Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-28] British Columbia. Supreme Court May 28, 1992

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 1117  Submissions by Mr. Hutchins  1 May 28, 1992  2 Vancouver, B.C.  3  4  CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Thursday, May the 28th, 1992.  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lords.  10 TAGGART, J.A.:  Yes.  Mr. Hutchins.  11 MR. HUTCHINS:  Thank you, my lord.  May it please the court,  12 yesterday we, by way of speaking notes, summarized the  13 written arguments that will be presented in two  14 factums, the principal factum and the supplementary  15 factum.  As promised now, my lords, I would like to  16 move in to the factums themselves, starting with the  17 principal factum.  I would be starting at page 7 of  18 our factum.  19 It may be welcome news to your lordships that  20 given time constraints we will not be able to cover  21 all aspects and all issues dealt with in the two  22 factums.  We, nevertheless, commend all arguments to  23 your lordships.  What we will try to do here is  24 highlight certain aspects of the argument which we  25 feel, perhaps, has not been dealt with at great length  26 by others, or which in one way or another support the  27 perspective that we are suggesting can be put on the  28 case, with particular reference, as I mentioned  29 yesterday, to the aspect of jurisdiction within the  30 appellants' claim.  31 So, my lords, I start with what we have referred  32 to as the starting point, original occupation at page  33 7 of the factum.  And we say that the starting point  34 for any inquiry into appellants or indeed any  35 aboriginal people's legal position is the fact of  36 occupation of territory in society at the time of  37 European assertions.  This was expressed specifically  38 with reference to British Columbia by Mr. Justice  39 Judson in Calder when he stated:  40  41 "The fact is that when the settlers came the  42 Indians were there organized in societies,  43 occupying the land."  44  45 That is what I referred to yesterday as the de  46 facto situation, the starting point.  47 At paragraph 32, my lords, we refer to the Law of 1118  Submissions by Mr. Hutchins  1 Nations in the period 1750 to 1850 by way of  2 explaining that there was no magic formula attached to  3 statehood in that period; that indeed the Law of  4 Nations embraced a wide variety of entities and there  5 was no emphasis placed on formal attributes of  6 statehood in that period.  7 We refer your lordships to Brownlie in his work  8 "The Expansion of International Society:  The  9 Consequences for the Law of Nations".  I would like to  10 read what Professor Brownlie has to say on this  11 subject.  12  13 "It is apparent from the chronicle of British  14 treaty-making in the century beginning 1750  15 that the British Crown was willing to make  16 formal arrangements with a great variety of  17 political formations in widely differing  18 contexts.  In practical terms the question of  19 delimiting the types of entity which counted  20 was not faced - or rather it was faced only in  21 political practice and not as a question of  22 principal.  23 In the period up to the middle of the  24 nineteenth century the practice reveals two  25 characteristics.  First, there was no regional  26 or cultural limitation on recognition of  27 personality in international relations.  28 Secondly, there was no emphasis placed upon the  29 formal criteria of 'statehood'.  The legal  30 doctrine of the time reflected this state of  31 affairs.  It followed that the existence, the  32 sovereignty, of a state did not depend upon the  33 recognition of other powers."  34  35 HUTCHEON, J.A.:  I'm sorry, I don't understand that at all.  36 Does that mean the recognition by other powers?  I  37 simply don't understand what he is talking about.  It  38 may be too early in the morning, but could you just  39 explain what this is about.  "There is no regional or  40 cultural limitation on recognition of personality in  41 international relations."  What is that?  42 MR. HUTCHINS:  My lord, he is referring to the doctrine of  43 recognition in international law as we know it today,  44 and there is -- obviously for a state to gain  45 international capacity requires the recognition of, at  46 least, a representative number of states in the world  4 7 community. 1119  Submissions by Mr. Hutchins  1 HUTCHEON, J.A. :  Recognizing each other?  2 MR. HUTCHINS:  That's correct.  States recognizing each other.  3 And the point that Professor Brownlie is making here,  4 my lord, is that in the period 1870 to 1850, the  5 period that concerns us in this appeal, that the  6 criteria for recognition was somewhat more flexible.  7 HUTCHEON, J.A.:  I see.  8 MR. HUTCHINS:  Now, my lords, at paragraph 33 we say the  9 treaties with indigenous peoples often involved  10 transfers of sovereign rights within the realm of  11 international law.  And we refer to the case of Amodu  12 in which the Privy Council construed the transfer of  13 property from Native Rulers to the Crown as entailing  14 a transfer of sovereignty and radical title.  I know  15 that your lordships have been taken to that case.  It  16 is found at -- the reference is A4, Tab 70.  And we  17 actually refer to the relevant passage at paragraph  18 158 of our factum, which I will be coming to.  19 The aboriginal peoples through their First Nations  20 had, at the time of first contact, we say, de facto  21 title to their lands and were self-governing.  This  22 historical fact is now recognized, we say, by the  23 courts and by government.  And we refer your lordships  24 to Calder, to Mr. Justice Judson in Calder, a  25 well-known passage.  We refer also, my lords, to R.  26 v. Sioui, Mr. Justice Lamer speaking for an unanimous  27 court when he states "This clearly ..."  And, my  28 lords, Sioui is at Volume A2, Tab 39.  I will be  29 taking your lordships to the case of R. v. Sioui and  30 developing it in some detail later.  At the moment for  31 this purpose we would just like to refer you to this  32 passage.  33  34 "This clearly indicates that the Indian Nations  35 were regarded in their relations with the  36 European Nations which occupied North America  37 as independent nations.  The papers of Sir  38 William Johnson, who was in charge of Indian  39 affairs in British North America, demonstrate  40 the recognition by Great Britain that  41 nation-to-nation relations had to be conducted  42 with the North American Indians."  43  44 Now, my lords, the trial judge, and I'm at  45 paragraph 35, appears to anchor his assessment of  46 aboriginality on the tests proposed by Mr. Justice  47 Mahoney in Baker Lake.  We would submit that these 1120  Submissions by Mr. Hutchins  1 tests have been seriously questioned, if not entirely  2 discredited, by the Supreme Court of Canada in its  3 recent judgment in A.G. of Ontario v. Bear Island.  4 I would like to develop that thought briefly with  5 your lordships, carrying onto paragraph 36 of our  6 factum.  In Bear Island the trial judge, Mr. Justice  7 Steele, adopted completely the Baker Lake test, and he  8 concluded:  9  10 "The onus is on the defendants to adduce  11 evidence to prove on a balance of  12 probabilities:  13 (1)  the nature of aboriginal rights enjoyed at  14 the relevant dates;  15 (2)  the existence of an organized society or  16 social organization and the fact that it  17 exercised exclusive occupation ..."  18  19 It goes on.  20  21 "...  Included would be proof that there was an  22 organized system of handholding and a system of  23 social rules and customs distinct to the band;  24 (3) the continuity of the exclusive occupation  25 to the date of commencement of the action."  26  27 Then we give your lordships the summary of  28 findings by Mr. Justice Steele, which he says:  29  30 "I find that the defendants have failed to prove  31 that their ancestors were an organized band  32 level of society in 1763; that, as an organized  33 society, they had an exclusive occupation of  34 the land claim area in 1763; or that, as an  35 organized society, they continued to  36 exclusively occupy and make aboriginal use of  37 the land claim area ..."  38  39 That is the summary of Mr. Justice Steele.  40 Now, the Supreme Court of Canada, my lords, after  41 quoting Steele J.'s analysis, set out above, concluded  42 the following.  And I am at paragraph 38 of our  43 factum.  44 This, my lords, we believe is important because we  45 believe that through this statement the Supreme Court  46 has rejected the tests established in Baker Lake taken  47 up by the trial judge in Bear Island. 1121  Submissions by Mr. Hutchins  1 The Supreme Court states:  2  3 "It does not necessarily follow, however, that  4 we agree with all the legal findings based on  5 those facts."  6  7 And that echoes my point yesterday, my lords, that  8 even if you cannot bring yourself to reverse the trial  9 judge on the facts, there is still the question of the  10 legal inferences, the consequences from those  11 findings.  12  13 "In particular we find ..."  14  15 Says the Supreme Court.  16  17 "... that on the facts found by the trial judge  18 the Indians exercised sufficient occupation of  19 the lands in question throughout the relevant  20 period to establish an aboriginal right."  21  22 And citing R. v. Simon, R. v. Sparrow and  23 continuing.  24  25 "In our view, the trial judge was misled by the  26 considerations which appear in the passage from  27 his reasons quoted earlier."  28  29 That was the passage that I have given to your  30 lordships.  31 LAMBERT, J.A.:  The passage on paragraph 36 of your factum?  32 MR. HUTCHINS:  That is correct, my lord.  33 LAMBERT, J.A.:  My understanding of the appellants' position in  34 this appeal is that the Baker Lake tests represent the  35 law of Canada, though they concede that they have  36 never been endorsed by the Supreme Court of Canada.  37 But your position is that the Baker Lake tests have  38 been criticized by the Supreme Court of Canada and  39 cannot be taken to be the law of Canada?  40 MR. HUTCHINS:  I can certainly say they have been criticized,  41 and I would submit, my lord, seriously questioned and  42 should not be taken as the law of Canada.  And I  43 believe that that is the result of the Supreme Court's  44 judgment.  And it ties in with our notion, with our  45 perspective that we elaborated yesterday, which is  46 what is the burden on appellants and what is the  47 burden on the Crown?  And we say that appellants at 1122  Submissions by Mr. Hutchins  1 First Nations are required to establish a de facto  2 case for occupation and self-government, but beyond  3 that the burden shifts to the Crown, and that Baker  4 Lake imposes just two strict a test on aboriginal  5 people.  We believe that the Supreme Court is  6 questioning that.  7 We see in Simon, my lord, for example, the Supreme  8 Court again questioned the burden once placed on  9 aboriginal peoples to prove lineage.  So our  10 submission is that the Supreme Court is looking at  11 these tests, which we admit have been imposed in the  12 past, but is seriously questioning those tests.  13 LAMBERT, J.A.:  Do you ask us to draw from the passage that you  14 quote at paragraph 38 that all that's required to  15 establish an aboriginal right is sufficient occupation  16 of the lands in question throughout the relevant  17 period?  18 MR. HUTCHINS:  Yes, my lord, with, of course, the other aspect  19 of self-governance.  The assumption that they occupied  20 as societies, and therefore as societies with  21 institutions self-government.  22 LAMBERT, J.A.: Am I right in saying that the right in Bear  23 Island was a right to an interest in land?  There is  24 no right in question.  25 MR. HUTCHINS:  It was a right to interest in land.  In effect  26 the question of -- it was an aboriginal plan, my lord,  27 and the question was whether it had been extinguished,  28 among other things, by a treaty process.  29 LAMBERT, J.A.:  Thank you.  30 MR. HUTCHINS:  At paragraph 39, my lords, we say that it is  31 noteworthy that in rejecting Steele J.'s test in Bear  32 Island, which had drawn upon Mahoney J.'s test in  33 Baker Lake, the Supreme Court refers to R. v. Sparrow.  34 We find that significant.  35 We submit that within the judgment of the Supreme  36 Court in R. v. Sparrow lies an appropriate replacement  37 for the Baker Lake test for aboriginal title.  38 At paragraph 41.  In Sparrow the Supreme Court of  39 Canada confirmed that the burden of proving  40 extinguishment of aboriginal rights is on the Crown.  41 In dealing with the matter of the extent to which  42 government legislation or regulation could interfere  43 with an unextinguished aboriginal right to fish, the  44 court in Sparrow set forth a two phased test:  First,  45 the establishment of a prima facie case for  46 infringement of that right and, second, the  47 justification of what constitutes legitimate 1123  Submissions by Mr. Hutchins  1 regulation of a constitutional aboriginal right.  2 The court asserted that the burden of establishing  3 a prima facie case was on the aboriginal people  4 invoking an aboriginal right.  As we have stated, the  5 burden of justifying any interference with that right  6 is on the Crown.  7 We submit, my lords, that the appropriate test to  8 be required of an aboriginal people, therefore, is the  9 establishment of a prima facie case as to location of  10 their homeland at the time of European contact or  11 assertion of sovereignty.  Thereafter, the burden  12 shifts to the Crown to establish any change or  13 diminution of that aboriginal nation's title or  14 jurisdiction over its homeland.  15 And we refer your lordships to Mr. Justice Hall in  16 Calder where he does state that:  17  18 "In enumerating the indicia of ownership, the  19 trial judge overlooked that possession is of  20 itself proof of ownership."  21  22 And speaks of the importance of prima facie proof.  23  24 "Prima facie, therefore, the Nishgas are the  25 owners of the lands that have been in their  26 possession from time immemorial and, therefore,  27 the burden of establishing that their right has  28 been extinguished rests squarely on the  29 respondent."  30  31 My lords, moving to paragraph 48, we assert that  32 the Supreme Court of Canada affirmed this Honourable  33 Court's finding in Sparrow.  34 HUTCHEON, J.A.:  Well, 45 is an assertion that I don't think the  35 trial judge accepted.  36 MR. HUTCHINS:  My lords, and I know my lord Mr. Justice Hutcheon  37 asked some questions yesterday about burden of proof,  38 and we have actually prepared a brief document  39 showing -- indicating, I don't know if it is  40 exhaustive, but certainly certain areas where the  41 trial judge spoke on the question of burden of proof,  42 and we can provide that to your lordships.  43 HUTCHEON, J.A.: Your statement in 45 is that the appellants — I  44 assume you're saying the appellants should not be  45 required to make proof respecting the existence of an  46 organized society.  One of the striking things about  47 the trial judge's conclusions is that it's not an 1124  Submissions by Mr. Hutchins  1 organized society, it's just a village here and a  2 village there, and you say that that is against the  3 legal rules of proof.  4 MR. HUTCHINS:  My lords, we are saying that it puts too great an  5 onus on appellants to establish what has been referred  6 to as an organized society, which we say is redundant  7 in any event.  A society is by definition organized.  8 It seems rather silly to talk about, with respect,  9 talk about an organized society.  And we just feel  10 that the courts have over the years, my lords, perhaps  11 put too much onus on aboriginal peoples, First Nations  12 to establish their organization.  We say that if they  13 were there occupying territory, if European powers  14 came to them and treated with them and accepted that  15 their chiefs and their representatives had mandates,  16 these are prima facie evidence that they were an  17 organized society.  18 We say that the Supreme Court in Bear Island, my  19 lords, certainly did cast doubts on the stringent test  20 of organized society.  That was an issue before the  21 court.  It was argued before the court.  And I believe  22 that the Supreme Court did say, "Let's stand back and  23 revisit that --"  24 HUTCHEON, J.A.:  We can start, you say, from Mr. Justice  25 Judson's statement.  That's where we start?  26 MR. HUTCHINS:  That is correct.  When the settlers came they  27 were there occupying the territory as their  28 forefathers had for centuries.  That certainly does  29 seem to imply not only an occupation but an  30 organization.  31 LAMBERT, J.A.:  This is absolutely linked to your submission on  32 what constitutes a right and what makes it aboriginal?  33 MR. HUTCHINS:  Yes, it does.  34 LAMBERT, J.A.:  You say you don't look at a right before  35 contact, you look after contact to see whether there  36 was a right and a duty at that time as between the  37 Indians and the Crown.  The need for the test of an  38 organized society arises from the fact that you must  39 assume that the Indians themselves recognized a right  40 before contact, recognized something that is  41 equivalent to our right, and without the organization  42 there could not be that recognition.  So if we accept  43 your submission on aboriginal rights, then this  44 submission fits neatly with it, but they both stand or  45 fall together.  46 MR. HUTCHINS:  Yes, my lord.  But I would put the emphasis on  47 the prima facie aspect of proof.  I believe that we 1125  Submissions by Mr. Hutchins  1 have to start with the fact situation of occupation  2 and organization.  We start with that because it's  3 only at the time of assertions of sovereignty or  4 contact that European law clicks in and tries to  5 explain the process.  I don't think it's appropriate  6 to define aboriginal societies pre-contact in terms of  7 European law.  8 The challenge here is to say what happened at  9 contact or assertions sovereignty?  What legal  10 principles can we attach?  And so I would say that we  11 commence with the fact of occupation, the fact of  12 organization, the freedom to continue occupying and  13 self-governing, and then we look to what happened  14 subsequently in terms of the interplay between the  15 actors, the Crown and the First Nations, and we try to  16 examine what the legal justification was, if any, for  17 interference for a discontinuance of that freedom to  18 occupy and to live in society.  19 The aboriginal peoples were living in society.  I  20 would submit, my lords, that under the physical  21 situations in which aboriginal societies lived in the  22 northwest coast or throughout Canada, it cannot be  23 assumed that there was no society assisting, there was  24 no interrelationship, there was no helping of one  25 another of each other.  Individuals could not have  26 survived in the tundra alone.  Individual families  27 couldn't have survived.  It's simply common sense that  28 these people got together and created institutions,  29 rules to assist.  30 Excuse me, my lords.  We had a limited number of  31 these copies of the burden of proof document that was  32 prepared last night.  We can make further copies.  33 I'm at paragraph 48 now, my lords.  34 The Supreme Court of Canada affirmed this  35 Honourable Court's finding in Sparrow:  36  37 "Between the tribes there was a flow of people,  38 wealth and food.  No tribe was wholly  39 self-sufficient or occupied its territory to  40 the complete exclusion of others."  41  42 That's the idea of again the reality of how human  43 beings live, survive and had organized themselves down  44 through the centuries.  45 So that we say that proof of exclusive occupation  46 is not required in a claim for aboriginal rights.  47 First Nations recognized, as between themselves, 1126  Submissions by Mr. Hutchins  1 certain territories and have shown themselves ready to  2 assert territorial claims.  Absence of competing  3 exclusive -- and I've added "exclusive" -- territorial  4 assertions by other First Nations, therefore, would  5 appear to be adequate to establish a prima facie case  6 on territoriality and jurisdiction.  7 Our point is that they were neighbours, they lived  8 together.  There was an interchange between First  9 Nations, there was trade, and there were overlaps of  10 use of territory.  Fences did not necessarily separate  11 First Nations.  12 WALLACE, J.A.:  When you say proof of exclusive occupation is  13 not required in a claim for aboriginal rights,  14 wouldn't it turn on the particular aboriginal right  15 that one was insisting upon or --  16 MR. HUTCHINS:  My lord, I would be referring here to the freedom  17 that we referred to, the freedom to occupy and use a  18 territory at large.  I am not addressing at this point  19 the specific aspects of individual exercise of  20 aboriginal rights.  This addresses the question of a  21 claim vis-a-vis the Crown.  And as I mentioned in the  22 speaking notes yesterday, my lord, there are two  23 levels.  You must look at the relationship of the  24 collectivity to the Crown, and then under that we have  25 the relationship of individual aboriginal peoples  26 within the society interacting, families with family  27 hunting territories.  28 WALLACE, J.A.:  But if you didn't have a pre-contact right to,  29 say, exclusive occupation of land, could that after  30 contact vis-a-vis the Crown be deemed to be an  31 aboriginal right to exclusive occupation?  32 MR. HUTCHINS:  It would be an aboriginal right to joint  33 occupation of that particular area.  The reality  34 again, my lord, I suggest, is that you -- aboriginal  35 nations had poor areas, that there were -- but there  36 was shifting.  Many of these peoples followed the game  37 or hunters and trappers.  There was movement,  38 territorial movement and shifts, and that there was  39 sharing of territory from time to time.  40 The federal land claims policy now recognizes that  41 very fact, that the federal government accepts that  42 aboriginal claims can be put forward.  And if there  43 are overlapping claims, and there is now an express  44 policy on overlapping aboriginal claims, the  45 government says these overlaps must be sorted out in  46 terms of continued future use of the lands.  But it is  47 acknowledged by government now that there were 1127  Submissions by Mr. Hutchins  1 overlapping territories.  And if we look at such  2 comprehensive land claims agreements as the TFN  3 agreement in Northwest Territories, there are specific  4 provisions dealing with overlapping rights of  5 territories.  6 So this notion of overlap, at least at the  7 periphery, was a reality and is accepted, we submit,  8 by governments.  Again it just goes to what is the  9 test and what is the burden on appellants or a first  10 nation establishing these rights.  We just say that to  11 insist that a first nation establish exclusive  12 occupation as against all other nations is too  13 stringent and not in accord with reality of aboriginal  14 occupation of territory and the use of territory.  15 My lords, I now move to the question of burden of  16 proof on those alleging change at paragraph 50 of the  17 factum.  18 My lord Mr. Justice Hutcheon did ask yesterday as  19 to how the trial judge dealt with the matter of burden  20 of proof, and we have extracted certain extracts from  21 his judgment under the headings "burden on appellants"  22 and "burden on respondents".  I believe that if we  23 look at the extracts that we have given you at page  24 118 of the judgment and 173, we do see the notion of a  25 heavy onus being put on appellants to establish their  26 claim underlined at the bottom of the first page.  27  28 "They must also prove the then and continuing  29 use by these peoples of the lands they claim,  30 and they must do all this within the laws of  31 evidence which apply in this Province."  