that is the evidence was overwhelming that in  44 Baker Lake, and found to be so, that there could not  45 be any kind of use made for long periods of time than  46 otherwise use would have been made of large parts of  47 the area claimed, because if the Indian people had 2050  Submission by Ms. Koenigsberg  1 been there there was no question of sharing the  2 resource, even in a "Well, I'll go this week and you  3 go next week", but that they would not be able to use  4 it if the Indian people were there, and the evidence  5 was clear that the Indian people were there in a part  6 of it.  And, in my submission, it is that evidence and  7 that factor which makes it impossible to say today  8 that the Inuit have an aboriginal right as against  9 anyone to a protected right to utilize that area.  10 They clearly have the right as Canadian citizens to  11 use the area in conformity with everyone else by the  12 structures that are here today, and the same is true  13 for the Gitksan and the Wet'suwet'en.  In the areas  14 where hunting is allowed they can hunt.  It's simply  15 not a protected exclusive aboriginal right and  16 exclusive to aboriginals, and it was not, in my  17 submission, in pre-contact or pre-existing times.  In  18 those areas where they couldn't utilize the resource  19 on a shared or any other basis with protection, with  20 regularity by their own system or rules, they do not  21 have -- they haven't lost anything, in my submission,  22 by the fact that today we say well, if we want to hunt  23 in that area you have to do it along with everyone  24 else.  It's a right to the extent it's a right as a  25 Canadian citizen.  26 LAMBERT, J.A.:  But if the Gitksan society permitted and  27 encouraged them by their social organization the  28 exercise of the right in the specific area but they  29 also recognized that the Carrier-Sekani were using it  30 at the same time, for the same time, for the same  31 things, but the Gitksan says for this House we're  32 protecting this right to use it in competition with  33 the Carrier-Sekani, then in the Gitksan society there  34 is enough social organization to recognize their  35 aboriginal right, but it wasn't a right -- it was not  36 a co-operative right with the Carrier-Sekani, it was a  37 competing right with the Carrier-Sekani, but still a  38 social organization.  39 MS. KOENIGSBERG:  Not just a social organization, with the  40 greatest of respect, my lord, but that's an essential  41 element.  As long as the competition doesn't prevent  42 you from actually doing it.  43 LAMBERT, J.A.:  Yes.  44 MS. KOENIGSBERG:  Yes, then we're agreed.  This also of course  45 brings up a break.  46 TAGGART, J.A:  It does indeed.  47 THE REGISTRAR:  Order in court.  Court stands adjourned for a 2051  Submission by Ms. Koenigsberg  1 short recess.  2  3 MORNING RECESS  4  5 THE REGISTRAR:  Order in court.  6 TAGGART, J.A:  As usual with the schedule, the more I try to get  7 it right the more I get it wrong.  The timetable that  8 has been handed out to you needs to be corrected.  9 Under item number 4, which gives Amicus on June the  10 24th and 25th the day from 10:00 to 16:00 and on June  11 the 26th allows them to start at 10:00, not at 14:00.  12 And then the one hour remaining on that day goes to  13 Mr. Dick.  If you wouldn't mind making that change.  14 Yes, Miss Koenigsberg.  15 MS. KOENIGSBERG:  We were at paragraph 275, and I think I had  16 completed the reliance that we put on that particular  17 paragraph.  In my submission, elaborated, that  18 particular paragraph describes the inquiry, the  19 appropriate inquiry and the necessary elements for  20 recognition of an aboriginal right by the common law.  21 And if you will just turn over then to paragraph  22 277, we say that the question to be answered is:  What  23 evidence is there of recognition by the aborigines of  24 the claimed rights?  That means pre-existing.  For the  25 purpose of this analysis, this inquiry could be  26 divided in two parts:  What are the rights claimed and  27 what evidence is there that such rights were  28 recognized before contact by the aboriginal society.  29 And I will say that as we go through the evidence that  30 we say fails to establish ownership and jurisdiction,  31 that same evidence of course is useful in terms of  32 defining what rights if any there are in terms of  33 territory.  34 Paragraph 278 should have a heading on it.  It  35 should say "The Rights Claimed".  36 TAGGART, J.A:  "Right" with a capital R?  37 MS. KOENIGSBERG:  "The Rights Claimed", yes.  This begins our  38 summary of what we say is claimed by the Appellants.  39 The Appellants claim that they had a system of  40 government which included a societal structure which  41 supported ownership to and jurisdiction over a large  42 defined territory.  The claim, as the trial judge  43 properly characterized it, is to a form of  44 sovereignty, the incidents of which are ownership and  45 jurisdiction.  46 And rather than read the paragraph at 279, I will  47 tell you where in the Statement of Facts in the 2052  Submission by Ms. Koenigsberg  1 Appellants' factum you can find particular parts of  2 what is summarized here in paragraph 279.  At  3 paragraph 2 of the Statement of Facts it is asserted  4 by the Appellants that the ownership and jurisdiction  5 which is claimed is claimed by 51 hereditary chiefs on  6 behalf of 71 Houses.  And you will find that at  7 paragraph 2.  Paragraph 4 seeks a declaration of  8 ownership and jurisdiction and damages on behalf of  9 all of the Houses; again, an assertion of the  10 ownership through the House which would entitle you to  11 damages for interference.  Paragraph 34 deals with the  12 House as the landholding unit.  Paragraph 76, the  13 House ownership is apparent by its defined boundaries  14 which were protected by laws of trespass, and that the  15 chiefs regulate -- I'm paraphrasing here, the chiefs  16 regulate the access to these territories through their  17 kinship relationships and other rules within the  18 society.  We say that the claim also asserts that  19 ownership is recognized and maintained through the  20 feast system.  And at paragraphs 85 and many  21 paragraphs after 85 is a description in the  22 Appellants' Statement of Facts of the feast, its  23 function as a validator of the rules for laws.  And  24 it's done through -- it is a display of crests and  25 repetition of oral histories in the feast.  26 Turning over to paragraph 280, the Appellants  27 claim then that chiefs, or heads of the House, have  28 seats in a feast hall.  The feast is the parliament  29 and court of the Gitksan and the Wet'suwet'en.  It is  30 where ownership and jurisdiction over the house  31 territories is recognized and confirmed.  It operated,  32 in effect, as a land registry system, is the claim.  33 This registry system operates by the repetition of  34 oral history containing assertions of boundaries to  35 described territories by House chiefs.  The House  36 system of government reposes absolute power in the  37 chief of the House and in consultation with the House  38 hierarchy through the imposition of laws governing the  39 behaviour of members of the House and over the  40 territory.  House territories are maintained and  41 defended by the House itself.  It is claimed that the  42 House territories are not only precisely bounded, but  43 also the right to use the territory is exclusive to  44 the members.  To utilize a House's territory, one must  45 be an authorized member or have the permission of the  46 Chief.  47 Paragraph 281.  It is submitted that the social 2053  Submission by Ms. Koenigsberg  1 organization necessary to hold rights of ownership and  2 jurisdiction as alleged by the Appellants is that they  3 do -- would require a political unit of sufficient  4 cohesion and power that it can make known its  5 territorial boundaries and enforce the exclusive use  6 of those claimed territories.  And in this case they  7 say they do through the House and the chiefs.  And,  8 secondly, a recognized political unit which makes its  9 exclusive rights known to those outside the House and  10 which has those rights acknowledged in a public way.  11 And it is the feast which performs this function.  12 Paragraph 282.  The Gitksan and Wet'suwet'en claim  13 is that the House and feast constitute the organized  14 structures holding the rights claimed; that is,  15 ownership and jurisdiction.  Use and occupancy rights,  16 or the "bundle of use and occupancy rights relating to  17 resource use", which the Attorney General of Canada  18 contends for, logically flow from or are included in  19 the ownership and jurisdiction rights as claimed by  20 the Appellants.  And by that I mean that if they had  21 ownership and jurisdiction, the bundle of rights of  22 use and occupancy rights would logically flow.  It is  23 our submission that you can find those same bundle of  24 rights absent such ownership and jurisdiction.  25 The next paragraph also deserves a heading, and  26 I'm sorry, when these got transferred the headings got  27 left off.  Paragraph 283 begins the discussion of  28 "Evidence of Recognition of The Rights Pre-Contact".  29 This Respondent acknowledges there is evidence that at  30 the time of contact, that is by 1822, the Gitksan and  31 Wet'suwet'en had a society organized to exploit  32 certain resources in parts of the area now claimed.  33 Paragraph 284.  The evidence does not disclose a  34 long-standing political or social structure based on  35 Houses presided over by Chiefs holding title to  36 defined territories.  This Respondent submits that the  37 Appellants' ancestors' society did not have, at 1822  38 or 1846, the type of political and social organization  39 necessary to maintain a claim to ownership and  40 jurisdiction over the claimed area.  The social  41 organization which likely existed was in the form of  42 extended families, some of whom had recognized,  43 exclusive hunting rights to certain tracts of land.  44 The village was most likely the fundamental political  45 unit, albeit not one with any form of sovereign  46 authority.  The bases for these submissions are set  47 out in Part I, and Mr. Macaulay took you through them. 2054  Submission by Ms. Koenigsberg  1 Just to summarize the pertinent parts that we say  2 go to this submission, we say that all of Part I you  3 will find at 1822.  And I might say before, no  4 evidence of far-flung exclusive rights, but there was  5 evidence to the contrary.  The evidence to the  6 contrary of far-flung exclusive rights, because that  7 is the claim, were instances in Trader Brown's reports  8 and others of the Hudson's Bay traders that the Sekani  9 came in to hunt and live.  And you will find those  10 references at paragraphs 38 and 40 of Part I.  You may  11 recall a reference to Fort St. James hunters coming in  12 to hunt.  They were the very best hunters.  Paragraph  13 21.  You may recall instances in which Trader Brown  14 reports that the Gitksan didn't hunt Beaver, the  15 Wet'suwet'en did hunt Beaver, but most importantly  16 other species were not a part of the exclusive right.  17 In other words, it was part of the Wet'suwet'en, at  18 least, and I think that there's evidence for the  19 Gitksan as well, that while there were exclusive  20 hunting grounds for Beaver and perhaps other species,  21 marten, big game, and I think the references were to  22 marten and big game, and I can't remember precisely  23 the other references, were not exclusive.  In other  24 words, hunting for those was not impermissible.  And,  25 in my submission, that -- those facts are completely  26 inconsistent with the notion of an exclusive right to  27 a bounded territory.  It is consistent with some  28 exclusive right to resource taking.  And you will find  29 the references I believe to what I've just said about  30 the Gitksan not hunting Beaver, the Wet'suwet'en  31 hunting Beaver, but other species not being exclusive,  32 in the reports of Trader Brown in 1823 and 1826, in  33 particular the 1823 modified by 1826.  Importantly, we  34 say, as at 1846 there is no evidence of trapline  35 boundaries.  But of also great importance is the  36 evidence in 1885, there's a letter as set out in  37 paragraph 132 in Volume 4 of the references, a letter  38 from Mr. Tomlinson, who you will recall was a  39 missionary who became an advocate on behalf of land  40 claim.  But his letter says as of 1885 that there were  41 individual families, speaking of the Gitksan, there  42 were individual families who had exclusive hunting  43 grounds, but that most of the land was used without  44 regard to exclusivity, it was open for all.  That is  45 the evidence in 1885.  There is no evidence in 1846,  46 and, in our submission, the evidence in 1822 is  47 inconsistent with discrete boundaries of territories 2055  Submission by Ms. Koenigsberg  1 in far-flung areas.  2 HUTCHEON, J.A.:  I've been looking at Reverend Tomlinson's  3 statement in 132 for some days now, and it strikes me  4 that that represents 1885, he's talking about old  5 tribal and family rights.  He's looking back over the  6 period, and I agree with you, he says while much of  7 the country was open, he also says every family held a  8 distinct right to a particular tract of land with  9 well-defined limits.  Now, is it the view of Canada  10 that that developed after 1822 or sometime or --  11 MS. KOENIGSBERG:  My lord, I think it's very difficult to draw a  12 line.  I think that there is common sense reasoning to  13 support exclusive use close in from the earliest times  14 of the settlement of a village as a permanent village  15 site, and I put some importance on, and we don't know  16 when that was, if there was settlement of a permanent  17 village site because it requires that to build up a  18 sufficient population, in my submission, to simply  19 common-sensically tell you that you would require  20 rules about resource use nearby, where you've got a  21 fairly large population.  22 HUTCHEON, J.A.:  He doesn't — at least in this small extract we  23 have, he doesn't say it's confined to close around the  24 villages at all, does he?  25 MS. KOENIGSBERG:  No, he doesn't.  26 HUTCHEON, J.A.:  He talks about these tracts were held for  27 hunting, he talks about tracts.  2 8 MS. KOENIGSBERG:  Yes.  29 HUTCHEON, J.A.:  Some for hunting, some for wild berries and  30 some for fishing.  31 MS. KOENIGSBERG:  Yes.  In my submission, while one could  32 extrapolate from that that somehow there were these  33 discrete boundaries, because that is the theory that  34 we have to look from, that is what comes -- the  35 Appellants say from the archaeology, the anthropology  36 and so on, and this is the way in which it's done,  37 that Tomlinson's description is inconsistent with  38 that, but it is not -- it's inconsistent with there  39 being the House territories covering the whole of the  40 area —  41 HUTCHEON, J.A.:  I don't think —  42 MS. KOENIGSBERG:  — the territory.  Well, if they're large  43 tracts which are not discrete, which are not -- which  44 are utilized by all, and, in fact, I think he really  45 describes it as most with there being exclusive areas.  46 HUTCHEON, J.A.:  He says much of the country was open for anyone  47 to hunt. 2056  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  That's right.  But, my lord —  2 HUTCHEON, J.A.:  Every family had held a distinct right to a  3 particular tract of land with well-defined limits.  4 MS. KOENIGSBERG:  But if you look at the map of the territories  5 and the House territories, it's seamless, and, in my  6 submission, it doesn't leave any open gaps, much less  7 much open gaps, and so in my -- it's also I think  8 helpful to put that letter, and we have to discount  9 it, I mean it's not -- you can't just sort of say  10 well, whatever he described you just take without  11 trying to understand its context.  But I think you  12 have to go back to the descriptions in 1822 and see  13 how it isn't that different, and, in my submission, at  14 1822 what we also know is that we have, at least in  15 the areas that Trader Brown is talking about, which  16 tend to be in the north, lots of evidence of other  17 people as against whom the Appellants say they hold  18 their jurisdiction as against them.  But we know that  19 they're there, and they're there at will, as far as we  20 can tell.  So if I can come back to it, common  21 sensically we know that there is -- we have evidence  22 that there is exclusive use, and we know that the fur  23 trade has provided a tremendous incentive to expand  24 that out as far as you can.  You now have a reason to  25 get a lot more furs to trap a lot more animals.  26 There's no evidence of a reason to do that in numbers  27 prior to the fur trade.  28 And so, in my submission, it supports the  29 expansion out into areas that would not have been the  30 subject of organized use.  And if I can just at this  31 point emphasize the point which I skated right over in  32 the beginning of my submissions last week, the trial  33 judge had all of this evidence, much much more than  34 what you've been referred to, and, in my submission,  35 it is an interpretation of all of the evidence on the  36 basis of an interpretation of all of this evidence,  37 that he came to the conclusion that the fur trade was  38 responsible for the map we see with the House  39 territories out in the hinterland, and that the  40 villages and surrounding areas, and he was somewhat  41 arbitrary in saying 20 miles around, would have been  42 the subject of at least -- either exclusive possession  43 or exclusive possession and organized use.  