Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-03] British Columbia. Supreme Court Jun 3, 1992

Item Metadata


JSON: delgamuukw-1.0018334.json
JSON-LD: delgamuukw-1.0018334-ld.json
RDF/XML (Pretty): delgamuukw-1.0018334-rdf.xml
RDF/JSON: delgamuukw-1.0018334-rdf.json
Turtle: delgamuukw-1.0018334-turtle.txt
N-Triples: delgamuukw-1.0018334-rdf-ntriples.txt
Original Record: delgamuukw-1.0018334-source.json
Full Text

Full Text

 1454  Discussion  1 Vancouver, B.C.  2 June 3, 1992  3  4 CORAM:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  5  6 THE REGISTRAR:  In the Court of Appeal for British Columbia,  7 Wednesday, June 3rd, 1992, Delgamuukw versus Her  8 Majesty the Queen at bar, my lords.  9 TAGGART, J.A.:   Mr. Taylor, just before you begin this morning,  10 my brother Justice Lambert has a question or two  11 arising out of yesterday's submissions by Mr. Bell.  12 LAMBERT, J.A.:   They won't take long to state, and it will be,  13 perhaps, simpler to state them when Mr. Bell isn't  14 here, but they are really for him.  15 MR. TAYLOR:  Yes, my lord.  16 LAMBERT, J.A.:   They arise out of the argument about the Royal  17 Proclamation.  18 Just after lunch yesterday, Mr. Bell linked his  19 arguments in relation to the Royal Proclamation and its  20 direct application to the other issues in the appeal.  21 The first link was through section 91, head 24, and the  22 question of whether the whole of the province was lands  23 reserved for the Indians.  24 The second link was in relation to consent, and he  25 said that if the Royal Proclamation applies directly to  26 British Columbia, then there is an argument on behalf  27 of the appellants which they are advancing that the  28 consent of the native people is required for any  29 surrender of their aboriginal interests in the land.  30 And he said after that, "Of course, that's not the  31 interpretation that we advocate of the Royal  32 Proclamation.  We have an answer to the question of the  33 interpretation of the proclamation in relation to  34 consent."  35 So my first question is this.  I don't believe  36 that I ever heard the answer or understood the answer  37 of the Province to the actual interpretation of the  38 proclamation, if it applies directly to the  39 geographical area of British Columbia, the  40 interpretation advocated by the Province being the one  41 that says that, properly understood, doesn't require  42 Indian consent in the way it applies.  43 My second question relates to the decision in  44 Sikyea.  Mr. Justice Johnson in the Northwest  45 Territories Court of Appeal, at the bottom of page 66  46 and the top of page 67, talks about the Royal  47 Proclamation and then he says that it is doubtful 1455  Discussion  1 whether it applies directly in British Columbia because  2 the lands were terra incognita and lay to the north and  3 not "to the westward of the Sources of the Rivers which  4 fall into the Sea from the West and North West."  5 Then he went on to say:  6  7 "That fact is not important because the  8 Government of Canada has treated all Indians  9 across Canada, including those living on lands  10 claimed by the Hudson Bay Company, as having an  11 interest in the lands that required a treaty to  12 effect its surrender."  13  14 Then, when that case went to the Supreme Court of  15 Canada, Mr. Justice Hall dealt with the Migratory Birds  16 Convention and said this at page 646 in the Supreme  17 Court Reports:  18  19 "On the substantive question involved I agree  2 0 with the reasons for judgment and with the  21 conclusions of Mr. Justice Johnson in the Court  22 of Appeal.  He has dealt with the important  23 issues fully and correctly in their historical  24 and legal settings and there is nothing which I  25 can usefully add to what he has written."  26  27 I end up not fully understanding, I don't believe,  28 the Province's position in relation to Sikyea and its  29 interrelationship between the arguments about the Royal  30 Proclamation and this question of consent.  So I would  31 like to be sure that, before the Province finishes its  32 argument, I do understand their position in relation to  33 Sikyea and what has happened to the unanimous judgment  34 of Mr. Justice Hall in that case.  35 MR. TAYLOR:  Yes, my lord.  I'll raise those matters with Mr.  36 Bell.  37 HUTCHEON, J.A.:   Can I just add this?  I have a question for you  38 but on the Sikyea part we were told by Mr. Berger that  39 that statement is not obiter.  And it would follow, if  40 it wasn't obiter, that it may be binding on us.  That's  41 the way I understood his submission.  It may well be  42 obiter, but that was Mr. Berger's position.  43 Perhaps I could ask you something, Mr. Taylor,  44 before you go on.  You are dealing with the  45 extinguishment by necessary implication, and you are  46 dealing with the result of the grant in fee.  My  47 question relates to this.  In the trial court was this 1456  Discussion  1 a live issue?  2 I am led to ask this because of two things.  One  3 is that Mr. Berger, in his factum to us, at one point  4 said that it was not a live issue, that it was common  5 ground that after 1871 the jurisdiction was in the  6 federal authority.  7 And then when I looked at Professor Foster's  8 article on page 345, he says that the relevant  9 historical period is pre-1871 because there was  10 migration around that time.  Then his comment is "this  11 appears to have been common ground at the trial."  12 Perhaps you need not deal with it now, but I'd  13 like to know at some point whether this issue had ever  14 been canvassed before the trial judge.  15 MR. TAYLOR:  Yes, my lord.  I would like to look into it further,  16 but I can give you a preliminary answer, and that's in  17 fact that it was.  It's been part of Canada's position  18 that there would be particular extinguishments taking  19 place throughout recorded history.  20 HUTCHEON, J.A.:   Canada's position.  21 MR. TAYLOR:  Canada's position.  And there is a pleading of the  22 Province in the original trial that left that open as  23 well, and in fact it was raised in the original Russell  24 & DuMoulin factum as an issue.  25 In fact, the trial judge -- and I don't have the  26 passage but I will look it up -- as I recall commented  27 on the arguments advanced that -- essentially the  28 argument we are making -- that there could be  29 particular extinguishments rather than a blanket  30 extinguishment by grants of deed, et cetera, et cetera.  31 And his comment precisely was that that view had been  32 rejected by all six judges in Calder, meaning, as I  33 take it, the trial judge, the two from the Court of  34 Appeal and Mr. Justice Judson and the two judges who  35 were cited with Mr. Justice Judson.  36 That was not a rejection, in our submission, of  37 the partial extinguishment because the trial judge --  38 and I'll get the passage and put it to you -- but the  39 trial judge went on to say the pre-colonial enactments  40 were so all embracing that it went well beyond that  41 type of extinguishment.  So I don't take that as a  42 rejection of the argument per se.  It's just that it  43 wasn't necessary to deal with the argument, given the  44 finding with respect to pre-1871 extinguishment.  But I  45 will come back and have a closer look at all that  46 material, my lord.  47 My lords, I was going to introduce a new face at 1457  Discussion  1 the table this morning.  Meredith Quartermain is with  2 us.  She has been quarterbacking our back room  3 preparation and hopefully we are at such a stage of  4 preparation that we can bring her out into the light of  5 day at this point.  6 I was asked by Ms. Mandell if she could have a few  7 minutes to address the court.  8 MS. MANDELL:   Thank you.  My lords, I'd like to first advise the  9 court that the elementary school from Gitanmaax is down  10 today for just a few minutes to see the court.  Many of  11 the students had parents and some of their grandparents  12 give evidence in the case.  Some of the children come  13 from Glen Vowel1, but the elementary school is situate  14 in Gitanmaax.  These children will be in court for only  15 a few minutes this morning and I wanted to introduce  16 them to you.  17 I also wanted to advise your lordships that the  18 appellants have been addressing the questions from the  19 bench in terms of remedies and we, although we would  20 have liked to have responded to your lordships today,  21 are not in a position to do that.  And we will be  22 delivering our final response to the court as soon as  23 we are in a position to do that, which isn't,  24 unfortunately, going to be today.  25 I recognize that this will create possible  26 problems for the court and perhaps for the parties, but  27 we have to advise your lordships of where we are at in  28 respect of the responses.  We are really trying to do a  2 9 thorough job for you and I don't want to rush the  30 process at this stage.  31 TAGGART, J.A.:   Mr. Williams, when is Mr. Harvey due to address  32 this subject?  33 MR. WILLIAMS:   As soon as Mr. Taylor is finished, today or  34 tomorrow, my lord.  35 May I suggest this?  We will be finished, we  36 believe, before tomorrow at four o'clock.  That is the  37 way it now appears, that we should be able to finish.  38 If that is the case, we are really saving two days off  39 what we thought we might have to use -- actually, three  40 days.  We were talking about eight maximum.  We are  41 going to have to have, in my respectful submission, at  42 least a day out of those days that we are saving  43 reserved for reply once we see what the appellants'  44 position is on the remedies issue.  Perhaps we could  45 just set that day aside, if necessary, and I expect it  46 will be —  47 TAGGART, J.A.:   Ms. Koenigsberg, is the Crown Canada prepared to 1458  Discussion  1 proceed as early as Friday morning?  2 MS. KOENIGSBERG:   Yes, we are prepared to proceed on Friday  3 morning and had assumed we would be.  I should just add  4 that I'm not sure whether Mr. Williams is taking into  5 account, when they said they would take eight days,  6 that that was cutting down Canada's time.  We agreed to  7 it in the circumstances, but we didn't think we could  8 do our case in five days and cover even the major  9 topics that we felt we needed to cover.  So we will be  10 taking at least six days and an additional day we would  11 have used to cover certain topics which fall into part  12 of what amicus was going to cover, and we would prefer  13 that amicus do it.  14 So I think that at least two of those three days  15 we will require, and possibly two and a half.  I am not  16 sure how long we are going to need in terms of a reply,  17 depending on what arises.  18 TAGGART, J.A.:   Part of that time, I take it, would, assuming  19 you get the material in time, be taken up in dealing  20 with remedies.  Or are you going to leave that to  21 amicus?  22 MS. KOENIGSBERG:   Yes.  In terms of the issues on jurisdiction  23 and so on, I don't think we had intended to address  24 your lordships.  In terms of the difficulties of  25 dealing with the declarations versus the interim  26 declarations, I think we do have something to say on  27 that.  We had intended to fit that into what we would  28 call our overall view of the issues and the questions  29 that must be decided and then those that may fall into  30 an area that perhaps don't have to be decided.  31 TAGGART, J.A.:   Mr. Williams, Mr. Taylor will be the balance of  32 today?  33 MR. WILLIAMS:   We estimate that we will take the rest of today  34 and that Mr. Arvay will be able to do it all tomorrow.  35 TAGGART, J.A.:   Ms. Koenigsberg, if we deferred Mr. Arvay, would  36 Canada be prepared to begin tomorrow morning?  37 MS. KOENIGSBERG:   No, my lord.  I think we were all working at  38 the problem of getting the material ready, tabbed and  39 referenced.  It's so mammoth that we are all working  40 against that kind of deadline.  I don't think we could.  41 TAGGART, J.A.:   Mr. Williams, would it be possible for Mr. Arvay  42 to begin, then, tomorrow --  43 MR. WILLIAMS:   Yes.  44 TAGGART, J.A.:   -- go as far as he can tomorrow on the issue of  45 remedies pending the receipt of the material from the  46 appellants, and then have Canada begin on Friday  47 morning, with Mr. Arvay returning to the fray at the 1459  Discussion  1 conclusion of Canada's presentation to deal with the  2 material which the appellants are generating?  3 MR. WILLIAMS:   Yes, my lord.  I can say that because I haven't  4 asked him.  5 MS. MANDELL:   He is here.  6 MR. WILLIAMS:   He did plan to go tomorrow in any event, but we  7 do have to have that day.  It's not asking for any more  8 time.  It's just the juggling I think.  9 TAGGART, J.A.:   Next week is a down week.  When in the  10 circumstances do you expect to have this material, Ms.  11 Mandell?  12 MS. MANDELL:   My lord, I appreciate the fact that we are about  13 to go into a down week.  This is the last -- Friday is  14 the end of this week.  We are doing our best to get it  15 done as soon as possible and I really can't give you an  16 exact date, but our hope is that we will be able to get  17 it done before the down week is over.  That's how we  18 are presently keying up for it.  But I have to advise  19 your lordships that we don't at this point have a firm  20 idea as to exactly when it will be finished.  21 TAGGART, J.A.:   Well, we'll have to impose some limits.  22 MS. MANDELL:   I appreciate your lordships' view.  23 TAGGART, J.A.:   We can't let it go on with a loose end of this  24 consequence hanging.  25 MS. MANDELL:   I appreciate your lordships' concerns.  26 TAGGART, J.A.:   Certainly it is not an item that is going to be  27 deferred until the appellants' reply, because that  28 would mean we are going to go on endlessly calling  29 people back, and that is a thoroughly unsatisfactory  30 way in which to leave it.  31 MS. MANDELL:   My lord, if I could advise you, though, in respect  32 of one matter, that is the matter of the jurisdiction  33 in the court and the matter which I understood the  34 amicus may have further comments or submissions to  35 make.  We have already made our arguments to you as to  36 the court's jurisdiction in respect of some of the  37 orders which we are seeking.  We don't expect that that  38 aspect of the submission will change at all.  39 So the amicus is in a position to deal with the  40 court's jurisdiction.  We are really at this stage  41 clarifying the questions in respect of the rights and  42 the relationships which have been raised by all the  43 members of the bench.  44 TAGGART, J.A.:   I am more concerned at this point with the  45 entitlement of the Province to know what the position  46 of the appellants is on the entire subject of remedies.  47 MS. MANDELL:   Right. 1460  Discussion  1 TAGGART, J.A.:   The way they have structured their argument, and  2 it is not surprising, there is a discrete area of their  3 submissions which relates to that subject.  Mr. Arvay  4 is going to deal with that and he is ready to start  5 dealing with that tomorrow.  He may be able to go part  6 way and then defer the remainder until he gets your  7 material, but if Canada then intervenes with its  8 argument, it's unlikely that he would get back to this  9 subject matter until about the 22nd, perhaps, at the  10 earliest.  11 MR. TAYLOR:  Right.  12 TAGGART, J.A.:   But it's not just Mr. Arvay.  It is also Canada  13 that needs to know about these things before they are  14 finished.  Otherwise, we are going to have a  15 merry-go-round of call-backs to do this, that and the  16 other thing.  And, of course, after they have had their  17 say on the subject matter, the amicus comes.  18 So we are going to have to impose some arbitrary  19 limits on bringing this material before the court.  20 MS. MANDELL:   Well, my lord, my suggestion, although I  21 understand the difficulties all the way around, is that  22 we will deliver in the week which we are off, the down  23 week, and that would allow the parties to respond with  24 the remainder, the balance of their time in the  25 following week.  Then we will be dealing with it on  26 reply.  27 TAGGART, J.A.:  Mr. Williams, if the material were in Mr. Arvay's  28 hands by no later than the close of business on  29 Wednesday, the 16th -- am I right about that?  No, I'm  30 not -- Wednesday, the 17th, would that give him  31 sufficient time to then prepare and complete his  32 submissions on remedies on Monday, the 22nd?  33 MR. WILLIAMS:   Yes, my lord.  That would solve that one, but may  34 I just say that I would like to be able to leave, if  35 necessary -- and it will be at the discretion of the  36 court, of course -- a part of our time, if necessary,  37 for rejoinder or for a re-reply, whether it's on this  38 subject or whether it's on the subject that my  39 colleague is now addressing?  You may recall when we  40 talked about it earlier, we are arguing for the first  41 time this issue and the appellants will be responding.  42 It may be necessary, although we can be brief, to have  43 some time to respond there.  So I'd like to leave that  44 window open, if I may.  45 But yes, Mr. Arvay will be able to deal with the  46 remedies issue if he gets it on Wednesday.  47 TAGGART, J.A.:   I was mistaken in the 17th.  That is our sitting 1461  Discussion  1 week.  It would be the preceding week.  Mr. Arvay would  2 be on on the 15th and he would have to have it, I  3 should think, sometime before Friday if he's going to  4 deal with it.  5 LAMBERT, J.A.:   No, no, the federal Crown would be on on the  6 15th, as I understand it.  If they were to have it by  7 the 12th, then they won't need to make their argument  8 until the end of that week that starts on the 15th.  So  9 that seems to be the best accommodation in everyone's  10 interest.  11 TAGGART, J.A.:   Friday, the 12th, and the Crown Canada will  12 still be making their submissions when we resume on the  13 15th and probably will go through almost until the  14 19th.  Am I right in that?  15 MS. KOENIGSBERG:   Yes, my lord.  16 TAGGART, J.A.:   Which would be the end of that week.  And Mr.  17 Arvay then would resume on the 22nd.  18 MR. WILLIAMS:   Yes, I think that would be fine.  19 TAGGART, J.A.:   So if Friday the 12th were fixed as the time,  20 for the close of business on Friday the 12th for the  21 filing and delivery of the written material by the  22 appellants --  23 MS. MANDELL:   My lords, we have just been discussing these  24 various times and we were wondering, while we would aim  25 for the 12th and we believe that we would be able to  26 comply with that, whether we could ask of this court  27 that, in the event that we can't deliver on the 12th,  28 the last possible date would be on the 15th.  We are  29 aware of the arrangements which have been set aside for  30 that weekend and we are concerned in respect of not  31 being able to -- of perhaps needing that weekend if we  32 do.  And we'd like to suggest perhaps that the 15th in  33 the morning would be the outside date, but that we  34 would aim for the 12th.  35 TAGGART, J.A.:   I think it would be preferable to fix the close  36 of business of Friday the 12th as the time for the  37 filing of the written material with respect to the  38 issue of remedies --  39 MS. MANDELL:   Thank you, my lord.  We will comply.  40 TAGGART, J.A.:   — to all other interested parties.  The net  41 result of all this, then, will be that Mr. Taylor will  42 Complete today, Mr. Arvay will argue to the extent that  43 he can tomorrow, the Crown Canada will begin on the 5th  44 and occupy the period from the 15th to the 19th, at  45 least, and possibly some part of the 22nd and Mr. Arvay  4 6            will then return and complete remedies for the  47 Province.  Any queries about that? 1462  Submissions by Mr. Taylor  1 MR. TAYLOR:  I should say, my lord, that Mr. Williams perhaps is  2 being optimistic that I will finish at the stroke of  3 four.  I may need a bit of time tomorrow, but Mr. Arvay  4 and I can work out the sliding schedule within the  5 timetable your lordships laid out.  6 TAGGART, J.A.:   All right.  7 MR. TAYLOR:  My lords, if I could, before going to tab 186, the  8 land ordinance, if I could just go back for a moment to  9 182 and the Santa Fe case, I wasn't meaning to say that  10 the Santa Fe case held.  11 TAGGART, J.A.:   Let me find where you are in your factum.  12 MR. TAYLOR:  I'm sorry, I'm at tab 8, paragraph 182.  13 I was not meaning to say -- and I hope I didn't  14 say -- that the Santa Fe case held that the grant of a  15 fee simple extinguished.  16 As was pointed out yesterday, in fact it held that  17 in the peculiar circumstances of that case, the Indian  18 title survived the grant of fee simple because the  19 grant to the railroad company was made conditional upon  20 the government, extinguishing title specifically by way  21 of cession.  That didn't occur, and as the case turned  22 out it was subsequently extinguished because of  23 adherence to a reservation or acceptance of a  24 reservation.  25 But the principle of the Santa Fe case is what I  26 was focusing on and that is not limited in any way by  27 the ultimate finding in Santa Fe because, as I say, the  28 grant to the railroad company was conditional.  And  29 again that principle is as follows:  30  31 "And whether it be done by treaty, by the  32 sword, by purchase, by the exercise of complete  33 dominion adverse to the right of occupancy, or  34 otherwise..."  35  36 And that is the principle.  37 Now, I'll be referring to you authorities where  38 that principle has been applied where an inconsistent  39 grant in fact has extinguished aboriginal interest.  As  40 well, there is reference in several of the Canadian  41 authorities, although perhaps by way of obiter, and I'm  42 speaking of Baker Lake and the Bear Island case and in  43 fact this judgment, where that very result is  44 contemplated, where the grant of a fee simple would  45 extinguish by necessary implication.  