32  33 There is a suggestion that there is an ongoing and  34 heavy onus to establish exactly where they were,  35 exactly what they were doing in terms of an inventory  36 of activities, and we submit, with respect, that this  37 is not the correct test and that it has been seriously  38 questioned by the Supreme Court in a number of cases,  39 not only with reference to aboriginal claims but, as I  40 mentioned, the Simon case, they are talking about the  41 burden on establishing ancestry.  The court is  42 re-examining these matters.  43 So we say that the burden of proof is one dealing  44 with establishing a prima facie case, and that the  45 burden of establishing a change in the legal position  46 of aboriginal peoples, as well as the legal basis and  47 justification, and this is the key, the legal basis 1128  Submissions by Mr. Hutchins  1 and justification for such change lies on the Crown.  2 Why did the situation change?  In law, why did it  3 change?  How did people occupying territory and  4 self-governing suddenly become stripped of the right  5 to continue to occupy and be denied the right to be  6 self-governing?  The question must be asked, my lords.  7 In the past, First Nations have been asked to  8 prove survival of their title.  The tests over the  9 last 20 years or so have been prove the survival on  10 the basis of every single factual and legal event in  11 the last 200 years, prove each time that your title,  12 that your rights survived these incidents.  We submit  13 that this is not an appropriate, just or legal  14 approach.  It is the Crown, the party alleging change,  15 alleging extinguishment of title or jurisdiction that  16 has the burden of proof as to change in circumstances.  17 We say the Supreme Court has so held in Sparrow.  18 We say that the issue in this appeal is whether in  19 law anything has changed and, if so, to what extent.  20 And that the burden lies on the party alleging that  21 change.  22 At paragraph 55 we submit that the proper inquiry  23 in these matters is not the intention of the Crown or  24 acts of the Crown, but rather whether there existed a  25 legal foundation for such intention, or indeed for  26 such acts.  27 We say that the legal presumption favours  28 continuing rights of appellants and is against  29 deprivation or abrogation by the Crown, and we say  30 that that is anchored in legal principles of property  31 law in any system, certainly in the common law system  32 and in the civil law system.  33 WALLACE, J.A.:  Well, that goes to the extent, then, that the  34 Crown cannot unilaterally extinguish.  35 MR. HUTCHINS:  That is correct, my lord.  That's the position.  36 And to prove -- to actually to prove what the process  37 was and what happened.  38 WALLACE, J.A.:  Let me just say.  Even though such  39 extinguishment or purported extinguishment is  40 expressed in clear and plain language?  41 MR. HUTCHINS:  My lord, we would submit that the law is, and we  42 will develop this, the law is that the Crown does not  43 have the right, did not have the right, and does not  44 have the right to extinguish unilaterally.  45 We submit, and I will get to this, but we submit  46 that much of the earlier jurisprudence discussing  47 clear and plain intention and the effect, possible 1129  Submissions by Mr. Hutchins  1 effect of that, related to the lack of remedies, if  2 you will, on the part of aboriginal peoples, that  3 there was no recourse in the face of Crown action.  So  4 the courts were faced with, and courts didn't have a  5 domestic recourse available, they were faced with  6 saying, "Well, this is what's happened and we have  7 difficulty seeing how we are going to correct the  8 situation."  9 In Canada, and Sparrow stands for that, in Canada  10 we now have Section 52 of the Constitution Act.  I  11 will be bringing your lordships to this question of  12 frustration of exercise and extinguishment of rights,  13 but the courts are now saying there is a great  14 difference between the inability to exercise a right,  15 on the one hand, and the disappearance of a right.  16 And it is undenied and undeniable that through history  17 aboriginal peoples have been denied the exercise of  18 certain rights - hunting rights, right of  19 self-government.  20 The courts are saying, Arcand and Flett, and I  21 will get to that.  Well, up until 1982 there wasn't  22 nothing much they could do about it, and perhaps there  23 was nothing much that the courts, that we the courts  24 could do about it, but now we have the constitutional  25 mandate to say there is recourse, because Section 52  26 says any law inconsistent with or incompatible with  27 the rights is of no force and effect.  So therefore  28 rights that have lain dormant, if you will, that may  29 have had the appearance of disappearing, of ceasing to  30 exist, did not cease to exist.  They were just not  31 exercisable.  32 My lords, we talk about the question of double  33 standard as it applies and it ties in with the tests.  34 I am at paragraph 56 of our factum at page 13.  35 We submit that there must be no double standard  36 applied in interpreting rights and in matters of  37 burden of proof.  38 We break it down into various categories, starting  39 with the characterization of interests, that there  40 shouldn't be any double standard in characterizing  41 interest, in characterizing First Nations' interest  42 and the Crown's interest.  There should be no double  43 standard applied.  44 WALLACE, J.A.:  Sorry.  I don't follow that.  I don't understand  45 it.  46 MR. HUTCHINS:  If I may develop the point, my lord.  47 WALLACE, J.A.:  Please do. 1130  Submissions by Mr. Hutchins  1 MR. HUTCHINS:  I think it does go to, again, the question of the  2 burden of proof being put on First Nations to  3 establish organized society, to establish occupation  4 of territory.  We will submit that European powers and  5 the Crown itself has not been submitted to that degree  6 of those tests.  If it were submitted, certainly in  7 the 19th century in Canada if the Crown had been  8 submitted to this type of test, whether it be in  9 British Columbia or northern Quebec, it may well have  10 failed the test, because physical occupation in  11 northern Canada, in northern British Columbia and the  12 interior of British Columbia was not exactly complete  13 in the 19th century.  14 Crown and European dominance controlled the  15 ability to enforce law throughout northern Canada,  16 northern and interior B.C., and in the early days was  17 not exactly perfect; yet people seem to say, "That's  18 not a problem with respect to the Crown, but it  19 certainly is a problem with respect to aboriginal  20 institutions."  And we are suggesting that at the very  21 least we should attempt to consider these two  22 societies in the light of similar criteria.  23 We say at paragraph 61 that the fact that  24 aboriginal title does not fit easily into common law  25 notions of property is no reason to deny that title,  26 and that great care must be taken in attempting to  27 apply to aboriginal title, common law property notions  28 which themselves have been characterized as obscure.  29 And we give Amodu, the well-known passage, and we  30 suggest that you might wish to look at Mr. Justice  31 Laskin's comments.  32 We say at 62 that the common law provides but one  33 possible approach to the universal fiction of estates  34 or interest in lands, and that civil law provides  35 another, that the Law of Nations or international law  36 provides yet another.  These are attempts to explain  37 factual situations.  The inability of any one or more  38 legal system to accommodate comfortably a factual  39 situation should lead to a re-examination and perhaps  40 a restatement of the law, but not to a denial of the  41 fact.  And we give you Professor Slattery's statement  42 in "Aboriginal Sovereignty in Imperial Claims", which  43 you will find at A50, Tab 3 of the authorities, when  44 Professor Slattery states:  45  46 "Any approach which purports to rely exclusively  47 on a body of positive or conventional law is 1131  Submissions by Mr. Hutchins  1 necessarily afflicted by arbitrariness or  2 circularity."  3  4 WALLACE, J.A.:  I'm sorry, you've lost me.  I don't know where  5 this is going.  6 MR. HUTCHINS:  My lords —  7 WALLACE, J.A.:  As to the characterization of interest.  8 MR. HUTCHINS:  One of the questions in this appeal is the  9 characterization of the aboriginal right, what is the  10 right.  People certainly, your lordships, have asked  11 this question, and it seems to go to the matter of has  12 the right survived and what have appellants today in  13 the way of existing aboriginal rights.  And we do say  14 that there seems to be a requirement, a suggestion  15 that appellants, for example, must inventory their  16 activities and be very, very specific about their  17 rights; and that in terms of their interest in land,  18 that somehow they must find a handle in common law or  19 civil law to explain and to absolutely designate what  20 that title is.  21 We say that that is an unfair requirement.  We say  22 that certainly European nations over time, if we take  23 the Norman Conquest in England, my lords, the legal  24 systems did change.  Legal systems do accommodate and  25 adjust to changing factual situations.  We cannot --  26 the Normans did not accept that Anglo-Saxon law  27 defined exactly what their rights were.  There was an  28 interplay of legal systems --  29 WALLACE, J.A.:  Are you saying the natives' claim is not defined  30 with any specific detail or parameters, and therefore  31 we should take some approach to it that is -- would  32 not otherwise be the case?  33 MR. HUTCHINS:  My Lord, I think we have to proceed by way of  34 analogy, and this is perhaps the point, simply to say  35 the Privy Council has referred very early on to the  36 notion of usufruct as defining that right, and  37 certainly --  38 WALLACE, J.A.:  A right or a practice?  39 MR. HUTCHINS: Practice.  40 WALLACE, J.A.:  Because it seems to me, from what you previously  41 said, that the aboriginal right arises at contact as a  42 result of what took place at contact between the  43 European people and the aboriginal people, and that it  44 has a correlative duty on the part of the European  45 people to recognize that aboriginal right.  But it's  46 not an aboriginal right prior to contact because it's  47 an aboriginal practice or activity or procedure, but 1132  Submissions by Mr. Hutchins  1 it's hardly a right before there is anyone to owe it a  2 duty.  3 MR. HUTCHINS:  My lords, it was a right in pre-contact,  4 pre-European contact, contact times with respect to  5 other first nations.  There were collectivity sharing  6 territories and those collectivities had the notion of  7 occupation, exclusive or shared.  So that -- it was  8 the notion of using territory.  9 We get into the notion of -- aboriginal rights  10 arises when Europeans arrive and say:  Who are these  11 people?  How do we explain their presence and their  12 continued presence?  How do we in European terms  13 explain their presence?  Aboriginal peoples didn't go  14 around and say pre-contact we are aboriginal peoples.  15 There was nobody to compare themselves to.  16 WALLACE, J.A.:  It's not a matter of explaining of presence.  17 It's a matter of saying these people are here and they  18 are engaged in certain activities with the land and  19 other things, and we are now acting in a way which you  20 suggest gives rise to an obligation or a duty to  21 recognize an aboriginal right.  22 MR. HUTCHINS:  That is correct.  We have arrived.  We have found  23 people here.  We have a duty to recognize their  24 presence.  25 WALLACE, J.A. :  In view of our conduct we have a duty.  Had we  26 conquered them, there is some suggestion that that  27 would have extinguished any duty to recognize or to  28 give rise to aboriginal rights.  29 MR. HUTCHINS:  There is a doctrine of international law that  30 would say that, my lord.  31 WALLACE, J.A.:  Whether it's fair or not is another thing.  32 MR. HUTCHINS:  What we are saying in terms of characterization,  33 and we will move on to it, that at contact there had  34 to be and there should have been external rules  35 applying to defining that process.  It cannot be the  36 society arriving to say now we have the exclusive  37 right to define our relationship.  38 WALLACE, J.A.:  Could it be the laws of the aboriginals that  39 would define that duty?  40 MR. HUTCHINS:  No, my lord.  41 WALLACE, J.A.:  Which law are you applying?  42 MR. HUTCHINS:  We say the Law of Nations, my lord, at the  43 outset.  44 WALLACE, J.A.:  Was that law recognized at that time?  45 MR. HUTCHINS:  Yes.  With respect, I would say that the Law of  46 Nations did.  And you have been taken to Mr. Justice  47 Marshall's decision and -- 1133  Submissions by Mr. Hutchins  1 WALLACE, J.A.:  The suggestion is that was incorporated in the  2 common law.  3 MR. HUTCHINS:  My lord, eventually it was, and our submission is  4 that at contact the rules had to be external to both  5 actors.  It wasn't aboriginal law that defined the  6 relationship and it wasn't European law, it was the  7 Law of Nations.  8 We say that the Europeans themselves justified  9 their claims to territory vis-a-vis other European  10 nations on the basis of the Law of Nations as it  11 applied, and we say that the European nations claimed  12 to each other, certainly the British Crown claimed to  13 competing European nations that they were required,  14 the British Crown was required to perfect its title  15 through dealings with indigenous peoples, aboriginal  16 peoples.  But there was this notion at the early stage  17 of Law of Nations, external rules applying which we  18 submit over time have been converted into and  19 incorporated into a Canadian law, constitutional law,  20 and are now expressed through Section 35.  21 So it's not an either/or.  It's an evolution and a  22 changing of the relationship and the rules that apply  23 to that relationship over time.  24 We do make the point that as to effective  25 occupation, my lords, at paragraph 63, again one must  26 be careful about the criteria applying.  And I won't  27 go through in detail, but simply to say that the trial  2 8 judge did imply that the territory was empty, and we  29 give you from the reasons at paragraph 63, and that  30 somehow this perceived emptiness reflected on the  31 rights and the freedoms of appellants.  32 We say that the case is about two competing --  33 paragraph 64 -- but not necessarily mutually  34 exclusive, claims to this vast and empty territory, to  35 use the trial judge's terms.  It is also about the  36 perception of emptiness.  And this is where, perhaps,  37 again we would suggest that we must be very careful in  38 reviewing this respective situation of the actors, the  39 perception of emptiness.  40 The trial judge, with respect to appellants'  41 claim, seems to emphasize the physical occupation, the  42 question of physical occupation, villages, fields, was  43 there physical occupation.  And this is the  44 justification.  And the reasons at page 384 for that.  45 With respect to the Crown's claim, the trial judge  46 does not require effective occupation or use, only  47 assertions of sovereignty and the erection of 1134  Submissions by Mr. Hutchins  1 fledgling institutions for a colony centered far from  2 the territory.  And we give you an extract of the  3 reasons at page 384.  4 And we submit at paragraph 68, my lords, that if  5 this were the test to be applied in ascertaining title  6 and jurisdiction, then the colonists in British  7 Columbia certainly had less claim to title to lands in  8 the territory than did appellants, if this is the  9 test.  Even today it's submitted that very little of  10 British Columbia or the territory of Canada could be  11 said to be subject to respondents' title and  12 jurisdiction if this test of actual physical  13 occupation is to be applied equally to the parties in  14 this case.  15 And we say that with respect to acquisition of  16 title and sovereignty, again the same prudence  17 applies; that while treating -- at paragraph 69 --  18 while treating the circumstances in which aboriginal  19 interests arise, the trial judge stated the law as  20 requiring:  21  22 "Use for aboriginal purposes for a long and  23 indefinite time prior to the assertion and  24 exercise of European type sovereignty."  25  26 A considerable time depth.  27 In the case in paragraph 71, however, the trial  28 judge in the case of European sovereignty, short use  29 accompanied by declarations, conquests of other  30 European powers or of aboriginal nations or treaties  31 dealing with hithertofore much disputed areas appear  32 to be adequate.  33 So again is this a fair approach with respect to  34 the two parties in this case.  There seems to be a  35 different standard required of appellants of First  36 Nations than of the Crown in the matter of acquisition  37 of title or sovereignty.  38 At paragraph 75 we summarize this question, my  39 lords, by saying that the issue in this case is not  40 when and how the sovereign unilaterally extinguished  41 the appellants' rights, but rather whether the  42 sovereign could extinguish those rights in the manner  43 asserted by the trial judge.  And we state that the  44 law, when clearly and comprehensively stated, provides  45 the answer, that the sovereign could not.  4 6 And, my lord, with that we move into the matter of  47 external constraints, what we have described as 1135  Submissions by Mr. Hutchins  1 external constraints on the Crown, the Law of Nations.  2 And we look at it not in the sense of appellants  3 or First Nations being full actors in international  4 law or fully sovereign states under the test of  5 international law.  We look at it in terms of  6 constraints on the Crown and external constraints,  7 that we cannot only look to the Crown's institutions  8 to European law to decide what is the required  9 behaviour vis-a-vis aboriginal peoples.  10 Now, we say at paragraph 88, and this is  11 important, that the manner in which European  12 sovereigns acquired territory during the colonial  13 period was determined by the Law of Nations.  14 Europeans invoked the Law of Nations as between  15 themselves and, as we will see, with respect to  16 aboriginal peoples themselves.  That was the body of  17 law governing acquisition of territory, occupation,  18 the tests that should apply.  19 Indian Nations in the 18th century were recognized  20 by international law as independent of the European  21 powers claiming sovereignty over portions of North  22 America and elsewhere.  And my authority there is  23 Sioui, my lords.  I will be going again to the Sioui  24 case, if you will bear with me, but the unanimous  25 judgment, in our submission, of the Supreme Court of  26 Canada in R. v. Sioui is precisely on this point; that  27 Indian Nations were recognized by international law as  28 independent of European powers, not subjects of  29 European powers.  30 And contrary to the opinion expressed by the trial  31 judge, discovery, when consummated by possession, gave  32 rights as against other competing European nations,  33 but not as against aboriginal peoples.  34 We give your lordships two authorities --  35 HUTCHEON, J.A.: I think you lost us here.  You are at page 20,  36 as I understand.  I've just caught up to you.  37 TAGGART, J.A.:  He misspoke himself when he -- you referred to  38 88, not 78.  39 MR. HUTCHINS:  I was referring there to paragraph 88 of our  4 0 factum, my lord.  41 HUTCHEON, J.A.:  You lost us, I think.  42 MR. HUTCHINS:  I did, yes, I did skip over a portion of the  43 factum.  I do apologize.  I moved from paragraph 75 to  44 paragraph 88 --  45 TAGGART, J.A.:  Okay.  46 MR. HUTCHINS:  — of our factum on external constraints.  And I  47 am now moving through the matter of external 1136  Submissions by Mr. Hutchins  1 constraints on the part of the Crown.  2 LAMBERT, J.A.:  I haven't studied your factum, and as we go  3 through it, I believe I am understanding each  4 paragraph as you come to it, and you are explaining  5 each paragraph.  What I've lost sight of is what  6 submission lies at the bottom of this argument.  I can  7 see as a commentary on the trial judge's reasons it's  8 explicable, but in the end, and it points to things  9 that you say were wrong, but it doesn't say anywhere,  10 or it isn't clear to me, whether you are urging us to  11 do anything at all, to take a particular view about  12 aboriginal rights or extinguishment or sovereignty or  13 where your argument relates to what I understand to  14 have been concessions in relation to sovereignty.  15 Maybe you could just stop for a second and put  16 that into focus for me.  17 MR. HUTCHINS:  Yes, my lord.  I would hope that a reading of the  18 factum, indeed both factums, would clarify that, but  19 it's certainly a very appropriate request.  20 We address, first, the matter of is there an  21 aboriginal right and is it existing.  This is one of  22 the points -- one of the issues in the appeal.  And  23 this is the reason why we are making, we are saying:  24 Well, what is the test for establishing that?  We  25 address the question of had that right, if there is  26 such a right, has it survived allegations of  27 extinguishment by the Crown.  Has the Crown actions,  28 has something happened over time to extinguish that  29 right so that appellants no longer have the right,  30 even if they did have it, and however it was defined.  31 Now, what we are doing there is saying:  What  32 legal principles and what body of law must be brought  33 to bear on that inquiry on that examination.  So this  34 is one of the reasons why we are trying to, perhaps,  35 move your lordships away from an inquiry, a singular  36 inquiry as to what does the common law itself say or  37 what does European law say about these matters, that  38 there are external rules that apply.  But we are  39 addressing there is a right, and it is, as I have  40 expressed, a freedom to occupy, and that it hasn't  41 been extinguished.  42 LAMBERT, J.A.:  Can I stop you on the question of  43 extinguishment.  I think I understand what your  44 submissions are on rights, but as I understood your  45 reply to Mr. Justice Wallace, you said that there is  46 no authority to extinguish at all, not even by clear  47 and plain statutory language.  That's how I understood 1137  Submissions by Mr. Hutchins  1 your answer.  I've been lost in relation to this  2 argument ever since, because I understand the  3 concession that has been made by the appellants is not  4 only that the sovereign has the radical title to the  5 whole of British Columbia on which the plaintiffs in  6 this case title is a burden, but that the Crown became  7 the sovereign of British Columbia at about 1846, or at  8 1846, and that that carries with it all the absolute  9 powers of the sovereign, including the power to  10 expropriate the land or any of the property of any  11 subject.  That's my understanding of sovereignty.  12 Now, of course, it's up to the appellants to  13 explain if I've misunderstood the concession they are  14 making in relation to sovereignty, but as I have  15 understood it up until yesterday morning, it's  16 inconsistent with the submission that was being made  17 on behalf of the B.C. Union of Indian Chiefs and the  18 concession is inconsistent with the submission I  19 understand you to be making.  I understand that also  20 that the interveners are constrained in this case by  21 what have been made the issues between the parties.  22 So, if I understand your argument correctly, you have  23 moved outside of what I understand to be the  24 litigation framework created by the parties.  25 MR. HUTCHINS:  My lord, it wasn't our intention to do so.  There  26 may be nuances of interpretation at the edges of our  27 respective arguments, but we certainly are not  28 submitting -- for example, we are not questioning  29 appellants' admission that British sovereignty in  30 international law terms was established in British  31 Columbia in the period around 1846.  32 LAMBERT, J.A.:  I think they have said, at least its been  33 implicit in their arguments, that that carried with it  34 the power to extinguish by clear and plain statutory  35 language of the properly constituted legislature of  36 British Columbia, whatever may have been the situation  37 before there was a legislature.  