And, in my  44 submission, it's -- the evidence amply supports that  45 finding, but that it is made on an interpretation of  46 all of the evidence, put it all together and weigh it,  47 because of course there's evidence going both ways. 2057  Submission by Ms. Koenigsberg  1 I really say that at paragraph 285, that the  2 evidence supports the trial judge's finding that the  3 area claimed is vastly in excess of the area actually  4 used by the Appellant's society for a long time prior  5 to contact.  Further, this Respondent submits that the  6 trial judge was correct when he said that "the weight  7 of evidence supports the view that the fur trade  8 materially changed aboriginal life before or around  9 the time Brown was making his records at Fort  10 Kilmaurs".  And the submissions, his specific  11 submissions, taking you through the evidence, are part  12 of the Amicus brief.  They are found at tab 7, I  13 believe, and I do come to it and refer to it, but I'm  14 pretty sure it's at tab 7, and I'm not going to take  15 you through it.  You've heard some of it and a  16 detailed description of that, in particular the  17 archaeological evidence is part of the submissions of  18 Amicus.  19 If you will turn over to paragraph 287, we say  20 that the Appellants have not established that Houses  21 as described exercised exclusive control over  22 discrete, precisely defined territories.  The  23 Appellants do not appeal the trial judge's finding  24 that the evidence did not support their claim in this  25 regard.  And we've begun that -- that exploration of  26 the body of evidence that is contrary to a finding  27 that internal boundaries existed, and we say that that  28 evidence overwhelmingly supports that there was no  2 9 ownership in the way claimed.  30 And further, at paragraph 288, we say the  31 Appellants have not established that Houses exercised  32 legislative or political control over the claimed  33 area.  This Respondent submits that the trial judge  34 was correct when he said that although there is no  35 doubt the Appellants' ancestors harvested their  36 subsistence requirements from parts of the  37 territories, the evidence does not establish either  38 management of the territories or concerted communal  39 conservation.  Now talking in the large territories.  40 Nor, as the trial judge also found, does the evidence  41 establish that the Appellants' ancestors' practiced  42 universal or even uniform customs relating to land  43 outside the villages.  44 Paragraph 289.  The Appellants introduced into  45 evidence an enormous quantity of testimony and opinion  46 evidence to establish that in modern times, the House  47 system managed and controlled the claim area.  The 2058  Submission by Ms. Koenigsberg  1 Appellants asked the court to infer that the same  2 system existed at contact.  However, the system as  3 described in this evidence regarding the use and  4 passing of rights to hunting grounds, for example, was  5 so confused, contradictory and uncertain as to  6 demonstrate no consensual system of laws, customs or  7 controls over land outside the villages.  8 Paragraph 290.  Certain witnesses, for instance,  9 testified that they could hunt anywhere, and I took  10 you through some of that, and we make a reference to  11 more of it, but there are many paragraphs throughout  12 these large submissions and references that give you  13 even more of that.  Others implied that they did not  14 need the chief's permission.  Regarding the succession  15 of hunting or trapping areas, there is evidence that  16 some witnesses claimed rights to areas through their  17 patriline or the game wardens.  A number of chiefs  18 have in the past expressed an intention to devise  19 their rights to hunting grounds, traplines and fishing  20 sites to individuals outside the matrilineal system.  21 And the evidence for that is at paragraphs 229 and  22 230.  The evidence is more consistent with the trial  23 judge's finding that it is impossible to conclude that  24 the Appellants practised anything more than common  25 sense subsistence practices.  And I'm not going to  26 take you through it, because of the time, but you will  27 see that I have here excerpted part of Appendix 9,  28 paragraphs 48 to 65.  And that is a lengthy and  29 detailed summary of evidence which supports what I've  30 just gone through.  And to give you an example, I will  31 take you to subparagraph 58, because it is -- it's an  32 itemized summary, where it said that -- these are  33 dealing with laws that are being put forward as being  34 immutable and known to everyone and still adhered to  35 and we to infer back that they were part of the  36 system, and it dealt with logging, and of course there  37 was -- there was evidence that permission was not  38 sought to log on a territory known to belong to  39 someone.  Hunting, permission was not sought for  40 hunting.  And the references are there:  Prospecting,  41 permission was not sought for prospecting; purchase of  42 lands, permission was not sought to purchase lands.  43 I'm talking now about purchases by Appellants of land  44 around, in this particular case, Hazelton.  Trapping,  45 David Gunanoot, for instance, who is a high chief, and  46 Sylvester William trapped on territories claimed by  47 other hereditary chiefs because the game warden gave 2059  Submission by Ms. Koenigsberg  1 them permission to do so.  David Gunanoot registered  2 the trapping contrary to the wishes of the chief of  3 the territory and his nephew, Gerry Gunanoot continued  4 to trap in the area claiming he acquired his rights  5 from his uncle through "our own traditional Indian  6 way".  When asked if Tommy Morris asks permisson of  7 Goohlaht to have a trapline in the Honcaagh Ben  8 territory, Elsie Quaw replied "Not after the  9 government registered them to trap".  And one side of  10 that coin is that the government has come in and given  11 permission, but no one in the game warden's office  12 would prevent the Appellants from going to the persons  13 within their system and saying "Can I have  14 permission".  And the same goes for fishing.  The  15 evidence with regard to fishing you will see at  16 paragraph F.  And there is a compilation of some of  17 the evidence throughout this appendix demonstrating  18 the inconsistencies and the contradictions to the laws  19 and the rules for use.  20 If you will turn over then to paragraph 291.  This  21 Respondent submits that on the evidence the feast  22 system did not act as a legislative or judicial body  23 authorizing and confirming the Houses' ownership and  24 jurisdiction over the claim area.  Again, the  25 Appellants led a great quantity of evidence concerning  26 20th century feasting practices which does not  27 demonstrate that the feast system fulfilled the land  28 registry-type function that the Appellants alleged it  29 did.  The cross-examinations of the Appellants' lay  30 witnesses at trial, most of whom were chiefs,  31 demonstrated that many were unfamiliar with, or gave  32 conflicting evidence about, the ownership and  33 boundaries of their territories and some had never  34 even visited the areas they claimed.  The evidence  35 also indicates that if territories were mentioned at  36 feasts, boundaries were rarely if ever described.  37 And, again, I went through some of this evidence,  38 and you will find it itemized in the submissions  39 relating to reputation evidence, because of course it  40 comes in as reputation evidence if it's admissible,  41 and it makes reputation -- it makes the criteria for  42 reputation evidence, if it is repeated publicly so as  43 to establish a concensus of the community.  And, in  44 our submission, a review of that evidence established  45 that not only was there no reputation outside the  46 feast, there was no reputation inside the feast for  47 boundaries. 2060  Submission by Ms. Koenigsberg  1 Now, if we turn over to page 292, in addition, we  2 say, there was little evidence, if any, that in the  3 pre-land claims period any non-Gitksan or  4 non-Wet'suwet'en person who used the claim area had  5 any knowledge of the role of the feast system or the  6 Houses in the alleged management and control of the  7 claim area.  And stopping there, in our submission  8 this issue raises, I think, in answer to a question  9 asked by Mr. Justice Macfarlane on May 13th, dealing  10 with the problem that where your lordship was  11 questioning this aspect of the assertion of the feast  12 as a vehicle for the application of universal  13 application for laws of general application outside  14 the feast and did it happen, and I believe Mr. Grant  15 referred you to an all clans feast.  Well, I think, in  16 my submission, this bears some exploration, and I will  17 just give you the reference to your question.  It's  18 found in volume 8, it was on May 13th, and it begins  19 on page 609, and I'm just going to read a little bit  20 of it.  21 TAGGART, J.A:  Give me that reference again.  22 MS. KOENIGSBERG:  Volume 8, May 13th, page 609, it was during  23 the submissions of Mr. Grant on the feast  24 TAGGART, J.A:  This is the trial transcript?  25 MS. KOENIGSBERG:  Yes, my lord.  26 TAGGART, J.A:  Appeal transcript.  27 MS. KOENIGSBERG:  Sorry, appeal transcript.  28 TAGGART, J.A:  Appeal transcript, right.  29 MS. KOENIGSBERG:  This is the question of Mr. Justice Macfarlane  30 about line 17:  31  32 "But I don't see in it necessarily evidence of  33 the existence of laws which govern the whole  34 territory.  For one thing, when we're looking  35 at a feast, we're looking at an event which is  36 organized by a family, a chief of one family,  37 we have witnesses, you say we have guests from  38 other families, and we have the chief making  39 assertions one way or another, as you say are  40 assertions of ownership."  41  42 And then Mr. Justice Macfarlane goes on:  43  44 "And unless we're satisfied that when there is a  45 feast that the guests comprise all of the  46 Indian nations in the territory, I wouldn't  47 think one would draw the inference that there 2061  Submission by Ms. Koenigsberg  1 was -- that they were giving their blessing to  2 laws of universal application, that is, of  3 application throughout the whole territory.  4 I'm looking at the map of the Gitksan territory  5 and of the Wet'suwet'en territory and all of  6 the internal boundaries all of the different  7 families that are there.  As I read the  8 judgment in its context, I thought the Chief  9 Justice was saying that we don't question that  10 there was feasting, there was no question as to  11 what occurred at the feasts, no question that  12 it wasn't a legislative body, you agree with  13 that, but that the evidence wasn't sufficient  14 overall to ground the conclusion that what was  15 recognized at a particular feast was a binding  16 authority on all of the other families in the  17 territory.  And, therefore, was not evidence of  18 the existence of universal laws applying to the  19 whole of the territory, which, in my mind, is  20 important in considering the question I raised  21 last week about resources, control over  22 resources."  23  24 And, in my submission, however worded, that is an  25 issue that the assertion put forward by the Appellants  26 of the function of the feast raises, is it, if it's  27 confirming ownership, doesn't it have to extend to  28 those -- to the territories claimed as being owned and  29 by persons who would have some use of that, and we got  30 some interesting evidence during the trial on that,  31 and, in particular, from Mr. Brody.  And I think it  32 highlights the actuality of the function of the feast,  33 and I've included it and you will see it begins just  34 over the page.  It's from the transcript, 15672, and  35 I'm going to take you through it, but just before I  36 do, I want to give you a reference.  This deals with  37 the feast in 1985 regarding the Bear Lake area, and  38 you will recall that Miss Russell made submissions  39 about that, and those submissions, which have a lot of  40 facts about the overlap and about what went on at that  41 feast which are not in the transcript and which I  42 don't want to take you to, because of time, are found  43 in volume 20 of the Attorney General of Canada's  44 references, paragraphs 316 to 331, particularly  45 paragraphs 334 and 341.  46 TAGGART, J.A:  Give me those paragraphs again, please.  47 MS. KOENIGSBERG:  Okay.  Volume 20, paragraphs 316 to 331, with 2062  Submission by Ms. Koenigsberg  1 particular emphasis for this excerpt in the transcript  2 to paragraphs 334 and 341.  334 to 341 deals  3 specifically with the feast that Mr. Brody is  4 discussing in his evidence.  If we can turn to that,  5 and it's a bit lengthy, but it covers the waterfront,  6 in my submission, so I would like to go through it  7 with you.  You will see down at 15670, about line 33,  8 this was in cross-examination:  9  10 "Q   Lastly, I would like to deal with Bear  11 Lake, but in a very limited way, since I  12 too have not had what I would call access  13 to the facts.  But just at page 42 and 43  14 of your report.  You say there, dealing  15 with the meeting, which if I may  16 characterize it as the overlap meeting of  17 July 15th, 1985. "  18  19 This is an overlap meeting -- a meeting regarding the  20 overlap between the Carrier-Sekani and the Gitksan:  21  22 "A   The meeting lasted longer than that.  This  23 particular paragraph is about what happened  24 on that day of the meeting.  25 Q   'For two days', you say at the bottom of  26 the page:  27 '...elders visited mountains,  28 discussed place names and reviewed  29 oral history.  Tension was building.  30 Both sides seemed implacable in their  31 insistence on their rights to the  32 place.'  33 And just stopping there.  I think you have  34 described it elsewhere, perhaps in this  35 very chapter, but the Gitksan were saying  36 that they had, I think you characterized it  37 as formal jurisdiction, and the  38 Carrier-Sekani's claim to the same area was  39 based on -- I think you characterized it as  40 use and occupation?  41 A   Occupancy -- use and occupancy.  42 Q   Use and occupancy.  If we go back to  43 another point that you make in your report,  44 and perhaps it's best exemplified --  45 A   Just let me interrupt you a moment.  May I,  46 just while we are on this question of the  47 characterization of the different -- 2063  Submission by Ms. Koenigsberg  1 Q   That is your characterization?"  2  3 That is formal jurisdiction versus use and occupancy:  4  5 "A   Yes, yes.  You have left out the extent to  6 which the Gitksan chiefs sought to point  7 out that many of the Sustut Dene, as they  8 called themselves, the Sekani-Carrier  9 of that particular area, are Gitksan  10 speakers and members of Gitksan Houses  11 through the mother's line.  So it's  12 actually an oversimplification.  It may be  13 my oversimplification in the text.  I am  14 not suggesting you are oversimplifying  15 it.  But an oversimplification to say there  16 is a claim based on former jurisdiction and  17 a claim based on land -- sorry, it's an  18 oversimplification to say that there is a  19 claim based on jurisdiction on the one hand  20 and a claim based on land use and occupancy  21 on the other.  22 There is also a dimension to the  23 overlap that's rather more intricate than  24 that, which is to do with the Gitksan  25 dimension to the Sekani-Carrier, as they  26 would characterize themselves, of the  27 Sustut Dene group at Bear Lake, and that's  28 an important part of the whole nature of  29 the overlap.  30 Q   Yes.  Nevertheless, I think to make the  31 point that there is such a thing in the  32 Gitksan institutions as formal  33 jurisdictions separate from use and  34 occupation, you contrast those two ways  35 of claiming that area; is that correct?  36 A   Yes.  There is a way in which the ownership  37 of lands in Gitksan law, within the  38 Gitksan system is explicit and visible, and  39 therefore one doesn't have to do very much  40 research on the ground to find out where  41 their territories lie.  And I contrast with  42 that the Athabaskan way of viewing or  43 describing that.  And I think I should be  44 clear.  The Athabaskan way of describing  45 land, they say they don't have explicit  46 institutions through which they define  47 land -- and when I say Athabaskan here, 2064  Submission by Ms. Koenigsberg  1 I, of course, mean the northern and eastern  2 Athabaskans -- but for us, as  3 anthropologists, in order to find out the  4 extent of their lands, we have to look at  5 their use and occupancy.  They on the other  6 hand may not need to look at their use and  7 occupancy.  If you put a map in front of  8 them, they might be able to show you where  9 their boundaries were anyway.  