46 Now, if I could go to 186, and that is the land  47 ordinance of 1870, and I've already referred your 1463  Submissions by Mr. Taylor  1 lordships to the definitions, where "absolute fee" is  2 the same thing in the act and is used interchangeably  3 with the term "fee simple".  And if I could just  4 briefly take you to some of the provisions, this is the  5 start of the Torrens system and it is supportive of our  6 position that until a grant, a totally inconsistent  7 grant, is made, it can't be said that aboriginal title  8 or any other competing title is necessarily  9 extinguished on the basis of the legislation.  It's the  10 exercise of the grant or it's the making of the grant  11 that effects it.  12 Going to page 4, which is the fourth page in,  13 you'll see it deals with the registration of title, and  14 this is at tab 186:  15  16 "Every person claiming to be the legal owner in  17 fee simple of Real Estate may apply to the  18 Registrar for Registration thereof, in the form  19 marked A ... upon being satisfied after the  20 examination of the Title Deeds produced, that a  21 prima facie Title has been established by the  22 applicant..."  23  24 This is the start of the Torrens system.  So initially  25 that application and the registration was only prima  26 facie, and it deals with charges in much the same way  27 in XX, Roman numeral 20.  28 TAGGART, J.A.:   What is the paragraph number again?  29 MR. TAYLOR:  It's 186.  30 TAGGART, J.A.:   Yes, yes, I've got that, but —  31 MR. TAYLOR:  Oh, I'm sorry, it's Roman numeral 19, Registration  32 of Title, on page 4.  33 TAGGART, J.A.:   Yes.  34 MR. TAYLOR:  So there is a prima facie inference.  It goes on at  35 the next page and included, page 6.  "The Registrar",  36 and this is at Roman numeral 35:  37  38 "The Registrar shall, upon the Registration of  39 every Absolute Fee, issue a Certificate of  40 Title to the person who shall have effected  41 Registration ..."  42  43 Now, this is a certificate of title as opposed to a  44 certificate of indefeasible title.  Again, it is in  45 keeping with the fact that the province is being opened  46 up and there are many, many people in the province, on  47 the land, native and non-native, who may be claiming 1464  Submissions by Mr. Taylor  1 various interests.  And as a result it's provided, over  2 on page 7 in paragraph Roman numeral 36:  3  4 "The registered owner of an Absolute Fee shall  5 be deemed to be the prima facie owner of the  6 land described and referred to in the Register  7 for such an Estate of Freehold as he legally  8 possesses therein, subject only to such  9 registered charges ..."  10  11 et cetera.  Then it says the same thing about the  12 registered charge holder.  That's prima facie not  13 absolute proof.  14 But the thrust of the act and the conception of  15 the Torrens system is to provide unassailable title  16 and, as a result, at page 8 in the section dealing with  17 unassailable title it was provided that after seven  18 years, after the certificate of title had been  19 outstanding for seven years, and this is at Roman  2 0 numeral 4 7:  21  22 "The owner in fee of any land, the title to  23 which shall have been registered for the space  24 of seven years, may apply to the Registrar for  25 a Certificate of Indefeasible Title; but he  26 shall first,"  27  28 And then it sets out a number of things which are quite  29 understandable, given that there were people on this  30 territory, native and non-native, perhaps all claiming  31 interest.  So they wanted the opportunity for people to  32 come in and say, "No, that's not his land.  He can't  33 have that.  I have a right to it," and sort it out.  34 However, after that seven years and upon being  35 satisfied, the Registrar was authorized, under Roman  36 numeral 68, to issue a certificate of indefeasible  37 title, and then under 69 the effect of the certificate  38 of indefeasible title is stated:  39  40 "The Certificate of Indefeasible Title shall be  41 conclusive evidence in all Courts of Justice  42 that the person therein named is the absolute  43 owner of an Indefeasible Fee Simple and the  44 Real Estate therein mentioned against the whole  45 world (the Crown only excepted) ..."  46  47 That again has to do with the concept of the allodial 1465  Submissions by Mr. Taylor  1 title and sovereignty.  2 Carrying on down in the middle of that provision:  3  4 "... and, notwithstanding the existence of any  5 other person of any estate or interest in the  6 land, and except in the case of fraud, the  7 registered owner thereof, of any estate or  8 interest therein, in respect of which a  9 Certificate of Indefeasible Title has been  10 granted, shall hold the same, subject only to  11 such encumbrances --  "  12  13 et cetera,  14  15 "-- as appear on the Register, but absolutely  16 free from all other encumbrances, liens,  17 estates, charges and interest whatsoever,"  18  19 except any lease for a period of less than three  20 years.  21 This is the Torrens system in its first flowering  22 and similar provisions have been in the various  23 versions of the Land Title Act throughout that period.  24 In our submission, in the face of a grant of fee  25 simple, the Indian interest cannot survive, aboriginal  26 rights cannot survive, but as explained by Mr. Williams  27 and I think it is made clear by this act, it was not  28 the Calder documents that did it.  It was the actual  29 granting of the interest.  The Calder documents set up  30 the instruments, set up the system, but did not set up  31 that deemed unassailable title that is present in the  32 Land Registry Ordinance and then subsequently in the  33 Land Title Act.  34 My lords, if I could next go to my speaking notes,  35 which are speaking notes A, "Extinguishment by  36 Necessary Implication", I'd like to deal in a little  37 more detail and develop some of the authorities with  38 respect to this concept of extinguishment by necessary  39 implication.  Do your lordships have copies of that?  40 TAGGART, J.A.:   This is the set that goes between pages 76 and  41 77?  42 MR. TAYLOR:  That's correct.  I have approached the speaking  43 notes slightly different from Mr. Williams and I've  44 taken 186 and the cases that are referred to, and in  45 the speaking notes, the paragraph are 186A through  46 whatever.  And wherever there is a specific reference  47 there will be a tab, and that would be read, starting 1466  Submissions by Mr. Taylor  1 with B in this example, right after the Land Registry  2 Ordinance itself.  3 Going to 186B, the trial judge's conclusions on  4 this issue were as follows:  5  6 "I conclude that an intention to extinguish  7 aboriginal rights can be clear and plain  8 without being stated in express statutory  9 language or even without mentioning aboriginal  10 rights if such a clear and plain intention can  11 be identified by necessary implication.  An  12 obvious example would be the grant of a fee  13 simple interest in land to a third party, or  14 the grant of a lease, licence, permit or other  15 tenure inconsistent with continued aboriginal  16 use."  17  18 In the Province's submission that conclusion is amply  19 supported by authority, and in particular recent  20 Supreme Court of Canada authority, and then I set out  21 the authorities -- a list of the authorities where  22 support for that can be found.  23 Now, at 186D and 186E —  24 WALLACE, J.A.:   Before you go on, do you have page references in  25 those ordinances to the passages upon which you rely?  26 MR. TAYLOR:  Yes, my lord.  In the speaking notes themselves I  27 will develop the page references.  28 WALLACE, J.A.:   Thank you.  29 MR. TAYLOR:  At 186D and 186E I refer to two American cases,  30 which I advised earlier are examples flowing from the  31 Santa Fe case of the principle of complete adverse  32 dominion.  The first case is a passage from the Lac  33 Courte, Oreilles Band against Voigt.  In that case a  34 distinction was drawn between treaty rights and  35 non-treaty rights.  Such a distinction has been  36 implied, and in some cases expressly stated and in some  37 cases not accepted in Canada, but there seems to be in  38 the authorities a distinction, even in Canada, between  39 treaty rights and non-treaty rights.  It is stated  40 there:  41  42 "The primary relevance of the distinction  43 between aboriginal rights of use and  44 treaty-recognized usufructuary rights to the  45 instant case lies in the degree of explicitness  46 required to abrogate such rights.  Reflecting  47 the ease with which Congress may extinguish 1467  Submissions by Mr. Taylor  1 aboriginal title, the Supreme Court required  2 only an implicit abrogation of off-reservation  3 usufructuary rights."  4  5 And there is cited the Santa Fe case, and in fact that  6 is the passage with respect to adverse dominion.  7 Now, that principle and the Santa Fe principle was  8 applied in the United States against Gemmill, which  9 concerned aboriginal lands where the Indians at one  10 point had been driven off the lands and then a forest  11 reserve was created.  And it was stated there by the  12 court in these terms:  13  14 "The relevant question is whether the  15 governmental action was intended to be a  16 revocation of Indian occupancy rights, not  17 whether the revocation was effected by  18 permissible means.  19 In the beginning of the twentieth century,  20 the United States took action that further  21 clarified the status of the land.  At trial the  22 government introduced uncontroverted  23 documentary evidence from the Bureau of Land  24 Management showing that in the early 1900s the  25 claimed land was included in national forest  26 reserves which later became the Shasta Trinity  27 and Lassen National Forests.  The continuous  28 use of the land to the present time for the  29 purpose of conservation and recreation, after  30 the Indians had been forcibly expelled, leaves  31 little doubt that Indian title was  32 extinguished.  The Court of Claims has recently  33 held that the designation of land as a forest  34 reserve is itself effective to extinguish  35 Indian title."  36  37 I'm not suggesting that that case and that reasoning  38 can be transplanted holus-bolus into British Columbia.  39 It is an example of the American approach flowing from  40 the principle set out in the Santa Fe case.  The  41 legislation in that case and the statutory regime is  42 peculiar to the United States and the State involved,  43 as most of these U.S. authorities are.  44 Now, Mr. Justice Mahoney in Bear Lake approved the  45 principle of extinguishment and I have set out the  46 quote -- sorry, from Baker Lake, at 186F:  47 1468  Submissions by Mr. Taylor  1 "Once a statute has been validly enacted it  2 must be given effect.  If its necessary effect  3 is to abridge or entirely abrogate a common law  4 right, then that is the effect that the courts  5 must give it.  That is as true of an aboriginal  6 title as any other common law right."  7  8 In fact, as I will refer to later in the factum, Mr.  9 Justice Mahoney gave the example of the fee simple in  10 very similar terms to the language used by the learned  11 trial judge in this case.  12 Now, in Paul, 186G, the Supreme Court of Canada,  13 and we admit that they didn't finally decide this  14 issue, but it appears, at least, that it accepts that  15 it is an arguable proposition that an Indian interest  16 in lands could be extinguished, or alternatively  17 diminished, by a grant to a third party.  And Paul was  18 the Maritimes case where parts of the right of way  19 through the railroad had properly been obtained from  20 the Indian band and one part hadn't.  And the passage  21 starts:  22  23 "How then is Indian title to land  24 extinguished?  In Calder -- "  25  26 And it sets out the two views in Calder.  Then after  27 the last bracket in the quotation:  28  29 "Did the Woodstock Railway Company's  30 acquisition of an easement or right of way over  31 the land extinguish the Band's interest in the  32 underlying fee which continued to be held by  33 the Crown?"  34  35 In this case there was a 999-year right of way for the  36 railway.  37  38 "There seems to be no doubt having regard to  39 the fact that a right of way is itself a  40 limited interest in land, that the Crown  41 continued to hold the fee for the benefit of  42 the Band unless it can be said that the Band's  43 only interest was to the enjoyment and  44 occupation.  If its only interest was to the  45 enjoyment and occupation, then it is clearly  46 arguable that the Woodstock Railway's right of  47 way was inconsistent with such an interest 1469  Submissions by Mr. Taylor  1 continuing in the Band.  On the other hand, can  2 it be said that the New Brunswick legislature's  3 intention to extinguish the Band's interest in  4 the underlying fee remaining in the Crown was  5 'clear and plain'?"  6  7 On the start of the next page, which is set out in the  8 tab, the learned judge indicated he was thankful that  9 he didn't have to decide that issue in that case  10 because the interest of the railway company was  11 sufficient to cause an injunction to be issued to stop  12 the blockading of the right of way.  13 LAMBERT, J.A.:   Am I right in saying that was Madam Justice  14 Wilson?  15 MR. TAYLOR:  I'm not sure at this moment, my lord.  I recently  16 read the case, but --  17 LAMBERT, J.A.:   I do not have the whole case in my A-14, but I  18 have a note that says this is a judgment "by the court"  19 and Mr. Jackson said that Madam Justice McLachlin wrote  20 it.  21 MR. TAYLOR:  Wilson.  22 LAMBERT, J.A.:   No.  23 MACFARLANE, J.A.:   Wilson.  24 MR. TAYLOR:  I believe Mr. Jackson —  25 LAMBERT, J.A.:   I thought he said that Madam Justice McLachlin  26 wrote it.  27 MR. TAYLOR:  Madam Justice McLachlin wasn't sitting at the time,  28 I believe.  It was Chief Justice Dickson, Justices  29 Beetz, Estey, Mclntyre, Lamar, Wilson and Le Dain, and  30 I believe Mr. Jackson advised that it was Madam Justice  31 Wilson who wrote the judgment in that case, although  32 it's not apparent from the decision itself that that is  33 the case.  34 LAMBERT, J.A.:   Well, if the whole court is writing and saying,  35 "It can be argued this way and it can be argued that  36 way, thank goodness we don't have to decide it," I  37 wouldn't think that you could say anything other than  38 that the point is undecided.  39 MR. TAYLOR:  It is undecided, and that's — at that point, my  40 lord, it was undecided, and I'm just raising that  41 because that analysis went on to show that it is an  42 issue at that time in the court's mind.  And if it was  43 a matter of simply adopting Mr. Justice Hall's  44 statement that there had to be express statutory  45 language, it wouldn't be necessary to get into that  46 debate as the other cases will develop.  47 Going on from that, then, and I'm trying to do it 1470  Submissions by Mr. Taylor  1 in a time line frame, in Horseman Mr. Justice Cory  2 dealt with it, and I submit that this statement from  3 the Supreme Court of Canada puts it beyond doubt that  4 extinguishment by necessary implication is available in  5 Canada.  6 And it is at 186F that Mr. Justice Cory held for  7 the majority that the onus of proving either express or  8 implicit extinguishment lies upon the Crown.  And  9 Horseman was a case dealing with treaty rights.  It was  10 the unfortunate case of the gentleman who was out  11 hunting and was forced to kill a grizzly bear in self  12 defence.  He skinned the bear and his family became  13 destitute.  He subsequently sold it and was nonetheless  14 convicted of a breach of the Wildlife Act and relied on  15 his historic treaty rights in Treaty No. 8.  And I've  16 got extracts from the decision at tab H.  17 It's been pointed out to me that on page 3 at the  18 bottom 186F in fact should read 186H.  But in that case  19 there was an extinguishment of the acknowledged right  20 of the Indians in that case to hunt for commercial  21 purposes.  If I could just refer your lordships to  22 paragraph 373, it states at the bottom, where it says  23 "Treaty and hunting rights", the first sentence:  24  25 "An examination of the historical background  26 leading to the negotiations for Treaty No. 8  27 and the other numbered treaties leads  28 inevitably to the conclusion that the hunting  29 rights reserved by the treaty included hunting  30 for commercial purposes."  31  32 And this is at page 373.  What was alleged to have  33 created the extinguishment in that case was the Natural  34 Resources Transfer Agreement of 1930, paragraph 12 in  35 particular.  And it was, if I can just read the first  36 part of it and the last part:  37  38 "In order to secure to the Indians of the  39 Province the continuance of the supply of game  40 and fish for their support and subsistence,  41 Canada agrees that the laws respecting game in  42 force in the Province from time to time shall  43 apply to Indians within the boundaries thereof,  44 provided however, that the said Indians shall  45 have the right, which the Province hereby  46 assures to them, of hunting, trapping and  47 fishing game and fish for food at all seasons 1471  Submissions by Mr. Taylor  1 of the year."  2  3 And Mr. Justice Cory, for the majority in that case,  4 was of the view that that language and the effect of  5 that paragraph was sufficient to extinguish the portion  6 of the treaty right which gave the Indians under Treaty  7 No. 8 the right to hunt unrestricted for commercial  8 purposes.  9 And the case -- it's quite clear from reading the  10 case that there was a long history of the Indians in  11 that area in fact hunting for commercial purposes.  12 Now, as well, if one looks at the dissenting  13 judgment of Madam Justice Wilson, it is clear that the  14 language of the Natural Resources Agreement was not  15 express.  Justice Wilson was of the view that one could  16 construe that language to include commercial for  17 subsistence purposes and that it was in keeping with  18 the spirit of the act, and all the rest of it.  But  19 there was no express "commercial hunting rights are  20 hereby extinguished."  The necessary implication of the  21 statute in this case was sufficient to effect the  22 extinguishment.  23 Now, that, coupled with Mr. Justice Cory's  24 statement that the onus of proving either express or  25 implicit extinguishment lies upon the Crown, we submit,  26 puts it beyond doubt that the Supreme Court of Canada  27 has recognized that the principle of extinguishment by  28 necessary implication is available in Canada and is  29 applicable in Canada.  30 My lords, I've been advised that all of the  31 paragraph references from page 4 on are one letter out,  32 so G should be I, H should be J, I should be K, J  33 should be L, and that takes us to the end.  34 Now, I won't take your lordships to all of the  35 cases.  The citations are there.  In Horseman, Mr.  36 Justice Cory relied on the Supreme Court of Canada  37 decision in Simon, again, which was a treaty case.  38 Simon, just briefly, involved a situation where a group  39 of natives were on a road with a rifle outside the  40 reserve and the question became whether or not the  41 treaty protected them from the application of the  42 Wildlife Act, which prohibited possession of these  43 sorts of hunting implements.  And in the result it was  44 held it was, but the court, although saying, "We are  45 not prepared to decide the issue of whether or not  46 consent is necessary for the extinguishment of treaty  47 rights, although we submit that Mr. Justice Cory in 1472  Submissions by Mr. Taylor  1 Horseman in fact says it isn't," and I'll deal with  2 that in a while, they did say and proceeded on the  3 basis that extinguishment by necessary implication was  4 possible but that the evidence in the case before them  5 was not sufficient for the Crown to discharge its onus  6 of proof.  In fact I'll be referring to that discharge  7 later because it is important in the case at bar in  8 terms of the shifting onuses and what has to be shown,  9 especially in a constitutional context.  10 In that case, in the Simon case, specifically the  11 court said that there was really no evidence of why the  12 natives were on the road in their car with the rifles,  13 and there was no evidence as to what the road was --  14 what legal ramifications were involved in being on the  15 road.  There was no evidence as to what type of road it  16 was, what the legal attachments to the road were, the  17 implication being -- and there was a case referred to  18 in fact where it had been held -- that, notwithstanding  19 treaty rights, notwithstanding hunting rights, you  20 can't hunt on a public highway.  And that case was  21 referred to earlier.  But there was no evidence before  22 the court in Simon.  23 I submit that if there had been evidence, and  24 given the analysis that was undertaken in Simon, the  25 court would have been prepared to look at those facts  26 to see if there had been extinguishment by necessary  27 implication.  28 Now, at 186J I've referred to the Sioui case, and  29 the Sioui case again was a treaty case.  It was whether  30 the Indians could, notwithstanding the Park Act in  31 Quebec, continue aboriginal practices in the Jacques  32 Cartier Park.  The court declined to decide whether a  33 treaty could be extinguished implicitly in that case --  34 that's a treaty implicitly -- but nevertheless  35 undertook an analysis of the evidence to determine  36 whether or not the Crown's onus of proof had been met.  37 In other words, it said, "We won't decide this issue,  38 but assuming it can be extinguished by necessary  39 implication, let's look at the record," and in any  40 event didn't need to decide the issue because they said  41 even if it could be extinguished by necessary  42 implication, the onus of proof had not been met.  43 However, in Sioui the court did in effect, we  44 submit, look at the territorial scope of the treaty in  45 relation to the question of extinguishment by necessary  46 implication, and the treaty itself, which is held as a  47 whole not to have been extinguished, was silent as to 1473  Submissions by Mr. Taylor  1 its territorial scope.  