38 MR. HUTCHINS:  My lords, it goes to, perhaps, the whole question  39 of title and fee simple as well.  It is certainly the  40 case that the Parliament could pass such legislation.  41 Perhaps our submission would be, could under  42 parlimentary rules pass such legislation.  Our  43 submission would be is it appropriate and is it acting  44 in that way in a manner respecting the relationship  45 between the parties?  So I would suppose it would be  46 our submission, my lord, and we talk about this in  47 terms of constraints on the Crown, and that's why we 1138  Submissions by Mr. Hutchins  1 look at it, and we are going to look at the fiduciary  2 duty as well, and we are going to look at the argument  3 that grants in fee simple by the Province can  4 extinguish, because we say in each case one must look  5 at the authority for those actions and the, perhaps,  6 legal appropriateness of those actions.  7 We say we are not questioning the sovereignty of  8 the British Crown, and we are not questioning the fact  9 of the underlying title.  We say, however, that  10 sovereignty, and these are submissions that we make in  11 our factum, is not the absolute concept that people  12 sometimes believe it to be; that there is the notion  13 of relative sovereignty; that there is the notion of  14 internal and external sovereignty.  So that this is  15 not an attack on the sovereignty of the British Crown  16 vis-a-vis other Europeans.  It is simply an argument  17 to say that as sovereign there is a manner and  18 appropriate conduct that is required as sovereign.  19 And perhaps that does not go as far as unilaterally  20 extinguishing First Nations' rights, perhaps, in terms  21 of the required conduct of the sovereign, but we would  22 say that certainly the Crown in normal circumstances  23 certainly has a power of expropriation.  24 But is that power somewhat different or must it be  25 exercised somewhat differently with respect to  26 aboriginal peoples?  And I guess it comes back to this  27 question of --  28 LAMBERT, J.A.:  Your argument is contrary to the position that  29 Dicey sets out about the effect of a sovereign power  30 and how absolute the sovereign in Parliament is.  I  31 know that you are inviting us to look at the Law of  32 Nations and other concepts of sovereignty, but if we  33 were to do that, we are moving away from the  34 Anglo-Saxon concept of sovereignty.  And that causes  35 me, then, to ask myself whether I understand the  36 concession that the appellants have made, and I in the  37 end will have to be very clear about just exactly what  38 they are conceding in relation to sovereignty.  39 MR. HUTCHINS:  Yes, my lord, I certainly don't purport to speak  40 for appellants.  We have communicated our arguments  41 and I've not heard from them that our submissions  42 contradict their position, but I will leave it to  43 counsel to make that point.  44 I would simply, again on the question of  45 sovereignty, say that yes, a sovereign within its  46 sovereign sphere has absolute power, but -- and we  47 will make this argument that we now recognize, and the 1139  Submissions by Mr. Hutchins  1 trial judge recognized the notion, for example, of  2 divided sovereignty, divided between Parliament in our  3 constitutional make-up and the provinces.  Parliament  4 is sovereign in its sphere, the provinces are  5 sovereign in theirs.  So that there is this notion of  6 sovereignties co-existing, not absolute and not  7 exclusive, but operating together.  It's that type of  8 context in which we suggest the court should examine  9 the relationship between aboriginal peoples, First  10 Nations and the Crown.  11 We do feel very strongly, my lords, and you asked  12 the question, my lord Mr. Justice Lambert, what makes  13 a right aboriginal.  We attempted to explain that  14 yesterday, but certainly the contention is that  15 aboriginal rights and claims are somewhat different  16 from the rights and claims of citizens, of other  17 citizens.  Perhaps again one of the characteristics  18 that makes the rights and the freedoms aboriginal  19 would be this notion of constraints on Crown behaviour  20 vis-a-vis these collectivities as a result of the  21 history and as a result of the initial and continuing  22 relationship --  23 HUTCHEON, J.A.:  I would like to say something here.  As I  24 understand when you say that it could not be  25 unilaterally -- the Crown could not unilaterally  26 extinguish the aboriginal title, as I understood you,  27 that would not be inconsistent with what we've heard,  28 because the absolute sovereignty principle of --  29 that's been referred to was diminished, according to  30 the appellants, by the policy in the Royal  31 Proclamation.  Isn't that what --  32 MR. HUTCHINS:  This is correct, my lord, yes, that the Crown  33 itself has acknowledged through instruments --  34 HUTCHEON, J.A.: But the land had to be ceded or purchased?  35 MR. HUTCHINS:   That's correct.  We talk of external  36 constraints, but we also talk in our factum, my lords,  37 of internal constraints, that the Crown, the law of  38 the sovereign itself has dictated that there are some  39 constraints on the behaviour, including, we would  40 submit, perhaps, expropriation powers.  41 My lords, if I may continue just on this question  42 of external constraints.  We give you Blackstone and  43 O'Connell as examples of authority to the going to the  44 point that lands occupied by First Nations were not  45 terrae nullius, were not considered to be terrae  46 nullius, and that it was European practice, in terms  47 of O'Connell and the British Crown's practice, 1140  Submissions by Mr. Hutchins  1 according to Blackstone, to deal with indigenous  2 peoples formally through a treaty process, although he  3 does refer to the right of conquest.  I am referring  4 to Blackstone at the underlined portions where he  5 says:  6  7 "Our American plantations are principally of  8 this latter sort, being obtained in the last  9 century either by right of conquest and driving  10 out the natives (with what natural justice I  11 shall not at present inquire), or by treaties."  12  13 The preference appears to be proceed by treaty, my  14 lords.  15 We give you D.P. O'Connell, his work on  16 international law, again on the question of what was  17 terrae nullius and how the Europeans dealt with that.  18 Now, addressing my lord Mr. Justice Hutcheon's  19 point just now.  Paragraph 93 of the factum we make  2 0 the point that the Supreme Court's judgment in Sioui  21 and the very terms of the Royal Proclamation direct  22 that the British did not consider Indian territories  23 as terrae nullius, otherwise why were they speaking of  24 tribes and nations.  The Royal Proclamation referred  25 to inhabited by tribes and nations having a special  26 status on international law, self-governing and  27 capable of forming alliances.  28 So the Royal Proclamation is this expression of  29 the Crown recognizing that constraints, external or  30 internal, applied to its behaviour.  31 We say at paragraph 96, my lords, that the Crown  32 throughout this period attempted to assert its  33 underlying title as against other European nations  34 through the intermediary of aboriginal peoples.  This  35 is demonstrated by first, the recognition that the  36 various Indian tribes or nations were in possession of  37 their lands, and this is the language of the Royal  38 Proclamation, and second that these tribes or nations  39 were connected to the Crown and living under the  40 Crown's protection.  And these notions are important.  41 They were in possession of their lands.  They were  42 connected to the Crown, to the Royal Proclamation, as  43 set up through the connection with First Nations a  44 claim to territory.  And they were under the Crown's  45 protection, that duty to protect the rights.  46 The phrasing of the Royal Proclamation which  47 describes the nations or tribes of Indians as those 1141  Submissions by Mr. Hutchins  1 with whom we are connected, and who live under our  2 protection, makes reference to the concept of  3 protectorate in the Law of Nations, my lords.  And we  4 refer you to "Halsbury's Laws of England" on that.  5 And the reference would be Volume A50, Tab 11.  The  6 underlined portion of that extract in the factum.  7  8 "Most of them are 'protectorates', that is,  9 territories placed under the protection of the  10 British sovereign, generally by treaty with the  11 native rulers or chiefs."  12  13 So yes, there was this notion of putting under the  14 protection of as appellants' claim recognizes.  This  15 is not a claim, a clashing with or inconsistent with  16 the claim of British sovereignty.  It's not a claim to  17 exclusive sovereignty.  It's simply, in our  18 submission, what is necessary is to properly describe  19 what the sovereignty enjoyed by the British Crown and  20 to -- and we say that once we properly understand  21 that, there are significant constraints built in that  22 the sovereignty of the British was not inconsistent  23 with, the continued existence and exercise of  24 appellants' rights.  25 My lords, we say in 98 that contrary to what the  26 trial judge appears to assume, Britain's title to the  27 major portion of its holdings in North America could  28 not be original title obtained by occupation of terrae  29 nullius, but rather could only be derived through  30 treaties and agreements with Indian Nations.  31 And in the speaking notes I mentioned the matter  32 of perfecting title or perfecting or securing  33 sovereignty, and I think that's perhaps a better way  34 of stating it.  We are not saying that there was no  35 claim to British sovereignty, the Crown had no claim  36 until it had treated with First Nations, but we are  37 saying that the Crown itself acknowledged that to  38 perfect that title and to secure its sovereign claims  39 as against other European powers, competing European  40 powers, there was this need to seek relationships with  41 First Nations.  42 We give your lordships the extract from Lord  43 Dorchester to the Confederated Indian Nations.  It is  44 an exhibit, and I believe that it is a very important  45 statement as to how the British explained this process  46 to First Nations, Indian Nations.  This is the British  47 representative explaining to Indian Nations the 1142  Submissions by Mr. Hutchins  1 process.  And he says:  2  3 "Brothers:"  4  5 I am at paragraph 99.  6  7 "You have told me, there were people who say  8 that the King your Father when he made peace  9 with the United States gave away your lands to  10 them.  I cannot think the Government of the  11 United States would hold that language, it must  12 come from ill-informed individuals.  You will  13 know, that no man can give what is not his own  14  15 The King's rights with respect to your  16 territory were against the Nations of Europe;  17 these he resigned, to the States.  But the King  18 never had any rights against you but to such  19 parts of the country as had been fairly ceded  20 by yourselves with your own free consent by  21 Public convention and sale.  How then can it be  22 said that he gave away your lands?"  23  24 This is the British representative describing  25 British sovereignty and how British sovereignty  26 related to Indian Nations, occupation and  27 self-government.  28 So we say at paragraph 100, my lords, that this is  29 how the British Crown legitimated its claims in  30 international law, including its claim to the  31 northwest.  And we give you in our factum at  32 paragraphs 101 and 102 and following examples again of  33 communications between competing European powers and  34 the Americans, where the Europeans are saying -- are  35 alleging their relationship with First Nations to  36 justify their claim vis-a-vis other Europeans.  37 Alleging at least the perfection of, the right to  38 perfect their claim.  39 They are not saying we have no sovereignty until  40 we have treated, but they are saying that we are  41 sovereign because we have established these relations  42 or have a right to or are about to.  And so we provide  43 you with correspondence from John Quincy Adams on the  44 question of -- the specific question of trade and  45 fisheries in the northwest coast in North America  46 where he stated:  47 1143  Submissions by Mr. Hutchins  1 "There is however no part of the globe where the  2 mere fact of discovery could be held to give  3 weaker claims than on the North West Coast."  4  5 The north west coast was subject to many claims  6 from many Europeans, and these Europeans were looking  7 to the powers and were looking to justifying their  8 claims as against others.  9 And at 102 we have a reference to a letter from  10 Richard Rush to John Quincy Adams setting out that  11 situation.  12 I would take your lordships to paragraph 103 for  13 the statement from the British.  This is a statement  14 of the British Plenipotentiaries relative to the  15 territory west of the Rocky Mountains at paragraph  16 103.  We think is very significant.  Again the debates  17 between Europeans with the Americans as to who exactly  18 had valid claims, the government of Great Britain  19 setting out its claim in full, and included the  20 following statement about the rules of international  21 law.  And at paragraph 103, my lords, if I may read it  22 to you:  23  24 "Upon the question, how far prior discovery  25 constitutes a legal claim to sovereignty, the  26 Law of Nations is somewhat vague and undefined.  27 It is, however, admitted by most approved  28 writers that mere accidental discovery,  29 unattended by exploration, by formally taking  30 possession in the name of the discoverer's  31 sovereign -- by occupation and settlement, more  32 or less permanent -- by purchase of the  33 territory, or receiving the sovereignty from  34 the natives -- constitutes the lowest degree of  35 title;"  36  37 So it is admitted by most writers that mere  38 accidental discovery, unattended by these factors,  39 including unattended by purchase of the territory or  40 receiving a sovereignty from the natives, that seems  41 to imply a recognition that there is a jurisdiction,  42 an organized society that can cede a degree of  43 sovereignty constitutes the lowest degree of title.  44 And that is only in proportion as first discovery is  45 followed by any or all of these acts that such title  46 is strengthened and confirmed.  47 So we say on this point, my lords, that not only 1144  Submissions by Mr. Hutchins  1 was the British Crown making representations to the  2 Indian First Nations that their claims depended upon  3 dealing formally with First Nations, but they were  4 making the same representations to their brother  5 Europeans in the context of competing European terms.  6 TAGGART, J.A.:  Fifteen minutes.  7 THE REGISTRAR:  Order in court.  Court stands adjourned for a  8 short recess.  9  10 MORNING RECESS  11  12 THE REGISTRAR:  Order in court.  13 TAGGART, J.A.:  Yes, Mr. Hutchin.  14 MR. HUTCHINS:  My lords, I am at page 25 of our factum, and more  15 specifically at paragraph 105.  16 In concluding on this question of the Crown's  17 assertions to underlying title and sovereignty through  18 its relationship with aboriginal peoples and First  19 Nations, we have dealt with the historic manifestation  20 of that.  At paragraph 105 I direct your attention to  21 what we consider to be a contemporary manifestation of  22 that position, and more particularly we refer you to a  23 speech of the Honourable Joe Clark in the House of  24 Commons in 1985 on the matter of Canadian claims to a  25 sovereignty in the Arctic.  26 You have the extract there, my lords.  The  27 document itself is found at Tab 8 of our appendix to  28 the factum.  And I would just say that when you  29 consult the document itself, the proceedings are  30 entitled "Canadian Sovereignty Government Position",  31 and then within that -- while speaking, Mr. Clark  32 makes the point that:  33  34 "Canada's sovereignty in the Arctic is  35 indivisible.  It embraces land, sea, and ice.  36 From time immemorial Canada's Inuit people have  37 used and occupied the ice as they have used and  38 occupied the land."  39  40 It carries on, and I am now reading from the text  41 not in the factum.  42  43 "The policy of the government is to maintain the  44 natural unity of the Canadian Arctic  45 archipelago and to preserve Canada's  46 sovereignty over land, sea and ice undiminished  4 7 and undivided. 1145  Submissions by Mr. Hutchins  1  2 We say that that is an echo of this notion that  3 aboriginal peoples, Canada's aboriginal peoples  4 occupied land, were there, and that claims to  5 sovereignty, European claims to sovereignty,  6 contemporary claims to sovereignty are linked to that  7 presence and to the relationship with aboriginal  8 peoples and First Nations.  9 So that we say at 106, my lords, that after having  10 relied on this doctrine of the Law of Nations and  11 international law for its own advantage in its claims  12 both as against Spain in 1790, later against the  13 United States for the territory now known as British  14 Columbia and continuing to rely upon it with respect  15 to Arctic territories, the Crown is not now entitled  16 to assert that these principles did not apply in  17 British Columbia.  18 My lords, we now move to our section entitled  19 "Coexistence of Titles and Jurisdictions".  In reply  20 to my lord Mr. Justice Lambert I have proceeded myself  21 into this section, so I will not take you through it  22 entirely, but I would like to highlight some points in  23 the argument.  24 It commences at paragraph 145 of the factum at  25 page 36.  And our arguments in these sections, my  26 lords, are precisely the point that sovereignty is not  27 an absolute term.  There are nuances, there is a  28 notion in law of relative sovereignty, shared  29 sovereignties, and we say that this is the approach  30 and the perspective that should be brought to bear on  31 the Crown's sovereignty vis-a-vis aboriginal peoples.  32 We will not deal with our section of coexistence  33 of titles because, I believe, that its been well  34 covered, the argument being based on Section 109 of  35 the Constitution Act, well covered by appellants and  36 by others.  37 I would like to move to page 37, paragraph 151,  38 which deals with the coexistence of jurisdictions.  39 And again briefly to say that with respect to  40 jurisdiction and sovereignty, with respect, the trial  41 judge saw no possibility of coexistence with  42 aboriginal authorities.  And he says in his reasons at  43 386:  44  45 "After much consideration, I am driven to find  46 that jurisdiction and sovereignty are such  47 absolute concepts that there is no half-way 1146  Submissions by Mr. Hutchins  1 house.  2  3 With great respect, we believe that that is too  4 absolute a statement as to the notion of sovereignty  5 and jurisdiction, and we develop those arguments in  6 paragraph 151 on.  7 We refer the court to the judgment of Chief  8 Justice Marshall in Worcester v. Georgia.  And at  9 paragraph 154, my lords, once again we refer to the  10 Supreme Court of Canada in Sioui.  Again I will be  11 taking you to the case in detail, but at the moment on  12 this point may I just stress the -- again the words of  13 Mr. Justice Lamer:  14  15 "The Indian nations were regarded in their  16 relations with European nations which occupied  17 North America as independent nations."  18  19 And we'll see when we look at that case that the  20 court looked very closely to the relationship and the  21 respective relationships of the Europeans and First  22 Nations.  23 We say in paragraph 155 that Great Britain  24 considered the aboriginal peoples of the north west  25 coast to be sovereign is affirmed in her statement of  26 1826, which we saw before the break, in which she  27 expounds to the United States the necessity of  28 obtaining sovereignty from the Indians in order to  29 ground a valid claim to title.  30 We refer your lordships to African authorities,  31 and I won't go through them, but Re Southern Rhodesia,  32 Sprigg v. Sigcau.  These are at paragraphs 156 and  33 157.  We say are examples elsewhere in the world of a  34 recognition that First Nations, indigenous peoples  35 enjoyed a form of sovereignty, which sovereignty could  36 be transferred in whole or in part to Europeans.  37 Perhaps just a statement at 158 in Amodu, my  38 lords, the opening phrase is typical.  39  40 "There was a cession to the British Crown, along  41 with sovereignty ..."  42  43 Says the Privy Council.  44  45 "... of the radical or ultimate title to the  46 land in the new colony."  47 1147  Submissions by Mr. Hutchins  1 And the last sentence of that that extract.  2  3 "... the general words of the cession are  4 construed as having related primarily to  5 sovereign rights only."  6  7 At paragraph 159, my lords, we developed this idea  8 of limited and relative, legal sovereignty.  We  9 provide you with an extract from Lewis Wildhaber,  10 "Sovereignty and International Law", and without  11 reading it I would draw your attention to the middle  12 portion of that extract where the author does speak in  13 terms of limited, relative, legal sovereignty.  And he  14 speaks about the "corresponding rejection of an  15 unlimited, absolute, political sovereignty in the  16 hands of government."  And he is discussing the  17 development of federalism in the United States.  18 The "American Experiment", we say at 160, referred  19 to by Wildhaber, of course included establishing a  20 system of tenure and jurisdiction in concert with  21 First Nations throughout North America.  Relations  22 between the Europeans and aboriginal nations were at  23 the very foundation of the international and  24 constitutional legal history of North America.  25 We refer you to Professor Brian Slattery's  26 article, "Aboriginal Sovereignty and Imperial Claims".  27 Professor Slattery, of course, having been cited by  28 the Supreme Court on numerous occasions.  Professor  29 Slattery makes this point:  30  31 "Canada and the United States came into being,  32 not simply through the activities of incoming  33 European powers, but through a complex series  34 of interactions among various settler groups  35 and aboriginal nations."  36  37 At the foundation, the constitutional foundation  38 of this country and the United States, was this  39 relationship, this establishment of a relationship  40 which goes to territory and jurisdiction.  41 LAMBERT, J.A.: Have you got the tabs for those two?  42 MR. HUTCHINS:  Yes, my lord.  For Wildhaber it's Volume A51, Tab  43 4; and Brian Slattery, A50, Volume A50, Tab 3.  44 HUTCHEON, J.A.:  The next one please, Asch and Macklem.  45 MR. HUTCHINS:  We'll provide that in a minute, my lord.  I don't  46 have that handy.  A51 --no.  I'll provide it.  I  47 don't have it at hand. 1148  Submissions by Mr. Hutchins  1 We say at 161 that the trial judge does  2 acknowledge that within the Canadian constitutional  3 make-up there exist provinces sovereign in their areas  4 and a federal government sovereign in its area, with  5 jurisdiction and rights over the same territory and  6 the same persons.  We know this in Canadian  7 constitutional law.  8 With respect -- we say at paragraph 162 -- the  9 trial judge ignores in his analysis the effect of  10 Section 35 of the Constitution Act, 1982 on the  11 division of powers in Canada.  He acknowledges  12 division as between the federal and provincial  13 sovereigns, if you will, but he ignores or does not  14 give sufficient weight to the effect of Section 35.  15 The argument that the aggregate of federal and  16 provincial jurisdiction and sovereignty excludes all  17 other, we submit, is no longer tenable.  18 And as authority, my lords, we refer you to a  19 recent judgment of the Quebec Court of Appeal in the  20 matter of the Attorney General of Canada v. Coon Come.  21 These were proceedings in connection with legal  22 proceedings dealing with the James Bay project.  