10 Q   On page 74 and 75 of your report you spend  11 some time explaining why it is that white  12 people can't see this jurisdiction  13 institution, and it's in -- you express it  14 in a number of places in your report, but  15 on page 74 in the second full paragraph you  16 say:  17 'We can see, therefore, that a  18 fundamental of European  19 consciousness, its belief and  20 evolutionism and attendant inability  21 or refusal to recognize aboriginal  22 cultures combines, in the Canadian  23 north, with national immigrant points  24 of view.  Along with the power of  25 first an emerging, then a modern  26 nation-state, this establishes the  27 ways in which 'we' approach 'them' at  28 the frontier.  We are white, and are  29 armed with a strong sense of  30 economic, moral and political  31 righteousness.  We are also numerous  32 and powerful.  They seem to us to be  33 poor, few in number, elusive and  34 somehow belonging to the past.  We  35 look down on them from a very great  36 height; so high, indeed, that we are  37 not able to discern their authority  38 and laws.'"  39  4 0 I then go on:  41  42 "You've expressed it in a number of ways,  43 and if I can ask you if you are saying that  44 white people, for the reasons that you put  45 there, don't see this formal jurisdiction,  46 if I can put it that way, the institutions  47 of formal jurisdiction among the Gitksan, 2065  Submission by Ms. Koenigsberg  1 because we are different cultures, and  2 particularly because you say that the white  3 people have such a sense of cultural  4 superiority, combined, of course, I'm sure,  5 with a language difficulty.  6 A   Yes.  There are many dimensions to this, as  7 I am sure you're aware.  We think  8 again of that meeting in 1889 that we saw  9 described."  10  11 And he's there describing the transcript of the 1888  12 meeting and 1889 with Roycraft and Fitzstubbs which I  13 had put to him earlier:  14  15 "I suppose it stuck in my mind because I  16 have been given this new document.  The  17 power, the jurisdictional claim, the  18 numerous -- that's not the right word --  19 the sheer population size of the newcomers'  20 societies affirmed very strongly to the  21 Gitksan in that case. I think I am  22 losing your question.  I am tired, and you  23 better put the question to me again.  24 Q   My question is:  White people in your view  25 can't see the institution of formal  26 jurisdiction is distinct from use and  27 occupancy?  28 A   That's right, yes.  29 Q   Because of their sense of cultural  30 superiority, essentially the very different  31 cultures from which we've come, and one of  32 the major differences you have pointed out  33 is that white people coming from what, I  34 guess, we would describe as a very complex  35 culture, can't see formal jurisdiction  36 unless it's in a similar form to that in  37 which they come.  38 A   It has the same kind of complexity as our  39 own.  They can't see the complexity that is  40 there.  That's what I am saying, yes.  41 Q   My question is:  Why could the  42 Carrier-Sekani at Bear Lake, who had shared  43 the same culture, speak the same language,  44 are even related to these people for  45 generations, according to you, used and  46 occupied that land, but did not see the  47 formal jurisdiction of the Gitksan. 2066  Submission by Ms. Koenigsberg  1 A   They -- they answered this question  2 themselves at the meeting.  They pointed  3 out that they had not had occasion to go to  4 what they call potlaches, and they meant  5 Gitksan feasts.  And I remember Tom  6 Patrick, for example, saying rather  7 movingly that he would need to do research  8 into the feast, the potlatch, and reconnect  9 himself with his heritage with that point  10 of view, in order to find out where his  11 territory did and did not lie.  12 So attendance at the feast for the  13 Sustut Dene is an issue, and it would be  14 an issue also for settlers and white  15 newcomers at the frontier.  If you don't  16 attend the feast, if you don't hear what  17 people have to say about their laws, their  18 territories and understand it, which of  19 course goes to the question of language  20 which you raised, and if you are not in any  21 case disposed to understand it, and here I  22 have in mind missionaries, Indian agents,  23 Fish and Wildlife officers, traders in a  24 specialized way in this regard, the great  25 institutions that come bear on relations in  26 the frontier, then there is the difficulty  27 of knowing what these institutions are,  28 although anthropologically we know they are  29 there in a relatively clear form in the  30 case of the Gitksan.  31 Q   You would have to agree with me, I think,  32 that if that is the explanation of why the  33 Carrier-Sekani didn't see it, that it is a  34 jurisdiction which is not visible to those  35 outside the feasting complex.  36 A   It's difficult to see, if you are not aware  37 of the feast system and are not being told  38 what the laws are and where the territories  39 lie, you can't know what the lands mean to  40 the people, you can't know much about the  41 boundaries that people have around their  42 territories, without hearing their accounts  43 of these matters."  44  45 So going back to this issue of the feast performing as  46 a forum for the explication, confirmation, recognition  47 of laws of universal application, and here I'm having 2067  Submission by Ms. Koenigsberg  1 regard to land use and allocation, which is the issue,  2 and which is the claim.  3 Here are people living for 150 years,  4 approximately is the evidence, members of the  5 Carrier-Sekani Tribal Council, living and occupying  6 the area and unaware that the Gitksan are laying claim  7 to it because they don't attend the feast, it is said.  8 And, in my submission, that is eloquent evidence that  9 the feasting system did not function pre-contact, did  10 not function post-contact as a place for confirming  11 recognition by those concerned with the boundaries  12 what the boundaries were.  13 Moving on to paragraph 293, the Appellants, at  14 page 56 of their factum, take issue with the trial  15 judge's conclusion that "aboriginal rights arising by  16 operation of law, are non-proprietary rights of  17 occupation for residence and aboriginal user which are  18 extinguishable at the pleasure of the Crown".  And I  19 should tell your lordships that this begins -- this  20 should have a heading above 293, "Aboriginal Rights  21 Are Use and Occupancy Rights", is our submission.  The  22 Appellants say that every element of that quote from  23 the trial judge is in error.  It is the position of  24 this Respondent that every element of that quote is  25 correct.  26 It is this Respondent's position that aboriginal  27 rights, and this is paragraph 294, are a bundle of  28 rights which include rights relating to land.  29 Land-related aboriginal rights are rights recognized  30 by the common law, which rights cannot be usefully  31 described in terms of traditional common law concepts  32 of property.  These rights relate to occupation and  33 use of land for certain purposes.  It is agreed these  34 rights as part of the English common law are sui  35 gnereis.  However, it is this Respondent's position  36 that sui gnereis does not equate to proprietary in the  37 English common law -- English common law property  38 sense of that word.  39 This Respondent agrees with the Appellants that  40 the nature or substance of aboriginal rights are those  41 rights which pre-existed British sovereignty.  42 However, upon British sovereignty having been  43 established any pre-existing sovereignty, legislative  44 power or underlying title to land was displaced.  We  45 rely of course on Guerin and Sparrow, and I won't take  46 you to those because we've been over them many many  47 times in the last few months. 2068  Submission by Ms. Koenigsberg  1 Paragraph 296.  The historical context for the  2 concept of pre-existing rights may vary from place to  3 place.  In the claim area the relevant facts, it is  4 submitted, are set out below.  5 Paragraph 297.  Britian conceded, vis a vis the  6 United States, by the 1818 Convention, that Britain  7 did not have all of the incidents of soveignty in what  8 is now British Columbia.  The Oregon Treaty of June,  9 1846 fixed the southern boundary of the future colony  10 of British Columbia.  Thus, for the purposes of  11 establishing an "operative, governing, exclusive  12 sovereignty", 1846 is the date by which the English  13 common law displaced whatever sovereignty existed  14 before British sovereignty and what the English common  15 law recognized as aboriginal rights came into  16 existence.  17 And here I would stop to say that I am in no way  18 implying that aboriginal rights are dependent upon  19 recognition, but I say that aboriginal rights are not  20 rights in the common law sense, not enforceable, not  21 protectable until the common law recognizes them, but  22 the common law will recognize them if they pre-existed  23 as rights.  And my lord Justice Wallace has asked the  24 question before previously:  How can a right be a  25 right until the common law comes along and makes it a  26 right.  And, in my submission, in one sense it cannot,  27 but the inquiry is what were the rights pre-existing,  28 was it a right pre-existing, and that state of affairs  29 is a pre-condition to its recognition in the common  30 law.  31 Paragraph 298.  Actual contact in the claim area  32 began in the 1820's with early explorers and Hudson's  33 Bay Posts bordering on and in the claim area and  34 further contact was established by some European  35 presence from the early 1870's.  The historical record  36 from the 1820's forms a large part of the evidentiary  37 base or context from which the content of Gitksan and  38 Wet'suwet'en aboriginal rights can be derived.  39 And the next paragraph should have a heading,  40 that's 299, that says "Pre-existing".  The sense in  41 which aboriginal rights are pre-existing rights has  42 significance in two ways.  First, they are not rights  43 which arise as a grant from the Crown, but are rights  44 recognized by the Crown because they pre-existed it.  45 Second, the substance of the right is determined by  46 what rights existed before British sovereignty.  Both  47 of these concepts are explored below. 2069  Submission by Ms. Koenigsberg  1 Paragraph 300.  We rely on the decision of Mr.  2 Justice Dickson in Guerin, and that is what is meant  3 by pre-existing as opposed to granted rights as  4 explained by Mr. Justice Dickson in Guerin, relying on  5 the American and Privy Council authority, and it's  6 that first paragraph that really speaks to this issue,  7 where he says:  8  9 "In Johnson v. M'Intosh Marshal C.J., although  10 he acknowledged the Proclamation of 1763 as one  11 basis for recognition of Indian title, was  12 nonetheless of opinion that the rights of  13 Indians in the lands they traditionally  14 occupied prior to European colonization both  15 predated and survived the claims to sovereignty  16 made by various European nations in the  17 territories of the North American continent.  18 The principle of discovery which justified  19 these claims gave the ultimate title in the  20 land in a particular area to the nation which  21 had discovered and claimed it.  In that respect  22 at least the Indians' rights in the lands were  23 obviously diminished; but their rights of  24 occupancy and possession remained unaffected."  25  26 And then Mr. Justice Marshal, in a part that we've  27 been over many times, goes on to explain that  28 principle.  And that finishes this volume.  29 And Volume 27, paragraph 301, it is illuminating  30 to note the use of "presumptive title" to describe  31 those rights undisturbed by sovereignty in the Tijani  32 case.  And this actually goes back to paragraph 300,  33 because it's in that same quote or the same page with  34 the next page in the Guerin decision that Justice  35 Dickson, as he then was, describes that phenomenon  36 that sovereignty does not displace of itself  37 presumptive title.  And we say it's useful to look at  38 the definition of presumptive title -- presumptive  39 title from Black's Law Dictionary:  40  41 "A barely presumptive title, which is of the  42 very lowest order, arises out of the mere  43 occupation or simple possession of property,  44 without any apparent right, or any pretense of  45 right, to hold and continue such possession."  46  47 And, in my submission, what that speaks to is the very 2070  Submission by Ms. Koenigsberg  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  issue that Mr. Justice Wallace raised, and that  explains what it is we're talking about when we talk  about pre-existing rights and how is it a right before  it comes into the common law.  And, in my submission,  sovereignty displaces, sovereignty leaves in place  that which is there but gives it no title until its  contents are known.  It doesn't become an enforceable  right in the new regime, in the new sovereignty, until  its incidents are known, and then it will be  recognized in its primeval figure or displaced by a  sovereign clear and plain action.  Paragraph 302.  What rights or presumptive title  does the common law recognize then?  Assistance is  gained by adverting to the comments of Mr. Justice  Mahoney again.  And it is that same paragraph and it's  the last part, which we really didn't focus on, and I  will just take you to it.  It's page 559, which is the  page excerpted, and it's that first paragraph, but if  you just go down to about the lower third, it says:  "The thrust of all the authorities is not that  the common law necessarily deprives aborigines  of their enjoyment in the land in any  particular but, rather that it can give effect  only to those incidents of that enjoyment that  were, themselves, given effect by the regime  that prevailed before."  Paragraph 303.  The nature of aboriginal rights  relating to land as non-proprietary interests in land  has been affirmed by all recent Supreme Court of  Canada decisions.  The first and most often adverted  to description of the nature of such rights is that of  Mr. Justice Dickson in Guerin.  And it's worthwhile, I  think, going through this particular quote because it  contains the, if you will, property law or common law  words describing different kinds of interests, and  then I want to analyse those in terms of what happens,  and it's:  "It appears to me that there is no real conflict  between the cases which characterize Indian  title as a beneficial" --  LAMBERT, J.A.:  Maybe stop here.  TAGGART, J.A:  Would it be appropriate to continue this at two  o'clock? 2071  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  Yes, my lord.  2 THE REGISTRAR:  Order in court.  Court stands adjourned.  3  4 LUNCHEON RECESS  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein transcribed to the  9 best of my skill and ability  10  11  12  13  14 Graham D. Parker  15 Official Reporter  16 United Reporting Service Ltd.  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 2072  Submissions by Ms. Koenigsberg  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 TAGGART, J.A.:  Yes, Ms. Koenigsberg?  4 MS. KOENIGSBERG:  We left off at paragraph 303 in volume 27.  5 And I was just beginning into the quote in Guerin,  6 which I say contains the elements that we can look at  7 of the description of aboriginal rights.  And, of  8 course, I am going to be submitting to your lordships  9 that if you go through this and the subsequent cases I  10 am going to take you through, that the right can  11 properly be described as akin to proprietary but not  12 proprietary.  13 Dealing then with that quote, I think it's helpful  14 to read the whole thing, then I will parse it for how  15 many the next paragraphs:  16  17 "It appears to me that there is no real conflict  18 between the cases which characterize Indian  19 title as a beneficial interest of some sort and  20 those which characterize it as a personal,  21 usufructuary right.  Any apparent inconsistency  22 derives from the fact that in describing what  23 constitutes an unique interest in land, the  24 courts have almost inevitably found themselves  25 applying a somewhat inappropriate terminology  26 drawn from general property law.  There is a  27 core of truth in the way that each of the two  28 lines of authority have described native title,  29 but an appearance of conflict has nonetheless  30 arisen because in neither case is the  31 categorization quite accurate.  32 Indians have a legal right to occupy and  33 possess certain lands, the ultimate title to  34 which is in the Crown.  While their interest is  35 not, strictly speaking, amount to beneficial  36 ownership, neither is its nature completely  37 exhausted by the concept of a personal right.  38 It is true that the sui generis interest which  39 the Indians have in the land is personal, in  40 the sense that it cannot be transferred to a  41 grantee, but it is also true, as will presently  42 appear, that the interest gives rise upon  43 surrender to a distinctive fiduciary obligation  44 on the part of the Crown to deal with the land  45 for the benefit of the surrendering Indians.  46 These two aspects of Indian title go together,  47 since the Crown's original purpose in declaring 2073  Submissions by Ms. Koenigsberg  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the Indians' interest to be inalienable  otherwise than to the Crown was to facilitate  the Crown's ability to represent the Indians in  dealings with third parties.  