And the court interpreted the  2 treaty to say that there had to be -- it was  3 contemplated that there could be coexistence between  4 the settlers and the natives.  5 Then in looking at whether that coexistence was  6 possible in the park, it applied the same sorts of  7 analysis, we are suggesting, with respect to the  8 question of extinguishment by necessary implication.  9 Is the use of the natives, the traditional use of the  10 natives, incompatible with the purpose of the park?  If  11 it had been, then those practices could not have been  12 carried on.  In fact it was held that they were  13 compatible, so the practices were allowed.  14 Now, my lords, finally we come to Sparrow.  We  15 submit that on the authority of Sparrow, the Supreme  16 Court of Canada must be taken to have again approved  17 the proposition that extinguishment can occur by  18 necessary implication.  19 If I could take you to tab L, because it's worth  20 referring to some of the extracts in Sparrow, the  21 Supreme Court discussed the conflicting views on this  22 issue in Calder.  The Supreme Court adopted the clear  23 and plain intention portion of Mr. Justice Hall's  24 decision, but significantly did not adopt the  25 requirement that the sovereign's intention be express.  26 We say that accordingly, it is submitted that the  27 Supreme Court has signalled that express language in a  28 statute is not necessary for extinguishment to occur.  29 If it need not be express, it can be implied.  It can  30 be inferred by necessary implication.  31 Further, if one looks at the decision, it is clear  32 that the Supreme Court in Sparrow was looking at all of  33 the legislation and regulations and licence conditions  34 and discretions that were available to the Crown over  35 the years with the goal in mind to determine whether  36 all of that history amounted to an extinguishment by  37 necessary implication.  38 It held that it didn't on the facts.  But we  39 submit that Mr. Justice Dickson would not have gone  40 through that exercise if it wasn't necessary.  It would  41 have been so simple to say "plain and clear and  42 express" and he did not do so.  In fact, he did the  43 other thing.  He looked at it all and said, "You came  44 pretty close, but you didn't do it."  You could still  45 have aboriginal fishing rights.  And the analysis in  46 that regard is set out at pages 399 and 400.  47 Starting at letter "b" at page 399: 1474  Submissions by Mr. Taylor  1  2 "What the Crown really insisted on, both in  3 this court and the courts below, is that the  4 Musqueam Band's aboriginal right to fish had  5 been extinguished by regulations under the  6 Fisheries Act."  7  8 And the history of that is set out in some detail over  9 the next pages.  On page 400 there is a discussion of  10 St. Catherine's in the context of this argument.  11 Starting at the letter "a":  12  13 "It is this progressive restriction and  14 detailed regulation of the fisheries which,  15 respondent's counsel maintained, have had the  16 effect of extinguishing any aboriginal right to  17 fish.  The extinguishment need not be express,  18 he argued, but may take place where the  19 sovereign authority is exercised in a manner  20 'necessarily inconsistent' with the continued  21 enjoyment of aboriginal rights."  22  23 And then he sets out the supporting authorities.  24 Again:  25  26 "The consent to its extinguishment before the  27 Constitution Act, 1982, was not required; the  28 intent of the sovereign could be effected not  29 only by statute but by valid regulations."  30  31 He's here summarizing the arguments of counsel, but  32 it's significant and it will be with consent, as well,  33 but that was not rejected by the court, the consent  34 issue.  We will say in Sparrow it is very clear that  35 consent is not required.  36 It was never rejected that extinguishment could  37 take place by necessary implication.  In fact, on the  38 analysis of the evidence, the decision was that it  39 could take place, we submit, but the evidence wasn't  40 sufficient.  If your lordships could go to the last  41 paragraph, Mr. Justice Dickson states:  42  43 "At bottom, the Respondent's argument confuses  44 regulation with extinguishment.  That the right  45 is controlled in great detail by the  46 regulations does not mean that the right is  47 thereby extinguished." 1475  Submissions by Mr. Taylor  1  2 And that's a distinction in that you can go to that  3 very point, but if you haven't dealt with the right in  4 a manner that is completely inconsistent with its  5 continuation, then it's not extinguished.  And that's  6 the ratio of this case.  7 On page 401 I've set out the passages dealing with  8 the Baker Lake test or the Baker Lake discussion, the  9 Bear Island holdings on that question and Mr. Justice  10 Dickson concluded, around letter "e":  11  12 "But Hall, J. in that case stated that 'the  13 onus of proving that the Sovereign intended to  14 extinguish lies on the respondent and that  15 intention must be clear and plain' ... The test  16 of extinguishment to be adopted, in our  17 opinion, is that the Sovereign's intention must  18 be clear and plain if it is to extinguish an  19 aboriginal right."  20  21 Not express, just clear and plain.  And then Mr.  22 Justice Dickson went on:  23  24 "There is nothing in the Fisheries Act or its  25 detailed regulations -- "  26  27 And you'll recall in the context of this case that is  28 not just the current act, that is all of the acts:  29  30 "... that demonstrates a clear and plain  31 intention to extinguish the Indian aboriginal  32 right to fish.  The fact that express provision  33 permitting the Indians to fish for food may  34 have applied to all Indians -- "  35  36 That's regulation,  37  38 "-- and that for an extended period permits  39 were discretionary and issued on an individual  40 rather than a communal basis -- "  41  42 And that's regulation,  43  44 " -- in no way shows a clear intention to  45 extinguish.  Those permits were simply a matter  46 of controlling the fisheries, not defining  47 underlying rights." 1476  Submissions by Mr. Taylor  1  2 "In our submission, my lords, from those passages it is  3 abundantly clear that Sparrow accepted that  4 extinguishment could occur by necessary -- the court in  5 Sparrow accepted that extinguishment could occur by  6 necessary implication.  7 My lords, I am about to go on to another topic and  8 I don't know if I can finish it in four minutes.  Would  9 it be convenient to take the break now?  10 TAGGART, J.A.:   Yes.  11 THE REGISTRAR:  Order in court.  Court is adjourned for a brief  12 recess.  13  14 MORNING RECESS  15  16 TAGGART, J.A.:   Yes, Mr. Taylor.  17 MR. TAYLOR:  Thank you, my lords.  I should note, my lords, that  18 we have been joined by another counsel at the counsel  19 table, Mr. Martino Cavaleri.  He, as well, has been  20 released from the back room and he, as with Ms.  21 Lindgren, has just recently been called to the bar.  22 TAGGART, J.A.:  Welcome.  23 MR. TAYLOR:   Now, my lords, returning to the factum at page 76  24 at the bottom, I'm next going to deal with the issue of  25 consent.  As I said yesterday, it is the Province's  26 position that consent is not a requirement -- consent  27 of the natives is not a requirement for the  28 extinguishment of aboriginal rights.  29 In support, at paragraph 189 the appellants rely  30 on four sources for their contention that the common  31 law requires consent of the Indians before aboriginal  32 rights can be extinguished.  As I will make clear in a  33 moment, that law is interesting and in its historical  34 context it may even be interesting and illuminating,  35 but it's not the law of Canada.  The law of Canada is  36 to the effect, quite clearly, in our submission, that  37 consent is not required to extinguish aboriginal  38 rights.  39 Now, Mr. Williams dealt with some of the  40 authorities in the approach to it.  But as historical  41 documents and treatises, these cases other than Guerin,  42 which I will deal with in some more detail, as I say,  43 have a historical place, a lot of these issues in  44 historical context, but because of differing  45 legislative regimes, treaties and approaches, these  46 cases, as with the Royal Proclamation, as with a number  47 of historical authorities, do not shed a lot of light 1477  Submissions by Mr. Taylor  1 on extinguishment in modern day Canada.  2 Now, as an example of that, Mr. Jackson referred  3 to some statements by Mr. Penn, William Penn, the  4 originator of Pennsylvania, somehow expressing or  5 summarizing the intention of the Crown at the time he  6 got his grant.  Looking into the background of Mr.  7 Penn, though, it is to be noted that Mr. Penn was a  8 Quaker.  He was persecuted in England.  He was a well  9 connected Quaker and that's how he got his grant from  10 the king, but in fact Pennsylvania was set up as a  11 colony, as a refuge for Quakers and other  12 non-conformists from England and other parts of  13 Europe.  And in our submission -- plus Mr. Penn was  14 imprisoned for a period of time in the Tower of London,  15 plus he sided with the wrong king in one of the wars  16 and went into hiding for a number of years.  To cite  17 Mr. William Penn as an expression of British colonial  18 policy at the time, I submit, without all of the other  19 history surrounding that incident is just too simple.  20 It's too simple an explanation to say, "This was  21 British colonial policy."  22 I submit it's clear that a number of the grants to  23 individuals, as with Mr. Penn, were made for various  24 purposes and in some instances, as with respect to Mr.  25 Penn, it was so that the religious non-conformists  26 could leave England because they were not accepted and  27 their policies were not accepted by the Crown.  28 So it is misleading to rely on the historical  29 documents without a full and comprehensive appreciation  30 of each individual one.  Quite simply, there is not  31 enough time to great into those kinds of analysis in a  32 case like this.  And it's not necessary, because we say  33 the Supreme Court of Canada has dealt with that issue  34 conclusively in very recent times.  35 TAGGART, J.A.:   Something I can pursue in my retirement, Mr.  36 Taylor?  37 MR. TAYLOR:  There is a lot of interesting historical matters  38 that have arisen in this case or that are probably  39 worthy of pursuing, either in retirement or summer  40 vacation or something like that.  They are very  41 interesting topics, no doubt about that, but don't shed  42 a lot of light, in our submission.  43 Now, I'll just deal briefly with it.  At 190,  44 Worcester v. Georgia, again, was distinguishable, we  45 say, in that the more recent decisions, including in  46 particular the decision in Santa Fe, makes it clear  47 that consent is not required.  The exercise of complete 1478  Submissions by Mr. Taylor  1 dominion test does not require consent.  2 As well, in the Lipan Apache Tribe, again consent  3 was not required, and that was a case which was relied  4 on by Mr. Justice Hall in Calder, without comment about  5 whether or not consent was required or not required.  6 Regina v. Symonds was the judgment from which the  7 appellants quoted. They quoted extensively from the  8 Marshall decisions.  However, we submit that that  9 decision in itself was obiter dicta.  It wasn't  10 necessary to the decision.  11 The issue in the Symonds case was how title was  12 obtained from the aboriginal community and whether a  13 grant from the aboriginal community could compete with  14 a grant from the Crown.  I won't refer your lordships  15 to it.  I will note at tab 192 I've extracted from the  16 decision the decision of the other judge in the case,  17 where it makes it clear that the issue was who had the  18 right to make a grant over the lands, and really the  19 rest of it dealing with consent, although extracted  20 from the from the Marshall decisions, it's Mr. Justice  21 Martin and he begins at page 393, was not necessary for  22 the decision.  23 It was interesting as historical background, as  24 Mr. Justice Martin pointed out, but certainly no part  25 of the decision itself.  26 Now, with respect to Guerin, the appellants in  27 their factum made reference to a passage from the  28 judgment of Madam Justice Wilson, and that's set out at  29 tab 193, page 349 and at the letter "i" the statement  30 referred to is set out:  31  32 "But it is an interest which cannot be  33 derogated from or interfered with by the  34 Crown's utilization of land for purposes  35 incompatible with the Indian title unless, of  36 course, the Indians agree."  37  38 And the appellants cite that as authority for the fact  39 that aboriginal rights can not be extinguished in  40 Canada without consent.  But in the context of that  41 case, my lords, that statement refers to reserve lands  42 and the fact that those lands had been surrendered to  43 the government with specific conditions and for a  44 specific purpose.  That comment is in relation to that  45 specific surrender, not aboriginal title.  46 If your lordships turn to page 348 you'll see that  47 the context of what's being discussed is section 18 of 1479  Submissions by Mr. Taylor  1 the Indian Act and reserves and the scheme involved in  2 surrenders to the Crown of reserves, statutory reserve  3 lands, to be used for the benefit of the Indians.  On  4 page 349, the complete paragraph, I think, makes it  5 abundantly clear that we are dealing with statutory  6 Indian reserve land and the fact that, when it's  7 surrendered on a condition and that condition somehow  8 fails, the Crown is not thereby at liberty to do what  9 it wants.  It has to go back and consult.  And that's  10 all that that statement stands for.  11 At the last paragraph at "f" on page 349:  12  13 "I think that when s. 18 mandates that reserves  14 be held by the Crown for the use and benefit of  15 the Bands for which they are set apart, this is  16 more than just an administrative direction to  17 the Crown.  I think it is an acknowledgement of  18 a historic reality, namely that Indians Bands  19 have a beneficial interest in their reserves  20 and that the Crown has a responsibility to  21 protect that interest and make sure that any  22 purpose to which the reserve land is put will  23 not interfere with it.  This is not to say that  24 the Crown either historically or by s. 18 holds  25 the lands in trust for the Bands."  26  27 And we will make that point later dealing with 109 as  28 well.  It's not trust lands.  29  30 "The Bands do not have a fee in the lands;  31 their interest is a limited one."  32  33 And then the quote that I've already referred to:  34  35 "I believe that in this sense the Crown has a  36 fiduciary obligation to the Indian Bands with  37 respect to the uses to which reserve land may  38 be put and that s. 18 is a statutory  39 acknowledgement of that obligation."  40  41 And if we could next go over to page 350, I think it  42 becomes -- and then it talks about the political trust  43 there.  If you go to page 352, it makes it clear at  44 "h", and this is analyzing section 18:  45  46 "I take this to mean that if a Band surrenders  47 its beneficial interest in reserve lands for a 1480  Submissions by Mr. Taylor  1 specific purpose, then the Governor in  2 Council's authority under the section to decide  3 whether or not the purpose is for the use and  4 benefit of the band is pre-empted.  The Band  5 has itself agreed to the purpose and the Crown  6 may rely upon that agreement."  7  8 And then carrying on he cites a few cases, and over to  9 the next page:  10  11 "In this case the Band surrendered the land to  12 the Crown for lease on certain specified  13 terms.  The trial judge found as a fact that  14 such a lease was impossible to obtain.  The  15 Crown's duty at that point was to go back to  16 the band, consult with it, and obtain further  17 instructions."  18  19 And that analysis is what that comment, we submit,  20 about obtaining consent was directed at.  In other  21 words, the reserve lands were surrendered to be leased  22 for a specific purpose.  There was a consent at that  23 time, there were instructions.  The Crown then didn't  24 have a broad discretion to do what it wanted to with  25 the lands and when that purpose failed, it had an  26 obligation to go back and consult.  And that comment,  27 we submit, stands for no more than that proposition.  28 It's tied to the reserve lands themselves and the  29 process of surrender.  30 Now, the appellants, and I'm at paragraph 194,  31 have referred to treaty making to demonstrate the  32 requirement of and the process of obtaining consent.  33 That's set out at the appellants' factum, tab 7 and the  34 point was made in argument.  35 However, we point out at 195, treaty making was  36 only one option available to the Crown and it wasn't  37 the only one, at least prior to 1982.  Such agreements  38 are desirable for many reasons, and the Province is it  39 seeking declarations that will facilitate the  40 negotiation of such an agreement in the present case.  41 However, the history of treaty making in this  42 province, which was limited, or elsewhere does not give  43 rise to a constitutional convention requiring consent,  44 although it does shed some light on the nature, scope  45 and consequences of section 35, and we will develop  46 that later.  But there is no requirement, because the  47 government from time to time has done it, that it 1481  Submissions by Mr. Taylor  1 continue to do it.  In fact, on the authorities, in our  2 submission, consent is clearly not required in Canada  3 and never has been since at least the time of the St.  4 Catherine's Milling case.  5 And if I could next go to the speaking notes, B,  6 "Consent is Not Required", I'd like to develop that  7 more fully.  The appellants' contention, we say, that  8 consent is required, cannot stand in view of the  9 numerous Canadian -- and by that I include the Privy  10 Council authorities and in particular a recent decision  11 of the Supreme Court of Canada -- decisions to the  12 effect that aboriginal consent is not required.  I  13 there set out the principal authorities, and again I  14 will deal with them in more detail as we go through the  15 speaking notes.  The trial judge proceeded on the --  16 LAMBERT, J.A.:   To stop you for just a minute, Mr. Taylor, your  17 position is that the law does require that there be a  18 clear and plain intention to extinguish.  19 MR. TAYLOR:  By necessary implication.  20 LAMBERT, J.A.:   Well, it can either be expressly or you also say  21 it can be by necessary implication, and you have the  22 authorities in support of that.  But it is an intention  23 that we are talking about.  24 It strikes me that there could be some legislation  25 of which it could be said that the effect is  26 inconsistent with the continuance of aboriginal title.  27 But that leaves open the question of whether there was  28 a legislative intention to extinguish aboriginal title  29 at the time; that is, I can conceive of the legislature  30 passing laws that are inconsistent in some respects  31 with some aspects of aboriginal title without the  32 legislature having brought home to it that that's what  33 it was doing.  34 So there is a question in my mind about whether  35 the concepts of clear and plain intention and by  36 necessary implication requires us to be sure that the  37 legislature intended, as its purpose, the  38 extinguishment of aboriginal title rather than merely  39 having the effect, without necessarily clearly  40 intending it, of extinguishing aboriginal title.  41 MR. TAYLOR:  I think I understand your question, my lord.  42 Our position on that is that one looks to the  43 effect of the legislation or the grant.  And if it is  44 completely inconsistent, as was set out in Justice  45 Mahoney's decision, the necessary implication is that  46 the interest has been extinguished and the intention  47 has to be inferred that the sovereign intended to 1482  Submissions by Mr. Taylor  1 extinguish.  2 Now, with respect to a number of these grants, the  3 Land Title Act as an example, the intention or the  4 legislative intention or policy of that to be inferred  5 from its provisions and its effect on the ground, on  6 the title, would be to extinguish all competing  7 interests at the time or at any time.  It would be to  8 extinguish aboriginal rights.  It would be to  9 extinguish squatters' rights.  It would be to ensure  10 that the Russians who were in the territory could not  11 assert a claim or that the Americans who had strayed  12 over the unmarked border could not assert a claim.  13 It is not necessary for the sovereign to turn his  14 or her mind directly to aboriginals, provided that  15 there is no doubt, on a proper construction and  16 application of the statute and the grant, that there  17 can be nothing left.  It must be inferred that at least  18 one of the purposes or incidents of the act is to  19 extinguish.  20 So if it needn't be expressed -- in other words,  21 aboriginal title is hereby extinguished -- then the  22 inferential intent need not be expressed.  In other  23 words, you don't have to be satisfied that the  24 sovereign turned his or her mind to the question  25 directly by necessary implication.  It's just that by  26 necessary implication the title cannot continue, or the  27 alleged interest cannot continue, and if it's by  28 necessary implication you say, "It must be gone.  There  29 is nothing left."  And that was intended, although  30 perhaps not expressly re Indians.  31 LAMBERT, J.A.:  If that implication in your submission arises by  32 operation of law, then I understand that submission.  33 But if it's an inference on which there could be  34 evidence both in favour of and against, then we would  35 have to look at the specific details of the specific  36 legislation.  