The  23 question before the court, the Court of Appeal in this  24 matter, was the jurisdiction, inherent jurisdiction of  25 superior courts, and as to whether the matters were  26 constitutional in nature, the matters before the court  27 were matters going to division of powers.  28 We've provided you, my lords, with the translation  29 of the judgment, which was rendered in French, but I  30 would like to read it, and I will be taking your  31 lordships to the case in more detail a little later  32 on.  For the time being may I just read what the court  33 says with respect to the effect of Sparrow.  This is  34 the Quebec Court of Appeal.  35  36 "In the conception that seems to come out of the  37 Sparrow case, the constitutionalization of  38 aboriginal rights in s. 35 would introduce a  39 third component in the operation of Canadian  40 federalism which should be taken into account  41 in the distribution of powers between the  42 provincial legislatures and the Parliament of  43 Canada."  44  45 I believe in French it was:  46  47 "... introduirait une troisieme componsante dans 1149  Submissions by Mr. Hutchins  1 le fonctionnement ..."  2  3 The point here, my lords, is that we consider the  4 judgment of Coon Come in the Quebec Court of Appeal as  5 authority, one of the authorities that perhaps the  6 court was casting about for yesterday.  Questions were  7 asked:  Is there jurisprudence?  Are there authorities  8 on the matter of inherent right to self-government?  9 We say that the case, the judgment of the Court of  10 Appeal in Quebec in Coon Come is such authority, and I  11 will be developing that with your lordships later.  12 At paragraph 163 we suggest that the early U.S.  13 Supreme Courts reveal two aspects of sovereignty which  14 may be useful in this analysis.  And without going to  15 these cases, the two elements are the coexistence of  16 sovereignties, the notion of provinces and federal  17 government or three sovereignties, if you will.  So  18 there is that notion, and then there is the notion of  19 internal and external sovereignty, the idea that a  20 sovereign may yield up a degree of sovereignty, an  21 aspect of sovereignty, but retain internal  22 sovereignty, internal self-governance.  Again going to  23 this point that sovereignty is a relative term and a  24 more elastic term than is sometimes presumed.  25 We do at paragraphs 164 and following develop the  26 first branch, the coexistence of sovereignty, and  27 referred your lordships to the Marshall court  28 judgments on that point.  I will not go to them.  They  29 have been canvassed by other parties.  30 On the matter of external and internal  31 sovereignty, at page 42 on that paragraph 169 we would  32 just point out that we believe again the courts and  33 the Law of Nations recognize this idea of internal,  34 external sovereignty and perhaps this is a way of  35 explaining the framework in which one can explain how  36 there can be a Crown -- a British Crown claiming  37 sovereignty and First Nations continuing to claim a  38 right to self-government or jurisdiction.  And I don't  39 wish to stress the word "sovereignty".  We are  40 satisfied with jurisdiction, the right to  41 self-government.  42 We mention at paragraph 173, my lords, the notion  43 of protectorate in international law and the Law of  44 Nations, which again may assist in an understanding of  45 the process.  That the Law of Nations and  46 international law does accommodate this notion of  47 arrangements pursuant to treaties, and with particular 1150  Submissions by Mr. Hutchins  1 reference to situations in Africa, and that under  2 protection arrangements external sovereignty is  3 exercised by the protector, the matter of armies and  4 air forces and foreign relations, while leaving intact  5 the protectorate's rights of internal sovereignty or  6 internal self-government.  That notion is known in  7 law.  8 My lords, we move or I would like now to move  9 forward in the factum.  We deal at pages 44 and  10 following with the specific historical legal situation  11 pertaining to the colony of British Columbia.  These  12 matters had been, of course, very well covered by  13 appellants and time does not permit a repeat of those  14 matters, but we do in our speaking notes yesterday  15 summarize our position on those matters.  16 So I would move forward to page 55 of the factum.  17 We deal with the distinction between frustration of  18 the exercise of a right and extinguishment of the  19 right.  20 Again I have briefly discussed this this morning,  21 and I don't believe it's necessary to go through the  22 specific cases with you.  Sparrow is authority.  We  23 say that there are other cases such as R. v. Arcand,  24 which is cited, and R. v. Flett, the hunting cases  25 which explain the phenomenon that until 1982 these  26 rights seemed to be non-existent, appeared to be  27 non-existent, because they had been legislated out of  28 existence.  And the court said no, they were not  29 legislated out of existence.  The exercise was  30 frustrated by legislation.  With the coming of the  31 Constitution Act 35 and 52 there is a remedy now  32 against that continuing frustration of exercise of  33 rights.  34 We suggest that if this doctrine and if this law  35 applies on the matter of hunting of migratory birds or  36 fishing, why would it not apply with respect to a  37 right to self-government, a right to exercise internal  38 control through institutions.  We don't see the legal  39 justification for making such a distinction.  40 LAMBERT, J.A.:  What happened in 1982 to rights that were not  41 extinguished but frustrated by legislation?  Did all  42 that legislation cease to be effective to frustrate  43 the rights at that time and the rights sprang back  44 again to their full flowering the very moment that the  45 constitution was changed in 1982?  46 MR. HUTCHINS:  Well, my lord, I don't know that the authority is  47 that they spring back.  Certainly the courts have 1151  Submissions by Mr. Hutchins  1 said, and I refer specifically to Arcand v. Arcand,  2 for example, that the exercise of the right became  3 possible or, let me put it this way, an attack on  4 legislation which appeared to limit or frustrate the  5 exercise was possible as a result of Section 35 and  6 Section 52 of the Constitution Act, and it was the  7 interplay between 35 and 52 and was specifically 52  8 which allowed that recourse which did not exist prior  9 to 1982, the fact that the constitution now says that  10 any law incompatible with the constitution or  11 constitutional rights is of no force and effect.  So  12 it led to a reading down of, for example --  13 LAMBERT, J.A.:  I don't understand why there — what's the  14 difference between your answer and the full fledged  15 right flowering forth again immediately in 1982.  You  16 may have some enforcement problems until it's all  17 straightened out, but that's what your constitutional  18 position is  19 MR. HUTCHINS:  In law, my lord, I like your description.  I  20 think it is apt.  I had in mind the practical  21 problems.  But I think that is the appropriate way to  22 express what happened in April, 1982.  23 Sometimes, and most unfortunately, aboriginal  24 peoples, First Nations must continue to go to the  25 courts to have this asserted, have their rights  26 asserted, and have the restrictions on the Crown  27 stated and articulated by the courts, as was the case  28 in the matter of the treaty peoples on the prairies  29 with aboriginal -- with treaty rights and aboriginal  30 rights to hunt migratory birds.  And those are the  31 cases we have of R. v. Arcand in Alberta, and R. v.  32 Flett, which is a  Manitoba case which went the  33 Manitoba Court of Appeal.  The Manitoba Court of  34 Appeal refused leave to appeal by the Crown on the  35 same matter.  36 And we give you extracts in our factum where the  37 courts explain this process.  For example, the R. v.  38 Arcand citation, my lords, is found at paragraph 217  39 of our factum.  40 TAGGART, J.A.: Where is that?  41 MR. HUTCHINS:  Page 56 of the factum, paragraph 217.  42 TAGGART, J.A.:  Sparrow was?  43 MR. HUTCHINS:  This is citing R. v. Arcand, my lord, but the  44 point is that the judgment of this court has been  45 invoked for the proposition that a right that is  46 restricted does not cease to be a right.  And the  47 court in Arcand says, and I will read it: 1152  Submissions by Mr. Hutchins  1  2 "In my opinion prior regulations passed are not  3 equivalent to extinguishment.  Regulation and  4 extinguishment are fundamentally different  5 concepts.  A right that has been extinguished  6 ceases to exist.  On the other hand, a right  7 that is regulated even to the point of  8 unenforceability does not necessarily cease to  9 exist, it is merely rendered dormant until the  10 restricting regulation is repealed or altered.  11 The fundamental content of the right remains  12 unchanged at all times."  13  14 And the court is describing a pre-1982 situation.  15 I find support in British Columbia Court of Appeal's  16 judgment in Sparrow.  17 Going on to 218, my lords, paragraph 218, we see  18 the development of the court in R. v. Arcand on this  19 point, the effect of the Constitution Act, 1982.  20 Prior to the coming into force of the  21 Constitution Act, 1982, there may have been little  22 remedy against Crown action resulting in the  23 frustration of the exercise of aboriginal rights as to  24 both title and jurisdiction.  The Constitution Act,  25 1982 now provides a remedy.  And the court so  26 expressed it in R. v. Arcand.  27  28 "Once a right is given constitutional  29 recognition and affirmation, it seems to me it  30 must receive constitutional protection.  31 Section 52 of the Constitution provides that  32 any law inconsistent with the provisions of the  33 Constitution, to the extent of the  34 inconsistency, is of no force or effect."  35  36 It is not an attack on the vires of valid  37 legislation, but it is a matter of reading down that  38 legislation as it affects the aboriginal and treaty  39 rights of First Nations.  40 So this R. v. Arcand is that authority, and I  41 refer your lordships to the case of R. v. Flett, which  42 we referred to at 216, paragraph 216.  It's in the  43 authorities.  For references, my lords, R. v. Arcand  44 is at Volume A18, Tab 45.  R. v. Flett will be found  45 at Volume A10, Tab 215.  That's the reference at  46 paragraph 216.  And, my lord --  47 TAGGART, J.A.:  A10? 1153  Submissions by Mr. Hutchins  1 MR. HUTCHINS:  A10, Tab 215.  2 And, my lord Mr. Justice Hutcheon, I think, asked  3 about the Asch article a little earlier.  That, my  4 lord, is at A51, Tab 5.  5 HUTCHEON, J.A.:  That's on page 40.  6 MR. HUTCHINS:  Now, my lords, I move to our section on required  7 conduct -- I'm at page 57 of the factum -- where we  8 examine the notion of required conduct.  Again  9 discussed briefly in answers this morning.  We refer  10 to due process requirements.  Again we are  11 examining -- we suggest that the court examine the  12 required conduct of the Crown.  As sovereign, how  13 should the sovereign conduct itself.  And we suggest  14 that due process requirements are appropriate.  15 We deal in the factum with a number of  16 manifestations, particularly the question of  17 treaty-making, the nature of treaty-making.  And I am  18 not going to go through those sections, because again  19 the matter of treaty-making has been very well  20 canvassed by appellants, but I urge you to look at  21 these sections of the factum.  22 I would like to move, my lords, to -- we talk  23 about the legal significance of the Vancouver  24 treaties.  I would like to turn to page 61 of the  25 factum, paragraph 240, where we deal with another  26 aspect of what we had referred to as prescribed or  27 required conduct.  We had made the argument in the  28 sections that I have jumped over that there is a  29 requirement of treaty-making.  That is one  30 manifestation of the conduct required of the  31 sovereign.  32 Now we look at the aspect of fiduciary duty.  We  33 call it court prescribed conduct - fiduciary duty.  34 Again, as a matter of looking at constraints upon,  35 legal constraints upon Crown behaviour, and how the  36 Crown may deal with aboriginal peoples.  We say at  37 paragraph 240 that the relationship between the Crown  38 and First Nations is fiduciary in nature.  The Crown  39 has a fiduciary duty towards First Nations.  This duty  40 does not derive exclusively from any one treaty or  41 statute.  It is a duty flowing from, as the Supreme  42 Court said in Guerin:  43  44 "The fiduciary relationship between the Crown  45 and the Indians has its roots in the concept of  46 aboriginal, native or Indian title."  47 1154  Submissions by Mr. Hutchins  1 It is not simply the result of an instrument or a  2 transaction between parties.  It is a much more  3 fundamental concept.  4 Guerin is at Al, Tab 9, my lords, and I'm sure  5 that's been cited to you.  And the pinpoint reference  6 is page 334 at Tab 9.  7 At 241 we say that the standards of conduct  8 exercised by the Crown in its negotiations and  9 dealings with aboriginal peoples has been, and is  10 increasingly being, subject to scrutiny by the courts.  11 This is a matter for the courts to examine, and  12 without reading it we refer your lordships what the  13 Ontario Court of Appeal stated in the case of Taylor  14 and Williams.  15 Moving on to paragraph 243 we say that any  16 sovereign power or discretion that may be enjoyed by  17 the Crown as sovereign does not shield Crown behaviour  18 from scrutiny by the courts.  And we refer to Mr.  19 Justice Dickson in Guerin on that point.  The pinpoint  20 there would be at page 340, my lords.  Mr. Justice  21 Dickson stating:  22  23 "This discretion on the part of the  2 4 Crown ..."  25  26 The exercise, if you will, of sovereign  27 authorities.  28  29 "... far from ousting, as the Crown contends,  30 the jurisdiction of the courts to regulate the  31 relationship between the Crown and the Indians,  32 has the effect of transforming the Crown's  33 obligation into a fiduciary one."  34  35 And we say at 244 that once a fiduciary  36 relationship is established, and the courts, I think,  37 have been very clear that it is established, it is  38 then governed by equity.  Again Mr. Justice Dickson in  39 Guerin:  40  41 "Equity will then supervise the relationship by  42 holding (the fiduciary) to the fiduciary's  43 strict standard of conduct."  44  45 The Supreme Court has confirmed Guerin and Taylor  46 and Williams in Sparrow, and we give you the  47 appropriate quotation at paragraph 245. 1155  Submissions by Mr. Hutchins  1 Moving to paragraph 246, my lords.  We say that  2 the fiduciary duty on the Crown is not restricted to  3 the Crown in right of Canada.  It applies as well to  4 the Crown in right of British Columbia, although not  5 in the manner suggested by the trial judge.  6 And I would refer your lordships to page 417 of  7 the reasons.  You will see there the characterization  8 by the trial judge of what he considered to be the  9 fiduciary duty.  And we believe, with respect, that he  10 understated the duty, the elements he referred to.  If  11 you wish to go to page 417, page 417 of the reasons,  12 second full paragraph, the trial judge's  13 characterization, second full paragraph.  14  15 "The Crown's obligation, in my judgment, is to  16 permit aboriginal people, but subject to the  17 general laws of the province, to use any  18 unoccupied or vacant Crown land for subsistence  19 purposes until such time as the land is  20 dedicated to another purpose.  The Crown would  21 breach its fiduciary duty if it sought  22 arbitrarily to limit aboriginal use of vacant  23 Crown land."  24  25 The elements being use of vacant land for  26 subsistence purposes for as long as that land isn't  27 required for any other purpose.  That does not sound  28 like a very substantive, secure right or a very  29 onerous duty on the part of the Crown.  It's subject  30 to general laws of the province.  31 And then on the fourth paragraph, my lords, the  32 trial judge makes the point in the second sentence of  33 that paragraph:  34  35 "I have decided I should not, both for the  36 reasons which follow and because the fiduciary  37 duty the Crown assumed upon the extinguishment  38 of aboriginal rights is not a constitutionally  39 recognized or affirmed right and is therefore  40 subject to the general law of the province."  41  42 My lords, we submit that that is, with all due  43 respect, not a correct characterization of the law on  44 the subject.  In support we would refer your lordships  45 to the case of R. v. Sparrow, the Supreme Court  46 judgment in R. v. Sparrow at Al, Tab 22, page 409.  47 I'll just read the statement at the moment that the 1156  Submissions by Mr. Hutchins  1 court makes on this point.  While examining the  2 importance of Section 35 and 52 the Supreme Court in  3 Sparrow says:  4  5 "Yet we find that the words 'recognition and  6 affirmation' ..."  7  8 That would have been 35.  9  10 "... incorporate the fiduciary relationship  11 referred to earlier and so import some  12 restraint on the exercise of sovereign power."  13  14 The Supreme Court referring to the concepts of the  15 wording of Section 35, "recognition and affirmation",  16 state that they incorporate the fiduciary  17 relationship.  18 TAGGART, J.A.:  Page?  19 MR. HUTCHINS:  That would be at page 409 of Tab 22, my lord.  20 R. v. Sparrow.  21 Now, with respect to -- that is -- I was dealing  22 with the characterization of the fiduciary duty by  23 whichever manifestation the Crown held on that point.  24 Our point at paragraph 246 and 247 is that this duty  25 lies not only on the Federal Crown, the Crown in right  26 of Canada, but on the provinces to varying degrees in  27 accordance with the situation prevailing.  28 We give as authority The Queen v. Secretary of  29 State, which was the case brought by Alberta Indians  30 at the time of patriation of the Constitution in 1981,  31 in 1981 the Court of Appeal of United Kingdom dealing  32 with the protections that First Nations would receive  33 and could count upon in constitution as then drafted.  34 My Lord Justice May in that case, and there are  35 similar statements by Mr. Justice -- Mr. Justice Lord  36 Denning, but let me just read what Lord Justice May  37 stated on the subject of responsibilities, duties on  3 8 the Crown.  39  40 "But in my opinion, on both the general and  41 particular considerations to which I have  42 referred, I do not think that this in any way  43 means that any treaty or other obligations into  44 which the Crown may have entered with its  45 Indian peoples of Canada still enure against  46 the Crown in right of the United Kingdom.  47 Quite clearly, to the extent that these still 1157  Submissions by Mr. Hutchins  1 continue - and I think that it is clear that  2 the Canadian courts have held that they do -  3 they are owed by the Crown in right of the  4 Dominion or in right of the particular  5 province."  6  7 We refer you to Mr. Justice Dickson's words in  8 Guerin on the general concept of fiduciary duties to  9 point out that it is clear that fiduciary duties could  10 attach to a variety of actors.  It is not a notion  11 attached only to the Federal Crown in the matter, of  12 course, of aboriginal peoples.  13  14 "It is the nature of the relationship ..."  15  16 Wrote Mr. Justice Dickson.  17  18 "... not the specific category of actor involved  19 that gives rise to the fiduciary duty.  The  20 categories of fiduciary, like those of  21 negligence, should not be considered closed."  22  23 We state therefore, my lord, that under the  24 division, divisibility of the Crown, and on the  25 authorities of the court, it is not untrue to say that  26 the Crown in right of a province also has this  27 fiduciary duty towards aboriginal peoples.  It is the  28 Crown in its various manisfestations, and if the  29 appropriate manifestation happens to be the Crown in  30 right of the Province in a certain circumstance, so be  31 it.  32 We say at paragraph 249, my lords, that the  33 fiduciary duty is a positive duty, and Sparrow makes  34 that very clear.  The court states:  35  36 "Canada's aboriginal peoples are justified in  37 worrying about government objectives that may  38 be superficially neutral but which constitute  39 de facto threats to the existence of aboriginal  40 rights and interests."  41  42 It's not just a duty not to interfere, it is, it  43 is suggested, a positive duty to take the measure to  44 protect the freedoms exercised by aboriginal peoples.  45 We refer you to a Quebec -- to a federal court  46 judgment in Cree Regional Authority v. Robinson,  47 another one of the proceedings relating to the James 1158  Submissions by Mr. Hutchins  1 Bay project, in which Mr. Justice Ruleau of the  2 federal court again confirms this notion that  3 provincial authorities also have duties.  He states:  4  5 "Crown Counsel .."  6  7 And that was the federal Crown Counsel in this  8 case.  9  10 "... also pointed out to me that Sparrow, supra,  11 does not distinguish between the federal and  12 provincial Crown; that the provincial  13 authorities are also responsible for protecting  14 the rights of the native population.  I agree."  15  16 We say, therefore, that the positive,  17 constitutional duty includes the obligation to  18 establish treaty relationships.  This is part of the  19 duty that lies upon the Crown pursuant to public and  20 voluntary process.  And we give your lordships again  21 the appropriate notation from the Guerin case.  22 We say that the standards for government conduct  23 toward aboriginal peoples involves the honour of the  24 Crown, respect for First Nation consent and require  25 avoidance of sharp dealings.  26 And so, my lords, we move to the question of the  27 Crown cannot invoke its own turpitude.  I referred to  28 this in the speaking notes yesterday.  I'm at  29 paragraph 253.  We do believe that again one must look  30 at the effect of, the legal effect of the Crown itself  31 as one of the parties in the relationship as saying  32 there are no rights because we have decided there are  33 no rights.  There are no rights as we have  34 extinguished the rights, we the Crown.  35 The rights of appellants should not be defined by  36 reference to acts by respondents in breach of those  37 rights.  Respondents have attacked the aboriginal  38 rights of appellants by relying on the continuing  39 breach by the Crown of its legal obligations.  And we  40 believe that this must be considered.  We invoke the  41 well-known principle that no one, including the Crown,  42 should be entitled to invoke his own turpitude.  43 We at page 255, my lords -- paragraph 255.  The  44 factum was extensive but not that extensive.  At  45 paragraph 255 we bring to your attention the case of  46 R. v. Catagas on the question of the effect of policy.  47 We said the common law and the Law of Nations relied 1159  Submissions by Mr. Hutchins  1 upon by Great Britain in its dispute with the United  2 States concerning the respective claims to British  3 Columbia clearly upheld the legitimacy of the rights  4 of the aboriginal peoples.  Even if there had been a  5 policy of non-recognition of these rights in colonial  6 British Columbia, which the trial judge appears to  7 have found, which we deny, policy cannot overrule law;  8 that it is not because there is a policy that the law  9 and the legal principles disappear in the court.  10 The Manitoba Court of Appeal in R. v. Catagas  11 states:  12  13 "Our laws cannot be so treated.  The Crown may  14 not by executive action dispense with laws.  15 The matter is as simple as that, and nearly  16 three centuries of legal and constitutional  17 history stand as the foundation for that  18 principle."  19  20 So, my lords, we are saying at 256 that in the  21 case at bar the trial judge accepted a theory by  22 which, if it could be shown by inference if not  23 expressly, that various colonial officers committed  24 acts, or made certain statements, which could be  25 interpreted as demonstrating a lack of intention to  26 respect plaintiffs' rights, then those rights were  27 extinguished.  