The nature of the  Indians' interest is therefore best  characterized by its general inalienability,  coupled with the fact that the Crown is under  an obligation to deal with the land on the  Indians' behalf when the interest is  surrendered.  Any description of Indian title  which goes beyond these two features is both  unnecessary and potentially misleading."  LAMBERT, J.A.:  For the Guerin case?  MS. KOENIGSBERG:  Yes.  LAMBERT, J.A.:  But it cannot be unnecessary and potentially  misleading to think about it in other cases and other  contexts in a different way than this.  MS. KOENIGSBERG:  I agree with your lordship completely.  I  think the definition or the elements, because it  really isn't a definition, the elements which are  described giving us the parameters, if you will, of  that right, were not expanded but were given another  context in the Paul case.  And the description that I  have just read you was affirmed in CP and Paul, and I  have got the tab there, and I am not going to read it  all but, again, it describes and sets out the Guerin  description and adopts it.  And if you just look over  on to page -- it's at the bottom of page 404 and on to  page 505 -- sorry, 504 and 505, you will see the same  quote and then you will see the conclusion:  "The inescapable conclusion from the court's  analysis of Indian title up to this point is  that the Indian interest in the land is truly  sui generis.  It is more than the right to  enjoyment and occupancy, although as the Chief  Justice pointed out in Guerin, is difficult to  describe what more in traditional property law  terminology."  And this is the case, of course, and we have been  through this particular case and the particular quote  I want to just refer you to.  This is the case in  which the interest is described as sufficient to be  competitive with a proprietary interest.  But, in my  submission, that is different from saying it is a 2074  Submissions by Ms. Koenigsberg  1 proprietary interest.  And I want to go on and develop  2 that, and this will be my only reference to the Mabo  3 case, to put it in the context, Mr. Justice Brennan's  4 decision, in the context of the decision in Guerin and  5 CP and Paul.  6 Going on to paragraph 305.  Several features of  7 aboriginal rights relating to land are identified in  8 this description.  First, it is a right to occupy and  9 possess certain lands.  This right is not the ultimate  10 or absolute title, nor is it beneficial ownership.  11 And I think it's important that in describing it, Mr.  12 Justice Dickson in Guerin, says, strictly speaking it  13 is not beneficial ownership.  Then it can be described  14 as a usufruct but it is not exhausted by that  15 description; that it is inalienable and in that sense  16 a personal right.  17 Last, there is an fiduciary obligation on the  18 Crown to deal with the land upon surrender in the  19 Indians' interest.  20 Then over to the next tab, it is submitted that in  21 the above description any characterization of the  22 Indians' interest as proprietary is excluded.  The  23 right is specifically described as not ultimate title,  24 not beneficial ownership and not transferable or  25 alienable.  These are all essential hallmarks, in our  26 submission, or descriptions of proprietary interests.  27 Legal definitions of these terms are illuminating, and  28 I set some out there, and you will see that they all  29 refer to ownership and proprietary.  30 Paragraph 307.  The essential feature of ownership  31 or proprietary interest in land is the right to  32 dispose of it in the owner's discretion.  There are  33 other features or incidents of ownership included in  34 any definition of absolute title or proprietary  35 interests.  These cannot be divided from the owner's  36 interest at the discretion of the owner, and he or she  37 still remains the owner in law.  For instance, leasing  38 or granting an easement or profit a prendre.  But take  39 away the right to dispose of the land in one's  40 discretion, and the land interest cannot be  41 characterized as proprietary.  42 Next paragraph.  This is in part why the first and  43 most salient feature of aboriginal interest in land is  44 said to be its general inalienability, and general  45 inalienability is what is meant when calling the right  46 personal as opposed to proprietary.  47 Now to come to this concept of usufruct.  At 2075  Submissions by Ms. Koenigsberg  1 paragraph 309.  Usufruct was defined by Mr. Justice  2 Estey in the Smith case, and you have been taken to  3 that on more than one occasion in the last many  4 months.  And he used it in reference to defining  5 aboriginal rights.  Usufruct in law as it has been  6 used to characterize the Indian interest in land is  7 broad, and it is submitted its substance is determined  8 by examining the way in which the aboriginal people in  9 question utilized the land in aboriginal times.  10 If we just go to this brief and general  11 description of a usufruct, which is from the Smith  12 case:  13  14 "The usufruct, in law, the right of temporary  15 possession, use or enjoyment of the advantages  16 of property belonging to another, so far as may  17 be had without causing damage or prejudice to  18 it.  19 Use, enjoyment, or profitable possession of  2 0                   something.  21 Usufructuary, in law, one who enjoys the  22 usufruct of a property."  23  24 And I think it's helpful, the appellants put in  25 evidence, or put before you, a lengthy description of  26 a usufruct from Marler on the law of real property.  27 And I would just like to hand up to you, if I may, two  28 pages to be inserted at this tab because --  29 LAMBERT, J.A.:  Insert at tab 309?  30 MS. KOENIGSBERG:  309, yes.  31 This comes from, and you will find this, and I have  32 indicated it on this tab, it's at A-28, tab 59, the  33 whole of this material as put in by the appellants.  34 And I put this in because I want to examine briefly  35 the breadth of the notion of usufruct.  I don't  36 disagree with my friends to the extent that they are  37 saying that a usufruct can practically take up the  38 whole of the property interest.  But the point is, it  39 does not take up the property interest.  It is a  40 division from the property interest, leaving the  41 property in the hands of the owner and the use of the  42 property to the person holding the usufruct.  But that  43 use can be everything, from almost everything but the  44 right to dispose of it or damage it, to a very narrow  45 usufruct.  And that is essentially set out here.  And  46 I am not going to take you all the way through if, but  47 you will see that set out here particularly under 2076  Submissions by Ms. Koenigsberg  1 section 2 of of the mode of enjoyment of the  2 usufructuary.  And, essentially, the limitation on a  3 usufruct is that the person holding that interest must  4 preserve the substance of the thing.  And that is to  5 be able to return it, or that it be left when that  6 interest is gone, in the same state in which it was  7 given.  And although it's not a clear fit, and we can  8 see that's not a clear fit of the description of an  9 aboriginal right which -- in relation to land which  10 pre-existed and is now recognized, the essential  11 feature of it, that is, that it is a recognition of a  12 right to use a thing, but not in your discretion,  13 except to the extent that that discretion is spelled  14 out.  And in my submission, the discretion of the use  15 an of a usufruct is in relation to those uses which  16 pre-existed, absent the total property.  17 And I think that that is borne out when you just  18 simply look at the kinds of things that are described  19 here.  20 Going on to tab 310.  It is submitted that  21 aboriginal rights relating to land then are those  22 rights recognized by the common law upon the advent of  23 British sovereignty, which rights or substance depend  24 on the use to which particular people put the  25 particular land.  In the case at bar, it is submitted  26 that at the time of British sovereignty, or at the  27 time of settlement, the appellants have established  28 pre-existing, defined rights to village sites,  29 hunting, trapping areas and other food and medicinal  30 gathering areas.  31 312.  Presumptive title and usufruct, as defined in  32 the cases above noted are consistent with descriptions  33 of rights of possession and occupation as those words  34 are used in all of the cases.  And I won't take you  35 through them.  They have become rather well-known.  36 Going over to page, or tab 313, this should have a  37 heading and the heading should be What Must Be Proved?  38 The Attorney-General of Canada adopts the test  39 described in the Baker Lake case.  And I will just  40 review briefly again the elements which the appellants  41 must prove to establish aboriginal title recognizable  42 at common law.  And I say this, of course, with the  43 qualifications or elaborations that we went through  44 this morning.  45 First, that they and their ancestors were members  46 of an organized society.  47 Two, that the organized society occupied the 2077  Submissions by Ms. Koenigsberg  1 specific territory over which they asert the  2 aboriginal title.  3 Three, that the occupation was to the exclusion of  4 other organized societies.  5 Four, that the occupation was an established fact  6 at the time sovereignty was asserted by England.  7 And then I just remind you again that, at page 555,  8 Mr. Justice Mahoney said, in relation to that test:  9  10 "The common law can give effect only to those  11 incidents of that enjoyment of the land that  12 were themselves given effect by the regime that  13 prevailed before."  14  15 We say, at tab 315, taken together with the above  16 quote, the Baker Lake test, it is submitted, is  17 completely consistent with the brief description of  18 aboriginal rights in Sparrow as discussed by the  19 Supreme Court of Canada at pages 397 and 398.  And I  20 won't take you through that, but that description, of  21 course, describes a particular area, it describes a  22 people who have been there as an organized society  23 exploiting the resource in an organized way.  And the  24 lack of exclusivity was part of the organization on  25 the evidence.  26 Tab 316.  If the rights sought are exclusive in  27 nature, as in this case, then such exclusivity must be  2 8 proven to prove the right.  And I simply come back and  29 will summarize this morning's discussion in this  30 context, as follows:  Our position is that ownership  31 and jurisdiction as claimed has a sine qua non  32 exclusivity, there can be no ownership that is not  33 exclusive.  To the extent that exclusivity is not  34 proven, ownership is not proven.  In our submission,  35 however, there are rights of an aboriginal nature  36 which come forth from the organization which,  37 exclusive or not exclusive, as long as they are  38 capable and it can be shown to be exercised in  39 relation to the social organization, are capable of  40 being cognizable at the common law, they are  41 aboriginal rights.  And the lack of exclusivity is a  42 question of evidence, and is a question that goes to  43 whether the rights were exerciseable as rights.  44 And if they are not exerciseable as rights in the  45 pre-existing regime, in our submission, they are not  46 capable of recognition as aboriginal rights at the  4 7 common law. 2078  Submissions by Ms. Koenigsberg  1 Moving on to tab 317.  This also has a heading, it  2 should be called The Additional Test - Long-Term User.  3 And I am here dealing with the Chief Justice's  4 addition --  5 TAGGART, J.A.:  This is tab?  6 MS. KOENIGSBERG:  Tab 317.  I am here going to deal with the  7 test added by the Chief Justice to the Baker Lake test  8 called the long-term user test, and it's specifically  9 attempting to deal with the appellants' objections to  10 the use of that test.  11 Paragraph 317.  It is submitted that the trial  12 judge was correct in his formulation of tests for the  13 existence of aboriginal rights.  He adopted the test  14 in Baker Lake and added an additional element of  15 long-term aboriginal user.  The appellants, in their  16 factum, take issue with the test of long time user --  17 I think it should be long time user -- on three bases:  18 First, that it is a corollary to the proposition that  19 aboriginal societies are frozen at a certain point in  2 0 their development.  21 Second, that is "test" errs in elevating a matter  22 of evidence to a legal principle.  23 And third, such a test imposes a nearly impossible  24 task of sifting aboriginal activities from a society  25 which was growing and evolving.  26 At 318 I will be dealing first with the frozen  27 rights theory.  28 The first objection by the appellants is that the  29 test is another invocation of the frozen rights  30 theory.  This objection suggests that defining  31 protected rights of aboriginal people with reference  32 to the activities they were engaged in at contact,  33 freezes their society.  The flaw in this concept is  34 that it equates changes in society with recognition  35 and protection of specific rights.  All societies  36 change over time.  Economic activities change over  37 time in response to a multitude of factors.  The issue  38 is:  What does the common law recognize and protect as  39 an aboriginal right and what rights do Indian people  40 hold as Canadian citizens?  This respondent submits  41 that the aboriginal rights specifically recognized and  42 protected by the common law and now by section 35 of  43 the Constitution, are those rights which pre-existed  44 British sovereignty or the coming of Europeans.  Those  45 rights describe aboriginal, pre-contact life.  With  46 Europeans came other economic opportunities.  47 Europeans brought different ways of living in the 2079  Submissions by Ms. Koenigsberg  1 environment.  As European settlement took place a new  2 regime and different opportunities for economic  3 activity were put in place and aboriginal people  4 became part of that regime.  Rights relating to  5 economic and cultural life were part of the new  6 regime.  Aboriginal people had then rights arising  7 from their pre-existing society as recognized in the  8 new regime and rights as citizens of the new regime  9 regardless of their aboriginality.   You have heard  10 parts or another shade on that particular argument  11 made to you in previous cases, by myself, and in a  12 nutshell I can summarize if for you by saying that our  13 position is that aboriginal rights, as now  14 constitutionalized in section 35, are special rights,  15 in addition to all of the other rights which Indian  16 people have as Canadian citizens.  And that the  17 concept of the evolution of an aboriginal right into  18 today's economic opportunities and economic  19 activities, is a failure to recognize that aboriginal  20 people and aboriginal rights are part of the common  21 law.  They are not separate from it.  There is no  22 defined homeland within which aboriginal society  23 exists as a whole.  As a culture, as a people, as a  24 distinct people, they exist.  But as an entity of  25 juridical, political independence, they do not exist,  26 they are part of Canada.  And, in my submission, to  27 suggest that aboriginal rights are frozen, and that  28 aboriginal people are not allowed to develop, if you  29 say that the content of their special rights relates  30 to pre-contact activities, is to confuse distinctive  31 culture existing in a Canadian system, with a  32 distinctive nation.  And it is the position of the  33 Attorney-General of Canada that as far as aboriginal  34 rights in the common law are concerned, they are not  35 rights which have evolved into a distinct, separate  36 sovereignty.  But that is what is at the base, in our  37 submission, of the characterization of long-time user  38 or any other characterization of the need for  39 aboriginal rights to be seen as evolving and  40 incorporating today into yesterday.  41 And to come back, the appellants have relied upon  42 the description in the Sparrow decision as support for  43 the notion that the frozen rights theory has been  44 discarded by the Supreme Court of Canada.  45 And at paragraph 319 I deal with that briefly, and  46 I say that -- and here you really need to add this as  47 a reference.  It's page 397 of the Sparrow decision, 2080  Submissions by Ms. Koenigsberg  1 which is found at volume 1, tab 22.  But it's that  2 description of the frozen rights theory relates not to  3 the evolution of an aboriginal right, and its  4 description and definition, it relates to whether,  5 when determining what an existing right is in 1982, if  6 that right incorporates the regulations in place in  7 1982, freezing the right at 1982, with the regulations  8 on it.  And further support for that interpretation of  9 Sparrow can be found in the Arcand case, where there  10 is a lengthy description of the frozen rights theory  11 in relation to regulation, contrasting it with the  12 original rights theory.  And, that the Arcand cases,  13 A-r-c-a-n-d, is found at volume 18, tab 45.  14 We are not suggesting, on the other hand, that an  15 aboriginal right defined by -- in terms of its content  16 by pre-contact activity within a social organization,  17 cannot be exercised in a contemporary form.  It can.  18 But it cannot be transformed into something completely  19 different.  