I think -- it seems to me at the moment,  37 anyway -- that if the legislation is passed that  38 authorizes the issuance of fee simple titles, and the  39 legislation is passed at the time of Calder II or  40 Calder XIII when such a large percentage of the  41 population was Indian, then the implication is perhaps  42 very clear that the legislatures were intending to  43 override Indian title.  44 But if what we are talking about is an interest in  45 a forested area, it really has only been, as far as the  46 legislature could be taken, comparatively recently that  47 it was clear that the Indians conceived themselves to 1483  Submissions by Mr. Taylor  1 have exclusive occupancy of forested areas.  And if you  2 were looking at implication as a question of fact of  3 legislative intention, I wouldn't have thought that the  4 passage of a forest act allowing for the Crown or  5 timber harvesting licences, for example, necessarily  6 implies the extinguishment of an aboriginal title in  7 the form of exclusive occupancy of those lands, because  8 the claim to exclusive occupancy of those lands was not  9 in everyone's mind at the time that the forest  10 legislation was passed.  11 So I'm curious about whether you think that  12 arises, that implication must arise as a matter of law  13 from the effect of the legislation, or whether we are  14 supposed to look individually and ask ourselves:  Is it  15 clear that there was a extinguishing intention, an  16 extinguishing purpose in the minds of the legislature?  17 MR. TAYLOR:  Our position is that you must look at the  18 legislation to make that analysis.  As I explained  19 yesterday, and perhaps I didn't explain it clearly  20 enough, there are lesser grants which would not  21 necessarily extinguish.  It has to, by necessary  22 implication -- for the necessary implication to arise  23 it has to be completely inconsistent.  24 Now, a forest licence, as an example that I will  25 deal with, allows a number of other uses on the same  26 lands.  It only really deals with the harvesting of  27 timber and grants exclusive rights.  But, as an  28 example, if a timber licence under the Forest Act is  29 granted, then our position would be that there could  30 not then be a competing exclusive aboriginal use that  31 could stand beside that.  At most it would have to be  32 non-exclusive, because the Crown has given to a third  33 party the right to go onto the lands to do something.  34 And as the cases, I think, make clear, that right  35 includes the right to do that unimpeded.  36 So the two can't -- the exclusivity in that case  37 can't stand together with the grant of the right to do  38 something.  And so by necessary implication it can no  39 longer be, if there was one ever, an exclusive right.  40 There may still be rights, though.  There may be  41 rights of access that are non-exclusive, that have not  42 been extinguished.  And given the forest licence  43 example that's probably the case, because it admits all  44 types of users, provided there is no interference with  45 the harvesting of timber.  46 But the intent that you are looking at -- or we  47 submit you should be looking at -- is by necessary 1484  Submissions by Mr. Taylor  1 implication.  What does the act say?  What does the  2 grant say?  And if that is inconsistent with the  3 "right", it becomes a question of what the definition  4 of the right is.  A global right to exclusive  5 occupation, if that's the only option, then there is  6 that necessary implication.  It's inconsistent.  But  7 the cases, we submit, and the proper approach would be  8 to say if the right is asserted in those broad terms,  9 that doesn't mean that you can't look at the individual  10 aspects of that right.  And by necessary implication,  11 those individual aspects could be extinguished if no  12 other alternative is available.  And we are not  13 suggesting it's lightly done.  It has to be completely  14 inconsistent with the continued user, the continuation  15 of that particular aspect of the right.  And if that's  16 done, then that's sufficient.  17 LAMBERT, J.A.:   Yes, I heard you answer the question.  I am  18 still concerned about whether we have to look for a  19 leglislative purpose.  But am I right in saying, in a  20 word, that your submission is that if the effect is  21 clear, there is no proper role for a search for  22 independent legislative purpose, independent of effect?  23 MR. TAYLOR:  There is no necessity to do that in terms of whether  24 or not extinguishment has occurred.  25 LAMBERT, J.A.:   Yes.  26 MR. TAYLOR:  Now, assuming that there is external evidence that  27 might bear on the topic, I'm not saying that that  28 couldn't be before the court under the proper rules to  29 assist in determining what the intention of the  30 legislature was.  That might be available, provided  31 that the proper rules were adhered to with respect to  32 statutory interpretation.  33 So if that evidence was available, one might look  34 at that.  But the necessary -- I would submit that by  35 necessary implication, if there is nothing left, if  36 it's completely inconsistent, it would be inconceivable  37 that there would be much light shed by extraneous  38 evidence or external evidence.  39 LAMBERT, J.A.:   Well, I come back to the point that Indian title  40 was not well understood.  It's still not well  41 understood and it's quite possible that things that are  42 completely inconsistent with Indian title could have  43 been enacted without any thought whatsoever that there  44 was an Indian title being extinguished by it.  4 5 MR. TAYLOR:  That's true.  46 LAMBERT, J.A.:   Yes, and your submission is that in those cases  47 the Indian title is nonetheless extinguished. 1485  Submissions by Mr. Taylor  1 MR. TAYLOR:  By necessary implication, yes.  2 LAMBERT, J.A.:   I don't know what the implication is at that  3 point.  4 MR. TAYLOR:  The implication is that the Crown intended, as with  5 the Land Title Act, to extinguish any competing  6 interest, including aboriginal interests or squatters'  7 interests or any number of things.  In the early days  8 there were lots of people on the territory, native and  9 non-native, who were just there.  Later on it became a  10 matter of the Crown wanting to grant rights to third  11 parties for the economic development of the province,  12 forest licences, mineral tenders, that sort of thing,  13 but wanted to grant with certainty that that one  14 individual or group had the right to go in and harvest,  15 had the right to go in and dig up the minerals.  And if  16 that possession is sufficient to exclude any other  17 competing interest, aboriginal or non-aboriginal, then  18 we submit that that's sufficient to make it plain and  19 clear that the extinguishment must have been intended.  20 LAMBERT, J.A.:   I understand your submission on that.  Thank  21 you.  22 MR. TAYLOR:  I should say that it need not be the policy of the  23 act to effect that result.  It can be an incident of  24 the act, provided there is no alternative in terms of  25 its effect.  26 LAMBERT, J.A.:   Thank you.  27 MR. TAYLOR:  Now, going back to the speaking notes at tab 197B, I  28 have set out the passages by which the trial proceeded  29 on the basis that aboriginal consent was not required.  30 I don't think there is any dispute about that.  It's  31 most clearly stated at page 365 in the summary section,  32 the summaries of the authorities:  33  34 "Common law aboriginal rights exist at the  35 pleasure of the Crown and may be extinguished  36 when the intention of the Crown is clear and  37 plain."  38  39 And it is clear that "at the pleasure of the Crown"  40 meant unilateral pleasure of the Crown.  41 We submit that that conclusion was amply  42 supported by the authorities in Canada.  43 In St. Catherine's, this is at 197C, an argument  44 was made to the Privy Council that cession or purchase  45 by the Crown was required under the Royal Proclamation,  46 and those were Royal Proclamation lands, and that was  47 rejected by the Privy Council on the following terms: 1486  Submissions by Mr. Taylor  1  2 "... the tenure of the Indians was a personal  3 and usufructuary right, dependent upon the  4 goodwill of the Sovereign."  5  6 Now, in Calder, neither Mr. Justice Judson or Mr.  7 Justice Hall anywhere stated that extinguishment  8 required aboriginal consent.  Again, I've referred your  9 lordships to the authorities that were referred to by  10 both judges, being the Santa Fe case and the Lipan  11 Apache case, and the analysis of extinguishment.  It is  12 submitted that both judges accepted that consent was  13 not required.  14 You will recall that Mr. Justice Judson was of the  15 view that colonial documents did extinguish by  16 necessary implication.  Mr. Justice Hall felt that no,  17 there had to be an express statement, but nowhere did  18 anybody say the Indians didn't consent.  19 In Bear Island, both the trial judge and the Court  20 of Appeal ruled clearly that consent to extinguishment  21 was not required.  The Court of Appeal is the clearest  22 expression one could ask for to that effect:  23  24 "It is also clear (at least prior to the  25 enactment of the Canadian Charter of Rights and  26 Freedoms in 1982) that the sovereign power can  27 unilaterally extinguish aboriginal rights."  28  29 Mr. Justice Steele ruled to a similar effect, and I've  30 set out the passages from Mr. Justice Steele's  31 decision.  I won't take your lordships to them, but  32 they are there.  33 One thing to note is this that Mr. Justice Steele  34 made this statement:  35  36 "I find that at all times the Crown has had a  37 right to extinguish aboriginal rights by  38 legislation, administrative action or treaty  39 ..."  40  41 And the intent to extinguish must be clear and plain  42 but not necessarily expressed.  And he then went on to  43 develop the concept of whether or not the treaty that  44 was alleged to have extinguished the rights in this  45 case need to have been entered into by the particular  46 band affected, and he said, "No, it can be done  47 unilaterally."  And that's the topic that was picked up 1487  Submissions by Mr. Taylor  1 by the  Court of Appeal.  The Supreme Court of Canada  2 decision, which I set out at the back of that tab, it  3 is the last case -- the extract is the last case before  4 F at page 383, and these passages have been referred to  5 earlier.  6 At line "f" the court took issue with the  7 statement with respect to the Baker Lake tests, the  8 level of organization, that sort of thing.  Mr.  9 Williams has dealt with that.  10 I should point out that the portion of Mr. Justice  11 Steele's decision where he held that consent was not  12 required was immediately preceding that section and  13 there was no comment made on that.  14 But, more importantly, if I could direct your  15 lordships to line "g", it was stated:  16  17 "An appeal to the Ontario Court of Appeal was  18 dismissed.  On the assumption that an  19 aboriginal right existed, the court held that  20 that right had been extinguished either by the  21 Robinson-Huron Treaty or by the subsequent  22 adherence to the treaty by the Indians, or  23 because the treaty constituted a unilateral  24 extinguishment by the sovereign."  25  26 That is the ground on which the Court of Appeal of  27 Ontario upheld the decision.  That ground was  28 specifically referred to by the Supreme Court of Canada  29 and the appeal was dismissed.  30 Now, we submit that that is a clear statement, on  31 the facts of the Bear Island case, that the Supreme  32 Court of Canada has recognized that consent is not a  33 requirement for extinguishment of aboriginal rights.  34 HUTCHEON, J.A.:   Well, I thought on page 384, or whatever, yes,  35 that they were, the Supreme Court of Canada was tying  36 itself to the subsequent adherence rather than  37 accepting that there was unilateral extinguishment.  38 Isn't that the effect of the last paragraph?  39 MR. TAYLOR:  The effect of the last paragraph, my lord, I didn't  40 read it that way.  The Supreme Court of Canada was of  41 the view that, irrespective, perhaps, of what happened  42 upon signing -- in other words, whether they were there  43 or not -- there was adherence and that was sufficient.  44 HUTCHEON, J.A.:   I thought they were taking the second of the  45 reasons of the Court of Appeal.  46 MR. TAYLOR:  Yes, that would be the indication.  47 HUTCHEON, J.A.:   Yes. 1488  Submissions by Mr. Taylor  1 MR. TAYLOR:  But again, my lord, quoting specifically from that,  2 I would submit, and not commenting on it, it's such  3 a -- the comment -- the proposition was argued, it was  4 squarely before the court and it's not -- it's a matter  5 that can be addressed.  It's a simple matter of saying,  6 "Yes or no, is consent necessary?"  And it wasn't done  7 in that case and I would submit it's so clearly stated  8 by the Ontario Court of Appeal that it must be taken to  9 acknowledge that there need not be consent.  10 HUTCHEON, J.A.:   By the Ontario Court of Appeal.  11 MR. TAYLOR:  Yes.  And the fact that it wasn't commented on by  12 the Supreme Court of Canada, I submit, supports that  13 they did not -- that they were prepared to accept that  14 proposition.  15 HUTCHEON, J.A.:   I don't think so.  16 MR. TAYLOR:  Well, I understand, my lord, what you are saying.  17 They needn't have decided that, but the fact that they  18 didn't comment on it, in our submission, is  19 significant, because they close to comment on the  20 "Baker Lake test" specifically.  They felt they had to  21 do that.  22 WALLACE, J.A.:   That's the best you can put it, isn't it?  23 MR. TAYLOR:  That's the best — I'm not saying it's  24 determinative, but it's, again, following the time line  25 it's an indication that the Supreme Court of Canada is  26 adopting that, and we will get to cases where I think  27 it is very clear that they have adopted that.  28 Now, in Paul it was dealt with, I submit, in such  29 a way as to leave no doubt that the Supreme Court of  30 Canada accepted that consent was not required in a  31 proper case, and that's at page 503 at tab F.  It is  32 stated in the second full paragraph:  33  34 "The courts below were both of the view that  35 the New Brunswick government was entitled to  36 deal with the land before Confederation.  In  37 the statutes of 1844 and 1854 the method by  38 which reserve lands could be disposed of was  39 set out.  The method by which the Woodstock  4 0 Railway Company could take and hold lands was  41 set out in the 1864 incorporating statute.  42 Compensation was to be paid only if the owner  43 demanded it.  The owner, i.e., the Crown, did  44 not demand payment.  In our opinion, the  45 Woodstock Railway Company did all it was  46 required to do in order to obtain its interest  47 in the lands comprising the eastern crossing. 1489  Submissions by Mr. Taylor  1 The interest was attained prior to  2 Confederation and so was subject only to the  3 legislation of New Brunswick.  Whether the  4 government of the day carried out its  5 obligations to the Band is a separate question  6 which does not, in our view, affect the  7 proprietary interest of CP in the land."  8  9 We submit that that passage, together with the next  10 page, where Guerin is referred to, indicates that the  11 legislative intent without consent was sufficient to  12 grant the third party interest and that the acceptance  13 of the fact that the Crown could act with respect to --  14 and this was a reserve situation; this was actual  15 statutory reserve, with respect to reserve land without  16 consent has been recognized.  17 Now, again in Horseman we submit that this  18 question has been laid to rest very, very clearly.  If  19 I could take your lordships again to the decision for  20 the majority of Mr. Justice Cory, and if your lordships  21 would go to page 376 of the decision at tab G,  22 commencing at paragraph "h", it was argued before the  23 Supreme Court that the hunting rights should not be  24 seen to be unilaterally cut down, extinguished with  25 respect to the commercial aspect, and the argument was  26 recited thus:  27  28 "The appellant contends that these authorities  29 should not be followed.  The position is  30 three-fold.  First, it was argued that when it  31 is looked at in its historical context, the  32 1930 Transfer Agreement was meant to protect  33 the rights of Indians and not to derogate from  34 those rights."  35  36 That's a matter of interpretation.  37  38 "Secondly, and most importantly, it is  39 contended that the traditional hunting rights  40 granted to Indians by Treaty No. 8 could not be  41 reduced or abridged in any way without some  42 form of approval and consent given by the  43 Indians, the parties most affected by the  44 derogation, and without some form of  45 compensation or quid pro quo for the reduction  46 in the hunting rights."  47 1490  Submissions by Mr. Taylor  1 And the same argument was essentially addressed on the  2 third ground, that's policy grounds, that it would --  3 that it would lead to the dishonour of the Crown, but  4 on the same grounds, the Crown could not unilaterally  5 change.  And Mr. Justice Cory stated, "These  6 contentions cannot be accepted," and went on to hold  7 that in fact, as I have already indicated, the  8 extinguishment of the commercial portion of the treaty  9 right by necessary implication took place.  10 Now, turning next to Sparrow, which is next in  11 time, again this is a situation where the issue was  12 clearly before the court.  At page 400, Mr. Justice  13 Dickson, again reciting the argument or citing the  14 authorities for the proposition that, between letters  15 "c" and "d" it set out -- this is the argument of the  16 respondent -- that consent to its extinguishment before  17 the Constitution Act, 1982 was not required, and went  18 on with the other things that I've already discussed.  19 And there is no suggestion anywhere in the case  20 rejecting the concept of consent being required -- not  21 being required, and in fact I submit, my lords, the  22 court would not have gone through the analysis that it  23 did, there was no suggestion of consent in the case, it  24 would not have gone through that analysis to see  25 whether or not there was extinguishment by implication  26 if it could simply say, "You didn't ask the natives.  27 They didn't agree.  You cannot extinguish," end of  28 question.  And that's significant.  29 But even clearer, we submit, is the passage at 410  30 and 411 dealing with section 35(1) and the change  31 effected by section 35(1) with respect to the question  32 of extinguishment of aboriginal rights, common law  33 rights, at letter "h":  34  35 "With respect to the question of the regulation  36 of the  fisheries, the existence of s. 35(1) of  37 the Constitution Act, 1982, renders the  38 authority of R. v. Derricksan ... inapplicable.  39 In that case, Laskin, C.J.C., for this court,  40 found that there was nothing to prevent the  41 Fisheries Act and the regulations from  42 subjecting the alleged aboriginal right to fish  43 in a particular area to the controls thereby  44 imposed.  As the Court of Appeal in the case at  45 bar noted, the Derricksan line of cases  46 established that, before April 17, 1982, the  47 aboriginal right to fish was subject to 1491  Submissions by Mr. Taylor  1 regulation by legislation and subject to  2 extinguishment.  The new constitutional status  3 of the right enshrined ... suggests that a  4 different approach must be taken in deciding  5 ..."  6  7 And that different approach involves consultation.  8 I submit, my lords, that if it was in Mr. Justice  9 Dickson's mind in any way shape or form that consent  10 was required, those comments about the Derricksan line  11 of cases would be totally inappropriate.  I think it  12 was clear to the court in Sparrow from the analysis  13 that it undertook and from the authorities that consent  14 was not required, provided that the extinguishment, by  15 necessary implication, was clear and plain, and the  16 fact that there had been complete extinguishment.  17 If I could go back to the factum and deal briefly  18 with the grants of fee simple, I think, in answer to  19 some of the questions, that I may have covered a fair  20 amount of this material.  And it's not a novel  21 proposition, but at paragraph 198 the definition of the  22 extent of the estate in fee simple is set out.  23  24 "The estate in fee simple is the largest estate  25 or interest known in law and is the most  26 absolute in terms of the rights which it  27 confers.  It permits the owner to exercise  28 every conceivable act of ownership upon it or  29 with respect to it ... While technically the  30 owner holds of the Crown under the doctrine of  31 tenure,"  32  33 And, as Mr. Williams described it, that's the first  34 estate of allodial title,  35  36 "... in practice his ownership is the  37 equivalent of the absolute dominion a person  38 may have over a chattel."  39  40 In other words, complete control.  At 199, one of the  41 main elements of the fee is the right to freely  42 transfer title to another person.  The holder of an  43 estate in fee simple may exercise all types of  44 ownership with respect to the land including such  45 destructive things as felling trees, mining et cetera.  46 Now, we should contrast that, and we will later in  47 these submissions with respect to the definition of 1492  Submissions by Mr. Taylor  1 usufruct adopted by the Supreme Court of Canada, where  2 waste is not permitted.  3 Thus, a fee simple grant of land is completely  4 inconsistent with aboriginal rights in the same land  5 and, it is submitted, extinguishes such rights.  And I  6 have there set out the quote from Mr. Justice Mahoney's  7 submission in Baker Lake.  8 So, in our submissions, my lords, the grant in fee  9 simple, in and of itself, leads by necessary  10 implication to the conclusion that no other interest,  11 including aboriginal interests, can continue to exist  12 in competition with that title.  13 Now, I've already discussed our position with  14 respect to grants of less than fee simple, and it is  15 our position again, and just to summarize it, that  16 there has to be a complete inconsistency.  