28 We say, my lords, that even if the acts and  29 statements in question do not demonstrate such a lack  30 of intention, that we have denied that the statements  31 do represent that intention, however, should one so  32 conclude, as the trial judge so held, this amounts to  33 accepting that the Crown may invoke its own turpitude,  34 that the Crown may now plead that rights do not exist  35 as a result of actions it took in earlier times.  36 We refer specifically, my lords, at paragraph 260.  37 We have dealt with some of the detailed history of  38 this matter in British Columbia, but I would like to  39 just bring your lordships to paragraph 260 on the  40 subject of the McKenna-McBride Royal Commission as an  41 example of what we would say is this invoking in one's  42 own turpitude.  We say that aboriginal peoples in  43 British Columbia objected to the limited mandate of  44 this commission.  The trial judge himself found that:  45  46 "Instead they often gave assurances ..."  47 1160  Submissions by Mr. Hutchins  1 The commissioners to the Indian people.  2  3 "... that participation in the reserve process  4 would not prejudice such claims which would,  5 they said, ultimately be resolved in court."  6  7 But notwithstanding those representations this did  8 not happen.  The promised court case never took place.  9 And we state this at paragraph 262.  In fact  10 legislation was adopted, the Indian Act, 1927,  11 prohibiting the recourse to the courts, certainly  12 prohibiting anyone from acting on behalf of Indian  13 people.  14 I would like to refer your lordships to the  15 reasons at page 332 on this matter.  His Lordship did  16 refer to this.  Page 332 the learned trial judge in  17 reviewing the history of the Royal Commission and  18 subsequent events.  And the second paragraph up from  19 the bottom of page 332 states:  20  21 "So firm was the Dominion, however, that all  22 questions had been resolved, that Parliament in  23 1927 actually passed legislation aimed at  24 prohibiting anyone from assisting in the  25 financing of Indian land claims.  This  26 provision was not repealed until 1951 with the  27 passing of the Indian Act, 1951."  28  29 So firm was the Dominion that all the problems had  30 been solved that it passed legislation saying no one  31 can contest our determination, that all problems had  32 been solved.  33 My lord, that, in our view, is an example of a  34 party invoking its own turpitude, saying -- deciding  35 that an issue has been solved, perhaps contrary to the  36 understanding of the other party, and then saying  37 because we have decided that it is resolved, you  38 cannot contest that matter, you cannot hire counsel to  39 contest that matter.  40 At paragraph 265, my lord, therefore we say that  41 any attempt by respondents at this stage to invoke the  42 work of the Indian Reserve Commission or the  43 McKenna-McBride Commission and subsequent legislation  44 and Orders-in-Council seeking to implement the results  45 of these commissions as evidence of any settlement or  46 extinguishment of appellants' aboriginal title, again  47 amounts to nothing more than invoking their own 1161  Submissions by Mr. Hutchins  1 turpitude.  This should not be accepted nor condoned  2 by this court.  3 My lords, it would now be my intention to proceed  4 to our supplementary factum, and this might be an  5 appropriate time.  6 TAGGART, J.A.:  How much longer do you think you would be?  I  7 have in mind the possibility of utilizing some time  8 this afternoon.  9 MR. HUTCHINS:  I would appreciate being able to go to 3 o'clock,  10 which I believe respects the original time allotted to  11 us.  So if I may go from 2:00 'til 3:00, that would  12 satisfy us.  13 TAGGART, J.A.:  Mr. Gouge, the anticipation was that we would  14 have an hour, perhaps more, but an hour at least.  Are  15 you still in a position to at least commence your  16 submission on behalf of Alcan?  17 MR. GOUGE:  I am, my lord.  I have spoken with my learned  18 friends about whether I could have any time tomorrow  19 morning, and we are trying to work that out.  20 TAGGART, J.A.:  Very well.  21 THE REGISTRAR:  Order in court.  Court stands adjourned.  22  23 NOON RECESS  24  25  26 I HEREBY CERTIFY THE FOREGOING TO  27 BE A TRUE AND ACCURATE TRANSCRIPT  28 OF THE PROCEEDINGS TRANSCRIBED TO  29 THE BEST OF MY SKILL AND ABILITY.  30  31  32    33 LORI OXLEY  34 OFFICIAL REPORTER  35 UNITED REPORTING SERVICE LTD.  36  37  38  39  40  41  42  43  44  45  46  47 1162  Submissions by Mr. Hutchins  1 (PROCEEDINGS RESUMED)  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Yes, Mr. Hutchins?  5 MR. HUTCHINS:  May it please the court, my lords, this afternoon  6 I would like to move to our Supplementary Factum and I  7 will be starting my submissions on page 7 of the  8 Supplementary Factum in the section which we have  9 called the "Effect of British Sovereignty on  10 Appellants' Rights", but this time in response to some  11 specific submissions by British Columbia in its  12 Revised Factum.  And we also attempt to deal with the  13 submissions of Respondent Attorney General of Canada.  14 In the time remaining, my lords, I would like to deal  15 with some limited points raised in the Supplementary  16 Factum.  17 I am at paragraph 19 of the Factum, page 7, and  18 we state, following initial discussions on the effect  19 of sovereignty, that it is not true, as Respondent  20 Canada suggests, that finalizing the Oregon boundary  21 with the United States of America in 1846 transformed  22 the relationship between First Nations of British  23 Columbia and the Crown from a matter between Nations  24 governed by the Law of Nations to a domestic legal  25 issue governed exclusively by the law of one of the  26 parties; British Columbia.  That is the submission  27 made at paragraph 265 of Canada's Factum.  28 We say, my lords, that at section -- at paragraph  29 20, that elsewhere in Canada, the establishment,  30 specifically, of boundaries between the United States  31 and Great Britain after the American Revolution  32 resolved the legal relationship between those two  33 parties, Great Britain and the United States, but did  34 not prejudice the rights of First Nations.  And in  35 support we give you, again, the statement, but a  36 different portion of the statement of Lord Dorchester,  37 Governor of Upper and Lower Canada, as he explained  38 the effect of the border to a Deputation of  39 Confederated Indian Nations in August of 1791,  40 specifically on the effect of what we know as an  41 international boundary and its implications for First  42 Nations.  Lord Dorchester stated:  43  44 "When the King made peace and gave independence  45 to the United States, he made a Treaty in which  46 he marked out a line between them and him; this  47 implies no more, than that Beyond this line he 1163  Submissions by Mr. Hutchins  1 would not extend his interference.  2  3 "But Brothers, this line, which the King then  4 marked out between him and the States, even  5 supposing the Treaty had taken effect, could  6 never have prejudiced your rights."  7  8 A statement by the Crown, similar to those that I  9 was referring to this morning, that dealings as  10 between European nations did not automatically affect  11 rights and interests of First Nations.  12 And that takes me, my lords, to the case of R.  13 v. Sioui, which we state is most relevant to this  14 appeal and to the issues in this appeal.  R. v. Sioui  15 is found at Volume A-2 at tab 29.  We have in our  16 Factum set out the extracts of the judgment which I  17 would like to bring to your lordships' attention.  18 HUTCHEON, J.A. :  Where are you?  19 MR. HUTCHINS:  I'm at paragraph 21.  20 HUTCHEON, J.A.:  Yes.  I think you said tab 29.  21 MR. HUTCHINS:  Tab 39.  I'm sorry, my lord.  22 Now we say that R. v. Sioui is relevant to this  23 case.  The situation in the 19th Century in what is  24 now British Columbia was analogous to that prevailing  25 during the 18th Century in the St. Lawrence Valley and  26 on the eastern seaboard considered by the Supreme  27 Court of Canada in Sioui.  In Sioui the court analyzed  28 the situation involving two European powers, the  29 French and the British, contesting a territory where  30 one of the European contestants, the British,  31 succeeded in establishing first de facto -- and these  32 are the terms of the court -- and eventually de jure  33 control of the territory.  34 Now, Respondent Canada seems to imply that R. v.  35 Sioui dealt with a distinct and inapplicable  36 historical context, that of the history of British/  37 French relations, warfare on the eastern seaboard in  38 which Indian tribes were enlisted as allies.  We say  39 that while the specific facts are different, the  40 principles apply equally to the North West Coast, and  41 the legal, policy underpinnings of -- are exactly the  42 s ame.  43 The essential holdings, my lords, in Sioui was  44 that the rearrangement of authority between European  45 powers, the French and the British, and eventual  46 consolidation of authority by one European power did  47 not affect the capacity and powers of First Nations 1164  Submissions by Mr. Hutchins  1 sharing these territories; and this is the  2 significance of the judgment in R. v. Sioui.  3 Throughout the European struggle, and after  4 consolidation of British authority, First Nations were  5 not subj ects.  6 Sioui analysed the respective capacities of First  7 Nations and European powers after at least 150 years  8 of coexistence in the St. Lawrence Valley.  So  9 although the time -- the dates are different, the time  10 depth of European/First Nation contact and coexistence  11 is comparable to that prevailing in British Columbia  12 as of 1982, 150 years after -- after 150 years of  13 coexistence between Europeans and First Nations, the  14 Supreme Court of Canada could make these assertions.  15 And we say at section -- at paragraph 25, my  16 lords, that in Sioui, the Supreme Court had before it  17 arguments by the Attorney General of Quebec, two  18 arguments set out:  19  20 i)  First Nations should be considered as in the  21 same position as the French troops and the  22 Canadian troops during the period that the  23 British consolidated their position in British  24 North America and received the surrender and  25 capitulation of French and Canadian troops.  26  27 That was the submission of the Attorney General.  28 The other submission was:  29  30 ii) The treaty of September 5, 1760 signed by  31 General Murray be considered identical to the  32 surrenders and capitulations of the French and  33 Canadian Troops.  34  35 In other words, the submission of the Attorneys  36 General was that the Hurons, the Indian nation, should  37 be considered in the same position as the Canadians  38 and as the French troops.  And what is the consequence  39 of that?  The consequence of that was that the  40 sovereigns, the British Crown or the French Crown  41 spoke for them on their behalf.  And the court -- the  42 Supreme Court in Sioui, my lords, said no, that was  43 not the case, the French Crown did not speak on behalf  44 of the Hurons and the British Crown did not.  45 As we say at paragraph 26, my lords, the court  46 considered the position of the French and Canadians on  47 the one hand, and the position of First Nations on the 1165  Submissions by Mr. Hutchins  1 other, to be completely distinct.  And this is the  2 significance, I believe, for this appeal:  While the  3 British had consolidated their authority over the  4 French troops and the Canadian inhabitants of the  5 territory, they had not established or consolidated  6 similar authority over the First Nations.  7 And then we take you, my lords, to extracts of  8 the judgment at paragraph 27.  And I would like to  9 read to you extracts of the judgment to give you an  10 idea of how Mr. Justice Lamer, writing for a unanimous  11 Supreme Court, dealt with these issues.  The fact that  12 it was ostensibly a treaty case does not make it any  13 less relevant; the fact that it happened in 1760 does  14 not make it any less relevant; the fact that it  15 happened in the St. Lawrence Valley does not make it  16 any less relevant, we would submit.  17 At page 10 of the Factum, my lords, we lay out a  18 rather long extract of the judgment, but I would like  19 to start in the middle of the page with "the mother  20 countries".  The court, after analyzing the  21 relationship between First Nations and Europeans,  22 stated:  23  24 "The mother countries did everything in their  25 power to secure the alliance of each Indian  26 nation and to encourage nations allied with the  27 enemy to change sides.  When these efforts met  28 with success, they were incorporated in  29 treaties of alliance or neutrality.  This  30 clearly indicates that the Indian nations were  31 regarded in their relations with the European  32 nations which occupied North America as  33 independent nations.  The papers of Sir William  34 Johnson, who was in charge of Indian affairs in  35 British North America, demonstrate the  36 recognition by Great Britain that  37 nation-to-nation relations had to be conducted  38 with the North American Indians."  39  40 At page 147 at the bottom of our page -- carrying  41 on, on page 10 of our Factum, the court states:  42  43 "Whatever the similarities between a document  44 recording the laying down of arms by French  45 soldiers or Canadians and the document at  46 issue, the analogy does not go so far as to  47 preclude the conclusion that the document was 1166  Submissions by Mr. Hutchins  1 nonetheless a treaty."  2  3 And then the underlined portions, my lords:  4  5 "Such a document could not be regarded as a  6 treaty so far as the French and the Canadians  7 were concerned [Why?] because under  8 international law they had no authority to sign  9 such a document: they were governed by a  10 European nation which alone was able to  11 represent them in dealings with other European  12 nations for the signature of treaties affecting  13 them."  14  15 So much for the Canadians and the French troops,  16 but what was the situation for First Nations?  The  17 colonial powers recognized, as the court, that the  18 Indians had the capacity to sign treaties directly  19 with the European nations occupying North American  20 territory.  There is, therefore, my lords, made a  21 complete -- a distinction between the capacity in the  22 standing of the Canadians, the French troops and the  23 Indian nations in the path of the advancing British  2 4 a rmi e s.  25 Arrangements between Europeans, however solemn,  26 therefore, did not directly affect the rights and  27 capacities of First Nations.  And the court in Sioui  28 goes on to examine the effect of the capitulation of  29 Montreal, what effect did that have on First Nations?  30 And it examines the effect of the Treaty of Paris of  31 February 10, 1763.  Well, with respect to the Act of  32 Capitulation of Montreal, which again was argued  33 before the Supreme Court that that Act of Capitulation  34 affected the Indian nations, the court states -- and  35 I'll just go to the underlined portion at page 11 of  36 our Factum:  37  38 "Though the Indian allies of the French were  39 its beneficiaries [the beneficiary of the  40 capitulation], it was fundamentally an  41 agreement between the French and the British  42 which in no way prevented independent  43 agreements between the British and the Indian  44 nations, whether allies of the French or of the  45 British, being concluded or continuing to  46 exist."  47 1167  Submissions by Mr. Hutchins  1 The point being formal arrangements being made  2 between the British Crown, the French Crown, and the  3 First Nations, the Indian nations remained free  4 agents, if you will, to make arrangements to treat  5 with either of the European powers.  No one of those  6 European powers or Crowns spoke for the First Nations.  7 The same conclusion is drawn with respect to the  8 Treaty of Paris, the court saying:  9  10 "The same reasoning applies to the appellant's  11 argument that the Treaty of Paris of February  12 10, 1763 between France and England terminated  13 the treaty [the Murray treaty of 1760] between  14 the Hurons and the English.  England and France  15 could not validly agree to extinguish a treaty  16 between the Hurons and the English, nor could  17 France claim to represent the Hurons regarding  18 the extinguishment of a treaty the Hurons had  19 themselves concluded."  20  21 The Hurons, my lords, having been First Nations  22 residing in territory claimed by France to be French  23 territory, nonetheless -- and for many years --  24 nonetheless, the Supreme Court would be able to say  25 that when the time came for dealings between  26 Europeans, this did not tie, this did not bind, this  27 did not affect the status of First Nations.  28 My lords, I submit that R. v. Sioui,  29 notwithstanding what Respondent Attorney General of  30 Canada states, is most relevant in the analysis of  31 European First Nation relations in British Columbia  32 and throughout Canada.  33 At paragraph 32 of the Factum, my lords, we give  34 a summary of the position that we have taken in regard  35 to the effect of European actions and we summarize,  36 again, the representations made to First Nations,  37 representations made to other Europeans and to the  38 Americans, and the continuation of assertions of  39 sovereignty through First Nations to the aboriginal  40 peoples.  41 Moving now through the detailed material to  42 paragraph 40, my lords, just to summarize this point  43 at the bottom of page 14, having reviewed material and  44 we include for your lordships' attention the African  45 cases and doctrine on this matter.  We say that First  46 Nations' self-governance continued in place and  47 co-existed with the infant British colony.  First 1168  Submissions by Mr. Hutchins  1 Nations' self-governance was in place in 1871, we say,  2 through British Columbia's entry into Confederation.  3 The Crown, for its own internal governance reasons,  4 divided itself and took the form of the Crown in Right  5 of British Columbia and the Crown in Right of Canada.  6 First Nations' self-governance remained in place and  7 was not affected by internal arrangements of the  8 Crown.  9 Now, we turn -- I would like to turn now, my  10 lords, to the question of the constitutional  11 recognition of the Appellants' rights which we raised  12 in the speaking notes yesterday, and this involves a  13 jump to page 18 of the Factum.  14 And we say here, my lords, that this Honourable  15 Court -- I'm at page 18, commencing at paragraph 53.  16 We do say that this Honourable Court may take comfort  17 in the fact that the constitutional make-up of Canada  18 and the Constitution of Canada since 1867 have  19 recognized and affirmed rights and freedoms claimed by  20 appellants, and I would like to take you briefly  21 through this material.  22 We state that the Constitution Act of 1867  23 accommodated this matter through what we have termed  24 the protection through division of powers.  That it is  25 clear that aboriginal peoples, First Nations and First  26 Nations' lands were considered in a distinct fashion,  27 in a unique fashion in the distribution of powers  28 established at 1867, and that Section 91(24) and  29 Section 109 of the Constitution Act of 1867 are  30 articulations of that special recognition.  31 My lords, we say that at least since 1760, as  32 between central and local authorities on this matter  33 of distribution of powers between Parliament and the  34 provinces, as between central and local authorities,  35 the guiding principle has been to assign aboriginal  36 affairs to a central authority.  Behind this division  37 of powers was a policy of protection of aboriginal  38 peoples and protection of aboriginal lands.  That in  39 reply to my lord Mr. Justice Taggart's question  40 yesterday, I believe as -- recently, as to why Indians  41 and land reserved for Indians was attributed to the  42 central authority.  We would state it was -- it had an  43 historic pedigree, it was in comformity with the  44 arrangements of the Royal Proclamation, and we give  45 you the historic pedigree of 91(24) through, for  46 example, the Report of the Select Committee of the  47 House of Commons (U.K.) on Aborigines at paragraph 60 1169  Submissions by Mr. Hutchins  1 of our Factum, which I believe you've been taken to  2 previously, where the Select Committee address --  3 suggests strongly that authority and relations with  4 aborigines be withdrawn from the legislative system of  5 any colony.  There was always this concern that the  6 Crown and the central authority should be ultimately  7 responsible.  8 At section 62 we make the point that although  9 provinces in the scheme of the Constitution Act were  10 allocated extensive authority over lands and  11 resources, there was one type of land that was not  12 allocated "land reserved for Indians", and we must  13 give that significance.  14 In 1982, we state, my lords, that the  15 constitutional recognition and protection of  16 aboriginal peoples was rendered more explicit.  And we  17 refer in our Factum to what we describe as the two  18 branches of Section 35; one dealing with rights and  19 rights in land, and the other dealing with  20 jurisdiction.  21 Now Respondent Canada would have this Honourable  22 Court believe that -- and I'm quoting from paragraph  23 270 of Canada's Factum:  24  25 "The definitions of aboriginal rights  26 pronounced by Canadian courts during the last  27 hundred years are entirely inconsistent with  28 the notion that ownership and jurisdiction as  29 described by appellants is an aspect of  30 aboriginal rights in Canada."  31  32 We do not agree.  My lords, we believe that there  33 is authority on the matter of rights and jurisdiction.  34 Starting at Section 70 -- paragraph 70 of our Factum,  35 we deal with the first branch, the "Rights" branch of  36 35, and I'll only indicate that we point out  37 authorities, particularly Sparrow, which addresses the  38 question of the effect of limitation on federal and  39 provincial executive and legislative powers.  40 Sparrow speaks specifically of limitations and as  41 we state at paragraph 72, with respect to provincial  42 powers, there were limitations.  So Section 35  43 embraces that idea of duties on the Crown, duties not  44 to interfere, and as we stated earlier, my lords, also  45 as the court in Sparrow found, also articulates that  46 fiduciary duty, the positive duty to interfere when  47 necessary to protect rights. 1170  Submissions by Mr. Hutchins  1 But I would like to move to jurisdiction, the  2 branch -- the second branch of 35 that we discussed in  3 our Factum at page 23, beginning at paragraph 74.  And  4 we say that Section 35 -- and the courts are  5 recognizing increasingly that jurisdiction is a part  6 of the Rights of aboriginal peoples.  We say that  7 there may be an absence of specific high authority on  8 this matter, but that we should not be surprised.  9 At paragraph 76 we state that the -- Section 35  10 only came before the Supreme Court of Canada in R.  11 v. Sparrow, in November 1988.  That was the first time  12 that the Supreme Court of Canada had a chance to look  13 at the effect of Section 35, and the court so stated  14 in its opening in that judgment.  15 The fact that little higher court authority yet  16 exists on the specific matter of aboriginal governance  17 should be of no surprise.  And we say one need only  18 recall the judicial hiatus in the years immediately  19 following the enactment of the Constitution Act, 1867.  20 It was really only in the second decade following that  21 enactment that the Privy Council began to flesh out  22 the specific contents and the scope of provincial and  23 central government powers prescribed in Sections 91  24 and 92.  