20 On to tab 320.  Aboriginal society changed as a  21 result of contact with European society.  It is  22 submitted those changes in aboriginal society do not  23 constitute evolved pre-existing rights.  After contact  24 two kinds of rights existed which were recognized by  25 the British legal regime:  Aboriginal rights and  26 rights of Canadian citizens. Aboriginal people have  27 available to them both sets of rights.  28 The second objection is at tab 321, and it should  29 have a heading, it should say the Test errs in  30 elevating a matter of evidence to a legal principle.  31 This objection is based on a misconception of the  32 effect of the long time user test.  It is submitted  33 that in enunciating the test the Chief Justice was  34 doing nothing more than describing, in more helpful  35 terms, the legal requirement that to be recognized by  36 the common law aboriginal rights must be existing at  37 the time of soveriegnty.  The appellants are correct  38 that long time user is a matter of evidence as to what  39 was existing at the time of sovereignty.  It is also a  40 means of interpreting existing.  It is submitted that  41 existing for the purposes of defining a right as  42 opposed to a bare fact, requires sufficient evidence  43 of recognition by a regime, no matter what its form,  44 that it can be discerned as different from a chance  45 happening or an aboriginal practice, neither of which  46 is synonomous with the right.  An aboriginal practice  47 is here defined as an activity carried on by an 2081  Submissions by Ms. Koenigsberg  1 aboriginal person which is carried on without  2 reference to a social organization.  3 And so we say that when you really look at it, all  4 you are talking about when you talk about long time  5 user is a question of evidence and weighing the  6 evidence.  7 Paragraph 322.  It is further submitted that the  8 courts have not set an arbitrary date such as a  9 particular day, month or year, to determine if an  10 aboriginal practice was pre-existing.  For purposes of  11 determining the content of aboriginal rights, the date  12 may be at the time of contact with European traders,  13 if the evidence is clear enough, the advent of  14 European settlement, or the assertion of sovereignty,  15 whichever is earlier.  These concepts describe  16 ascertainable events, any one of which may be most  17 relevant to deciding what are truly aboriginal  18 practices.  It is submitted each date depends on the  19 particular history of the particular claim.  And it is  20 a question of the evidence, because, essentially, we  21 are engaged in looking back and making inferences  22 based upon the evidence that we have.  We may have  23 sufficient evidence at contact to allow us to say what  24 is in the sense what we want it to be, or want it to  25 say, truly aboriginal.  The relevant date may coincide  26 with sovereignty or the assertion of sovereignty.  It  27 may take all of those events.  But the test is to  28 determine the truly aboriginal pre-existing right from  29 that which has developed not from the institutions of  30 the aboriginal society, but in relation to something  31 else, something European.  32 Paragraph 323.  The relevance of the time depth of  33 aboriginal use and occupancy of an area is illustrated  34 by the evidence regarding fur trapping areas.  I had  35 earlier said that the detailed evidence, in particular  36 the archealogical evidence and the -- some of the  37 historical evidence and anthropological evidence  38 relating to this topic will be dealt with by amicus,  39 and it is at tab 7, appendix 1.  40 But if you turn over to 324, for the purposes of  41 illustration, we say that the fur trade likely created  42 the economic climate for fur trapping as a livelihood.  43 Large areas of land, somewhat inaccessible and of a  44 contested nature, on the outer borders of the claim  45 are, where there were competing claims by other  46 aboriginal people, may have been used regularly as  47 trapping grounds only after the fur trade created an 2082  Submissions by Ms. Koenigsberg  1 aboriginal fur rush.  Here again, I would remind your  2 lordships of the kind of evidence that I took you  3 through in relation to an earlier point relating again  4 to the evidence, and on looking back, 1820s and the  5 kind of evidence that we have is not consistent, in  6 our submissions, with traplines, discrete area  7 traplines in the outer areas.  Then we get to 1846 and  8 we don't have any evidence.  We certainly don't have  9 any evidence of contiguous traplines.  And we get to  10 1885 and we don't have any evidence of contiguous  11 traplines, which would correspond to the house  12 territories.  13 My lord, Mr. Justice Lambert, that brings me back  14 to your query to my friend Mr. Wolf, and I would like  15 to address your concern about commercial trapping and  16 the Chief Justice's test this way.  We are not  17 concerned in this case with whether commercial  18 trapping is an aboriginal right.  I want to set that  19 aside.  But we are concerned to know if the use  20 exemplified by the actually registered traplines at  21 this point of areas on the outside the villages, far  22 outside the villages, was aboriginal or in relation  23 only to the fur trade, with no -- with no clear  24 connection to actual use and occupancy of any kind by  25 the aboriginal people pre-contact.  So the inquiry is,  26 and we are looking at outside the core area, and for  27 purposes of argument, let's say, the village sites and  28 a 20 mile radius around them.  Or you could think of  29 the core area as that area not touched by an overlap  30 at this point in time.  And we want to ascertain if  31 the house boundaries or traplines, and there is quite  32 a correspondence between the two, outside that core  33 area, relates to aboriginal activity or European fur  34 trapping activity?  And my submission to you is that  35 if we could find a connection in terms of aboriginal  36 right use of those areas, outside the core,  37 pre-contact, then the fact that they were also used  38 for fur trapping, for commercial purposes, would not  39 defeat a claim that they were aboriginal rights.  It's  40 just another use, and whether that use is a right is  41 another question.  42 So what we are really looking at is the use of the  43 land, and what were their rights as opposed to a  44 practice.  Were their rights to use the land outside  45 the core aboriginally?  And, in my submission, the  46 evidence demonstrates that there is very little, if  47 any, evidence.  The preponderance of evidence is 2083  Submissions by Ms. Koenigsberg  1 against there being rights to use the land  2 aboriginally.  We have a very small amount of  3 evidence, and in particular that which is in Brown, of  4 the use of long distances, a particular hunting party.  5 But we have no evidence that that related to a  6 specified use in terms of the social organization.  In  7 other words, there is no evidence that Smogelgem and  8 his -- and the members of his house, had laid claim to  9 an area 50 miles away from the village, and that that  10 land was being used by those people, the house members  11 on behalf of their house.  There is absolutely no  12 evidence to suggest that that's the case.  And my  13 submission to you is that not only is there no  14 evidence, the evidence of other people coming in and  15 using that area, of that area being used non-  16 exclusively, is contrary to it having been used  17 pursuant to the social organization that is posited by  18 the appellants.  So that the real inquiry is, is there  19 evidence of use as an aboriginal right?  Do we see the  20 allocation and control of lands which we do see around  21 the village, related to the social organization?  Do  22 we see that out in the hintelands?  And my submission  23 to you is we do not.  We see evidence to the contrary.  24 And what evidence we see of use is non- specific and  25 not related to the social organization.  It's an  26 inference and -- that it is related to the social  27 organization, and one which, in my submission, is not  28 borne out by the evidence.  It's not an inference that  29 you can make without ignoring the contrary evidence.  30 And I suggest to you that it is inconsistent with  31 even the lay evidence today of the witnesses, the lay  32 witnesses, who said not everyone of them, but several  33 of them said, "you can hunt big game anywhere.  You  34 follow the game.  But you don't take furs off a  35 trapline.  You don't poach."  And it's the trapline  36 itself, and the game that's on that trapline, that is  37 the subject of the trapline interest.  But there is no  38 evidence of that trapline in that sense in the  39 hinterland in the 1820s.  And there is no evidence of  40 it in 1846 and.  In 1885 there is only evidence of it  41 within a particular area.  Certainly there is no  42 seamless web.  43 So we say, at paragraph 325, this fact pattern, it  44 is suggested, should not qualify the lands then first  45 used to supply that market as the proper subject of  46 aboriginal trapping rights.  This is not to suggest  47 that trapping as a traditional sustenance activity was 2084  Submissions by Ms. Koenigsberg  1 not carried on by the Gitksan or the Wet'suwet'en, but  2 rather that the large and more remote areas now  3 claimed through the trapline evidence in the  4 circumstances should not be accepted as evidence of  5 traditional use.  6 And, again, because there is no evidence of the  7 social organization having anything to do with hunting  8 in the hinterland in the early records.  9 Next paragraph, 326, I am dealing here with the  10 third objection to the long time user, the impossible  11 task objection, and that should be a heading.  12 This objection falls in the face of the evidence as  13 adduced at trial.  It confuses disagreement over  14 findings of fact with an inability to prove facts.  15 There was a great deal of relevant evidence adduced by  16 all parties relied upon to prove the essential nature  17 of aboriginal life in the claim area a long time  18 before contact.  The failure to prove the facts as  19 claimed by the appellants was most often not due to  20 the absence of evidence but because the evidence was  21 contrary to the claims.  And I have gone through some  22 of that evidence and I will just give you a brief  23 example of the other kinds of evidence that I would  24 think of would fit this particular characterization.  25 The evidence of the feasts.  In my submission, the  26 evidence that they don't recite the boundaries in the  27 feast or some chiefs have never heard their own  28 boundaries recited in the feasts is direct evidence  29 against, not an absence of evidence.  The Bear Lake  30 example is not evidence that -- it's not a question of  31 no evidence of jurisdiction in the Bear Lake area,  32 it's a -- it's evidence against the jurisdiction in  33 the Bear Lake area.  The people who lived there, the  34 Carrier, who now belong to the Carrier-Sekani Tribal  35 Council, the people lived there used and occupied the  36 area, trapped there, and the evidence is over 100  37 years ago, did not know that the Gitksan were saying  38 in their feasts at Hazelton, that that land belonged  39 to them.  In my submission, that's not an absence of  40 evidence, that's against the contention of the  41 appellants.  42 Paragraph 327.  Finally, the appellants rely on the  43 Supreme Court of Canada decision in Bear Island to  44 assert that even the case in Baker Lake has been  45 diluted.  It is submitted that the court in Bear  46 Island was not quarelling with Steele, J. 's adoption  47 of the Baker Lake test. Their reasons merely indicate 2085  Submissions by Ms. Koenigsberg  1 that in determining whether the test for an organized  2 society is met no particular form of organization is  3 required.  Such reasons are entirely consistent with  4 the elaboration of the test in Baker Lake, which  5 relies in turn upon the test in Tijani.  The test was  6 adopted by this Court of Appeal in Pasco.  The same  7 test was adopted and applied in Delgamuukw.  If I  8 could just remind you of this, because it has some  9 importance if we were going to suggest that the Bear  10 Island decision in the Supreme Court of Canada is a  11 dilution of the Baker Lake test rather than an  12 application of it, and I suggest it's an application.  13 I have here behind this tab the references.  First of  14 all, the decision of the Supreme Court of Canada is  15 immediately behind the paragraph, and at page 2 down  16 at the bottom, it begins:  17  18 "Reference may be made here to the reasons why  19 Steele, J. refused to find that the Indians had  20 established an aboriginal right."  21  22 I should go back to what they did.  The  23 paragraph above:  24  25 "Steele, J. found that the appellants had no  26 aboriginal right to the land and that even if  27 such a right had existed, it had been  28 extinguished by the Robinson-Huron Treaty of  29 1850, to which the Temagami band was originally  30 a party or to which it had subsequently  31 adhered.  These findings were essentially  32 factual, and were drawn from the mass of  33 historical documentary evidence adduced over  34 the course of 130 days of trial.  35 Reference may be made here to the reasons  36 why Steele, J. refused to find that the Indians  37 has established an aboriginal right.  The gist  38 of these reasons may be found in the following  39 passage from his reasons for judgment at page  40 373:"  41  42 And he says there:  43  44 "'I will deal with the entitlement of the  45 defendants to aboriginal rights in the Land  46 Claim Area.  I find that the defendants have  47 failed to prove that their ancestors were an 2086  Submissions by Ms. Koenigsberg  1 organized band level of society in 1763; that  2 as an organized society they had exclusive  3 occupation of the Land Claim Area in 1763; or  4 that, as an organized society they continued to  5 exclusively occupy and make aboriginal use of  6 The Land Claim area from 1763 or the time of  7 coming of settlement to the date the action was  8 commenced.'"  9  10 And it says :  11  12 "An appeal to the Ontario Court of Appeal was  13 dismissed.  On the assumption that an  14 aboriginal right existed.  15 This case, it must be underlined, raises  16 for the most part essentially factual issues on  17 which the courts below were in agreement.  On  18 such issues, the rule is that an appellate  19 court should not reverse the trial judge in the  20 absence of palpable and over-riding error which  21 affected his or her assessment of the facts."  22  23 That brings us back to the submission I made to  24 you on the jurisdiction of the court, and more the  25 discretion of the court in overturning a trial judge,  26 and it would appear that in fact they did rely on  27 Stein and the "Kathy K", however I would still --  28 HUTCHEON, J.A.: I would like someone to explain the next  29 sentence to me then.  30 MS. KOENIGSBERG:  "The rule is all the stronger in the face of  31 concurrent findings of both courts below"?  32 HUTCHEON, J.A.: Yes.  33 MS. KOENIGSBERG:  I don't doubt it is all the stronger but in my  34 submission they are still saying that the test, that  35 is, palpable and over-riding error, is the test.  36 HUTCHEON, J.A.:  Their findings of fact in the Court of Appeal,  37 is that what you're saying?  38 MS. KOENIGSBERG:  No, there was an acceptance of the findings.  39 LAMBERT, J.A.:  A compelled acceptance by the rule that you can  40 only overturn when there is a palpable and over-riding  41 error.  42 MS. KOENIGSBERG:  That may very well be.  43 LAMBERT, J.A.:  So the compelling sections then say you have got  44 concurrent findings.  45 MS. KOENIGSBERG:  Yes.  But it's interesting just before that,  46 on page 3, in the paragraph, the first paragraph, "on  47 the assumption that an aboriginal right existed." 2087  Submissions by Ms. Koenigsberg  1 And, again, I don't want to belabour this point, I  2 am not suggesting that the test, the application of  3 the test, is the same no matter what you're dealing  4 with.  Clearly, it's a flexible test that has to have  5 regard to the matters that are before you, the nature  6 of the matters before you.  7 Coming back to the point for which I am  8 discussing --  9 TAGGART, J.A.:  Start getting Brownie Points for recognizing  10 stare decisis.  11 MS. KOENIGSBERG:  Yes.  On page four they say that — the  12 Supreme Court of Canada goes on to say that:  13  14 "It does not necessarily follow, however, that  15 we agree with all the legal findings based on  16 those facts.  In particular, we find that on  17 the facts found by the trial judge the Indians  18 exercised sufficient occupation of the lands in  19 question throughout the relevant period to  20 establish an aboriginal right."  21  22 And I underline that in terms of what we can do  23 with this case, and that is an undefined aboriginal  24 right.  25 In this context Simon and Sparrow are quoted:  26  27 "In our view, the trial judge was misled by the  28 considerations which appear in the passage from  29 his reasons quoted earlier."  30  31 And if you then go to the next -- go past the  32 yellow page, I have pulled out the parts of Mr.  33 Justice Steele's decision where he makes certain  34 findings.  