And the  17 approach adopted by the Supreme Court of Canada in  18 Sioui with respect to the Jacques Cartier Park is not a  19 bad approach to take, and probably is as good as any in  20 a general way.  21 With respect to the rights that could continue, we  22 say that those rights have not been extinguished,  23 because there is nothing inconsistent about it and  24 certainly nothing completely inconsistent about it.  25 And the courts in British Columbia have dealt with that  26 on a number of occasions, but specifically in the two  27 cases referred to at paragraph 202.  I should refer  28 your lordships to an analysis in a decision of Chief  29 Justice McEachern in the Douglas Lake Cattle Company,  30 and that has subsequently been reported.  I've included  31 the reported version at tab 202, and it's at 44 Land  32 Compensation Reports at page 260.  And in that case the  33 owner of the ranch was claiming -- laid a trespass  34 action against the Crown for using some of the grazing  35 lands that were given to him under a grazing permit in  36 connection with the construction of the Okanagan  37 connector highway, principally for storing and taking  38 gravel.  39 Chief Justice McEachern dealt with the matter this  40 way at the bottom of page 261, where he discusses the  41 terms of the licence itself.  42  43 "The Licensor —  44  45 That being the Crown,  46  47 "... reserves the right to use, or to grant to 1493  Submissions by Mr. Taylor  1 others the use of, the licence area for any  2 purpose other than grazing that the Licensor,  3 after consulting with the Licensee, considers  4 is compatible with grazing."  5  6 And at page 262, quoting from the relevant provisions  7 of the Range Act:  8  9 "A licence or permit does not preclude the  10 Crown from using, or from granting to others  11 the use of, Crown range for a purpose other  12 than grazing or hay production that the  13 regional manager considers is compatible with  14 grazing or hay production."  15  16 In fact there was a consultation process undertaken by  17 the Crown.  The owner of the ranch didn't agree and  18 ultimately sued for trespass.  And Chief Justice  19 McEachern dealt with the claim for trespass and  20 analyzed the extent of the rangeholder's or the permit  21 holder's rights at the bottom of page 263 in these  22 terms:  23  24 "In this case the plaintiff's right under its  25 licence is to graze for a specified number of  26 unit months upon the lands of the licence but  27 it is not a right of occupation or possession.  28 Even if it could be classified as a profit a  29 prendre on which I express no opinion, it is an  30 unusual one because the owner has reserved to  31 itself by the Range Act and the permit and  32 other statutes the right also to use parts of  33 the licence area.  Although these cases always  34 depend upon the concise language of the grant  35 and the relevant legislation I conclude that  36 the plaintiff could not prevent strangers from  37 using the grazing lands for non-grazing  38 purposes.  I believe the plaintiff could by an  39 action in trespass permit a stranger from  40 interfering with the exercise of its grazing  41 rights."  42  43 So in the context of the act and the particular permit  44 involved, the only right the third party had in that  45 case was grazing rights.  So other accesses and other  46 uses that were not incompatible would certainly be  47 permissible. 1494  Submissions by Mr. Taylor  1 And if I can just briefly deal, my lords, before  2 the luncheon adjournment with the next case, the  3 decision of Mr. Justice Wood in MacMillan Bloedel  4 against Western Canada Wilderness Committee, this was a  5 case of an interlocutory injunction.  But rather than  6 just deal with it on the balance of convenience, Mr.  7 Justice Wood looked at the grant and the Forest Act and  8 said, "There is no arguable case.  I don't think you'd  9 stand any chance at trial," and dismissed on that as  10 the first ground.  11 This case was to do with the Carmanah Valley,  12 where this committee was building trails to bring the  13 public into the park so they could see the natural  14 beauty.  MacMillan-Bloedel was concerned that that  15 activity might in fact create too much of a public  16 furor, it appears, and applied for an injunction.  And  17 at page 112 Mr. Justice Wood dealt with the matter in  18 this way:  19  20 "I appreciate that in meeting the first test  21 the plaintiff need not make out a case that  22 will necessarily prevail at trial, but I feel  23 constrained to say that there is little  24 compelling evidence before me to support the  25 plaintiff's argument that Tree Farm Licence No.  26 44 gives the right to exclusive possession of  27 all of that Crown land encompassed by the  28 licence area.  By the express language of the  29 licence itself the plaintiff is given the  30 exclusive right to harvest timber from the  31 Crown land in the licence area, but by contrast  32 the right to enter and to occupy that land is  33 limited to what is required for the purpose of  34 managing it in accordance with management and  35 working plans."  36  37 Then there is a discussion of licence of occupation in  38 the Land Act, which was excluded.  At the bottom of the  39 page it is stated:  40  41 "On the whole of the material before me I am  42 not satisfied that the plaintiff has  43 established that there is a fair question to  44 raise as to the existence of the right upon  45 which its action in trespass is predicated."  46  47 And that is exclusive possession.  So in the result, 1495  Submissions by Mr. Taylor  1 Mr. Justice Wood held that in this case the Wilderness  2 Committee people could go on to the lands, but did  3 point out at page 114 that the fact they could go out  4 still did not give them any right, and in fact that  5 would be actionable if they interfered with the timber  6 harvesting.  And it's the very last full paragraph, by  7 doing such things as spiking trees and that sort of  8 thing that would interfere with the licence.  But in  9 this case again there was a co-existence of uses of the  10 lands.  And with respect to many interests, it's the  11 Province's position that there can be co-existence.  It  12 is only when there is a conflict that cannot permit any  13 other competing use other than in the grant that there  14 is an extinguishment; again, not of the global right,  15 perhaps, but at least of an aspect of it.  16 Thank you, my lords.  17 THE COURT:   All right.  Two o'clock.  18 THE REGISTRAR:  Order in court.  19  2 0 NOON RECESS  21  22 I hereby certify the foregoing to  23 be a true and accurate transcript  24 of the proceedings herein, to  25 the best of my skill and ability.  26  27  28  2 9    30 Dianne Olsen,  31 Official Reporter,  32 UNITED REPORTING SERVICE LTD.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1496  Submissions by Mr. Taylor  1 (PROCEEDINGS RECONVENED AT 2:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Yes, Mr. Taylor.  5 MR. TAYLOR:  Yes, my lords.  In answer to a question from my  6 lord Justice Hutcheon this morning, I've had a chance  7 to review the status of this argument, the -- or  8 position at trial, the position that there can be  9 extinguishment by adverse dominion, and, in fact, it  10 was raised at trial.  I've referred to Mr. Foster's  11 article and note that he says:  12  13 "First, the relevant historical period is  14 pre-1871 because, upon Confederation with  15 Canada, jurisdiction to extinguish Indian  16 title - whether by treaty or legislative fiat -  17 migrated to Ottawa."  18  19 And I note that that's without any support or any  20 authorities cited.  21  22 "This appears to have been common ground at  23 trial."  24  25 Now, I have discussed it with both Ms. Koenigsberg  26 and Mr. Wiilms, and, in fact, that is not an accurate  27 assessment --  28 HUTCHEON, J.A.:  I see.  29 MR. TAYLOR:  — of the situation.  I understand that Mr. Foster  30 was not counsel at trial and would have no firsthand  31 knowledge of that.  I can say, my lord, that it was  32 raised directly in the province's statement of defence  33 at paragraph 36.  34 TAGGART, J.A.:  Which of your headings?  35 MR. TAYLOR:  Oh, it would be tab 8, but it was a question that  36 arose this morning.  37 TAGGART, J.A.:  Yes, I understand that.  38 MR. TAYLOR:  And paragraph 36 of the amended statement of  39 defence alleges that if the plaintiffs, their  40 ancestors or predecessors ever had aboriginal or other  41 title, et cetera, the same were reduced, diminished or  42 extinguished by one or more of, and then sub (d) is  43 administrative actions pursuant to the statutes and  44 statutory instruments referred to, (a), (b) and (c),  45 above, and that includes colonial instruments and  46 statutes, the making or enactment of laws of general  47 application of the Province of British Columbia, and 1497  Submissions by Mr. Taylor  1 then the laws of Canada.  So it was squarely raised on  2 the pleadings.  3 TAGGART, J.A.:  What was that paragraph number?  4 MR. TAYLOR:  36 (d).  5 TAGGART, J.A.:  (b) for Baker?  6 MR. TAYLOR:  (d) for dog.  And the Attorney-General of Canada's  7 position at trial was essentially the same, as I see  8 it.  I'm quoting from a statement of the Attorney-  9 General of Canada's position on extinguishment,  10 diminution or abandonment of aboriginal rights in the  11 claim area, and this was filed as an exhibit, I  12 understand, Exhibit 67, or 67 is marked here.  And it  13 stated:  14  15 "As to extinguishment, this occurred when  16 sovereign authority was exercised in a manner  17 necessarily inconsistent with the continued  18 existence of aboriginal rights whether by  19 legislation or otherwise.  For example general  20 legislation, when it was accompanied by actual  21 adverse use or alienation, was necessarily  22 inconsistent with the continued existence of  23 aboriginal rights and thereby caused their  24 extinguishment."  25  26 And I'm further advised that that position was  27 argued by Canada at trial, but that the province did  28 not address argument on that issue preferring to focus  29 on the pre-colonial extinguishment, but their position  30 set out in the statement of defence was never  31 abandoned and was a live issue.  32 Now, the trial judge, in fact, dealt with this, as  33 I indicated this morning, in two places.  First of  34 all, at 412 from the Western Weeklies, the third  35 paragraph.  He stated:  36  37 "I have also considered whether the  38 intention of the Crown to extinguish aboriginal  39 rights could be limited just to the lands it  40 actually transferred to third parties, but I  41 reject that, as did all of the seven judges who  42 reached the same conclusion in Calder.  I find  43 that was not the intention of the Crown.  This  44 is shown in many different ways, including the  45 fact that the Crown took title to all the land  46 in the colony,"  47 1498  Submissions by Mr. Taylor  1 and that's Calder II,  2  3 "and enacted comprehensive land law legislation  4 for that very purpose.  The Crown's intention  5 was clearly ongoing with Indian interests  6 looked after by reserves and the right to use  7 vacant land,"  8  9 et cetera.  10 So the Chief Justice did not limit the intention  11 to extinguish, just to actual grants.  He said, no,  12 it's much broader than that, and, in effect, it was in  13 pre-colonial times.  I don't take the Chief Justice as  14 saying that that argument is wrong in law.  It just  15 was not necessary to deal with it.  And to make that  16 abundantly clear, if I could just refer your lordships  17 to page 397, the last three paragraphs of that page,  18 it was stated by the trial judge:  19  20 "It will be useful to mention that, because  21 of the division of powers between Canada and  22 the provinces at the time of Confederation  23 (1871 for British Columbia), it has been  24 convenient to consider these matters from the  25 perspective of colonial times.  That is because  26 Crown authority in those days was undivided.  27 Thus no division of powers question can arise  28 about the authority of the Crown to extinguish  29 aboriginal rights in the colonial period.  30  31 It will not be necessary for me to trouble  32 myself with the question of whether, since  33 Confederation, the province has had the  34 capacity to extinguish aboriginal interests.  35 This is a vast legal and constitutional  36 question which has not been fully explored,  37 although it has been decided in a number of  38 cases that some provincial legislation applies  39 to Indians and can diminish their rights to  40 engage in aboriginal activities."  41  42 Now, if I can just stop there for a moment, that  43 is an important statement because what it means is the  44 issues that I am addressing now and that arise in the  45 federal government's factum are, in essence, matters  46 of first impression for this court, and I will be  47 arguing shortly that given the amount of evidence to 1499  Submissions by Mr. Taylor  1 weigh and the analysis that must be undertaken with  2 respect to this constitutional division, it would be  3 inappropriate for this court to attempt that, and if  4 this question is to be decided in this appeal in  5 anything other than a general way, it should be  6 referred back to the trial court or some other way.  7 There was 300 and some odd days of evidence, and as I  8 will be showing, although a number of findings made by  9 the trial judge reflect on some of the issues, the  10 analysis that was undertaken was not directed at the  11 questions involved in the constitutionality, the  12 provincial legislation in light of 91.24.  And in the  13 same vein the next paragraph is important, where it  14 was stated:  15  16 "It will also be unnecessary for me to  17 consider the full meaning and effect of s. 35  18 of the Constitution Act, 1982, although there  19 is language in the judgment of the Supreme  20 Court of Canada in Sparrow from which it might  21 be argued that aboriginal interest which could  22 be extinguished before 1982 may also be  23 extinguished after that date."  24  25 Now, again with respect to s. 35, the trial judge  26 did not analyse the evidence with respect to the tests  27 set out in Sparrow or the considerations that prevail  28 under s. 35.  And again, that would be an exercise for  29 this court on first impression, we submit, and in view  30 of the length of trial that too would be  31 inappropriate.  32 What the learned trial judge did do was analyse  33 the evidence from a perspective of extinguishment, and  34 there's findings with respect to that, but not with  35 respect to constitutionality under 91.24 or s. 35, and  36 those analyses are all different.  They all address  37 different questions, as I hope to make clear  38 momentarily.  39 Now, if I could just before moving on just deal  40 briefly with the question of grants less than fee  41 simple, and I may not have made myself clear.  We're  42 not saying in every case that the grant less than a  43 fee simple may not do anything.  In other words, it  44 either does nothing or it extinguishes a part of the  45 right.  As is made clear in section -- or paragraph  46 201, lesser grants and governmental regulation may not  47 even interfere with aboriginal rights.  So again, it's 1500  Submissions by Mr. Taylor  1 a very specific analysis.  If the grant does not  2 interfere with the alleged particular right, the right  3 that's particular to the group alleging it and proven,  4 then neither extinguishment nor diminishment or even  5 interference need arise.  If the two uses can  6 co-exist, then there's no issue.  There's no lis  7 between the parties because there's no conflict.  It's  8 only when a conflict arises that one need get into  9 that analysis.  And I would submit on the authority of  10 Sioui that the court should attempt to analyse it so  11 that there is no conflict between the rights, if at  12 all possible.  There obviously, as in the case of fee  13 simple, will be situations where the two asserted uses  14 cannot survive, but we shouldn't be taken to say that  15 in all cases of a grant there's necessarily even  16 interference.  There may not be.  17 And in conclusion, at page 205, with respect to  18 this matter, again if I could go back to the comment I  19 made earlier with respect to this sort of -- the  20 analysis of extinguishment by adverse dominion.  That  21 analysis was not made by the trial judge, and there  22 was an incredible mass of evidence directed to that  23 and argument directed to that, and it's dealt with at  24 paragraph 205, where we state although the province,  25 in its alienations project, provided some evidence as  26 to the extent of Crown grants in the claim area, and I  27 should note in passing so did the federal government  28 introduce evidence of that nature, the appellants have  29 not approached the case on the basis of entitlement to  30 less than an exclusive occupation of land, although  31 they did concede that at trial.  But even in this  32 court they seem to be going for possession first and,  33 well, we can't really say what other kind of -- what  34 other kind of rights we're looking for.  We haven't  35 defined them.  We know it's occupation, and we say  36 it's exclusive, and it's virtually ownership.  37 The detailed and complex analysis required of the  38 scope and extent of the aboriginal rights in issue and  39 their relationship with various grants, executive and  40 legislative action has not been applied by the trial  41 judge.  And again, we say that it would be  42 inappropriate for this court to attempt that by way of  43 first impression.  And as you are aware, it's our --  44 it will be our submission on remedies that that matter  45 is best left to the parties and either brought back to  46 court or just left to the parties, and if it can't be  47 resolved, it be resolved at another time by another 1501  Submissions by Mr. Taylor  1 court, if need be.  We would prefer, however, that the  2 court retain jurisdiction.  3 Now, if I could just refer your lordships to the  4 trial judgment, keeping in mind the Simon caution, the  5 question of extinguishment should not be -- should not  6 be looked at in the air.  There should be evidence.  7 And I'll refer your lordships to that later in another  8 section, but in Simon it was the extinguishment of  9 treaty rights, hunting on the road.  They said there  10 was no evidence and we're not prepared to determine  11 whether or not there was extinguishment or not in the  12 abstract.  We need facts.  And the trial judge with  13 respect to extinguishment stated, and the excerpt is  14 at tab 205 -- sorry, my lords, it's the wrong quote  15 there.  I'll bring you back to that.  It's the wrong  16 extract.  17 TAGGART, J.A.:  What's the effect of it?  18 MR. TAYLOR:  The effect of it is there was a mass of evidence.  19 TAGGART, J.A.:  Bearing on the issue of extinguishment?  20 MR. TAYLOR:  Having a bearing on the issues of extinguishment  21 and the effect of the various grants.  And it's worth  22 pointing out, and I'd like you to see the language  23 because it talks about the interrelationship between  24 the numerous various types of grants and uses and  25 competing interests, and it's plain that a great deal  26 of analysis has to be done to even attempt to wrestle  27 that into some full manageable form, and I would  28 submit that this case is too big in scope, there's too  29 many rights, too many areas, as I'll point out  30 momentarily, for any court to attempt to do that.  The  31 Old Massett Band approach, I would submit, is much  32 preferable.  In defining the right, you look at  33 something specific that you can get a grip on, and it  34 takes longer, but the law moves step by step, bite by  35 bite.  It doesn't take it in one big gulp because it  36 is -- I think it defies the ability of the mind to  37 comprehend the scope of this claim and the inter-  38 relationship between the various uses.  39 I'm sorry, it was at that page, 395 and 396.  I've  40 got 399.  If I could take you to the white books, it's  41 395 at the very bottom going over to 396.  It's in the  42 Western Weekly.  43  44 "In addition the province, by its  45 'alienations project' introduced a large  46 collection of documents which together with the  47 earlier documents mentioned record pervasive 1502  Submissions by Mr. Taylor  1 colonial and provincial Crown presence in the  2 territory up [to] the date of the writ.  3  4 All this documentation demonstrates  5 colonial and provincial dominion over the  6 territory before and since Confederation by  7 such diverse governmental and administrative  8 activities as surveying, grants of land, leases  9 and other tenures, land registry, schools and  10 hospitals, rights of way for highways, power  11 and pipe lines, grants in fee simple, forestry,  12 mining, and guide outfitting permits, various  13 public works, the creation and governance of  14 villages and municipalities, water and other  15 placer rights and licences, trapline  16 registration for all or almost all of the  17 territory, fish and game regulation and  18 conservation, and a host of other legislatively  19 authorized intrusions into the life and  20 geography of the territory.  Some of this  21 material, of course, related only to post-  22 Confederation British Columbia."  23  24 And then skipping down, the same is said about Canada.  25  26 "For its part, Canada also adduced extensive  27 evidence of the federal presence in the  28 territory, including the right of way and  29 installations for the main line of the Grand  30 Trunk Pacific Railway... airports, fishery and  31 police establishments and, of course, Indian  32 reserves."  33  34 And I have looked at the -- what's called in the  35 materials on this file the alienations project, and  36 I've just had a quick look into it.  It is maps,  37 computer print-outs, listings of grants.  It is a  38 tremendous volume of material dealing with the  39 on-the-ground analysis of what occurred in this 22,000  40 miles of territory both before and since  41 Confederation.  