25 It takes time, my lords, for these matters to  26 work their way through the judicial system,  27 particularly to high -- to appellate courts, so we  28 shouldn't be worried or anxious about the fact that  29 there is little higher court authority on this  30 specific issue of Section 35.  31 Respondent British Columbia has indicated in its  32 Revised Factum that there are a number of lower court  33 authorities on the matter of aboriginal -- inherent  34 aboriginal governance and we, in our Factums, my  35 lords, point out two authorities from Quebec which we  36 believe are relevant to this matter.  37 At paragraph 80 we refer again to Attorney  38 General of Canada v. Coon Come, which I had the  39 opportunity to discuss briefly with you this morning.  40 That case dealt with, essentially, the jurisdiction of  41 superior courts and whether Section 35 involved  42 division of powers issues which -- in which the  43 superior courts should get involved.  44 Mr. Justice LeBel writing for the bench in the  45 Coon Come case, analyzed Section 35 and he analyzed it  46 again from the point of view of rights analogous to  47 Charter rights and jurisdiction.  And he stated that 1171  Submissions by Mr. Hutchins  1 with respect to the Rights branch -- and he used the  2 analogy of the Charter -- those rights impacted on  3 both federal and provincial areas.  That both federal  4 and provincial legislatures were constrained and so  5 that that wasn't necessarily a division of powers  6 issue.  But then he moved on to the claim by the Crees  7 in that case, the allegations as to internal  8 sovereignty and jurisdiction.  9 Now I'm at paragraph 84 of our Factum.  And in  10 this respect, he said -- Mr. Justice LeBel  11 acknowledged that that aspect, the jurisdiction aspect  12 of Section 35, that aspect of Section 35 of the  13 Constitution Act did impact upon traditional division  14 of powers.  And after reviewing the Supreme Court  15 judgment in Sparrow, he concluded that Sparrow was  16 authority for the proposition that Section 35  17 introduces a third element, "une troisieme  18 composante", into the functioning of Canadian  19 federalism.  I read that quotation to you this  20 morning.  I won't repeat it, my lords, but there is  21 the statement by Mr. Justice LeBel, analysing the  22 question as to whether Section 35 impacts upon  23 constitutional division of powers in Canada, and he  24 says, yes, it does from the point of view of  25 jurisdiction.  26 I also give to you for your attention, the case  27 of Eastmain v. Gilpin, which is dealt with at  28 paragraph 86 of our Factum.  This is a judgment of the  29 Quebec Court of sessions of the Peace coming out of  30 relations, coming out of powers of Cree bands under  31 the James Bay and Northern Quebec Agreement and the  32 Cree Naskapi Act and the power of Bands to enact  33 legislation untouchable by Parliament.  In fact, as  34 the court says, such legislation being a manifestation  35 of residual sovereignty.  The court uses those terms,  36 as you see, at the end of the quote:  37  38 "In this perspective, the Court agrees with the  39 proposition that the Crees hold some sort of  40 residual sovereignty as regards their local  41 governments."  42  43 And he has been -- the court has been examining  44 the effect of Section 35 and the rights of the Crees  45 in -- under that provision.  46 So we do have, my lords, the beginning of  47 authority on this matter of jurisdiction.  We have the 1172  Submissions by Mr. Hutchins  1 Quebec Court of Appeal making a strong statement, I  2 would submit.  We have lower courts developing it, and  3 it is merely a question of time before the law is  4 better and further developed by appellate courts, we  5 would hope, including this Honourable Court.  6 HUTCHEON, J.A.:  Excuse me.  Before you leave Eastmain could you  7 just tell us what it was left in this residual  8 sovereignty that was being recognized by the judge?  9 MR. HUTCHINS:  Yes, my lords.  It was a question of a bylaw -- a  10 curfew bylaw and an attack on the curfew bylaw under  11 Charter provisions, and the --  12 HUTCHEON, J.A.:  The curfew bylaw, was that of the Crees?  13 MR. HUTCHINS:  Enacted by the Cree Government, yes, my lords.  14 HUTCHEON, J.A.:  Yes.  15 MR. HUTCHINS:  And the question was whether the Cree Government  16 was subject to restrictions, Charter restrictions,  17 restrictions enacted by Parliament.  Was it a creature  18 of -- in other words, there were arguments that it was  19 a creature of -- the Cree Government was a creature of  20 Parliament through federal legislation and exercised  21 delegated authority, and therefore could not  22 contravene Parliament's requirements.  That was  23 precisely the point before the court and the court  24 said no, it was not a delegatee of Parliament, it did  25 not derive all its powers from the federal statute,  26 although there is a Cree Naskapi Act of Parliament.  27 It enjoyed residual sovereignty.  Now, the reason  28 residual is there, my lords, is that this is in the  29 context of the James Bay and Northern Quebec  30 Agreement, a treaty which involved a measure of  31 cession of rights, but involved as well, in our  32 submission, a retention of rights, a flow through of  33 rights.  34 I might just mention here that yesterday, the  35 court was referred to the James Bay Settlement Act as  36 being one of the examples of clear and plain intention  37 to extinguish where a statute actually says, "The  38 rights are hereby extinguished."  I would like to  39 point out that that statute that Quebec -- that  40 parliamentary statute was enacted pursuant to a  41 treaty.  In other words, it was not a unilateral  42 action done by the Parliament of Canada to extinguish  43 rights, it was the action of Parliament pursuant to  44 specific treaty terms and in accordance with those  45 treaty terms.  I thought that that clarification might  46 be helpful to your lordships.  47 My lords, we do not have time to deal with our 1173  Submissions by Mr. Hutchins  1 sections on the provincial power to extinguish.  I  2 know that these will be dealt with by others.  We have  3 one authority, however, which we do not believe has  4 been referred to on this matter and I would like to  5 just bring it to your attention.  It's at paragraph 98  6 of the Factum, page 30.  7 This is on the matter of the power of provincial  8 authorities to extinguish and we will -- we make our  9 argument in the Factum that provinces just do not have  10 that power and I invite you to read our submissions.  11 But in the case of the CTCUQ, which is the Champs de  12 Bataille or the National Battlefields Commission case,  13 is one that perhaps deserves your lordships'  14 attention.  It was a question of a federal bus service  15 on the Plains of Abraham in Quebec and the question of  16 whether provincial legislation would affect this  17 operation and whether permits were required.  The  18 significance here is that the court deals with, by --  19 is casting around for tests, the matter of  20 "Indianness" and what is represented by Indianness.  21 And there had been submissions that rights and  22 status -- or status of rights of Indians do not -- are  23 not included in that notion of Indianness.  24 Well, the court states -- the Supreme Court  25 states, clearly:  26  27 "It is the fundamental federal responsibility  28 for a thing or person that determines its  29 specifically federal aspects, those which form  30 an integral part of the exclusive federal  31 jurisdiction over that thing or person:"  32  33 And then going on after the cites:  34  35 "For example, the specifically federal nature  36 of Indians has been described by the  37 expressions 'Indianness' or 'status and rights  38 of Indians', which reflect the fundamental  39 federal responsibility for Indians in the  40 Canadian constitutional and historical  41 context."  42  43 Status and rights of Indians are subsumed in  44 Indianness when the debate -- constitutional debate  45 continues on that point.  46 My lords, much is made of the test over  47 Indianness in the Constitution.  In our firm -- and my 1174  Submissions by Mr. Hutchins  1 colleague, Diane Soroka, asked me to mention this --  2 that in our firm we refer to this particular case as a  3 case on federal bus driverness.  The fact that the  4 federal court -- the Supreme Court of Canada can  5 actually latch onto what is the essence of federal bus  6 driverness and make those distinctions and say "no  7 permits apply", we say certainly should enlighten us  8 as to the importance of protecting Indians and lands  9 reserved for Indians, status of Indians from  10 provincial encroachment.  11 My lords, at page 34 of our Factum, as I move  12 through the question of provincial extinguishment.  13 Section 88 arguments have been made by others and I  14 pass -- and I take you to paragraph -- to page 35,  15 what we have termed Respondent British Columbia's  16 Policy Arguments.  There is much made in the arguments  17 of Respondent British Columbia about the drastic  18 effect of finding -- of findings on the basis of  19 unextinguished aboriginal title and also findings --  20 constitutional findings with respect to the scope of  21 91(24) federal jurisdiction applying over large  22 portions as between the province -- federal  23 jurisdiction as between federal and provincial  24 authorities over large portions of the province.  25 The argument, essentially, is at -- we put it out  26 at 119 of our Factum, the argument, essentially, that  27 as a matter of socio-economic policy, this court must  28 find that the province is vested with legislative  29 authority to extinguish aboriginal rights and title,  30 because to find otherwise would be to leave the  31 Province destitute and impotent.  32 Now, my lords, we believe that the Supreme Court  33 of Canada has dealt with this type of a situation and  34 we give as authority the Reference Re Upper Churchill  35 Water Rates Reversion Act.  The question between  36 Quebec and Newfoundland of water rates and long-term  37 contracts in which much argument was made as to the  38 drastic and dire effects of questioning legislation --  39 legislation going to resources and land management.  40 And the Supreme Court basically says, "We are sorry if  41 there are drastic results, that we attempt to avoid  42 those, but in certain cases in matters of  43 constitutional rights there may not be -- be no way to  44 avoid it."  So that in the second sentence of the cite  45 that we give you, the court says:  46  47 "However, it is not for this court to consider 1175  Submissions by Mr. Hutchins  1 the desirability of legislation from a social  2 or economic perspective where a constitutional  3 issue is raised."  4  5 And goes on citing Central Canada Potash, Mr.  6 Justice Laskin, where governments in good faith, as in  7 this case, invoke authority to realize desirable  8 economic policies, they must know that they have no  9 open-ended means of achieving their goals when there  10 are constitutional limitations on the legislative  11 power under which they purport to act.  12 My lords, the court is saying quite simply that  13 the Constitution is supreme, that courts attempt to  14 accommodate the parties.  It is no one -- in no one's  15 interest to create havoc, but the Constitution is  16 there, constitutional rights are there, and  17 governments and the Crown, as we submitted this  18 morning, are constrained by that instrument and by  19 those rights.  20 We continue at paragraph 122 of our Factum.  21 Therefore, my lords, to say that the fact that  22 legislative authority in virtue of subsection 91(24)  23 and the encumbrance on provincial title in virtue of  24 Section 109, appear to frustrate the exercise of  25 jurisdiction by the province, or its interests in  26 lands and resources is no reason to then dismiss the  27 constitutional effect of those provisions.  28 And we say there -- here, my lords, that it may  29 not have been the intention at confederation that  30 exclusive federal legislative authority would prevail  31 for long over all lands and resources, British  32 Columbia or elsewhere, and that provincial lands would  33 be permanently encumbered.  But that was the situation  34 established in 1864.  Why?  Because there was  35 unfinished business in 1867.  I meant 1867, my lords.  36 Canada was, in 1867, understood to be in evolution and  37 expansion.  I referred to it yesterday as a state --  38 in a state of being assembled.  That the admission of  39 other colonies including, of course, British Columbia  40 and Rupert's Land and the North-western Territory was  41 foreseen through Section 146 of the Constitution Act.  42 Crown ownership and jurisdiction were conditioned by  43 an uncompleted treaty process with aboriginal peoples  44 reflected in Sections 91(24) and in 109.  45 We submit that Sections 91(24) and 109 are  46 expressions of the principle of the coexistence of  47 aboriginal and Crown titles and jurisdiction, to be 1176  Submissions by Mr. Hutchins  1 implemented through a treaty process.  That the  2 Constitution Act, 1867 established a starting point  3 for the gradual assembling and putting together of  4 Canada territorially and jurisdictionally and part of  5 that process is treaty making with those nations.  6 Paragraph 126, we say that the fact that the  7 Respondent British Columbia has until very recently  8 adamantly refused to consider, let alone engage in, a  9 treaty process with First Nations, is not the fault of  10 the First Nations and should not result in findings on  11 title and jurisdiction by this Honourable Court  12 adverse to their interests.  And we say that in any  13 event, the elements of a suitable remedy are now being  14 urged upon this Honourable Court not only by this  15 Intervenor -- and we have set out proposals in our  16 Factum -- but also by Appellants and Respondent  17 British Columbia.  18 That the essence -- the solution to the  19 unfinished business, the manner in which this business  20 can be completed is before the court in the form of  21 the appropriate remedies suggested by the parties, and  22 certainly supported to a certain extent by this  23 Intervenor.  We support the Appellants completely.  24 We believe that Respondent British Columbia on  25 the matter of remedy has moved a long way, but we do  26 point out, my lords -- and I am now jumping over our  27 arguments on jurisdiction of this court as to the  28 remedy proposed, not really having time to deal with  29 it, and it is dealt with in -- at length in our  30 Principal Factum as a matter of fact.  31 But at paragraph 128 and 129 I would just like to  32 highlight the differences between the approach of this  33 Intervenor as to remedy and that suggested by  34 Respondent British Columbia.  This Intervenor  35 proposed, it is true, a transitional period, and we  36 suggested 90 days for the suspension of the effect of  37 the judgment while the parties sort matters out.  The  38 fundamental difference in approach between Respondent  39 British Columbia and this Intervenor --  40 HUTCHEON, J.A.:  I'm sorry, what does the 90 days take us to?  41 MR. HUTCHINS:  Well, the 90 days from — my lord, we were  42 suggesting 90 days from judgment for --  43 HUTCHEON, J.A.:  From the pronouncement of judgment?  44 MR. HUTCHINS:  From the pronouncement of judgment, suspending  45 the effect to allow the parties to come -- possibly  46 come back before this court, having decided on how to  47 structure the treaty arrangements or how much longer 1177  Submissions by Mr. Hutchins  1 might be required for such an order.  2 HUTCHEON, J.A.:  All right.  3 MR. HUTCHINS:  Now the difference is Respondent British Columbia  4 suggests, as I understand, two years.  We just find  5 that a two-year period is far too long to allow the  6 status quo, to allow rights to continue to be granted,  7 legislation applying as if there had been no judgment.  8 So we are suggesting -- we differ on the length of  9 that period and we also differ, as set out in  10 paragraph 129, my lords, we differ greatly on the  11 question of the position of the Appellants in those  12 negotiations as articulated by this court.  Respondent  13 British Columbia would have Appellants enter  14 negotiations on the basis of -- in our reading of the  15 submissions -- limited, dispersed, site specific  16 activity, specific rights to lands and resources  17 determined on the basis of activities prevailing prior  18 to contact; with jurisdiction limited by colonial,  19 federal and provincial legislation, with the  20 legislative, executive and administrative powers of  21 the province unconstrained in the land claim area.  22 We say, my lords, that this is not a fair and  23 equitable way to send appellants into the treaty  24 process which is of such importance and which both  25 parties, in terms of process and procedure, appear  26 ready to embark upon.  We say that appellants should  27 be sent into that process, with the assistance of this  28 court, on a strong footing, on the footing of  29 co-existing rights and co-existing titles.  That this  30 is the manner in which the negotiations should be  31 conducted and this is the role which I referred to  32 yesterday, my lords, in our speaking notes.  This is  33 the role for this court to proper -- to send  34 appellants into a fair and equitable negotiation  35 process with their rights appropriately characterized,  36 not limited, not circumscribed and not subject to  37 legislative or executive actions.  38 My lords, we set out in our Principal Factum, our  39 proposed remedy, and as an Intervenor we, of course,  40 defer to the parties.  It is not our case, it is not  41 our place to dictate remedies, but we have suggested  42 that in the order sought, that, of course, the appeal  43 be allowed and that there be certain declarations of  44 rights, including the right to a public and voluntary  45 treaty process, free from unjustified Crown  46 interference.  47 And we -- I refer your lordships simply to the 1178  Submissions by Mr. Hutchins  1 order sought at page 74 and 75 of the Factum.  We have  2 some concepts in there that may be useful to the court  3 and the parties.  We do suggest that the order include  4 a transitional period shorter than Respondent British  5 Columbia has suggested and that we respectfully  6 suggest that the court remain seized of the matter and  7 allow the parties to come back to it should the  8 process, the treaty process, not succeed or should  9 problems develop.  And we all know that it is one  10 thing to commit to negotiate and actually to commence  11 negotiations, it is quite another to settle, it is  12 quite another to agree.  And we suggest that there may  13 be fundamental legal issues which this court could be  14 of great assistance to the parties over.  15 Now, my lords, in conclusion -- and I apologize  16 for this whirlwind tour through our Factum, but I  17 would urge again that you have a look at the arguments  18 before it and I do stress that the fact that I did not  19 have a chance to address certain arguments in oral  20 submissions in no way reflects upon their importance,  21 in our estimation.  22 If I may just be permitted, my lords, to make  23 some closing remarks on the appeal and the issues  24 before the appeal and what we referred to yesterday as  25 the indispensable role of this court in these issues.  26 My lords, if I may be permitted to quote  27 scripture, in Proverbs we read that "Where there is no  28 vision, the people parish."  And we would say -- this  29 Intervenor says that the Appellants, the Wet'suwet'en  30 and the Gitksan, have retained their vision; their  31 long-standing struggle through the courts of British  32 Columbia bears witness to that fact.  There is no  33 question that their vision is retained.  But it also  34 bears witness -- the struggle before the courts and  35 this appeal, I would submit, bears witness that there  36 are forces threatening their vision, forces who say  37 that their inherent and culturally essential ties to  38 territory and institutions have been severed, cannot  39 continue, and must be replaced.  40 Now these forces argue that it is not practical  41 to suggest that First Nations continue to be  42 themselves and to function as viable, self-governing  43 societies in the Canada of today.  This notion is not  44 practical.  45 My lords, Benjamin Disraili said of practical  46 man, and I quote:  "A practical man is a man you can  47 count on to perpetuate the errors of his ancestors. 1179  Submissions by Mr. Hutchins  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 courts of this province have alluded to and  cautioned us against the errors of our ancestors on  the matters of relations with aboriginal peoples.  And I refer your lordships to Mr. Justice  Macdonald of the British Columbia Supreme Court in  Pasco, which is set out in our Factum.  Mr. Justice  Macdonald states:  "We cannot recount with much pride  the treatment accorded to the native people of this  country.  Fortunately, in recent years, steps have  been taken to avoid further erosion of their rights."  It is in this context that at the outset of our  submissions, my lords, we refer to the trial judgment  as an anomaly.  It contributes -- indeed, we submit  sanctions, further erosion of rights.  The revised position of British Columbia appears  to demonstrate willingness to attempt not to  perpetuate past errors of aboriginal and nonaboriginal  relations in British Columbia.  But with respect, my  lords, the Province and particularly the Appellants in  this appeal need the assistance of this Honourable  Court.  And why?  As we set out at the outset of our  submission, my lords, the parties need the assistance  of this court in that the errors of the trial judge  must be corrected and the correct legal framework  restored for the treaty process, and that any treaty  process must be premised upon an extinguished and  appropriately characterized aboriginal rights.  That  is what the appeallants urge in this appeal, that is  what this Intervenor, in support of the Appellants,  urges, and my lords, for the orders sought I refer you  to our Factum.  And I say that those are our submissions.  Thank  you.  TAGGART, J.A.:  Thank you, Mr. Hutchins.  Mr. Gouge, we will take the afternoon break at  this point and then call on you.  What is the  situation with respect to time?  MR. GOUGE:  I agreed with my friends, my lords, that I will  finish at the morning adjournment tomorrow.  TAGGART, J.A.:  Very well.  Five minutes.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  five minute recess.  AFTERNOON RECESS  THE REGISTRAR:  TAGGART, J.A.:  Order in court.  Yes, Mr. Gouge? 1180  Discussion  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.  TAGGART,  MR. PAPE  TAGGART,  MR. PAPE  TAGGART,  MR. PAPE  GOUGE:  My understanding, my lords, is Mr. Pape has  something to say.  J.A.:  All right.  My lords, I apologize for interjecting myself.  There  is a problem with time allocation that has not been  resolved and the parties cannot resolve it.  Mr. Gouge proposes to take the equivalent of half  a day to argue now.  I don't object, but I take the  position that the date that was set for the 25th of  June should be divided 50 percent between Intervenors  supporting the Appellants and Intervenors supporting  the Respondents.  That if Mr. Gouge is going to take  the equivalent of a half day now, that that should be  it and that Mr. Low should not argue.  Alternately,  either of the Respondents should be giving him some of  their time.  Both Respondents tell me they are not  giving him some of their time, so I apologize, my  lords, but that is a problem.  The Intervenors supporting the Appellants have  shortened their arguments in order to add a quarter  day to the time that's available to myself as an  Intervenor supporting the Appellants.  I understood  from your lordship when we last had a pre-hearing,  that the allocation of time would be finalized  sometime later, but that if time could be taken from  the Intervenors supporting the Appellants it could be  added to the portion of June 25th, which was properly  to be allocated to me.  