And the first page is 373, and I won't  35 re-read the quote, but that's the page upon which --  36 which is quoted in the Supreme Court of Canada  37 decision.  But if you go over then to the next page,  38 which is page 393, this is his discussion of the  39 evidence.  It's under the entitlement to aboriginal  4 0 rights in the Land Claim Area.  And I won't read the  41 first part, but he adopts the Baker Lake test, says he  42 is going to apply it, and then on to page 394 at the  43 top of the page.  He says:  44  45 "On the first question as to the nature of  46 Indian social organization, the defendants must  47 prove that their ancestors were at the relevant 2088  Submissions by Ms. Koenigsberg  1 date members of an organized society, and they  2 must show specifically who were its members.  3 They must also show who are the present  4 members, and must trace links between the two  5 organized societies over time.  I do not accept  6 the proposition that, merely because of some  7 members of the present band are descendants  8 from ancestors who occupied individual family  9 hunting territories in 1763, the existence of a  10 of a band in 1763 occupying any specific  11 territory can be assumed without proof."  12  13 Here, in my submission, he is not applying a test  14 set out in Baker Lake, he is setting a pretty high  15 evidentiary test for tracing the links.  And I think  16 that Simon has dealt with that issue, but that doesn't  17 have to do with undermining the Baker Lake test.  No  18 specific evidentiary standard was set in Baker Lake,  19 only that you had to show a relationship.  20 The next paragraph is even more important, in my  21 submission:  22  23 "Despite what I will later find to be the  24 predominance of family hunting territories..."  25  26 So he finds that in that claim area there are  27 family hunting territories.  28  29 "...aboriginal rights in land must be held by a  30 band."  31  32 And, in my submission, that is the error that Mr.  33 Justice Steele made.  That is not an application of  34 the Baker Lake test.  The Baker Lake test does not  35 establish that there has to be a particular  36 organization, but rather that the organization, an  37 organization must be found which will support the  38 rights claimed.  And if a non-exclusive right to hunt  39 in a particular area was claimed, then findings that  40 the predominance of family hunting territories, that  41 an area was utilized, would, in my submission, be  42 sufficient.  And I think that is what the Supreme  43 Court of Canada was dealing with.  44 And I have just put in there as well the Baker Lake  45 decision, but we don't need to go back through it  46 again.  47 On to paragraph 328.  The heading for paragraph 2089  Submissions by Ms. Koenigsberg  1 328 should be Application of the Baker Lake Test To  2 The Evidence.  It is submitted that the preponderance  3 of evidence supports the trial judge's findings as  4 follows:  5 The appellants' ancestors were, at the time of  6 contact,  members of an organized society or members  7 of organized societies.  8 Two, that the appellants' ancestors occupied  9 specific territories.  10 Three, although the appellants' ancestors were  11 unable to prevent invaders or traders from entering  12 their territory, no other groups established organized  13 societies near the appellants' villages and therefore  14 this part of the test is satisfied.  15 You will remember, as against other organized  16 societies.  17 Four, the appellants' ancestors occupied their  18 villages and used the surrounding areas for aboriginal  19 sustenance purposes for an uncertain long time prior  20 to the establishment of British sovereignty.  21 And the next tab it also has a heading, and that is  22 What was The Nature Of The Appellants' Aboriginal  23 Rights In The Claim Area At 1846?  24 TAGGART, J.A.:  Nature of the appellants' —  25 MS. KOENIGSBERG:  Aboriginal rights in the claim area at 1846.  26 The next few tabs deal with that.  27 Paragraph 329.  It is submitted in this factum at  28 paragraph 294 that aboriginal rights in concept are a  29 bundle of separate and distinct rights, each of which  30 must be individually established.  The nature and  31 scope of each right recognized by the common law, must  32 be defined by reference to the evidence concerning the  33 uses the appellants' ancestors made of the land and  34 its resources at the time of contact with European-  35 Canadian society.  The territorial limits of these  36 rights will also be established by reference to the  37 evidence of the areas used and occupied at and for a  38 long time prior to contact.  39 Paragraph 330.  The uses of the land yielded, it is  40 submitted, three types of rights based on the  41 differing character of the appellants' ancestors  42 occupation and use of the lands.  First we say that  43 they established exclusive possession of specific  44 lands, those being being village sites and fishing  45 sites.  Second, they established exclusive use of  46 tracts of land for the purposes of hunting and berry  47 picking.  The boundaries of those areas we do not 2090  Submissions by Ms. Koenigsberg  1 know.  2 Third, they established that they used lands but  3 they were not in exclusive possession, I emphasize,  4 for hunting, berry picking and fishing.  The character  5 of each of these types and use of occupation will now  6 be examined in relation to the evidence.  7 Paragraph 331.  The trial judge found and the  8 evidence supports his conclusions that the appellants'  9 ancestors at the time of contact lived in a number of  10 identifiable villages located on major rivers with  11 access to good salmon fishing sites.  12 LAMBERT, J.A.:  I got just a little behind you, because when we  13 started here you said it was submitted in this factum  14 at paragraph 294 that aboriginal rights in concept are  15 a bundle of separate and distinct rights, each of  16 which must be individually established.  And I checked  17 back at 294 to see whether there was a backup  18 authority for that proposition, and there isn't at  19 294.  Mr. Jackson was particularly asked during his  20 submission about whether the submission of the  21 appellants' was that they were a bundle of separate  22 and distinct rights, or whether the appellants'  23 submission was that their right of exclusive  24 occupation or shared occupation, and as a part of your  25 right to occupy you may do whatever you wish with the  26 land you occupy, including particular practices or  27 particular rights, but they are subordinate to the  28 overall umbrella right, and Mr. Jackson said that's  29 the appellants' position.  It seems to me that there  30 is going to be a true issue for us to resolve in this  31 case, as to which of those views is the correct one.  32 So I always hope to find authority for the proposition  33 that they are either a bundle of separate rights or  34 that it's possible to have an overall umbrella right  35 under which the separate rights come.  36 I may have missed something in your submission, but  37 if you have got something that demonstrates that or is  38 a very strong support for the view that you're  39 expressing both in paragraph 329 and paragraph 294, I  40 would like to be sure I know what it is and that I  41 haven't missed anything.  42 MS. KOENIGSBERG:  I don't think that I could find you any  43 authority that would say aboriginal rights are a  44 bundle of rights.  I think I can find you authority,  45 and I think I have already cited authority to you that  46 aboriginal rights are not sovereignty rights.  By  47 sovereignty I mean a right to own and use land in your 2091  Submissions by Ms. Koenigsberg  1 discretion.  Now, whether we are talking about, let's  2 take -- maybe the word sovereignty is a bit strong  3 when we think of a fee simple --  4 LAMBERT, J.A.:  Let's scoop "own" out of there.  I don't know  5 that your authorities have ever said that there is  6 no -- that aboriginal rights is not a right to use  7 land in your discretion.  You have said there is  8 authority that they are authority like common law  9 ownership.  10 MS. KOENIGSBERG:  That's right.  11 LAMBERT, J.A.:  But that doesn't mean that the right to use,  12 occupy or possess can't be an umbrella overall right.  13 MS. KOENIGSBERG:  Well, in my submission, it is a question of  14 fact, whether an aboriginal right is a right of  15 exclusive possession which has an element of  16 discretion in it.  And where a right is a right to  17 exclusive possession of a specified area like a  18 village site, one can understand the concept of there  19 being discretion in how you use it.  Because if we  20 were to talk about in terms of a usufruct or just  21 using that as an analog, a usufruct can be everything  22 from total use, if that's specified, to narrow use.  23 And, in my submission, if we are talking about village  24 sites, areas upon which -- around which the social  25 organization exerts total control, then take away  26 sovereignty, there is the right to use it in your  27 discretion, with some limitations.  And, in my  28 submission, the appellants here have rights of that  29 nature in the claim area.  But that does not -- that  30 does not exhaust all of their rights in the claim  31 area.  Because they have rights which include  32 sufficient dominion over land, that it would involve  33 the right to use it for more than one specific  34 purpose, doesn't mean that they don't have lesser  35 rights elsewhere.  And so, in my submission, Mr.  36 Jackson's position depends upon that homeland, we have  37 to draw a big circle around all of the area claimed  38 and say, they own it in some way.  That means that  39 they have the right, because it pre-existed, to  40 utilize all of that land for whatever purpose they  41 wish.  That is an ownership right, in my submission,  42 akin to an ownership right.  If you have got the right  43 to ownership, you have got that.  44 LAMBERT, J.A.:  But you can have that without ownership.  45 MS. KOENIGSBERG:  You can have that without ownership if you had  46 it without.  47 LAMBERT, J.A.:  Quite so. 2092  Submissions by Ms. Koenigsberg  1 MS. KOENIGSBERG:  And my submission is that when we talk about  2 bundle of rights, it is simply a way of saying that  3 aboriginal rights are not one thing, they are many  4 different things and you have to look at how they  5 lived and what they did and what those rights were and  6 then describe them.  And, in my submission, the  7 appellants make out a case in some places for  8 exclusive possession, as close as you can get to  9 ownership absent a proprietary interest, the right to  10 dispose of it, all the way to a right to use land  11 that's unattached to a specific piece of land.  Which  12 is about as far away from a land interest as you can  13 get, except you're using the land.  And that's a right  14 to hunt non-exclusively.  15 LAMBERT, J.A.:  The fact that the practice was entirely non-  16 exclusive to hunting doesn't resolve the question with  17 which we are at the moment struggling.  That's just  18 the only demonstrated use in the evidence.  But if the  19 social organization said this is the land of a  20 particular House and, as far as we are concerned, they  21 have the exclusive right to use it for anything they  22 want but, of course, it's only good for hunting  23 mountain goats, but they can use it for anything they  24 want, then that would be a recognition that they had a  25 complete right.  26 MS. KOENIGSBERG:  I don't quarrel with that, I agree with that.  27 I say that the evidence does not demonstrate, and not  28 through a lack of it --  29 LAMBERT, J.A.:  You say in order to prove that it has to go  30 beyond the actual use that was made of it back into  31 the organization of the community?  32 MS. KOENIGSBERG:  Yes.  And I don't want to be taken — one of  33 the difficulties here is that there aren't fast rules.  34 If you had, for some peculiar reason, no evidence  35 whatever of the actual nature of the social  36 organization, but you had a lot of evidence of a lot  37 of use, then I would say you could infer from that use  38 what the social organization was.  It's all just  39 evidence from which, in my submission, you have to  40 make inferences, but what you would be able to do is  41 to come to the conclusion that there is a social  42 organization which is directing the use that you see.  43 And so I say if there is evidence that a particular  44 group of hunters went 30 miles from a village, and in  45 terms of the surrounding circumstances there is no  46 evidence that that's a regular thing or it belongs to  47 anybody, then that is not evidence of social 2093  Submissions by Ms. Koenigsberg  1 organization, and it is not evidence of an aboriginal  2 right.  It is evidence of an aboriginal practice.  3 Because we can contrast that with the evidence of  4 rights to hunt being practised.  And, in my  5 submission, those then break down into a variety of  6 rights or non-rights.  Because, we will say, maybe it  7 would be helpful to show you, we say that if you look  8 at this claim area, and if we were to put that  9 overlap, overlay on it, there is a core in here which  10 I think meets the description of organized use of land  11 for a variety of purposes.  And it doesn't matter  12 whether we only know that they trapped here, and we  13 only know that they fished here and we only know that  14 they picked berries there, we know that that use is  15 part of the social organization.  And, in my  16 submission, that is an aboriginal right to use that  17 land.  It comes from the organization.  And it's not  18 relevant whether they happen to hunt goats there or  19 they happen to do something else there.  But it is a  20 right only to use it for resource gathering.  21 LAMBERT, J.A.:  Are you saying that that extends over the area  22 delineated by the Chief Justice as -- that is, you  23 said there and pointed to the map, and it isn't clear  24 from the transcript just exactly what areas you are  25 talking about.  26 MS. KOENIGSBERG:  Let me start from the bottom.  The area is cut  27 off below the red line on the aide-memoire handed up  28 to you today by Mr. Wolf.  It just shows map 5 from  2 9 the judgment.  And the area that is in the extreme  30 north, above the line, and in the extreme south below  31 the line, the trial judge found was not the subject of  32 aboriginal rights.  Period.  And, in my submission, he  33 was correct.  And that is that we say that there is  34 insufficient evidence, by a long shot, of use through  35 a social organization pre-contact.  What evidence of  36 use there is is traplines long after 1846.  This may  37 or may not, and likely does, correspond to the areas  38 that might have been utilized as Trader Brown  39 described hunting in the hinterlands.  But there are  40 only a few references to that.  41 Within the area inside the lines where the Chief  42 Justice excluded aboriginal rights, and he was correct  43 to do so, because the activity was not a right, we  44 say, but areas of exclusive use and exclusive  45 possession, being the villages and immediately  46 surrounding areas, and then there is a larger area,  47 which is the core area, which we say is the subject of 2094  Submissions by Ms. Koenigsberg  1 aboriginal rights because we can see social  2 organization in the exercise of those rights.  And  3 those rights you can break down even further.  They  4 will be, some of them will be exclusive possession  5 rights, some of them will be non-exclusive possession  6 rights, some of them will be use rights that only  7 touch land but don't relate specifically to land.  8 They are all within here.  And we say they are rights  9 because they emanate from the pre-existing regime.  We  10 can see some evidence, even if it's not overwhelming,  11 we can see some evidence that the use of it is  12 directed by the social organization.  13 I don't know if that makes the point --  14 LAMBERT, J.A.:  Yes.  15 MS. KOENIGSBERG:  — of the differing areas clearer.  16 TAGGART, J.A.:  Would it be convenient to take five minutes?  17 MS. KOENIGSBERG:  Yes.  18  19 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  20  21 MS. KOENIGSBERG:  I am going to skip over some of these  22 paragraphs.  Paragraphs 332 and 333 are simply a  23 further description of what we say the evidence shows  24 in terms of actual use, both exclusive and non-  25 exclusive.  26 But if you can turn over to 334, we say it is  27 submitted that the village sites and specific fishing  28 sites are land interests with several incidents of  29 ownership, most particularly, exclusive possession of  30 a defined land base.  This is not a proprietary  31 interest in the technical property law sense because  32 of its inalienability.  But we say this is an instance  33 of a land interest or a legal interest in land which  34 fits the description in the case law in Canada, which  35 is a description which does not amount to proprietary  36 interest but can compete with proprietary interest in  37 the sense that is used in CP and Paul.  38 But I also pause to say that I think it's at this  39 point and in considering this particular type of  40 interest, that Mr. Justice Brennan's decision in Mabo  41 is interesting.  And I don't pretend to have had the  42 time -- wouldn't do me any good to pretend I had the  43 time -- to actually try and digest this decision of  44 Mabo.  