42 Now, going on to the next section, which is  43 provincial authority to extinguish or diminish, we  44 state in section 206 that when British Columbia joined  45 Confederation the colonial enactments then in force  46 continued to apply, subject to the division of powers  47 under the Constitution Act, 1876, by virtue of section 1503  Submissions by Mr. Taylor  1 129 of that act and the provisions of the Terms of  2 Union.  So acts such as the Land Titles Ordinance that  3 I referred to this morning were incorporated until  4 subsequently replaced.  5 And we say, and I think the authorities clearly  6 bear this out, that after 1871 the authority of  7 British Columbia to extinguish or otherwise diminish  8 aboriginal rights turns on the distribution of  9 legislative powers under the Constitution Act.  10 Now, it's been suggested that 109 might be an  11 impediment to the Crown dealing with its lands, and  12 our position, and we submit it is very clear on the  13 authorities and, in particular, the Smith v. The Queen  14 case in the Supreme Court of Canada, section 109 does  15 not bar the province in any way from dealing with  16 public lands in the province.  If land --  17 TAGGART, J.A.:  That's section 109 of the Constitution Act —  18 MR. TAYLOR:  Of the Constitution Act.  19 TAGGART, J.A.:  — 1867?  20 MR. TAYLOR:  Yes.  That's the one that says all the land in the  21 province belongs to the province subject to trusts and  22 other -- and interests other than the province.  The  23 effect of 109, if there is an interest other than the  24 province, is to turn the question into a determination  25 of which government has authority to legislate with  26 respect to it, either the federal government or the  27 provincial government.  And I'll be coming to the  28 Smith case later, but I think it's abundantly clear,  29 but I raise that now because the intervenor Carrier-  30 Sekani has stated in its factum that in its view  31 section 109 creates a third category of public  32 property in Canada.  There's federal property,  33 provincial property, and presumably Indian property.  34 And we submit that on the authorities that is not  35 available as an argument, and it's not a proper  36 approach to the distribution of either property or  37 powers under the Constitution Act, 1867.  38 As well, this analysis will just deal with the  39 period between 1871 and 1982.  We concede that after  40 the passage of s. 35(1) different considerations apply  41 because aboriginal rights then received constitutional  42 protection, and that constitutional protection was  43 against the operation of powers of both levels of  4 4 government.  45 Now, I have set out in subsection 2 the  46 constitutional framework, the various provisions that  47 are applicable.  91.24 is on page 82, and your 1504  Submissions by Mr. Taylor  1 lordships, I'm sure, are very familiar with it.  It  2 states simply:  3  4 "Indians and Lands reserved for the Indians..."  5  6 92 I have set out the provisions whereby the  7 province first of all gets its authority to deal with  8 lands within the province and other matters concerning  9 both land and people, chattels within the province,  10 and essentially the key ones are 92.5, management and  11 sale of the public lands belonging to the province and  12 of the timber and wood thereon, and number 13,  13 property and civil rights in the province.  The others  14 bear on it as well.  15 92A I have included not because -- it wasn't  16 passed until 1982, but 92A provides, we submit,  17 background to s. 35(1) as well.  They were passed at  18 the same time.  And 92A gives the province powers and  19 defines those powers, and in some instances they're  20 exclusive, to make laws in relation to exploration for  21 non-renewable natural resources; development,  22 conservation and management of non-renewable natural  23 resources; and the development, conservation and  24 management of sites and facilities in the province for  25 the generation and production of electrical energy.  26 So at the same time that Indian aboriginal rights  27 were being constitutionalized there was a further  28 refinement in the division of property and powers  29 relating to property under the Constitution by a  30 specific grant to the legislatures of these powers  31 under 92A.  But as I say, that is after 1982, but it  32 is, I think, relevant to -- at least to s. 35(1) .  33 Section 109 is set out on page 85.  34  35 "All Lands, Mines, Minerals, and Royalties  36 belonging to the several Provinces of Canada,  37 Nova Scotia, and New Brunswick at the Union,  38 and all Sums then due or payable,"  39  40 et cetera,  41  42 "shall belong to the several Provinces of  43 Ontario, Quebec, Nova Scotia, and New Brunswick  44 in which the same are situate or arise, subject  45 to any Trusts existing in respect thereof,"  46  47 and as I have indicated, there is authority that 1505  Submissions by Mr. Taylor  1 aboriginal rights do not involve a trust,  2  3 "and to any Interest other than that of the  4 Province in the same..."  5  6 And then other sections -- I've set out other  7 sections that have a bearing on it, and the schedules  8 that detail the provincial public works and property  9 to be the property of Canada at the time of  10 Confederation, and the sixth schedule relating to  11 section 92A.  12 And then on page 87 I have set out the pertinent  13 provisions in the order -- or the Terms of Union.  14  15 "1.  Canada shall be liable for the debts and  16 liabilities of British Columbia existing at  17 the time of the Union...  18 10.  The provisions of the British North  19 America Act...shall (except those parts  20 thereof which are in terms made, or by  21 reasonable intendment may be held to be  22 specially applicable to and only affect one  23 and not the whole of the Provinces now  24 comprising the Dominion, and except so far  25 as the same may be varied by this Minute)  26 be applicable to British Columbia..."  27  28 So anything that involves -- anything in the  29 Constitution Act, 1867 not excluded by the Terms of  30 Union, which, in effect, involves one more -- more  31 than one province, applies in British Columbia.  32 And then 13:  33  34 "The charge of the Indians, and the  35 trusteeship and management of the lands  36 reserved for their use" --  37  38 and I should note in passing that Calder III, which  39 Mr. Williams referred to a couple of days ago,  40 actually talked about reserves back in 1864.  It  41 opened -- the settlers could claim lands, but not  42 lands reserved for Indians or reserved lands of  43 Indians or village sites.  44  45 "The charge of the Indians, and the  46 trusteeship and management of the lands  47 reserved for their use and benefit, shall 1506  Submissions by Mr. Taylor  1 be assumed by the Dominion Government, and  2 a policy as liberal as that hitherto  3 pursued by the British Columbia Government  4 shall be continued by the Dominion  5 Government after the Union.  6  7 To carry out such policy, tracts of land of  8 such extent as it has hitherto been the  9 practice of the British Columbia Government  10 to appropriate for that purpose, shall from  11 time to time be conveyed by the Local  12 Government to the Dominion Government in  13 trust for the use and benefit of Indians on  14 application of the Dominion Government, "  15  16 and then in case of disagreement.  17 That process reflects what the authorities hold  18 has to be done under 109, and I'll refer to it, but if  19 I could touch on it here, is that the dominion  20 government asked that reserves be set aside, but it's  21 only the provincial government that can actually  22 allocate those reserves because the lands in the  23 province belong to it.  And that's happened throughout  24 Canada, and it's been recognized in a number of cases.  25 Now, at sub (b) I'd like to deal with the  26 background to this question of public property, which  27 is important background for the question of the  28 distribution of powers.  And Mr. Hutchins on behalf of  29 the National Indian Brotherhood, I would submit,  30 mischaracterized what the province is doing in this  31 section.  Mr. Hutchins says in his factum and said in  32 argument that what the province is attempting to do is  33 as a matter of socio-economic policy say that this  34 court must find that the province was vested with  35 legislative authority to extinguish because to find  36 otherwise would be to leave the province destitute and  37 impotent and --  38 TAGGART, J.A.:  What is the reference to his factum?  39 MR. TAYLOR:  It's the National Indian Brotherhood supplementary  40 factum, paragraph 119.  And we say that's a gross  41 mischaracterization.  The reason we have included  42 these cases is that the B.N.A. Act or the Constitution  43 Act, 1867, like any other statute, has to be looked at  44 in its historical context.  This is the background,  45 these cases I am going to refer to, with respect to  46 the distribution of property, the sources of revenues,  47 and all of that background is fundamental to an 1507  Submissions by Mr. Taylor  1 understanding of the relationship between the property  2 of the province and the jurisdictional issues arising  3 under 91.24.  4 Now, the first case is Reference Re Proposed  5 Federal Tax on Exported Natural Gas, and the majority  6 in that case set out the background to the property  7 interests and the revenue sources at the time of  8 Confederation.  9  10 "At Confederation each of the original  11 confederating colonies received the entire  12 beneficial interest of the Crown in Crown lands  13 situate within its boundaries, with the limited  14 exception of certain public works acquired by  15 the Dominion under s. 108 or assumed for  16 fortifications or defence...  17  18 The right of exploitation by the provinces of  19 provincially-owned natural resources flows  20 logically from that ownership and is discussed  21 in Hogg, Constitutional Law...  22  23 'Because each provincial government may own  24 much of the natural resources of its  25 province, and because it has the  26 constitutional power to purchase or  27 expropriate resources in private hands,  28 each province can control the exploitation  29 of its natural resources by means of  30 permits, licences and leases, and can  31 profit from that exploitation through  32 license fees, rents, royalties or  33 sales.  34  35 Now, in that case the majority went on, the reason  36 for that legislative object or background was that it  37 was intended that the primary source of revenue for  38 the provinces would be from the sale of its property,  39 and it stated as follows:  40  41 "It is apparent that the public domain was  42 to be a principal source of revenue for the new  43 provinces.  The federal government had assumed  44 the most costly obligations of government at  45 the time, and had been granted a general power  46 to raise 'Money by any Mode or System of  47 Taxation'...This taxing power, of course, 1508  Submissions by Mr. Taylor  1 included authority to levy duties of customs  2 and excise which, in 1867, provided more than  3 80 per cent of the revenue of the British North  4 American Colonies.  By contrast, the provinces  5 were limited to imposing 'Direct Taxation  6 within the Province in order to the raising of  7 a Revenue for Provincial Purposes'...These  8 revenues sources were not expected to yield  9 significant sums of money,"  10  11 and it is set out why, and basically because people at  12 colonial times and people today don't like paying  13 taxes.  14  15 "Section 118 (now repealed and superseded by  16 the B.N.A. Act, 1907) provided for annual  17 subsidies to be paid by the Dominion to the  18 provinces..."  19  20 And it should be noted that the Terms of Union sets  21 out subsidies per capita as well.  22  23 "...while the balance of provincial revenue  24 requirements would largely be met through the  25 exploitation and development of the public  26 domain.  These sentiments are expressed by Gait  27 in the Confederation Debates...  28  29 'We may, however, place just confidence in  30 the development of our resources and repose  31 in the belief that we shall find in our  32 territorial domain, our valuable mines and  33 our fertile lands, additional sources of  34 revenue far beyond the requirements of the  35 public service.'"  36  37 The court then went on:  38  39 "Neither the federal government nor the  40 provincial governments alone have the authority  41 unilaterally to alter the terms of the division  42 of assets effected in Pt. VIII."  43  44 And then there's a reference to Mr. Justice Duff in  45 the Water-Powers case.  Essentially the same thing is  46 stated.  47 1509  Submissions by Mr. Taylor  1 "'The effect of the decisions seems to  2 be, that neither the Dominion nor a  3 province can take possession of a source of  4 revenue which has been assigned to the  5 other, and as a source of revenue,  6 appropriate it to itself, nor, as owner,  7 transfer it to another.'"  8  9 And that theme in the cases gets developed in the  10 natives even with reserve lands cannot transfer that  11 interest to the federal government because to do so  12 would be to transfer property belonging to the  13 province.  And the cases in the St. Catherine's vein  14 arose because in the early part of the century people  15 didn't understand that, and it went to the federal  16 government, and the government started to act on  17 behalf of the Indians.  Once it became clearly  18 understood that the nature of the interest was not a  19 proprietary interest, not a piece out of the pie or  20 the chain of title, then what would happen is that the  21 province would transfer to the federal government, and  22 the federal government would hold on behalf of the  23 Indians as a statutory reserve, and the problem was  24 thereby avoided.  25 And the cases also hold that the federal  26 government unilaterally couldn't say, as I will  27 develop, that there was -- if they wished a reserve to  28 be created, even though it was traditional lands or  29 Royal Proclamation lands, they could not go and say  30 that 250 square miles is going to be reserved.  The  31 province had to set aside the lands.  32 Mr. Justice La Forest in an article entitled "The  33 Allocation of Taxing Power Under the Canadian  34 Constitution" says essentially the same things as  35 we've covered earlier, and we've quoted those at 214.  36 And we say at paragraph 215 that the analysis of  37 the constitutional provisions relevant to the question  38 of the province's authority to extinguish or diminish  39 aboriginal title must give full weight to the above  40 principles.  41 And what is clear from, we say, from these  42 constitutional arrangements are the following  43 propositions.  The first is that the public domain,  44 save for limited exceptions in favour of the dominion,  45 was to be administered by the province and was to be a  46 principal source of revenue for the province.  And  47 secondly, the powers of the dominion with respect to 1510  Submissions by Mr. Taylor  1 land and resources in the provinces was to be limited  2 to the incidental effect of regulations under the  3 federal heads of power.  Now, that becomes important  4 in considering 91.24 and Indians and lands reserved  5 for Indians, which I'm turning to now.  6 Now, the appellants and most of the intervenors  7 have adopted in one form or another the discredited  8 enclave theory, so-called enclave theory.  It's  9 expressed most clearly in the factum of the  10 intervenor -- of the intervenor Dick at page 5, and  11 it's actually a heading, and it's recited in the body,  12 but the heading reads as follows, "The property and  13 civil rights of the Indians fall within the sphere of  14 exclusive federal legislative competence."  Now, that  15 statement was rejected -- one of the cases is at tab  16 219 -- as early as 1907, if not earlier.  And, in  17 fact, that is not the case.  It has been clearly  18 rejected in Cardinal and many, many cases subsequent  19 to Cardinal, that merely because an individual is an  20 Indian or merely because reservation lands are  21 involved it cannot be said that provincial legislation  22 of general application has no application to either  23 the person or the lands.  Something else is needed,  24 and traditionally that something else is conflict with  25 federal legislation, that's the paramountcy doctrine,  26 and in some instances it can be a colourable attempt  27 to legislate with respect to Indians in their  28 Indianness, as it's been described, and I'll develop  29 that in the cases momentarily.  I'd just like to deal  30 with it generally and refer to other areas in  31 constitutional law where the same types of questions  32 arise.  33 It's our submission, and I'm at 218, that  34 aboriginal rights do not comprise a single class or  35 subject or matter over which Parliament has exclusive  36 jurisdiction.  Aboriginal rights are an aggregate of  37 rights with respect to land, including some degree of  38 governance over the use of land, and rights with  39 respect to persons.  And Mr. Williams dealt with the  40 analysis of that.  Aboriginal rights thus are an  41 aggregate of several matters which, depending on the  42 aspect, come under federal or provincial jurisdiction.  43 Aboriginal rights are akin to freedoms of speech and  44 assembly which, prior to 1982, could be regulated by  45 competent exercises of legislative authority.  46 And with respect to the freedom of speech cases, I  47 referred to A.G. Canada v Dupond, and the quote sets 1511  Submissions by Mr. Taylor  1 it out succinctly.  2 "None of those freedoms is a single matter  3 coming within exclusive federal or provincial  4 competence.  Each of them is an aggregate of  5 several matters which, depending on the aspect,  6 come within federal or provincial competence."  7  8 And Hodge v. The Queen was to the same effect.  9  10 "Subjects which in one aspect and for one  11 purpose fall within sect. 92...may in another  12 aspect and for another purpose fall within  13 sect. 91."  14  15 And we say that aboriginal rights comprise that  16 large group of matters which both jurisdictions have  17 rights to legislate with respect to in keeping with  18 the rules for legislative distribution under the  19 Constitution.  20 Now, the general rule is that provincial laws and  21 regulations apply to Indians and to lands reserved for  22 the Indians so long as the law is in relation to a  23 provincial head of power.  And as I said, the R. v.  24 Hill case is included.  I won't ask you to turn that  25 up.  That involved a charge in Alberta against an  26 Indian who was practising medicine, who said, "No, you  27 can't prosecute me because property and civil rights  28 of Indians is a federal matter," and the court  29 dismissed that out of hand and said that's not the  30 intention.  The intention is not to insulate Indians  31 from the reach of provincial legislation.  They should  32 be treated like any other citizen, provided the  33 provincial law is under a valid head of power.  34 If I could ask you to turn to 219, my lords, the  35 Four B Manufacturing case, which sets out the analysis  36 fairly clearly, and it's the second green tab in.  And  37 this case concerned the application of the provisions  38 of the Ontario Labour Code, I believe.  Yes.  Ontario  39 Labour Relations Act.  The activities of the company,  40 this Four B Manufacturing Limited, which was -- and  41 I'll refer to the facts momentarily, but the Four B --  42 if I can just refer to the headnote, perhaps that's  43 the easiest.  44  45 "Appellant Four B, incorporated under the  46 laws of Ontario and carrying on business,"  47 1512  Submissions by Mr. Taylor  1 first of all,  2 "on an Indian Reserve established under the  3 Indian Act...was owned by four brothers named  4 Brant, all members of the Band.  Its business  5 was the production of leather shoe uppers...It  6 was in no way controlled by the Band Council  7 but occupied premises on the Reserve on a three  8 year renewable permit.  The company received  9 from the Government of Canada some $284,000, of  10 which $51,000 was a grant and the remainder a  11 loan, under various Indian Affairs programs.  12 At the relevant time Four B employed 68 persons  13 (48 Band members, 10 former Band members and 10  14 non-Indians).  The issue was whether the  15 provincial Labour Relations Act... applied to  16 the activities of the company, and arose as a  17 result of the certification of the respondent  18 union on January 27...The Ontario Labour  19 Relations Board held that the provincial Act  20 applied without the need to resort to federal  21 enabling legislation and the Board's decision  22 was affirmed..."  23  24 And this went to the Supreme Court of Canada, and the  25 majority held, with Chief Justice Laskin and Justice  26 Ritchie dissenting, held that, in fact, the  27 legislation applied to Four B.  28 Now, the facts that I've summarized are set out at  29 1033.  Mr. Justice Beetz' decision is set out starting  30 at 1045, and the discussion there involves the  31 relevant principles.  If I can start in the last  32 paragraph on 1045:  33  34 "In my view the established principles  35 relevant to this issue can be summarized very  36 briefly.  With respect to labour relations,  37 exclusive provincial legislative competence is  38 the rule, exclusive federal competence is the  39 exception.  The exception comprises, in the  40 main, labour relations in undertakings,  41 services and businesses which, having regard to  42 the functional test of the nature of their  43 operations and their normal activities, can be  44 characterized as federal undertakings, services  45 or businesses."  46  47 And then going over to 1046 and starting at the second 1513  Submissions by Mr. Taylor  1 paragraph:  2 "There is nothing about the business or  3 operation of Four B which might allow it to be  4 considered as a federal business:  the sewing  5 of uppers on sport shoes is an ordinary  6 industrial activity..."  