J.A.:  Well I thought by this process we were going to  get a half a day each, that was my hope, that we would  find time for half a day each of which Mr. Gouge will  use an hour this afternoon and an hour tomorrow, and  that would leave on the 24th, a half a day for the  Coalition and a half a day for the Carrier.  With respect, my lords, a half day will not do me and  I feel, with respect, it's not an appropriate division  of time.  It means the two Intervenors in support of  the Respondents get a day between them, the Third  Party Intervenors and I will get a half, and that's  after the Intervenors in support of the Appellants  have given up an hour of their time -- a quarter day  of their time.  With respect, that's not appropriate.  I cannot argue my Factum in half a day.  J.A.:  So what you want is some more time from Alcan  and the Coalition?  Well, I take the position that the day on the 25th  should have been divided 50/50.  I know your lordship 1181  Submissions by Mr. Gouge  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. PAPE:  MR. LOW:  TAGGART,  LAMBERT,  TAGGART,  MR. GOUGE  divided it into thirds and you said at the end of the  last pre-hearing that that wasn't set in stone and  that the allocation question would be revisited.  As I say, this is terribly petty and I apologize  that we can't resolve this, but we can't, my lords,  and it's the old fishing allocation problem: the  people at the end of the line end up without enough  unless allocations are taken care of in advance.  J.A.:  I think perhaps what we will do with this, I  cannot stay here beyond four o'clock today, I have got  other commitments, but we will give some thought to  this the first thing in the morning and we will see  what we can do when we resume tomorrow morning.  Thank you.  My lords, may I be heard on this?  J.A.:  All right, let's get on with it, Mr. Low.  J.A.:  We're wondering whether this should be dealt  with in a pre-hearing conference before the court  convenes tomorrow.  J.A.:  If counsel are available at 9:30 tomorrow  morning we will see if we can raise it all then at a  pre-hearing conference.  And if you can, in the  meantime, agree, pray do so.  Yes, Mr. Gouge.  Thank you, my lords.  Your lordships have heard most learned  submissions in the past three weeks or so, relying in  part upon the writings of moral and legal philosophers  and in part upon judgments of other jurisdictions and  partly upon what is called the Law of Nations.  And  the first subject which I would like to address with  your lordships is the use which your lordships ought  to make of those writings in the case at bar.  The first point, my lords, that I make is that  those writings to which I've referred are not part of  the law of Canada.  They are observations by the  learned authors as to what the law ought to be.  That  does not mean, in my submission, that they are  irrelevant to the task before you, but their relevance  is different depending upon which element of the law  of Canada they are applied to.  The law of Canada  consists of the common law, which is the province of  the judges; statute law, which is the province of the  legislatures; and the Constitution itself.  With respect to the common law, it is a relevant  judicial inquiry, what law ought to be.  Bearing in  mind, of course, the conservative principle that the 1182  Submissions by Mr. Gouge  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  HUTCHEON,  MR. GOUGE  common law evolves in small increments with a view to  what has gone before it.  That is why Chief Justice  Dickson, for example, in Guerin, thought it  appropriate to refer to the judgments of Chief Justice  Marshall as an indication of what the law ought to be.  With respect to statutes, the inquiry must be  divided into pre-1982 statutory operation and  post-1982 statutory operation.  With respect to statutes prior to 1982, it is my  submission that it was not a proper judicial inquiry  to consider what the law ought to be, because the will  of the legislature was supreme.  The proper judicial  inquiry prior to 1982 was, what has the legislature  expressed the law to be?  After 1982, of course, the  court acquired a jurisdiction under the Charter to  consider whether the law articulated by the  legislature was appropriate in light of the  constitutional guarantees which came into being in  that year.  With respect to the Constitution itself, it is my  submission that this court has no jurisdiction to  inquire what the law -- the constitutional law ought  to be, because that is in the hands of the authorities  who frame the Constitution, and the jurisdiction of  this court is both derived from and subject to the  Constitution.  So the inquiry, what ought the Constitution to  say, is not one which is open to this court.  For that  reason, my lords, it's my submission that the learned  authorities referred to by counsel before your  lordships are of assistance when you are considering  what the common law of Canada is; are of assistance  when you are considering statutory effect after 1982,  but not prior to 1982; and are of no assistance when  your lordships are construing and applying the  Canadian Constitution.  Authority on that point, my lords, is to be found  in the first of my authorities, Volume A-69 at tab 1.  The judgment of the Privy Council in Bank of Toronto  v. Lambe, considering the power of a provincial  legislature to impose --  J.A.:  Sorry, are you somewhere in your Factum that we  can --  :  I am, my lord, although not at the beginning.  If  your lordships on this point would refer to paragraph  19 of my Factum at page 10.  If your lordships have tab 1 in Volume A-69, at 1183  Submissions by Mr. Gouge  1 page 587 in the judgment of the court, at the top of  2 the page it was said:  3  4 "Their Lordships have been invited to take  5 a very wide range on this part of the case, and  6 to apply to the construction of the Federation  7 Act --"  8  9 And by that his lordship meant the British North  10 America Act of 1867.  11  12 "-- the principles laid down for the United  13 States by Chief Justice Marshall.  Every one  14 would gladly accept the guidance of that great  15 judge in a parallel case.  But he was dealing  16 with the constitution of the United States.  17 Under that constitution, as their Lordships  18 understand, each state may make laws for  19 itself, uncontrolled by the federal power, and  20 subject only to the limits placed by law on the  21 range of subjects within its jurisdiction.  In  22 such a constitution Chief Justice Marshall  23 found one of those limits at the point at which  24 the action of the state legislature came into  25 conflict with the power vested in Congress.  26 The appellant invokes that principle to support  27 the conclusion that the Federation Act [the  28 Constitution Act, 1867] must be so construed as  29 to allow no power to the provincial  30 legislatures under section 92, which may by  31 possibility, and if exercised in some  32 extravagant way, interfere with the objects of  33 the Dominion in exercising their powers under  34 section 91.  It is quite impossible to argue  35 from the one case --"  36  37 That is, Chief Justice Marshall's judgment.  38  39 "-- to the other.  Their Lordships have to  40 construe the express words of an Act of  41 Parliament which makes an elaborate  42 distribution of the whole field of legislative  43 authority between two legislative bodies, and  44 at the same time provides for the federated  45 provinces a carefully balanced constitution,  46 under which no one of the parts can pass laws  47 for itself except under the control of the 1184  Submissions by Mr. Gouge  1 whole acting through the Governor-General.  And  2 the question they have to answer is whether the  3 one body or the other has power to make a given  4 law.  If they find that on the due construction  5 of the Act a legislative power falls within  6 section 92, it would be quite wrong of them to  7 deny its existence because by some possibility  8 it may be abused, or may limit the range which  9 otherwise would be open to the Dominion  10 parliament."  11  12 I make that point, my lords, to point out that  13 the judgments of Chief Justice Marshall are of no  14 assistance in construing the Canadian Constitution,  15 which must be construed like any other statute by  16 reference to its own words in the context of Canadian  17 constitutional jurisprudence.  What the Canadian  18 Constitution ought to say is not before your  19 lordships.  20 HUTCHEON, J.A.:  I'm sorry, I'm missing something.  What part of  21 the Constitution are we told we should be looking at  22 through the decisions of Chief Justice Marshall?  I do  23 not remember any provision of the Constitution.  24 MR. GOUGE:  Well, I had understood the submission to have been  25 made to your lordships that by reference to these many  26 extra Canadian authorities your lordships should so  27 construe the Constitution as to mean, for example,  28 that aboriginal title could not be extinguished  29 without aboriginal consent.  30 HUTCHEON, J.A.:  Where is the provision of the Constitution?  31 Why is that?  I'm quite at a loss.  I do not -- I must  32 be missing something.  Chief Justice Marshall was  33 purporting to talk about the common law when he said  34 what he said, and not about any constitution.  35 MR. GOUGE:  Forgive me, my lord, I have not put my point  36 clearly.  It will be my submission to your lordships  37 that there was constitutional authority in the  38 provinces under the Constitution Act, 1867 to  39 extinguish aboriginal title.  40 HUTCHEON, J.A.:  All right.  41 MR. GOUGE:  I understood it to have been put to your lordships  42 in the submissions which have gone before, that no  43 such authority could be found under the Canadian  44 Constitution because Chief Justice Marshall and others  45 had said aboriginal title can't be extinguished  46 without their consent.  The point which I am upon now,  47 my lords, is when construing provincial power to do 1185  Submissions by Mr. Gouge  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  HUTCHEON,  MR. GOUGE  things under the British North America Act, Chief  Justice Marshall's observations and those of the other  learned academics who have been referred to, are of no  help.  J.A.:  All right.  :  Thank you, my lords.  I had mentioned, my lords, a second element of  Canadian law and that is statutory law.  And again, it  is my submission that the observations of these  learned authors on what statutory law ought to be are  of no assistance to your lordships.  The authority for  that point is the case at tab 2 in Volume A-69,  Attorney General of Ontario v. Attorney General of  Canada.  This is referring, of course, to the  constitutional regime prior to 1982.  And in the  judgment of the court at page 583 it was said:  "A Court of law has nothing to do with a  Canadian Act of Parliament, lawfully passed,  except to give it effect according to its  tenor."  And then skipping a few lines:  "So far as it is a matter of wisdom or policy,  it is for the determination of Parliament.  It  is true that from time to time the courts of  this and of other countries, whether under the  British flag or not, have to consider and set  aside, as void, transactions upon the ground  that they are against public policy.  But no  such doctrine can apply to an Act of  Parliament."  So when your lordships are considering a pre-1982  statute, it is no answer to say Parliament ought not  to extinguish aboriginal title without consent or the  Law of Nations would disapprove of such a course of  action.  The only question properly before your  lordships with respect to a pre-1982 statute is what  did the legislature mean by what it said?  There is a  second question, of course, my lords that arises from  the division of powers and I'll come to that later.  My lords, I had intended those remarks to be  introductory.  They bring me to the first point  addressed in my Factum at page 8 under the heading 1186  Submissions by Mr. Gouge  1 "The Claim To Jurisdiction".  2 The proposition which I advance there, my lords,  3 is that the allocation of powers under sections 91 and  4 92 of the Constitution Act, 1867 was exhaustive.  5 Certain legislative powers were assigned to the  6 provinces exclusively by Section 92.  The balance of  7 the legislative power was assigned to the federal  8 Parliament by Section 91.  That between them, they  9 subsumed the entire universe of legislative authority,  10 and hence, there can have been no legislative  11 jurisdiction left to be vested in aboriginal people as  12 contended by the Appellants in the case at bar.  13 On that point, the leading authority is Bank of  14 Toronto v. Lambe, which I mentioned to your lordships  15 a moment ago, and is at tab 1.  If your lordships  16 would refer to page 587 near the foot of the page  17 where I left off reading a few moments ago, I had read  18 the sentence which said that:  19  20 " one of the parts can pass laws for  21 itself except under the control of the whole  22 acting through the Governor-General."  23  24 And then his lordship continued:  25  26 "And the question they have to answer is  27 whether the one body or the other has power to  28 make a given law.  If they find that on the due  29 construction of the Act a legislative power  30 falls within section 92, it would be quite  31 wrong of them to deny its existence because by  32 some possibility it may be abused, or may limit  33 the range which otherwise would be open to the  34 Dominion parliament.  35 "It only remains to refer to some of the  36 grounds taken by the learned judges of the  37 Lower Courts, which have been strongly objected  38 to at the Bar.  Great importance has been  39 attached to French authorities who lay down  40 that the impot des patentes, which is a tax on  41 trades, and which may possibly have afforded  42 hints for the Quebec law, is a direct tax.  And  43 it has been suggested that the provincial  44 legislatures possess powers of legislation  45 either inherent in them, or dating from a time  46 anterior to the Federation Act and not taken  47 away by the Act. 1187  Submissions by Mr. Gouge  1  2 Your lordships will note the similarity between  3 that submission and the submission presented by the  4 Appellants in the case at bar.  He continued:  5  6 "Their Lordships have not thought it necessary  7 to call on the respondents' counsel, and  8 therefore possibly have not heard all that may  9 be said in support of such views.  But the  10 judgments below are so carefully reasoned, and  11 the citation and discussion of them here has  12 been so full and elaborate, that their  13 Lordships feel justified in expressing their  14 present dissent on these points.  They cannot  15 think that the French authorities are useful  16 for anything but illustration.  And they adhere  17 to the view which has always been taken by this  18 Committee, that the Federation Act exhausts the  19 whole range of legislative power, and that  20 whatever is not thereby given to the provincial  21 legislatures rests with the parliament."  22  23 Now, it is my submission, my lords, that that is  24 an authority binding upon you, being a judgment of the  25 Privy Council on appeal from the Supreme Court of this  26 country, construing the Constitution Act, 1867, and  27 saying Sections 91 and 92 are exhaustive and leave no  28 room for any survival of an inherent pre-confederation  29 power of legislation.  And the case is, in my  30 submission, for that reason dispositive of the  31 Appellants' claim to any legislative jurisdiction.  32 This would be a convenient moment to mention two  33 authorities referred to by my learned friend, Mr.  34 Hutchins, in his submissions yesterday and today.  35 They are the Coon Come case, which I won't ask your  36 lordships to turn to, but will be found at Volume  37 A-51, tab 6; and the Eastmain Band v. Gilpin case,  38 which will be found at Volume A-49, tab 19, which my  39 learned friend, Mr. Hutchins, relied upon as authority  40 for the proposition that there may be some aboriginal  41 jurisdiction today in Canada.  42 Your lordships should have in mind that the  43 Eastmain case was founded upon a settlement -- excuse  44 me, my lords, reference for which I'll give your  45 lordships in a moment.  4 6 The Coon Come case was a judgment of the Quebec  47 Court of Appeal, given on appeal from a judgment of llf  Submissions by Mr. Gouge  1 the chambers judge declining to strike out an action,  2 either on grounds of jurisdiction of a Provincial  3 Superior Court as opposed to a Federal Court or as  4 disclosing no cause of action.  The Quebec Court of  5 Appeal declined to strike out the action and said it  6 should go forward to trial, but as your lordships will  7 know, that is different from a final determination of  8 the rights of the parties.  The court found in that  9 case that there was an arguable case.  That's  10 different from a final disposition and I ask your  11 lordships to bear that in mind when referring to that  12 authority.  13 As to the Eastmain case, if your lordships when  14 reading it would refer to page 66, it was said in that  15 case that the rights in question were "conferred and  16 recognized by the James Bay Agreement", which, of  17 course, is a land claims settlement agreement within  18 the meaning of Section 35 subsection (3) and hence  19 constitutionally protected.  The Appellants in the  20 case at bar are not in a position to rely upon any  21 such agreement.  22 I mention those two cases, my lords, because were  23 it not for the explanation which I've just given, your  24 lordships might imagine that they were authority  25 contrary to Bank of Montreal v. Lambe.  26 HUTCHEON, J.A.:  They seem to be.  What you are saying, because  27 the settlement is 1983, that's a different  28 consideration?  29 MR. GOUGE:  Well, I say this, my lord:  If rights are conferred  30 upon a group of aboriginal people by a land claims  31 settlement agreement under Section 35 of the  32 Constitution Act, then that group of aboriginal people  33 has constitutionally entrenched whatever rights are  34 given them by that agreement.  But a recognition, a  35 judicial recognition of rights conferred by such an  36 agreement cannot, in my submission, be advanced in  37 support of similar rights for other aboriginal people  38 who are not parties to such an agreement.  You get  39 those constitutionally protected rights if you are an  40 aboriginal person, by entering into such an agreement.  41 You do not get them as a matter of the general law.  42 HUTCHEON, J.A.:  Okay.  43 MR. GOUGE:  So in my submission, neither of the authorities  44 referred to by my learned friend, Mr. Hutchins, are  45 authorities contrary to Bank of Toronto v. Lambe,  46 which, as I said in my submission, is an authority  47 binding upon your lordships. 1189  Submissions by Mr. Gouge  1 There is one other point about jurisdiction, my  2 lords, which I propose to mention just briefly in  3 passing.  Your lordships will recall that the  4 Appellants have advanced a claim to jurisdiction over  5 the territory and over the members of the Houses.  6 Something that I have not understood in the course of  7 this action and which may some day be explained to  8 your lordships, is how it is that the Appellants can  9 claim a legislative jurisdiction over certain  10 individuals, other aboriginal people, without making  11 those aboriginal people parties and affording them the  12 opportunity to come to court and say, for example,  13 whether they are prepared to be governed by Mr.  14 Muldoe.  15 Your lordships will recall a reference in the  16 submissions of Mr. Grant to aboriginal people in pre-  17 contact times who had no hunting rights under  18 aboriginal law, and that those individuals didn't fair  19 as well as the ones who did.  I would not have thought  20 it possible for your lordships to give a declaration  21 in the form claimed without hearing from the  22 individuals who are alleged to be subject to this  23 political jurisdiction.  24 I come then, my lords, to the constitutional  25 capacity -- forgive me, my lords.  I come, my lords,  26 now to the judgment of the learned Chief Justice in  27 which he held that aboriginal title in British  28 Columbia had been extinguished by the several Calder  29 Proclamations prior to confederation.  The learned  30 Chief Justice quoted from one of the Calder  31 Proclamations at page 408 of the trial judgment,  32 that's the Western Weekly Reports reference, my lords,  33 which said:  "All the lands in British Columbia and  34 all the mines and minerals therein belong to the Crown  35 in fee."  36 Now the narrow issue before your lordships seems  37 to be, as a matter of statutory construction, did that  38 mean title in the sense of radical title, which is not  39 inconsistent with other interests, or did it mean fee  40 simple title in the conventional sense that one owns  41 its house -- one's house.  42 Well, radical title, my lords, is an incident of  43 sovereignty.  It is the title which Her Majesty holds  44 underlying all other titles within her domains.  It  45 arises when Her Majesty becomes sovereign in a  46 particular territory.  That happened in 1846.  In my  47 submission, then, the radical title arose in 1846 and 1190  Submissions by Mr. Gouge  1 the colonial legislature must have meant something  2 else when in the 1860s it said title to all land in  3 the province belongs to the Crown in fee.  What else  4 can it have meant?  In my submission, only  5 conventional fee simple title to land.  6 Now, your lordships heard some criticism from Mr.  7 Berger of the interpretations which were placed by  8 colonial officials upon that statute and Mr. Berger  9 said it was not proper for your lordships to give  10 consideration to what colonial officials thought the  11 statute meant.  I respectfully agree with what Mr.  12 Berger said.  Equally, your lordships ought not to  13 give consideration to what federal officials thought  14 the statute meant after confederation.  I did go so  15 far as to say this, my lords:  If in the 1920s the  16 Prime Minister and all the members of Parliament  17 thought that the colonial statute was ineffective to  18 extinguish aboriginal title, that opinion ought to be  19 of no effect upon your lordships.  The effect of a  20 statute is a question for a court to consider, and  21 what a bureaucrat or a political philosopher or a  22 lawyer or anyone else thinks, doesn't matter.  The  23 question is, what did the statute mean, and that is a  24 question which only the court can answer.  No doubt,  25 federal officials post-confederation thought the  26 Calder Proclamations to be effective to that purpose,  27 but their opinion of the point is of no more use than  2 8 my own.  29 Now, your lordships have the obligation to  30 construe those colonial proclamations and to decide  31 what they meant and what their statutory effect was.  32 Your lordships must do that in the same way that you  33 would construe any other statute; that is, looking at  34 the statute objectively in its surrounding  35 circumstances, guided primarily by the words used,  36 what was the legislature intending to do?  In my  37 submission, the best indication of what the  38 legislature was intending to do was what it said it  39 was doing:  It was vesting title in fee simple in all  40 land in the colony in the Crown.  And by that, they  41 didn't mean radical title because radical title had  42 arisen 20 years before.  43 What, then, was the effect of the vesting of  44 title in fee simple in Crown, particularly vis-a-vis  45 aboriginal title?  The answer to that question depends  46 upon what aboriginal title is.  If aboriginal title is  47 an exclusive right of occupancy, coupled with a right 1191  Submissions by Mr. Gouge  1 to manage and control all of the resources of the  2 land, as the Appellants contend, then in my  3 submission, it cannot stand with a fee simple interest  4 in the Crown, because a fee simple interest is an  5 exclusive right of occupancy and a right to harvest  6 the resources of the particular piece of land.  One  7 cannot have simultaneously, two parties with an  8 exclusive right of occupancy.  9 If, on the other hand, aboriginal title is  10 something different, it might well co-exist with a  11 Crown title in fee simple.  