I do want to say something about that.  It is  45 obviously relevant, it is important.  I have had time  46 to read Mr. Justice Brennan's decision fairly  47 carefully, and what came to my mind is that it's 2095  Submissions by Ms. Koenigsberg  1 mightily confusing and it would take me many hours to  2 give you a clear submission on how I think parts of it  3 fit with what we have said.  4 I want to give you an example, because I did  5 wrestle with it a little bit, and that is that I think  6 that it could fairly be said that Mr. Justice Brennan  7 seems to be saying that the aboriginal interests that  8 he is describing are proprietary.  9 HUTCHEON, J.A.:  Yes.  10 MS. KOENIGSBERG:  And, in my submission, it truly illustrates  11 the -- one almost begins to wonder if it's not dancing  12 on the head of a pin, whether the right is proprietary  13 or not.  And I say this because he says it is not  14 ownership.  And that he says at page 64.  And he says  15 it is a right which can be extinguished without  16 compensation being payable.  Those are two things  17 which, in my submission, are somewhat inconsistent  18 with a full proprietary right.  However, I think it's  19 even more interesting, at page 40, where he describes  20 his idea of its proprietariness.  And he says at the  21 top of page 40:  22  23 "If it be necessary, if it be necessary, to  24 categorize an interest in land as proprietary  25 in order that it survive a change in  26 sovereignty, the interest possessed by a  27 community that is in exclusive possession of  28 land falls into that category."  29  30  31 And he goes on to describe a communal right.  My  32 submission to you is this:  That if that's as good as  33 it gets in terms of proprietary, Mr. Justice Brennan  34 need not be concerned, because I think that Guerin,  35 following Tijani, have made it very clear that an  36 interest in land which is presumptive title only,  37 survives the changes of sovereignty.  That the  38 interest in land we are describing as everything but  39 proprietary have survived.  It need not be proprietary  40 to survive.  And, in my submission, if Mr. Justice  41 Brennan had adverted to that, I wonder if he would  42 have described it as proprietary, simply because he  43 notes it is inalienable, and it is frail, in the  44 sense -- and he won't call it ownership.  And, in my  45 submission, he doesn't call it ownership because he  46 cannot find the essential incidents of common law  47 property law.  But when we talk proprietary, that is 2096  Submissions by Ms. Koenigsberg  1 what we are talking about and, in my submission, all  2 of the law, in particular the Supreme Court of Canada,  3 has said to us it is not traditional property law, it  4 is not -- it's sui generis.  It has incidents of  5 ownership.  But as Mr. Justice Dickson said in Guerin,  6 it is not even beneficial ownership.  7 LAMBERT, J.A.:  May I ask you, what do you understand to be the  8 difference between a proprietary interest and a non-  9 proprietary interest?  10 MS. KOENIGSBERG:  I was afraid you were going do ask me that  11 question.  Because one can become rather metaphysical  12 about it.  The difference is essentially its  13 alienability, but to say its alienability is to  14 negate -- I see your lordship doesn't agree with  15 that -- but let me say why I say that it is.  Its  16 alienability is a way of expressing that it is yours  17 to dispose of, that you exercise ownership over it,  18 that it is yours in that full sense that we think of  19 as ownership, even as -- as against an allodial title.  20 And, in my submission, if you go into the  21 jurisprudence on -- as I did venture on your  22 lordships' instructions and come out not very far  23 ahead -- you get into proprietary versus personal.  24 What you get, what you end up with is kind of a  25 philosophical discussion about value, property is its  26 value.  It can be disposed of, you can put a value on  27 it.  You don't have to dispose of it, I suppose, to  28 determine its value, but if you can't dispose of it,  29 it's difficult to value it.  And it becomes  30 metaphysical because it's very difficult to figure out  31 where the line is between that which we call property  32 which is not alienable from that which we call  33 property which is alienable.  And an example is in the  34 good old days when married women could not dispose of  35 their property, but you still called it property.  36 LAMBERT, J.A.:  I would be wrong then, in your submission, to  37 say that a proprietary right is a right in which the  38 duty is owed to you by everyone in the world, and that  39 personal right as contrasted with it is a right that  40 is particular to you and the limited range of people  41 who owe you a duty in respect to?  42 MS. KOENIGSBERG:  I think that describes it but I don't think  43 that is the essential --  44 LAMBERT, J.A.:  The essential nature is whether it's in rem,  45 it's good against the world or it's just good against  46 individuals?  47 MS. KOENIGSBERG:  I would say yes, that I thought that it was 2097  Submissions by Ms. Koenigsberg  1 essential that it be good against the world as only a  2 personal right.  But I would say that even if it had  3 that, if it can't be alienated, then it is missing the  4 essential feature.  And I go back to the earlier part  5 in my submission where I set out the specific  6 definitions of property, and you get to a usufructuary  7 and you get to absolute title and you start going from  8 absolute title to all the titles that follow from it.  9 And essentially what you can do is peel off interests,  10 but the property remains in the owner.  11 LAMBERT, J.A.:  So if you had a fee tail, land in fee tail, you  12 wouldn't have a proprietary interest in the land?  13 MS. KOENIGSBERG:  No.  And it's interesting that you say that,  14 yes, you do.  If I go to my example, because I am more  15 comfortable with it, having read it more recently, the  16 Married Women's Property Act, or married women's  17 property issue.  When women could not dispose of their  18 property, you would not have said they didn't have  19 any, you would have said the interest they have is  20 property.  But there is another way to look at it, my  21 lord, and we are dancing on the head of a pin here,  22 it's very hard to find out where the lines are.  It  23 also relates to the woman's status, and because she  24 can't dispose of it it is almost entirely a question  25 of her status as opposed to -- in other words, it's  26 almost entirely a personal right as opposed to a  27 property right in her hands.  But nevertheless, in our  28 law we would say it's a property right.  And that to  29 me demonstrates how difficult it is in terms of  30 crossing the line, but I am not sure that we have to  31 worry about that in particular, because the fact is  32 that land, in order to be considered proprietary  33 technically, has to be alienable --  34 HUTCHEON, J.A.:  What about a life estate?  35 MS. KOENIGSBERG:  — and not proprietary.  You have to be able  36 to get the value from it. It has to be in your  37 discretion to get the value from it.  38 HUTCHEON, J.A.:  Life estates are property rights, life estates,  39 but they are not alienable.  40 MS. KOENIGSBERG:  I agree.  Well, I should say I can't debate  41 with you how you get to that.  And that's why I say to  42 you that it is -- I find it very difficult to find out  43 where you cross the line.  But, clearly, the -- in the  44 jurisprudential discussions of property versus  45 personal, the contrast is between status, being  46 personal rights, and property, being things of value,  47 and being able to value them.  And of course you can 2098  Submissions by Ms. Koenigsberg  1 value a life estate, you can trade your life estate,  2 you can give someone an interest in your life estate,  3 but you can't get rid of the interest to them.  And  4 where you fall in trying to parse through that  5 argument, I am simply not sophisticated enough to do.  6 But I would say to your lordships when in these cases  7 they are talking about property and property law, and  8 personal versus property rights, or personal versus  9 proprietary rights, it is the inalienability which is  10 the hallmark, is the difference.  And I say that that  11 has some importance.  12 LAMBERT, J.A.:  Inalienability unquestionably has importance.  13 But I don't understand why we have to categorize this  14 right.  You said in passing that you don't think it  15 matters very much whether it's proprietary or non-  16 proprietary, what you have to do is understand its  17 characteristics.  And I would certainly agree with  18 that if I truly understood you to say that, that to  19 keep dwelling on this distinction whether it's  20 proprietary or non-proprietary, doesn't seem to me in  21 the end to be helpful.  22 MS. KOENIGSBERG:  I agree with your lordship.  There are only a  23 few questions that whether it's proprietary or not  24 assists, but is not determinative.  For instance,  25 whether compensation is payable.  It doesn't determine  26 but it helps.  If it is proprietary, if we are just  27 prepared to say well obviously it's proprietary, then  28 certain things would follow more naturally than not.  29 Whether you can take it, as the Crown does, without  30 consent.  It's easier to work back if you say, it's  31 not proprietary.  But that doesn't dispose of that  32 question either, in my submission.  So the submission  33 is directed to -- this is not a hurdle, in my  34 submission, that the appellants can get over by simply  35 saying well the law is obvious that it's proprietary.  36 I say the -- some of it, some aboriginal rights are  37 nearly proprietary.  They certainly can compete with  38 proprietary interests.  39 And, believe it or not, that's all I am going to  40 say about the Mabo decision.  41 I would ask your lordships if we might perhaps  42 provide your lordships with written submissions on it,  43 on the various topics, but I can't tell your lordships  44 that we could have it before maybe mid next week.  It  45 would take a bit of time to try and work through what  46 I think are some very distinguishing circumstances.  47 TAGGART, J.A.:  I think this is going to come up again in -- at 2099  Submissions by Ms. Koenigsberg  1 the behest of other parties, and I think we ought to  2 make no decision on that at the moment until we see  3 how we fare, at least during the remainder of this  4 week.  By that time it will become clear that the Mabo  5 case may require additional written submissions from  6 the parties, and I am using it only as a single  7 example, because that has so far reared its head.  I  8 want also to give some thought to the circumstances  9 under which we will receive those written submissions.  10 All too frequently they come pouring in without so  11 much as a by-your-leave, and all we have on our hands  12 is a mess of non-responsive written material that  13 is -- that requires a more astute mind than mine to  14 comprehend.  So some method has got to be evolved to  15 deal with things that the parties may want to add to  16 their submissions during the course of that.  But I  17 think better to leave that aspect of the matter at  18 least until the end of this week, until we see what  19 the demand is for that type of thing.  And we can then  20 formulate a rule that will apply, not only to Mabo,  21 but other things as well.  22 MS. KOENIGSBERG:  I think I have given you my submissions on the  23 next tabs up to page 342.  24 TAGGART, J.A.:  I think — I don't expect you to run out and  25 start typing after your submissions.  26 MS. KOENIGSBERG:  That is good because it would be an  27 insurmountable hurdle.  28 TAGGART, J.A.:  On the Australian case, I think it would be  29 preferable for you to wait and see what develops  30 during the week with respect to the case and see how  31 we are going to handle it.  32 MS. KOENIGSBERG:  Thank you, my lord.  33 I have already described the different kinds of  34 interests which we say the evidence demonstrates:  35 exclusive, non-exclusive and non-rights in relation to  36 the hunting evidence, the berry picking evidence and  37 so on.  38 We go on to 342.  It is submitted that the  39 adoption by the trial judge of alternative number  40 three in drawing his boundaries for sustenance  41 interests in the end, regarding the extent of  42 territory used by the appellants' ancestors on the  43 evidence includes some areas which were not used by  44 the appellants' ancestors and other areas, such as  45 Bear Lake and the Skeena River west of Chig-in-kaht,  46 which were used by other native groups.  And we say  47 alternative two captures the areas which correspond 2100  Submissions by Ms. Koenigsberg  1 most closely to rights as defined in this argument.  2 However, we have decided, and we have already said to  3 your lordships, that we consider that number three is  4 generous, but I did want you to understand that the  5 generous is in relation to actual evidence of non-use  6 of some of the areas that are included in the  7 alternative.  8 Paragraph 343.  An analysis of the use and  9 occupation evidence given by the appellants' lay  10 witnesses supports the following observations:  11 First, the Chief Justice's characterization of  12 vast amounts of the claim area as empty of observeable  13 use is accurate.  That you would get by some of the  14 evidence that I have adverted to, but by looking at  15 the evidence which is compiled in appendix A.  16 (b) The evidence supports the analysis of the  17 appellants' aboriginal rights as set out in paragraphs  18 328 to 340 of this factum.  We have just zoomed  19 through those.  20 (c) The northern and southern extremities of the  21 claim area as defined by the Chief Justice in part 16  22 of the reasons, were not used.  This evidence supports  23 the Chief Justice's boundary drawing in alternative  24 number two.  And the analysis is also set out in  25 appendix A.  26 And if we can then go -- that completes the  27 submissions on rights.  And I will make some very  28 brief submissions on extinguishment.  29 Your lordships will be glad to know that another  30 new decision has come out I received June 17th.  And I  31 have not had a chance to read if very carefully, but  32 it deals -- it's an American decision, State of  33 Vermont versus Rawley Elliott.  It was pronounced on  34 June 12th and deals specifically with extinguishment,  35 and upon my brief reading of it supports the position  36 taken by this respondent and the province.  It may  37 even go further.  38 If I can hand that up, and I am not going to make  39 any specific submissions on it, but others may.  And I  40 am advised that decisions like this and Mabo will be  41 going into A-39, that's the additional authorities  42 volume.  This decision does deal with the Santa Fe  43 test, and what has been known as the weight of history  4 4 argument.  45 HUTCHEON, J.A.:  Is that a term of art?  I notice Mr. Justice  46 Brennan used it when he was talking about the rights  47 that have disappeared. 2101  Submissions by Ms. Koenigsberg  1 MS. KOENIGSBERG:  I don't — it's not a term of art, unless  2 art's become very abstract.  It is, I think, a  3 description of historical reality and, in my  4 submission, it has varying applications to whether  5 extinguishment, diminishment or modification or  6 interference has taken place.  And I think that the  7 weight of history or what has happened, is extremely  8 important in determining aboriginal rights.  I also  9 think what aboriginal rights are existing, I also  10 think it also has importance in terms of Mr. Taylor's  11 argument in terms of the core, if one accepts that  12 analysis, it becomes very important to understand the  13 facts and when things happened, and as of when one is  14 going to measure interference with an aboriginal  15 right.  I am not going to make extensive, by any  16 means, submissions on extinguishment, and I would like  17 to begin by saying that the province has made  18 submissions on extinguishment which are so close to  19 those which I have already made to your lordships in  20 previous cases, that I could hardly tell the  21 difference, with this exception:  That the argument  22 which he developed in relation to 91(24) and section  23 35 was not advanced by the Attorney-General of Canada  24 as an interesting and in fact perhaps correct, as I  25 think that might be, it is not part of the submissions  26 of the Attorney-General of Canada.  But leaving that  27 analysis aside, his argument on extinguishment as to  28 the test, its application, site specificity, is  29 exactly the same, right down to the use of the test in  30 Sioui, for reconciling treaty rights with provincial  31 uses as a good way of determining irreconcilable  32 differences stays the same.  And I adopt it.  And I  33 would simply like to go through this argument, this  34 volume, and volume 28 contains our argument on  35 extinguishment, and is -- and the references.  And I  36 would like to read through it as quickly as possible  37 and I will be skipping quite a lot.  38 We say that the appellants argue, and that is  39 paragraph 345, that "extinguishment of aboriginal  40 title could only be effected by purchase of the  41 appellants' territory with their consent.  