7  8 And then going on:  9  10 "Neither the ownership of the business by Indian  11 shareholders, nor the employment by that  12 business of a majority of Indian employees, nor  13 the carrying on of that business on an Indian  14 reserve under a federal permit, nor the federal  15 loan and subsidies, taken separately or  16 together, can have any effect on the  17 operational nature of that business."  18  19 And then going on to the next paragraph:  20  21 "What is submitted on behalf of [the]  22 appellant is that the matter to be regulated in  23 the case at bar is the civil rights of Indians  24 on a reserve; that this matter falls under the  25 exclusive legislative authority of Parliament  26 to make laws relating to 'Indians and Lands  27 reserved for the Indians' pursuant to s.  28 91.24...that provincial law is inapplicable to  29 this matter even in the absence of relevant  30 federal law; and, alternatively, that the field  31 is occupied by the paramount provisions of the  32 Canada Labour Code..."  33  34 And really that is -- as long as the province is  35 operating under a head of power under 92, those are  36 the only two grounds that its legislation can be  37 attacked, federal paramountcy doctrine or that it's  38 colourably -- we say colourably -- has to be  39 colourable legislation in respect to a federal head of  4 0 power.  41 And going on to the next page, 1047, the second  42 full paragraph:  43  44 "Given this general rule, and assuming for  45 the sake of argument that the functional test  46 is not conclusive for the purposes of this  47 case, the first question which must be answered 1514  Submissions by Mr. Taylor  1 in order to deal with appellant's submissions  2 is whether the power to regulate the labour  3 relations in issue forms,"  4  5 and this is, we submit, critical to any examination,  6 this next language, any examination of distribution of  7 powers under 91.24,  8  9 "an integral part of primary federal  10 jurisdiction over Indians and Lands reserved  11 for the Indians."  12  13 And that language is picked up and amplified and  14 changed, but in essence what it's talking about is  15 that there is a core of the federal head of power that  16 in some way expresses what is the very essence of  17 that, that the provincial legislation cannot pierce or  18 penetrate.  But it has to be integral, and it's --  19 different language is used, but it's integral, main,  20 central, and I'll be referring to the cases where  21 that's developed.  22 Going on to the last paragraph on the page:  23  24 "But even if the situation is considered  25 from the sole point of view of Indian  2 6                   employees..."  27  28 Now, this is, assuming it is Beetz, what Justice Beetz  29 is prepared to do.  30  31 "But even if the situation is considered  32 from the sole point of view of Indian employees  33 and as if the employer were an Indian, neither  34 Indian status is at stake nor rights so closely  35 connected with Indian status that they should  36 be regarded as necessary incidents of status  37 such for instance as registrability, membership  38 in a band, the right to participate in the  39 election of Chiefs and Band Councils, reserve  40 privileges, etc."  41  42 Now, that concept has been picked up in the  43 subsequent cases, and it appears the courts and, in  44 particular, the Supreme Court of Canada uses the word  45 status and capacity interchangeably.  Status is  46 defined by the capacities and includes the capacities,  47 but status and capacity seem to go hand in glove, like 1515  Submissions by Mr. Taylor  1 cruel and unusual or something like that.  It doesn't  2 make a lot of sense to separate the concepts.  3 Continuing on at 1048 to the next paragraph:  4  5 "The conferring upon Parliament of exclusive  6 legislative competence to make laws relating to  7 certain classes of persons does not mean that  8 the totality of these persons' rights and  9 duties comes under primary federal competence  10 to the exclusion of provincial laws of general  11 application."  12  13 And the analogy has been drawn to that -- making  14 that argument in relation to Indians or lands reserved  15 to Indians with respect to immigration and aliens.  It  16 can't be said that the property and civil rights of  17 aliens are a matter of exclusive federal jurisdiction.  18 Immigration certainly is, but not property and civil  19 rights in a province of an alien or even an immigrant.  20 Carrying on at the last paragraph:  21  22 "A similar reasoning must prevail with  23 respect to the application of provincial laws  24 to Indians, as long as such laws do not single  25 out Indians nor purport to regulate them qua  26 Indians,"  27  28 and in our submission regulation qua Indians goes back  29 to the legislation dealing with an integral part of  30 the primary federal jurisdiction,  31  32 "and as long also as they are not superseded by  33 valid federal law. "  34  35 And that again is the paramountcy doctrine.  36 And continuing on on the second or the third  37 paragraph on page 1049:  38  39 "Counsel for appellant has also stressed  40 that the civil rights in issue are not only the  41 civil rights of Indians, but Indian civil  42 rights exercised on a reserve.  The import of  43 this submission, as I understand it, is that  44 the exclusive character of federal jurisdiction  45 is somehow reinforced because it is derived  46 from two related heads of federal authority  47 instead of one, federal authority over Indians 1516  Submissions by Mr. Taylor  1 and over Lands reserved for the Indians.  2  3 In my view, this submission is an attempt  4 to revive the enclave theory of the reserves in  5 a modified version:  provincial laws would not  6 apply to Indians on reserves although they  7 might apply to others.  The enclave theory has  8 been rejected by this Court in Cardinal... and I  9 see no reason to revive it even in a limited  10 form.  Section 91.24 of the British North  11 America Act, 1867 assigns jurisdiction to  12 Parliament over two distinct subject matters,  13 Indians and Lands reserved for the Indians, not  14 Indians on Lands reserved for the Indians.  The  15 power of Parliament to make laws in relation to  16 Indians is the same whether Indians are on a  17 reserve or off a reserve.  It is not reinforced  18 because it is exercised over Indians on a  19 reserve any more than it is weakened because it  20 is exercised over Indians off a reserve."  21  22 So this case clearly rejects again the enclave theory  23 and its modified version that it is Indians on Indian  24 reserves.  25 Now, the appellants -- some of the supporting  26 intervenors supporting the appellants, they don't come  27 out and say it, but they move in that direction.  It's  28 the enclave and the modified enclave, but somehow the  29 fact that these are aboriginal lands and there's  30 Indians on them makes them immune from provincial  31 legislation, and on the authorities clearly that's  32 just not an argument that's available to them.  33 Now, we go on, my lords, to state at 220 it's not  34 to say that "Indians and Lands reserved for the  35 Indians" does not contain a core set of interests free  36 from provincial intrusion, and that's what the cases  37 say.  That's what Four B talks about.  In Four B  38 Labour Relations wasn't in the core set, at least in  39 the minds of the majority.  40 A province, for instance, is not ordinarily  41 entitled to single out aboriginal people or aboriginal  42 lands, as such would be in relation to Indians and  43 lands reserved for the Indians and thus ultra vires.  44 And that's a matter of whether or not the law is of  45 general application.  46 In the superintendent's case, Natural Parents  47 case, which I'll deal with in a moment, there was an 1517  Submissions by Mr. Taylor  1 example where ultimately it was held that the  2 Adoption Act applied to the adoption of an Indian  3 child by non -- or a native child by non-native  4 parents, but because the government was concerned that  5 this beneficial act, in its view, not be seen to  6 entrench upon federal authority, it actually stuck a  7 section in this does not affect Indian status.  And  8 the court said the act as a whole is okay, but even  9 beneficially trying to single out Indian people,  10 that's ultra vires.  You cannot mention Indian people,  11 in essence.  You can't single them out for special  12 treatment in any of your acts.  13 And at 222, nor will a provincial law of general  14 application be applicable to Indians or lands reserved  15 for Indians when it strikes at the core set of  16 interests that s. 91.24 was designed to protect.  This  17 principle that 91.24 has a core set of interests has  18 been expressed in a number of different ways.  In the  19 Four B case it was, as we've said, an integral part of  20 primary federal jurisdiction.  In Natural Parents it  21 was expressed as that they must not touch Indianness  22 or strike at a relationship integral, again the use of  23 integral, to a matter outside of provincial  24 competence.  And in Kruger, they must not impair or  25 paralyse the status or capacity of Indians.  26 And then 223, this is not dissimilar from other  27 classes of subjects, and I've referred to the Irwin  28 Toy case.  Bell Canada is to the same effect.  29 General Motors case at page 224 talks about the  30 distribution of powers.  31 And then at 225, and this is the crux of our  32 position on this matter, my lords, is that any core  33 set of interests protected by section 91.24 is much  34 smaller than the interests protected by the concept of  35 aboriginal rights, and it is protected for different  36 reasons than those underlying aboriginal rights.  37 Interests lying at the core of section 91.24 ought to  38 be defined by reference to the values at stake in a  39 federal system.  Interests that aboriginal rights are  40 designed to protect include aboriginal difference and  41 autonomy.  42 And in analyzing the cases it's our submission  43 that that core at the heart of 91.24 is very strong,  44 but it has to be intimately connected with Indianness.  45 It has to be so wrapped up in Indianness that it's  46 clear that to legislate with respect to it would be a  47 violation of federal jurisdiction.  And we say 1518  Submissions by Mr. Taylor  1 aboriginal rights are much broader than that.  They  2 include the core in some instances, but go well beyond  3 the core.  And with respect to those matters well  4 beyond that core, the province can legislate either on  5 its own right as a matter of right, or even if it  6 affects some aspect of Indianness, there can be  7 incorporation by reference under s. 88 of the Indian  8 Act, and I would next go on to develop that.  9 HUTCHEON, J.A.:  Before you leave that, the only examples you  10 give of the core under 91.24 is in 225, and they're  11 not so much examples as headings:  aboriginal  12 difference and autonomy.  You say the interests that  13 aboriginal rights are designed to protect include --  14 MR. TAYLOR:  I'm talking about the rights there.  That's the  15 broader right.  16 HUTCHEON, J.A.:  Yes, but have you any example of this core?  17 MR. TAYLOR:  Yes, I was going to deal with that, my lord, on my  18 speaking notes, which we get to over on the next page.  19 This is just by way of development, and then I'd like  20 to focus in, in particular, on the Dick case, which I  21 think brings it very clearly into focus, and then  22 analyse the evidence in this case to see whether or  23 not the aboriginal rights as proven on the evidence  24 before the judge, trial judge, can be seen to have  25 that same intimate connection with Indianness that at  26 least Justice Lambert found in the Dick case and the  27 Supreme Court of Canada was prepared to assume.  We  28 say it doesn't, and it doesn't because maybe of  29 deficiencies in the evidence.  Perhaps it's just the  30 analysis that I'm talking about wasn't undertaken by  31 the trial judge.  But on the findings I don't -- I  32 would submit that that intimate connection is just not  33 there for the aboriginal rights in the larger  34 territory.  35 LAMBERT, J.A.:  I know you're going to move on now from 225, and  36 perhaps what you're going to do is give us persuasive  37 argument that the proposition in paragraph 225 is  38 correct, but let me say this, that this core value of  39 what was called Indians in their Indianness seems to  40 me to be very like the definition that Mr. Williams  41 gave of aboriginal rights, that is, things that are an  42 integral part of their distinctive culture, and I  43 would have thought that that phrase defined not only  44 aboriginal rights, but that core set of values of  45 Indians in their Indianness, and I would have thought  46 there there's an absolute parallel between the core  47 values and aboriginal rights. 1519  Submissions by Mr. Taylor  1 MR. TAYLOR:  My lord, I'm going to deal with that in my — in  2 fact, I've dealt with that definition in my speaking  3 notes because I understand where your lordship's  4 coming from with the question because it seems that  5 the two are very similar.  6 LAMBERT, J.A.:  Yes.  7 MR. TAYLOR:  And in some instances they are, but in some  8 instances they're not, and when it goes beyond that,  9 we say you can legislate.  But, in any event, to prove  10 that the aboriginal -- there's a different analysis as  11 to what is an aboriginal right.  It's integral to the  12 culture, and I'll have to look at the language again.  13 But to prove that it's a core value, it has to be  14 intimately connected with what 91.24 is involved with.  15 And they're two different questions, and we say  16 aboriginal rights are broader.  And in this case, if  17 you look at the aboriginal rights as proven,  18 especially with respect to the larger territory -- I'm  19 not talking about the village or the surrounding  20 areas, but those aboriginal rights -- and look at the  21 evidence and the findings with respect to those  22 rights, and the trial judge was prepared to accept  23 them as aboriginal rights, the characterization or  24 assessment of those rights does not fit in with the  25 type of core interests the cases have talked about.  26 It's not so intimately wrapped up with Indianness.  27 LAMBERT, J.A.:  Well, you're going to get to persuading us about  28 that.  29 MR. TAYLOR:  I trust I will.  30 LAMBERT, J.A.  31 TAGGART, J.A.  32 THE REGISTRAR:  33  34 AFTERNOON RECESS  35  36 THE REGISTRAR:  Order in court.  37 TAGGART, J.A.:  Yes.  38 MR. TAYLOR:  Yes, my lords.  Just before going on, if I can just  39 go back to 223, another -- I've used the word  40 intimate, I've used the word integral.  Another way in  41 which the core has been described, and I think it's  42 directed at the same thing but gives a different  43 flavour to it, the basic minimum and unassailable  44 content of the head of power.  45 Now, at 226, the appellants have attempted to  46 characterize aboriginal rights as a single matter  47 falling within exclusive federal jurisdiction in an  Yes.  All right.  We'll take the afternoon break now.  Order in court.  Court stands adjourned. 1520  Submissions by Mr. Taylor  1 attempt to protect aboriginal people.  Now, the  2 province says that's a -- the attempt to protect the  3 way of life of aboriginal people is a laudable goal,  4 but it's not achieved very well under 91.24.  That's  5 not the route to go.  It's -- what 91.24 protects is  6 something else.  It's that integral part, it's that  7 basic minimal -- minimum and unassailable content, and  8 I'll deal with it in my speaking notes.  9 We say that s. 35 is a much better vehicle by  10 which to protect the aboriginal people's way of life  11 because it's then not a matter of analyzing whether  12 we're dealing with a central core, it's saying it is  13 an aboriginal right if it's existing as of '82, it's  14 deserving of protection, and we can balance it.  We  15 don't exclude somebody from dealing with it because we  16 might exclude in the wrong cases and we might include  17 in the wrong cases, and the judges can never agree  18 anyhow consistently what is in and what is out.  Most  19 of these cases there's a division.  It's very  20 difficult to draw those lines, those 91.24 lines, but  21 the s. 35 tests proposed in Sparrow, although not easy  22 tests, at least there's something you can deal with.  23 It's not exclusionary.  You can balance the interests.  24 LAMBERT, J.A.:  From 1867 or 1871 until 1982 the only thing that  25 was available was 91.24.  26 MR. TAYLOR:  That's correct.  27 LAMBERT, J.A.:  So even if you accept your argument that s. 35  28 is more precise, when you're looking at that period up  29 to 1982, you've still got to wrestle with the 91.24  30 question.  31 MR. TAYLOR:  Yes, you do, and we fully realize that, and we'll  32 be wrestling with it, but the significance of -- I  33 would submit s. 35(1) is -- has a number of  34 significances.  One is that it is a better vehicle for  35 addressing the question of protection of aboriginal  36 interests and the aboriginal way of life.  Secondly,  37 with respect to the particular facts of this case, we  38 are talking about 22,000 square miles of territory.  39 Assuming that ownership is out and assuming, as the  40 trial judge has found, that exclusive possession or  41 occupation is out, it defies belief, and it's maybe  42 boiling the argument down into too simplistic a basis,  43 but it is absurd, I submit, my lords, to suggest that  44 one needs the right to roam freely unimpeded by any  45 other competing uses over 22,000 square miles of  46 territory to be an Indian.  That cannot be at the  47 core.  That might be an aboriginal right that is 1521  Submissions by Mr. Taylor  1 deserving of a balancing, and I will refer your  2 lordships to the evidence and the findings, although  3 not -- and, unfortunately, they don't deal with those  4 issues as we've defined them because it wasn't  5 necessary to, but there are findings which suggest  6 that the particular aboriginal rights as proven at  7 trial don't have that intimate connection, that  8 essential connection with the unassailable core, and  9 they are not core interests.  10 We acknowledge that they are s. 35 interests and  11 should be dealt with under s. 35, and it's not as if  12 prior to 1982 the Gitksan and Wet'suwet'en by grants  13 of fee simple and all the other grants had been  14 squeezed into one tiny, little area of the  15 reservation.  As the facts as found by the trial judge  16 make clear, there are vast tracts of land available  17 that the natives have full access to, can freely  18 exercise their aboriginal rights, and after 1982 any  19 legislative interference has to be examined in the  20 light of s. 35.  And that's why we say s. 35 today is  21 the vehicle by which to assess that.  But when we go  22 back before s. 35 was enacted, we submit that the  23 court should not try to do with 91.24 what s. 35 is  24 ideally suited to accomplish because it's an  25 exclusionary test, and you might exclude too much or  26 you might include too much.  And that's the difference  27 between the two, and that's -- and I was -- it will  28 develop even with our definition.  We say some of  29 those rights are beyond that essential core of status  30 and capacity as defined by the cases.  31 And at 226 we've referred to the case of O'Hara  32 v. British Columbia, which sets out that distinction.  33 If you're looking at the right to conduct an inquiry,  34 really the rights of the citizen is better protected  35 looking at the question of whether or not there's been  36 a violation of Charter rights than whether or not  37 there's a colourable attempt to invade Parliament's  38 jurisdiction under the criminal law provisions or  39 authority.  40 And at 227 we make reference to my lord Justice  41 Lambert's dissent in Dick, and I'll be referring to  42 that momentarily.  43 And at 228 we quote from Mr. Justice Dickson's  44 decision in Sparrow, which we say again, without  45 ignoring 1871 to 1982, makes it plain that s. 35 is  46 the real vehicle by which to analyse this legislation,  47 and not 91.24. 1522  Submissions by Mr. Taylor  1  2 "The constitutional recognition afforded by  3 [s. 35(1)] a measure of control over  4 government conduct and a strong check on  5 legislative power.  While it does not promise  6 immunity from government regulation in a  7 society that, in the twentieth century, is  8 increasingly more complex, interdependent and  9 sophisticated, and where exhaustible resources  10 need protection and management, it does hold  11 the Crown to a substantive promise.  The  12 government is required to bear the burden of  13 justifying any legislation that has some  14 negative effect on any aboriginal right  15 protected under s. 35(1) ."  16  17 My lords, that, we submit, is the approach.  The  18 aboriginal rights are broader than the core, and  19 although s. 35 does not promise immunity -- and that's  20 what the appellants and the supporting intervenors are  21 seeking.  They are a seeking through 91.24 to  22 establish immunity for natives and revive on a very  23 large, massive scale the enclave theory, and we submit  24 that on a proper application and analysis of this  25 central core that that just is not on.  That's not  26 permissible under the authorities.  27 Now, if I could turn to my speaking notes on this  28 topic, and the references will be at 228, and Sparrow  29 is first set out and then next is tab D.  Now, we say  30 that the federal power under 91.24 to legislate in  31 relation to Indians and lands reserved for Indians is  32 broad.  However, the province has the power to  33 legislate in relation to matters listed in s. 92 and  34 by virtue of this power can affect and indeed  35 extinguish aboriginal rights in the claim area, first  36 of all, ex proprio vigore, by its own force, provided  37 that the legislation:  (a) is of general application;  38 (b), and this is the central issue, does not invade  39 core interests involved in s. 91.24, which has been  40 defined as Indianness; and (c) it does not conflict  41 with federal legislation.  