One thinks, for example,  12 of England where people have been letting the fishing  13 and shooting rights for years and a grant of that sort  14 of profit and plunder can exist simultaneously with a  15 fee simple title in some amount.  But for your  16 lordships to conclude that aboriginal title could  17 co-exist with the province's fee simple title, your  18 lordships must conclude that aboriginal title was  19 something less than a fee simple.  Question is, what?  20 So in my submission, when the learned Chief  21 Justice said that the Calder enactments must, by  22 necessary implication, have extinguished aboriginal  23 title in all of the lands of British Columbia, he was  24 simply taking the Appellants' case at face value.  25 They said, "Our title was an exclusive title and a  26 right to exclude everyone else from these lands."  27 That couldn't co-exist with the province's title in  28 fee simple.  29 And indeed, it is the Appellants'  30 characterization of their rights and their decision  31 not to further specify what those rights mean that  32 gives rise to difficulty in answering the questions  33 that Mr. Justice Lambert posed, that is to say, what  34 makes a practice a right, and what makes a right an  35 aboriginal right?  Those, in my respectful submission,  36 are not questions that can be answered in the air.  37 With respect to any particular practice, it is,  38 in my submission, possible to examine the history of  39 the practice, its significance to that which makes  40 aboriginal people aboriginal, its history since  41 contact and its functional utility in modern  42 aboriginal life.  In answer to the question, both, was  43 it such a practice as ought to be a right, and then  44 was it such a right as to properly be characterized as  45 aboriginal, it is, in my submission, neither in  46 accordance with the tradition of the common law nor is  47 it prudent to attempt to define those things in the 1192  Submissions by Mr. Gouge  1 abstract without reference to particular practices and  2 to particular evidence.  And that, in my respectful  3 submission, is what makes it very difficult to answer  4 your lordships' question on this appeal, because the  5 Appellants have not expressed their claim to rights in  6 that way.  7 I must turn then, my lords, to the question of  8 the provincial capacity to extinguish aboriginal title  9 after confederation.  And that requires, in my  10 submission, to remind your lordships that your  11 lordships' duty, in my respectful submission, is to  12 apply the Constitution of Canada as it is, not as  13 learned authors think it ought to be.  And when  14 considering the constitutional validity of a  15 particular statute, to consider its validity under the  16 Constitution as it was on the day when the statute was  17 enacted.  18 So, for example, if your lordships were to  19 consider the Indian Water Claims Act of 1921 referred  20 to by Mr. Berger, your lordships must consider its  21 constitutional validity under the Constitution as it  22 was in 1921.  If it was valid provincial legislation  23 at that time, then it was effective to extinguish  24 aboriginal title at that time, because that's what the  25 statute said it did.  And the Supreme Court of Canada  26 in Sparrow has held that those aboriginal rights,  27 which were validly extinguished prior to 1982, were  28 not revived by the constitutional amendments in that  29 year.  30 So the question, then, for your lordships is what  31 were the constitutional principles applicable to the  32 assessment of the validity of the provincial statute  33 prior to 1982?  34 Now, the first principle which I advance on that  35 topic, my lords, is the supremacy of Parliament in a  36 birfurcated state, each within its own sphere of  37 legislative jurisdiction.  That is to say, the inquiry  38 was, has this legislature confined itself within the  39 classes of subjects allocated to it by Sections 91,  40 92?  And if the answer to that question was yes, that  41 was the end of the inquiry.  42 Now, the authority on that point, my lords, is  43 Attorney General for Ontario v. Attorney General for  44 Canada.  I've already read your lordships from that  45 case and will not do so again.  46 I am now at paragraph 20 of my Factum.  47 The first step in the assessment of the 1193  Submissions by Mr. Gouge  1 constitutional validity of a statute in the pre-1982  2 regime was to identify the "matter" of the statute.  3 The word "matter", my lords, is in my submission, an  4 unfortunate one but it is the one which was chosen to  5 be in the constitutional statute which said, with  6 respect to section 92:  "In each province, the  7 legislature may exclusively make laws in relation to  8 matters coming within the classes of subjects  9 enumerated in the section."  10 So the first question is, in relation to what  11 matter was the legislature purporting to legislate?  12 And the second question is, having identified that  13 matter, is it one which falls within the classes of  14 subjects in Section 92?  And I've referred in  15 paragraph 21 of my Factum to the two leading Canadian  16 authors on the question.  First, the latest edition of  17 Professor Laskin's book as he then was, and then the  18 latest edition of Professor Hogg's book.  19 Time does not permit me, my lords, to read to you  20 the article from Professor Laskin's book, which is  21 reproduced in Volume A-69.  I do, however, commend it  22 to your lordships' attention.  I had always found it  23 difficult reading and it was not until I came to try  24 to apply it, as I have done recently, to the  25 legislative history of the Water Acts in this  26 province, that I began to understand what a really  27 helpful article it is.  28 Professor Hogg's article is shorter although, in  29 my submission, correspondingly less helpful.  But  30 because it is shorter, I will read your lordships a  31 brief passage from it.  It's Volume A-69, tab 5, at  32 the second of the pages reproduced, which is page 314.  33 A-69, my lords.  34 MACFARLANE, J.A.:  Yes.  Page?  35 MR. GOUGE:  Page 314, my lords, tab 5.  36 MACFARLANE, J.A.:  Thank you.  37 MR. GOUGE:  In the first full paragraph on the page Professor  38 Hogg says:  39  40 "The difficulty in identifying the 'matter'  41 of a statute is that many statutes have one  42 feature (or aspect) which comes within a  43 provincial head of power and another which  44 comes within a federal head of power.  Clearly,  45 the selection of one or the other feature as  46 the 'matter' of the statute will dispose of the  47 case; equally clearly, the court in making its 1194  Submissions by Mr. Gouge  1 selection will be conscious of the ultimate  2 result which is thereby dictated.  Take the  3 case of a provincial statute which imposes a  4 direct tax on banks.  One feature of this law  5 is 'direct taxation' which comes within a  6 provincial class of subject (section 92(2));  7 but another feature of the law is banking which  8 comes within a federal class of subject  9 (section 91(15)).  If the law is in relation to  10 direct taxation it is good, but if it is in  11 relation to banking it is bad.  How does the  12 court make the crucial choice?  Logic offers no  13 solution: the law has both the relevant  14 qualities and there is no logical basis for  15 preferring one over the other.  What the courts  16 do in cases of this kind is to make a judgment  17 as to which is the most important feature of  18 the law and to characterize the law by that  19 feature: that dominant feature is the 'pith and  20 substance' or 'matter' of the law; the other  21 feature is merely incidental, irrelevant for  22 constitutional purposes.  In Bank of Toronto  23 v. Lambe --"  24  25 Which is the case from which I read to your lordships.  26  27 "-- the Privy Council upheld a provincial law  28 which imposed a tax on banks.  The dominant  29 feature of the law was to raise revenue, and  30 accordingly the 'matter' of the law was  31 taxation, not banking.  This distinction is  32 commonly expressed by using the phrase 'in  33 relation to', which appears in sections 91 and  34 92.  One would say of the impugned law in Bank  35 of Toronto v. Lambe that it was 'in relation  36 to' taxation (the matter) and merely 'affected'  37 banking.  38 "It is important to recognize that this  39 'pith and substance' doctrine enables one level  40 of government to enact laws with substantial  41 impact on matters outside its jurisdiction.  42 The levy of the tax in Bank of Toronto v. Lambe  43 was, after all, a significant exercise of  44 legislative power over the banks; but because  45 the law was characterized as 'in relation to'  46 taxation (its pith and substance or matter), it  47 could validly 'affect' banking. 1195  Submissions by Mr. Gouge  1 And so on.  2 Now, my lords, if you substitute  3 property and civil rights in the province for direct  4 taxation, and if you substitute Indians and lands  5 reserved for Indians for banks and banking, in my  6 submission, your lordships will be in a position to  7 apply that method of analysis to a number of post-  8 confederation provincial statutes.  And in each case  9 your lordships would be called upon in accordance with  10 the principles laid down in the authorities to decide  11 whether the 'pith and substance' of the legislation  12 was property and civil rights with an incidental  13 effect on Indians and lands reserved for Indians.  Or  14 on the other hand, if its 'pith and substance' were  15 Indians and lands reserved for Indians, with an  16 incidental effect on property and civil rights.  In  17 the former case, valid provincial legislation  18 notwithstanding, that it might have the consequence of  19 extinguishing aboriginal title.  20 HUTCHEON, J.A. :  Wiping it out altogether, you mean?  21 MR. GOUGE:  Yes, my lord, and I'll come to that later in my  22 submission.  23 HUTCHEON, J.A.:  Well, if the bank was wiped out, if all its  24 property was expropriated, that would not be taxation.  25 I just -- that stretches the analogy.  That's not  26 'pith and substance' to wipe the thing out.  27 MR. GOUGE:  Well, to give your lordship a peak ahead to see  28 where I'm going, I will be referring your lordships  29 later to the Churchill Falls case, but not the one  30 that my friend referred to, but another one.  31 HUTCHEON, J.A.:  I see.  32 MR. GOUGE:  Where the Province of Newfoundland expropriated all  33 of the assets of the Churchill Falls Company, a  34 federal company, the Churchill Falls Company said,  35 "Well, you can't do that.  We're a federal company and  36 if you take all of our assets you'll wipe us out."  37 Mr. Justice Mclntyre for the Supreme Court of Canada  38 said, "No.  You're still a federal company, you've  39 still got shareholders, you can still hold meetings.  40 They just took your assets and that doesn't go to your  41 status and capacity as a company, that just takes your  42 assets . "  43 And it will be my submission, when I get to that  44 point, that your lordships must apply the same  45 principles to Indians that you do to banks or the  46 federal company.  And the reason I say that, my lords,  47 is that if you are to treat Indians differently from 1196  Submissions by Mr. Gouge  1 banks, for example, your lordships must find a warrant  2 for different treatment in the constitutional statute.  3 Your lordships must be able to point to a provision in  4 the constitutional statute and say, "This justifies us  5 treating Indians, as one head of federal power,  6 differently from banks, another head of federal  7 power."  And your lordships will not find such a  8 justification in the constitutional statute.  9 That brings me back, my lords -- and I'm sorry to  10 go back -- but it brings me back to the remarks that I  11 opened with.  When construing the constitutional  12 statutes of Canada, your lordships, in my respectful  13 submission, are not entitled to say, "Indians are more  14 sympathetic figures than banks so we'll treat them  15 differently."  Your lordships are not, in my  16 submission, entitled to say, "Learned scholars have  17 rolled over and expressed great sympathy for  18 aboriginal people so we will treat them differently  19 than banks."  If your lordships will treat Indians  20 differently from banks in construing and applying the  21 Canadian Constitutional Statute, you must find warrant  22 for that difference in the statute and there is none.  23 LAMBERT, J.A.:  It may be that the central core of a federal  24 company is its ability to elect directors and hold  25 meetings, but the central core of -- and so its assets  26 can go and its core can remain unaffected.  But the  27 central core of Indianness is the Indian relationship  28 to the land and if that is taken away, that's the pith  29 and substance of any act that takes it away from the  30 Indians.  That may be said, but that would be the  31 response, I would suppose, to the argument you are  32 putting forward.  33 MR. GOUGE:  Your lordship's point is admirably clear but, in my  34 respectful submission, ill taken for two reasons.  The  35 first is this, my lord:  Leaving aside that  36 shareholders of large corporations are not very  37 sympathetic figures these days, to them, the core of  38 the company's business is its business; it's what the  39 company does, it's what the company makes and it's the  4 0 money the company earns.  If the company doesn't have  41 any assets and isn't making any money, it's small  42 solace to the shareholders that they can go to the  43 Annual General Meeting and elect directors.  It is as  44 fundamental to the business of the company to have a  45 business as it is to an aboriginal person to be able  46 to fish or hunt or conduct aboriginal religious  47 ceremonies. 1197  Submissions by Mr. Gouge  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  LAMBERT, J.A.:  In the Churchill Falls case was there a value  given for the assets taken?  MR. GOUGE:  Yes, my lords.  LAMBERT, J.A.:  Yes.  MR. GOUGE:  The second reason, in my respectful submission, why  your lordship's point is not a good one, is that the  learned trial judge found as a fact that the taking of  land from these aboriginal people, these particular  aboriginal people, did not affect their Indianness in  the current argot.  Now, I'll be able to give your  lordships the reference for that finding of fact  either later this afternoon or in the morning, but his  lordship made that finding -- and it is a question of  fact -- made it on ample evidence, and I have not  heard it submitted to your lordships that that  particular finding of fact was wrong in the sense  necessary to entitle your lordships to reverse it.  So even if your lordships were right in the  errors that were -- the trial judge has found in the  case at bar, that it did not have that effect.  I am most ably assisted, my lords, if you would  refer to the trial judgment at page 420.  At the foot  of page 420, my lords, the learned trial judge said:  "Settlement, which did not begin in the  territory until the beginning of this century,  was initially confined to the Bulkley and  Kispiox valleys, where land cultivation had not  been pursued vigorously by man Indians.  There  were no large railway land grants in the  territory --"  TAGGART, J.A.:  Excuse me.  Which version are you looking at?  MR. GOUGE:  Oh, my lords, my apologies.  I am at page 419.  J.A.:  419 of the Western Weekly?  Yes.  I was correctly instructed, my lords, but read  from the wrong place.  At the foot of page 419, my  lords, in the Western Weekly:  "Settlement, which did  not begin in the territory," and so on.  "There were no large railway land grants in the  territory, and even the pre-emption of most  agricultural land did not impinge seriously  upon many aspects of aboriginal life.  Yet there were some dispossessions and  almost from the beginning of the colony, and  from the time of settlement in the territory,  HUTCHEON,  MR. GOUGE 1198  Submissions by Mr. Gouge  1 it must have been obvious that the Indian  2 population was falling into disadvantage when  3 compared with the then white non-Indian  4 community.  The condition of the Indians in the  5 territory throughout the entire history of  6 their association with the European settlers  7 has been an unhappy one, with alcohol abuse,  8 disease, infant mortality, poverty, and a lack  9 of many of the benefits of civilization,  10 particularly health, education and economic  11 opportunities, and the ubiquitous dependence  12 being usually the most serious social  13 problems."  14  15 Excuse me, my lords.  And then skipping down a couple  16 of paragraphs, my lords:  17  18 "The introduction of alcohol, disastrous  19 epidemics and limited economic opportunities  20 did not result from a lack of access to land.  21 Loring's reports, starting about 1890 before  22 settlement began, describe much hardship when  23 the Indians were still living 'on the land,'  24 even though by that time they had access to  25 many European trade goods which must have made  26 life to some degree more bearable.  The  27 acquisition of firearms, for example, made  28 hunting a far less random and hazardous  29 exercise than it had always been.  30 "This is not to say that European  31 influences upon Indian life were not pervasive,  32 but when I consider the effects of disease,  33 alcohol and other social insults upon the  34 Indian community, it is apparent that  35 interference with aboriginal uses of land,  36 except for actual dispossessions, was not a  37 principal cause of Indian misfortune.  38 "Further, I believe the Indians of the  39 territory are probably much more united and  40 cohesive as peoples, and they are more  41 culturally sensitive to their aboriginal  42 birthright, than they were when life was so  43 harsh and communication so difficult.  I cannot  44 find lack of access to aboriginal land has  45 seriously harmed the identity of these  46 peoples."  47 1199  Submissions by Mr. Gouge  1 And then he goes on to talk about the spiritual  2 dimension.  But again he finds, at the foot of the  3 page, that:  4  5 "The loss of the spiritual connection did not  6 go to the destruction of the pride of the  7 aboriginal community or its cohesiveness as a  8 society."  9  10 The learned trial judge found that those derived from  11 other causes.  12 There are also references, my lords, which I will  13 not read, which your lordships may care to have, at  14 pages 428 to 431 of the trial judgment and at pages  15 452 to 460.  16 TAGGART, J.A.:  All right.  Give me that first one again,  17 please.  18 MR. GOUGE:  Certainly, my lord.  428 to 431 and again at 452 to  19 460, where the learned trial judge makes much the same  20 finding of fact although at greater length.  21 As I said, my lords, I have not heard those  22 findings of fact challenged in this court and, in my  23 respectful submission, in view of the length of the  24 evidence which the learned trial judge heard, the tour  25 which he took of the area, it would be, in my  26 submission, very difficult if not impossible to  27 persuade your lordships that the Appellants can meet  28 the test for the reversal of such a finding of fact in  29 this court.  30 So when your lordship, Mr. Justice Lambert, asks  31 me, "Well, isn't the difference of taking these  32 people's land away, that it takes away their  33 identity," the answer to your lordship's observation  34 is that the learned trial judge found as a fact that  35 that's not so.  36 HUTCHEON, J.A.:  I do not see that finding yet.  I've heard you  37 read that but I haven't seen that finding.  3 8  MR. GOUGE:  All right.  39 HUTCHEON, J.A.:  You commented about what happened with the  40 arrival of civilization and that, but I haven't seen  41 the finding that you now assert.  I may be not  42 understanding something.  43 MR. GOUGE:  Bear with me, my lord, and I'll see if I can find  44 the particular line.  45 LAMBERT, J.A.:  Well, you did refer to the sentence at the top  46 of page 421:  "I cannot find lack of access to  47 aboriginal land has seriously harmed the identity of 1200  Submissions by Mr. Gouge  1 these peoples."  But that's a kind of negative  2 statement of the proposition and can't be taken to be  3 a finding of the contrary.  4 MR. GOUGE:  Well, if your lordship would couple that  5 observation, which your lordship has just read, with  6 the foot of page 420 where his lordship says:  7 "...interference with aboriginal uses of land, except  8 for actual dispossessions --" and your lordship will  9 recall that those were few in number "-- was not a  10 principal cause of Indian misfortune."  11 HUTCHEON, J.A.:  No.  The principal cause was other things but  12 that -- I still do not see that as a finding.  13 MR. GOUGE:  Well, with respect, my lords, Mr. Justice Lambert  14 put it to me that to take these people's land is to  15 deprive them of their identity, if I may presume to  16 paraphrase.  17 HUTCHEON, J.A.:  That's right.  18 MR. GOUGE:  The learned Chief Justice said that's not so.  That  19 which took away their identity was alcohol, disease,  20 other things that one might lay at the door of the  21 white man in a court of conscience.  But his lordship  22 found, in my submission, as a fact, that it wasn't  23 taking the land that did it.  If that's so, the land  24 cannot be at the core of the identity.  25 HUTCHEON, J.A.:  But you are assuming the land is gone.  Your  26 assumption is that --  27 MR. GOUGE:  I'm submitting that it's gone.  28 HUTCHEON, J.A. :  Pardon me?  29 MR. GOUGE:  I'm submitting that it's gone.  30 HUTCHEON, J.A.:  Well, that's the assumption that — we may be  31 arguing -- going around in circles, but it seems to me  32 that's the assumption that you make before you say it  33 doesn't do that, it's already gone, so they haven't  34 lost anything.  They say it hasn't gone.  35 MR. GOUGE:  Well, your lordship is putting to me that their  36 aboriginal society continues to exist today.  37 HUTCHEON, J.A.:  And they say their land rights continue.  38 MR. GOUGE:  I understand that, my lord.  39 HUTCHEON, J.A.:  They say they haven't lost their land rights.  40 MR. GOUGE:  No, my lord.  But what has happened between  41 confederation and today is that much of the area has  42 been logged, other parts of it have been flooded, and  43 the learned Chief Justice said, "I find as a fact that  44 it's not deprivation of those lands which is the cause  45 of the deterioration," which his lordship observed in  46 their society.  It is my submission that that goes a  47 very long way to answering Mr. Justice Lambert's 1201  Submissions by Mr. Gouge  1 point.  2 LAMBERT, J.A.:  I have noted these three areas and I'll read  3 them very carefully with your submission in mind.  4 MR. GOUGE:  I'm grateful, my lords.  5 TAGGART, J.A.:  One has to take the discussion of the  6 dispossession of land as a result of the judgment of  7 the Chief Justice along with the concurrent conclusion  8 he brings that they retained entitlement to hunt and  9 fish over unoccupied Crown land.  10 MR. GOUGE:  Yes, my lords.  11 TAGGART, J.A.:  That's an aspect which tends to be overlooked, I  12 think.  One tends to think of a -- in absolute terms  13 of dispossession as opposed to confirmation of  14 possession in terms of the village sites and  15 agricultural users pay and in terms of their right to  16 hunt and fish and roam over unoccupied Crown lands.  17 MR. GOUGE:  Your lordship's observation is a perfectly just one.  18 If I may, I'd prefer to take five minutes tomorrow  19 morning to deal a little further with what your  20 lordship has said and with what Mr. Justice Hutcheon  21 has said.  22 TAGGART, J.A.:  All right.  We'll adjourn now until ten o'clock.  23 THE REGISTRAR:  Order in court.  Court stands adjourned until  24 May 29, 1992, at 10:00 a.m.  25  26 I hereby certify the foregoing to  27 be a true and accurate transcript  28 of the proceedings transcribed to  29 the best of my skill and ability.  30  31  32  33  34  35 Toni Kerekes,  36 Official Reporter,  37 UNITED REPORTING SERVICE LTD.  38  39  40  41  42  43  44  45  46  47


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