42 Alternatively, extinguishment might be effected by  43 express federal legislation demonstrating a clear and  44 plain intention to extinguish the appellants' title to  45 their land.  And the reference for that, of course, is  46 part A of the appellants' factum.  47 This respondent says that neither alternative 2102  Submissions by Ms. Koenigsberg  1 means of extinguishment suggested by the appellants  2 represents the law of Canada, including the most  3 recent pronouncments of the Supreme Court of Canada in  4 Horseman, Sioui and Sparrow.  5 And up to paragraph 361, and maybe just for the  6 sake of summary, if you turn over to the next one,  7 347, I will go through the list of what we say are the  8 parts of extinguishment, the test for extinguishment,  9 then we will skip over to 361.  10 At 347 we submit that it is submitted that the law  11 relating to extinguishment of aboriginal rights prior  12 to 1982 admits of the following characteristics:  13 First, aboriginal rights are held at the pleasure  14 of the Crown and may be extinguished by a unilateral  15 act of the Crown.  16 Second, the sovereign may choose the means of  17 extinguishment.  18 Third, the extinguishment may be accomplished  19 through a series of acts.  20 Fourth, the intent to extinguish must be clear and  21 plain.  22 Fifth, extinguishment may be either explicit or  23 implicit.  24 And, finally, legislation which merely regulates  25 an aboriginal right in however much detail, will not  26 extinguish the right.  27 You have heard my submissions and Mr. Taylor's  28 submissions on that, on that law.  But if we turn over  29 to paragraph 360 we get into our analysis of the site  30 specificity and this bears on remedies but is not our  31 argument on remedies.  32 We say applying the test for extinguishment to  33 rights of hunting and berry picking defined as above  34 in part III, section one, paragraphs 329 to 344 of  35 this factum results in the following analysis.  And I  36 zoomed through that but I was there talking about  37 there are rights which may be exclusive and there are  38 rights which may be non-exclusive.  And if they are  39 exclusive and relate to specific areas, they will have  40 one character, of course.  But if they are rights  41 which are exercised generally over any place, then  42 extinguishment will be very different in its  43 application.  44 Rights which use land but do not attach to any  45 specific lands are sufficiently ephemeral, in terms of  46 land, that extinguishment may never take place.  As  47 long as hunting and berry picking can take place 2103  Submissions by Ms. Koenigsberg  1 reasonably near the areas previously used, no part of  2 the test enunciated above has been met.  The right to  3 hunt animals or pick berries can still be exercised  4 wherever the animals are and the berries grow. And we  5 say that this has relevance to the notion of  6 diminishment or diminution or modification, and I gave  7 you that example of if you -- if there is a land  8 grant, which is found to be a fee simple, for  9 instance, which is found to be totally inconsistent  10 with the ability to hunt on the land where that grant  11 is, how can it be said that that fee simple  12 extinguishes a communally-held aboriginal right to  13 hunt which is exercised over vast other lands?  It has  14 been diminished to the extent that that right cannot  15 be exercised on black acre, but that right can be  16 exercised.  And, in my submission, it doesn't meet the  17 test of extinguishment of the right, but does diminish  18 that right and it diminishes it permanently in terms  19 of black acre.  20 If we turn over to paragraph 361, I say it's this  21 respondent's submission that to determine whether  22 aboriginal rights have been impacted by legislated  23 uses in such a way that extinguishment or diminution  24 has taken place requires a detailed analysis of the  25 aboriginal use and the legislated use in question,  26 such as the analysis undertaken in Sioui.  It is  27 submitted that while the court can determine the  28 principles to be applied, the facts in this case range  29 over such a vast area that except for particular  30 examples it is inappropriate for this court to  31 determine the issues on an acre-by-acre or even mile-  32 by-mile basis.  Such an analysis, should it be  33 required, is better left to a reference to a registrar  34 or similar proceeding.  Appendices A and B of this  35 factum contain a detailed analysis of all of the  36 evidence of legislated uses and use and occupancy  37 evidence.  And I do recommend that you have a look at  38 it, and I think that it will illustrate for you the  39 difficulty, that as compendious as the evidence was,  40 it was not sufficient, in my submission, to fairly  41 litigate a specific aboriginal right or use, and  42 whether that specific aboriginal right or use has in  43 fact been extinguished, diminished, modified or  44 interfered with.  And we can test that, and I think my  45 lord Mr. Justice Macfarlane alluded to this in looking  46 at lawsuits like Alcan and the Carrier-Sekani.  The  47 amount of evidence to fairly litigate such an issue, 2104  Submissions by Ms. Koenigsberg  1 is -- would be large.  And to get the nuances, because  2 it will not be clear in most instances by the mere  3 grant, even if you were to decide that clearly a fee  4 simple will extinguish.  If your lordships were to  5 decide that, it still would not be clear on the  6 evidence what effect a given fee simple has had in  7 this vast area, and whether it has impacted on a right  8 and had the effect of extinguishing it or whether it  9 diminished it in part or hasn't touched it at all.  10 At paragraph 362 we say the appellants argue that  11 the sovereign cannot extinguish aboriginal rights  12 without the consent of the aboriginal people.  We have  13 dealt with the test for extinguishment in Part III,  14 section 2(a) of this factum.  To summarize, the common  15 law applicable to Canada is clear.  Until 1982  16 aboriginal rights were held subject to the goodwill of  17 the sovereign.  Consent was not required to effect  18 extinguishment.  And if I can make one more comment  19 about the site specificity, and what your lordships  20 are faced with, and this relates to the issue of the  21 kinds of remedies which are being sought by the other  22 parties.  When we make the submission to your  23 lordships that it would be a task which would not only  24 be daunting but likely could not result in a just  25 result, if you attempted to delineate acre-by-acre on  26 the basis of the evidence adduced.  That does not  27 mean, in our submission, that you cannot make  28 decisions and are not being called upon, on the  29 evidence and on the arguments, to make decisions as to  30 categories of rights.  That is, a decision as to  31 whether aboriginal rights are those as posed by Mr.  32 Jackson, rights of exclusive possession which move  33 like an umbrella around the whole area, or whether  34 they are specific rights, which may include exclusive  35 possession and other kinds of rights.  36 The nature of the rights, in my submission, you  37 have more than enough evidence to determine.  Where  38 exactly they are being exercised, in my submission,  39 you do not have to determine.  You do not have to  40 determine where precise boundaries are, unless your  41 lordships should decide that aboriginal rights are  42 capable of being ownership and jurisdiction as  43 claimed, in which case your lordships would have to  44 determine the boundaries.  But, in our submission,  45 those rights are not capable of bearing those  46 appellations or that description.  And, therefore,  47 boundaries are not essential.  They are part, you 2105  Submissions by Ms. Koenigsberg  1 could think, of the site specificity problem.  But the  2 nature of the rights, the content of the rights, in  3 our submission, are before your lordships and you have  4 more than adequate evidence to determine them.  5 The second thing in relation to extinguishment  6 is --  the test for extinguishment is, of course,  7 before your lordships and, in my submission, when I  8 say test, I mean what the Chief Justice determined was  9 the test for extinguishment, not necessarily his  10 application of that test.  So, for instance, those  11 characteristics of extinguishment which I took your  12 lordships through and which we say are the  13 characteristics of extinguishment, the right of  14 extinguishment, and they are set out at tab 347.  And  15 you have heard a much more elaborate discussion of  16 each one of those characteristics.  And your lordships  17 can decide that and, in my submission, should decide  18 that, what the test is.  19 I would now like to move on in the last few minutes  20 to briefly take you through the argument in response  21 to the appellants' argument on consent being a common  22 law principle, the need for consent to extinguish  23 being a common law principle and that it is a  24 constitutional convention.  25 And we say, this is at paragraph 363, it is  26 submitted that to characterize a common law principle  27 as a constitutional convention is to misappropriate a  28 concept and misunderstand what a constitutional  29 convention is and its purpose.  By definition, the  30 common law is judge-made law, which evolves and  31 changes with the society within which it is applied.  32 Constitutions, on the other hand, are rules embodied  33 in statutes which by their nature are more difficult  34 to change than ordinary statutes.  Constitutional  35 conventions are a means of giving flexibility to such  36 rigid legal rules without changing the law itself.  37 Professor MacGregor Dawson discusses the purpose of a  38 constitutional convention in this way: and there is a  39 quote there, and I won't read it to you, but it  40 essentially reflects that it is to give flexibility.  41 And in the case Re: Resolution to Amend the  42 Constitution, just at the bottom of the page there is  43 a quote, where the majority said:  44  45 "The main purpose of constitutional conventions  46 is to ensure that the legal framework of the  47 constitution will be operated in accordance 2106  Submissions by Ms. Koenigsberg  1 with the prevailing constitutional values or  2 principles of the period."  3  4  5 Over to paragraph 365, we say it is worthy of note  6 that the difference between statute law and  7 conventions, as well as the difference between common  8 law and conventions were discussed by the majority in  9 Re: Resolution to Amend the Constitution.  10  11 "The proposition was advanced on behalf of the  12 Attorney-General of Manitoba that a convention  13 may crystallize into law and that the  14 requirement of provincial consent to the kind  15 of resolution that we have here, although in  16 origin political, has become a rule of law..."  17  18 And that, in my submission, is the proposition  19 being put forward by the appellants, that this common  20 law or the constitutional convention of consent which  21 they say is exemplified through the treaty-making  22 process, has crystallized into a rule of law.  But the  23 majority in Re:  Resolution to Amend the Constitution  24 said this:  25  26 "In our view, this is not so... The attempted  27 assimilation of the growth of a convention to  28 the growth of the common law is misconceived.  29 The latter is the product of judicial effort,  30 based on justiciable issues which have attained  31 legal formulation and are subject to  32 modification and even reversal by the courts  33 which gave them birth when acting within their  34 role in the state in obedience to statutes or  35 constitutional directives.  No such parental  36 role is played by the courts with respect to  37 conventions."  38  39 Over to 366.  The appellants concede that  40 Parliament has the power to extinguish aboriginal  41 rights without consent.  In support of the proposition  42 that a constitutional convention exists that such  43 power will never be exercised, the appellants assert  44 that such power never has been exercised.  Despite the  45 tautological nature of this argument, it is submitted  46 that the issues in the case at bar are an exploration  47 as to what, if any, legislative enactments have 2107  Submissions by Ms. Koenigsberg  1 effected an extinguishment. In other words, there is  2 no consensus that extinguishment has not occurred  3 without consent.  4 Paragraph 367.  It is the submission of this  5 respondent that extinguishment has taken place by way  6 of legislative enactments, and we say see this factum,  7 Part III, section 3 and the paragraph, some of the  8 paragraphs I have taken you through, and appendix B.  9 And I won't have time to take you through appendix  10 B but appendix B sets out the extinguishing  11 enactments, or potentially extinguishing enactments,  12 and where they are in the territory.  But ultimately,  13 in our submission, on the basis of that evidence your  14 lordships would be hard pressed to come to a decision  15 as to whether an extinguishment has been effected on  16 any particular piece of land.  17 Paragraph 368.  Finally, appendix B of the  18 appellants' factum, as well as part 7, Analysis of  19 Treaty-Making, are cited in support of this argument.  20 The premise of this material is that treaty-making is  21 the only "legal" means of dealing with aboriginal  22 rights.  This, in our submission, equates policy with  23 law and and the sovereign's choice with the  24 sovereign's duty.  25 Paragraph 369.  As previously argued in this  26 factum, it is the law of Canada, confirmed repeatedly  27 by the Privy Council, and more recently repeatedly by  28 the Supreme Court of Canada, that the choice of means  29 of extinguishing aboriginal rights is that of the  30 sovereign.  The means must, however, be clear and  31 plain.  32 And there are further submissions, and I set those  33 out at paragraph 370.  They are submissions that are  34 contained in the province's earlier factum, which we  35 adopt.  36 And further on we point out that at paragraph 372:  37 Section 2 of this factum contains this respondent's  38 submissions on extinguishment or diminution of  39 aboriginal rights in the claim area.  The following  40 types of use and occupation rights have been  41 extinguished or diminished where the evidence  42 indicates that the effect of the impact of legislation  43 on traditional use and occupation demonstrates a clear  44 and plain intention to extinguish or diminish it.  And  45 those are village and fishing sites which have not  46 been reserved; fishing or hunting, inclusive of  47 sustenance trapping, and berry picking.  And it's a 210?  Submissions by Ms. Koenigsberg  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  question of looking at the legislation, its validity,  and applying it with the clear and plain test.  And there is a further discussion of how that might  be done through the balance of these paragraphs.  And  we give examples, and I will end with, at paragraph  382, the aboriginal hunting and berry picking rights  within the traditional areas used by the appellants'  ancestors have been extinguished in those locations  where other uses have been legislated which are  totally irreconcilable with hunting and berry picking.  And I have tried to indicate to you the kinds of  things you would look at to determine if there was  total irreconcilability.  Examples of such activity which might have an  impact are grants of land in fee simple;  dedication of lands for public uses such as highways,  railways, public utilities, parks, townsites or game  reserves; or leases for certain forms of resource  tenure such as tree farm licences, grazing permits,  petroleum and natural gas permits, and mineral leases.  But your lordships will have an appreciation that if  you were to look at a particular lease or permit, you  cannot tell from the lease or permit what its actual  effect on the ground is.  And in our submission you  cannot determine that there has been an extinguishment  or a diminution unless you can see it on the ground in  relation to the exercise of an aboriginal right.  Those are all my submissions on that point.  I  should tell your lordships that we have prepared  submissions on remedies.  Macaulay has prepared them  and we would like to hand them up tomorrow morning and  we ask that we might have 15 minutes and go through  them and just tell you the types of arguments that we  have.  J.A.:  Well, Mr. Lowes is not here.  J.A.:  Yes, he is, he is sitting at the back.  J.A.:  Mr. Lowes, can we impose on you for 15 minutes?  MR. LOWES: It might be difficult but I will do my best.  TAGGART, J.A.:  All right, 9:45.  MS. KOENIGSBERG:  Okay.  Mr. Macaulay tells me that he thinks he  will be less than 15 minutes.  Even if we started at  ten to or twenty to --  J.A. :  Let's make it 9:45.  J.A. :  It may seem like five after when we come in but  it's 10 o'clock.  KOENIGSBERG:  If you say so, my lord.  TAGGART,  LAMBERT,  TAGGART,  TAGGART,  LAMBERT,  MS. 2109  Submissions by Ms. Koenigsberg  1   (PROCEEDINGS ADJOURNED UNTIL 9:45 A.M., TUESDAY, JUNE 23, 1992)  2  3  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein to the best of my  9 skill and ability.  10  11  12  13  14 Wilf Roy  15 Official Reporter  16 United Reporting Service Ltd.  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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