42 At 228C we say that even if provincial legislation  43 invades core interests involved in the concept of  44 Indianness, the provincial legislation would  45 nevertheless apply through referential incorporation  46 under s. 88 of the Indian Act, provided that the  47 legislation is of general application, and the 1523  Submissions by Mr. Taylor  1 legislation is not inconsistent with the terms of any  2 treaty or any other act of Parliament or any order,  3 rule, regulation, et cetera, under the Indian Act.  4 That's the two principal ways by which -- those  5 are two ways by which federal or provincial  6 legislation can deal with unquoted Indian matters,  7 non-core Indian matters.  They either apply of its own  8 force or it's incorporated by reference.  9 Now, even under the incorporation of -- by  10 reference under s. 88, and this is at 228D, some  11 provincial legislation may colourably, and this is the  12 language used, may colourably single out Indians for  13 special treatment so as not to be a law of general  14 application and, therefore, not incorporated by s. 88.  15 And I've there set out a quote from Kruger.  16  17 "Game conservation laws have as their policy  18 the maintenance of wildlife resources ... The  19 presumption is for the validity of a  20 legislative enactment and in this case the  21 presumption has to mean that in the absence of  22 evidence to the contrary the measures taken by  23 the British Columbia Legislature were taken to  24 maintain an effective resource in the Province  25 for its citizens and not to oppose the  26 interests of conservationists and Indians in  27 such a way as to favour the claims of the  2 8 former."  29  30 LAMBERT, J.A.:  Do you say that legislation, that provincial  31 legislation that couldn't of its own force extinguish  32 aboriginal title because it affects the core values  33 could by incorporation through s. 88 of the Indian Act  34 be given the force of federal legislation and  35 extinguish aboriginal title that way?  36 MR. TAYLOR:  No, my lord, I wouldn't say that, I wouldn't agree  37 with that proposition necessarily, and I would turn it  38 around.  I think the question is under s. 88, if the  39 legislation strikes at Indianness, the core, it may  40 nonetheless apply provided it does not colourably --  41 the language is out of the case -- it does not  42 colourably single out Indians for special treatment  43 and thereby become a non -- not a law of general  44 application.  The way to rephrase it, I guess, would  45 be if the policy of the act is a colourable attempt to  46 single out Indians, to deal with Indians specifically,  47 then it's not a law of general application, and it 1524  Submissions by Mr. Taylor  1 would not apply.  And that flows out of Dick, as there  2 was a debate until Dick as to whether or not  3 provincial laws applied permissively under the s. 88  4 or else -- or whether or not they were referentially  5 incorporated, and the dispute was resolved in Dick by  6 saying s. 88 is in existence so that the federal  7 government's -- so that the provincial government's  8 legislation can apply to Indians when it somehow  9 touches upon Indianness, and it applies because it's  10 referentially incorporated, and it applies  11 notwithstanding it touches upon Indianness because it  12 becomes federal law.  If it doesn't touch upon  13 Indianness, it doesn't even need to be referentially  14 incorporated.  And the example of that is the Motor  15 Vehicle Act, as an example, does not touch upon  16 Indianness in any way, touch upon this core, so as a  17 result it can apply ex proprio vigore.  18 LAMBERT, J.A.:  If you need s. 88, then I would have thought you  19 would not have a clear and plain intention to  20 extinguish, if you need s. 88 to give legislative  21 competence.  22 MR. TAYLOR:  If you need s. 88 because it affects Indianness,  23 then if you had the policy of the act directed at  24 Indianness, it would not apply as a law of general  25 application if you singled out Indians or on a proper  26 characterization of the policy of the act you could  27 say it was meant to affect Indians clearly.  But on  28 the other hand, if the policy of the act is seen to be  29 something else, such as resource development,  30 development of the economy of the province, and as an  31 incident to that act there is an inconsistency between  32 the act and continuation of an aboriginal right, we  33 would say that notwithstanding that inconsistency the  34 act would apply.  35 LAMBERT, J.A.:  You don't need s. 88 to make that work?  36 MR. TAYLOR:  We would need s. 88 to do that if it struck at  37 Indianness in the first instance, but it's not all  38 aboriginal rights, as I hope to develop, that are part  39 of this core of Indianness.  But if the aboriginal  40 right is part of the core of Indianness, then we would  41 need s. 88, and the policy of the act would have to be  42 seen to be not a colourable attempt to single out  43 Indians who deal specifically with this federal matter  44 of Indians.  45 LAMBERT, J.A.:  And then that legislation can extinguish  46 aboriginal rights through s. 88?  47 MR. TAYLOR:  I would say it could extinguish.  I would say that 1525  Submissions by Mr. Taylor  1 it could clearly diminish as well.  2 LAMBERT, J.A.:  Well, I find that hard to accept because you do  3 need that intent, and if the provincial legislature  4 doesn't have the competence to do it, then the very  5 general wording of s. 88 surely cannot provide the  6 clear and plain federal intention to extinguish Indian  7 rights.  8 MR. TAYLOR:  Well, my lord, I disagree.  You need — the court  9 has to be satisfied that the extinguishment was  10 intended, but again, if you don't need an expression  11 of intent, in other words, the aboriginal interest is  12 hereby extinguished, then I submit you don't need the  13 legislature to have turned its mind specifically to  14 the question of aboriginal rights.  That's not the  15 intent that your lordships, we submit, should be  16 looking for with respect to the question of  17 extinguishment.  It's extinguishment by necessary  18 implication.  For whatever reason, if the legislature  19 says we want to wipe the slate clean, for instance,  20 fee simple title, we want -- we don't know who's out  21 there, we don't know who could be advancing a claim,  22 but we're going to wipe the slate clean so that the  23 title that is granted is unassailable, and that's the  24 intention -- now, that could apply to squatters, it  25 could apply to natives, it could apply to Russians, to  26 Americans, whoever may be out there or even now be out  27 there.  It could be to forest uses, existing forest  28 uses that are incompatible with cutting trees, such as  29 somebody puts a house up in the middle of it.  You  30 want to wipe the slate clean so you can start.  The  31 policy of the act is not to single out Indians or  32 single out squatters or Russians.  One of the reasons  33 for these Royal Proclamations was the incursions of  34 Mormons into the province, I understand.  You're not  35 singling out Mormons.  You're just saying we don't  36 care where they come from or who they are, we want to  37 start clean.  That's the intention that's necessary,  38 even including aboriginal rights.  There can be no  39 shred of doubt that everything is gone.  40 The policy of the act, and that's what the 91.24  41 inquiry is involved in assessing, the policy of the  42 act is something different.  The policy of the act is  43 we want to wipe it clean because we want to develop  44 the province or we want to be able to grant timber  45 tenures so that we can have employment in the province  46 and tax revenue and all of that sort of thing.  That's  47 the policy of the act.  But that intention to exclude 1526  Submissions by Mr. Taylor  1 anything, including aboriginal rights, we say is  2 sufficient because nothing can be left.  By necessary  3 implication the right is gone.  4 LAMBERT, J.A.:  Well, I don't see where s. 88 is involved in  5 that analysis that you've just given.  6 MR. TAYLOR:  Well, no, s. 88, I can develop it out of Dick,  7 but —  8 LAMBERT, J.A.:  I don't think I need to — I should press on  9 with the question.  I think I understand the  10 submission you're making on this, and I am just saying  11 that I don't think the incorporation through s. 88 can  12 be clear and plain intention, but I shouldn't keep  13 asking you the same question on that.  14 MR. TAYLOR:  I'm going to deal with Dick at length momentarily,  15 and perhaps it will become clear and will become clear  16 in relation to your lordship's reasons in the Court of  17 Appeal on that case and how those were dealt with in  18 the Supreme Court of Canada.  19 Now, Mr. Justice Dickson wrote the decision in the  20 Kruger case, and Mr. Justice Dickson -- or Chief  21 Justice Dickson, as he then was, was on the court in  22 Dick, the judgment of which was -- for the court was  23 written by Mr. Justice Beetz.  Interpreted, the  24 statements of Mr. Justice Dickson -- and this is where  25 this comes from, my lord.  As you recall, Mr. Justice  26 Dickson referred to an earlier decision and said:  27  28 "If, of course, it can be shown in future  29 litigation that the Province has acted in such  30 a way as to oppose conservation and Indian  31 claims to the detriment of the latter -- to  32 'preserve moose before Indians,'"  33  34 and I believe one of the intervenors has characterized  35 our position as somehow preserving third parties  36 before Indians.  I suppose from their perspective that  37 may seem to be the case, but we suggest that is not  38 the case.  But in commenting on that passage, Mr.  39 Justice Beetz stated:  40  41 "...what Dickson J....referred to in Kruger when  42 he mentioned laws which had crossed the line of  43 general application were laws which, either  44 overtly or colourably, single out Indians for  45 special treatment and impair their status as  46 Indians.  Effect and intent are both relevant.  47 Effect can evidence intent.  But in order to 1527  Submissions by Mr. Taylor  1 determine whether a law is not one of general  2 application, the intent, purpose or policy of  3 the legislation can certainly not be ignored:  4 they form an essential ingredient of a law  5 which discriminates between various classes of  6 persons, as opposed to a law of general  7 application.  This in my view is what Dickson  8 J. meant when...he wrote:  9  10 'It would have to be shown that the policy  11 of such an Act was to impair the status and  12 capacities of Indians.'"  13  14 And from those -- from that analysis and the  15 analysis of Mr. Justice Beetz in the Canard case, my  16 lord, we say that it's clear that the central core is  17 smaller than aboriginal rights as we've defined them,  18 and to be -- not to be a law of general application,  19 in the words of Mr. Justice Beetz, the intent, purpose  20 or policy of the legislation must discriminate between  21 various classes of persons, must be designed to do it,  22 and what -- in our submissions, the intent of the  23 legislation -- you have to look at each piece, but say  24 the Land Titles Act.  It is not to discriminate  25 against Indians as opposed to anyone else.  It is to  26 start with a clean slate.  And the legislative  27 purpose, the main legislative purpose is to open up  28 the colony for settlement and to encourage settlement  29 and to encourage uses of the land and the development  30 of the economy of the province.  31 Now, going on to 228F, aboriginal rights, in the  32 province's submission, and this is the definition, are  33 matters which were an integral part of a particular  34 group's distinctive culture as at the date of  35 sovereignty, and they include matters which go well  36 beyond the limits of the core groups under s. 91.24.  37 The fact that something is a distinctive -- is  38 necessary or is an integral part of a group's  39 distinctive culture does not have to do with the  40 intimate aspects of status and capacity, which the  41 core has been defined to include.  Without doubt, some  42 aspects of aboriginal rights will be in that central  43 core, but there are other aspects that may not be  44 because it's not intimately connected with, it's not  45 integral to the status and capacity of Indians.  And  46 in a way it's -- to go back to the example, you don't  47 need 22,000 square miles to be an Indian, we say. 1528  Submissions by Mr. Taylor  1 That is -- that's absurd.  That's not the core.  The  2 core is something else.  3 HUTCHEON, J.A.:  Well, they say it does take it to be 7,000  4 Indians.  That's what they say.  Not an Indian, but  5 7,000 Indians, if that's the number.  6 MR. TAYLOR:  In our submission, you wouldn't need 22,000 square  7 miles of territory even for 7,000 Indians to be  8 Indians, my lord.  9 HUTCHEON, J.A.:  Okay.  10 MR. TAYLOR:  It goes well beyond —  11 HUTCHEON, J.A.:  But that's their proposition.  12 MR. TAYLOR:  Yes, I understand that.  I'm not suggesting that  13 it's 22,000 for one Indian.  14 HUTCHEON, J.A.:  No.  15 MR. TAYLOR:  But the concept of that amount of territory being  16 required so that one can have the status of an Indian,  17 can be Indian, I think is overstretching one's  18 credibility -- credulity somewhat, but the -- the core  19 goes to identity, but it doesn't deal with all of the  20 things the appellants have been alleging and the trial  21 judge has found.  Those things are well beyond the  22 core.  And if I can -- I'm getting to the Dick case.  23 Hopefully I can make it clear by comparison to the  24 findings of fact in the Dick case and the assumptions  25 in the Dick case.  26 228G.  I have already made the point that all  27 aboriginal rights, including the core group of  28 interests, now receive protection under 35(1) .  29 However, aboriginal rights which extend beyond the  30 core group of interests are not immune from the reach  31 of provincial legislation.  The central question then  32 is what rights are included in the core group.  33 Now, it's clear from the cases that aboriginal  34 rights depend on the particular facts adduced by the  35 particular aboriginal group.  However, the core group  36 of interests in the main probably does not depend on  37 particular facts.  At a minimum, the core group  38 includes interests intimately connected with Indian  39 status and statutory reserves.  Nevertheless, some  40 rights contained within the core group may be  41 particular to specific aboriginal groups.  42 To use the Dick example for a minute -- and what  43 I'm saying is proof is required.  To use the Dick  44 example, in Dick my lord Justice Taggart was prepared  45 to find that the hunting practices of the Alkali Band  46 were at the very essence of Indianness on the  47 evidence.  And, arguably, if the question were put to 1529  Submissions by Mr. Taylor  1 Justice Dickson in Sparrow, he would find it was the  2 very essence of Indianness.  And if those are the  3 findings of fact, so be it.  Those things that could  4 be in the core are in the core.  However, the right to  5 fish, as in Sparrow, isn't much use to a band in the  6 bad lands of Alberta.  That is not a core interest.  7 So some of these core interests, even if they are at  8 the very root or intimately connected, are  9 fact-specific, whereas some just aren't.  They're just  10 there.  Status, the right to be an Indian, recognition  11 by the government, right to live on a reserve, all  12 those types of things are there anyhow for all bands  13 under the regime and under 91.24.  14 HUTCHEON, J.A.:  But none of those fits the definition that  15 you've given us of an integral part of the group's  16 distinctive culture as at the date of sovereignty.  17 What you're giving us, you say the core ones are the  18 things that came from the government?  19 MR. TAYLOR:  No.  No, I'm saying — my lord, perhaps I'm  20 confusing you.  We say that those core interests can  21 include some aboriginal rights.  If they are --  22 HUTCHEON, J.A.:  I'm looking ahead in the examples Mr. Justice  23 Beetz gives, examples of recognition by the  24 government, and that wasn't my understanding of  25 aboriginal rights.  2 6 MR. TAYLOR:  No.  27 HUTCHEON, J.A.:  Registration, registrability, right to live on  28 the reserve, et cetera.  They're matters that come  29 from government, aren't they?  30 MR. TAYLOR:  Yes, that's correct, and those are the matters --  31 matters of those sort we would say would not be fact-  32 specific.  They would apply to all Indian groups.  33 HUTCHEON, J.A.:  But are they the only core group of interests?  34 MR. TAYLOR:  No.  Some aboriginal rights, if proven to have  35 sufficient significance to be recognized as a core  36 interest under 91.24, could also have it.  As I was  37 saying, taking the assumption of the findings in the  38 Dick case, the Alkali Indians, and Mr. Justice  39 Lambert's findings, I would say those are in the core,  40 and the Supreme Court of Canada was prepared to  41 proceed on that assumption.  42 HUTCHEON, J.A.:  All right.  43 MR. TAYLOR:  But, on the other hand, in the case decided in the  44 Supreme Court of Canada at the same time, the Jack  45 and —  46 HUTCHEON, J.A.:  Charlie.  47 MR. TAYLOR:  -- Charlie case, hunting rights connected with 1530  Submissions by Mr. Taylor  1 religion were not seen to be so significant.  2 HUTCHEON, J.A.:  Yes.  3 MR. TAYLOR:  I think there's a difference of opinion on all of  4 these matters, and that's why I say it's fact-  5 specific, but not everything that could be said to be  6 an aboriginal right is necessarily a core right.  And  7 in the Canard case Justice Beetz made that clear.  8  9 "But it is to be noted that these incidents are  10 intimately connected with Indian status.  They  11 are not remote or indirect incidents."  12  13 So clearly they have to have significance.  14 MACFARLANE, J.A.:  Where are you reading from?  15 MR. TAYLOR:  I'm sorry, my lord.  228M.  It's Mr. Justice  16 Beetz's decision in Canard.  Canard was the case --  17 there was a challenge to the federal rules requiring  18 that the estate of Indians be administered differently  19 from other citizens of the province, and there was a  20 challenge under the Bill of Rights, and these  21 questions arose.  It was a flip side of Drybones.  22 Drybones was considered in it.  But in defining what  23 the incidents of Indianness were, it's clear that they  24 be -- oh, I'm sorry.  I'm in 228M in my speaking  25 notes.  26 MACFARLANE, J.A.:  Yes.  All right.  You're not referring to the  27 tab number.  28 MR. TAYLOR:  I can take you to the case if you like.  The quote  29 is there.  30 MACFARLANE, J.A.:  No, it's all right.  Do what you want.  I  31 just wondered where you were.  32 MR. TAYLOR:  Yes.  I'm sorry, my lord.  I'm at 228M.  And  33 although that case had more to do with the government  34 side of it --  35 HUTCHEON, J.A.:  Yes.  36 MR. TAYLOR:  My lord, I understand that.  37 HUTCHEON, J.A.:  That's why I don't think it fits within the  38 discussion.  39 MR. TAYLOR:  That — it's a statement, as statements from  40 pipeline cases.  They all talk about much the same  41 thing.  It's what's intimately connected.  And the  42 language out of Irwin Toy is fundamental.  43 HUTCHEON, J.A.:  Yes.  All right.  44 MR. TAYLOR:  Basic minimum and unassailable content.  Something  45 more than what a federal person, if there were such a  46 thing, could do.  I mean, it has to be something  47 critical to that whole concept of status and capacity. 1531  Submissions by Mr. Taylor  1 I've referred again to the Four B Manufacturing  2 case, and I've referred your lordships to that, where  3 they look at even if it was from the sole point of  4 view that it was an Indian matter, it's still not  5 enough.  6 Now, we say that the core set of interests  7 includes, at a minimum, a right to possession of lands  8 on the reserve and the right to possession and  9 ownership of immovable property on a reserve, and  10 that's the Derrickson case, and I won't refer your  11 lordships or read that to you.  Registration,  12 registrability, and the use and benefit of reserves.  13 That's Canard.  Treaties, the Bob and White -- the  14 White and Bob case treated treaties, treaty rights as  15 integral, intimately connected.  I haven't cited that,  16 but it's in the references in the factum.  And those  17 are the cases that have decided that.  18 With respect to other matters, however, these  19 things have been excluded by some judges from the core  20 set of interests, which might be seen in some  21 instances to be nonetheless aboriginal rights:  22 hunting and fishing, that's Kruger and Cardinal;  23 hunting in furtherance of religion, that's Jack and  24 Charlie; adoption which does not impair status, that's  25 the Natural Parents case.  And s. 88 was involved in  26 the Natural Parents case, but some of the judges, in  27 particular Mr. Justice Martland and Mr. Justice  28 Ritchie, and I won't put those to you, my lords, were  29 quite prepared to find that the Adoption Act, taking  30 Indian children away from Indian families and the  31 extended family and giving them to white adoptive  32 parents did not strike at Indianness.  And not all  33 judges at all times have been in agreement with  34 respect to what is included in the core group of  35 interests.  36 Now if I can take your lordships to the Dick case  37 at 228Q, and I'll skip over the Kruger case because  38 it's referred to in any event and interpreted in the  39 Dick case, and it's after the green tab.  And I have  40 included the whole decision in here, my lord, so I'll  41 be referring fairly extensively to the facts and the  42 assumptions and then the treatment of the s. 88 issue  43 and the core issue.  And as I stated earlier, Chief  44 Justice Dickson was a member of the panel on this case  45 and was part of the reasons of the court delivered by  46 Mr. Justice Beetz.  And the facts were that the -- and  47 I'm just reading from the headnote. 1532  Submissions by Mr. Taylor  1  2 "Appellant, a non-treaty Indian member of  3 the Alkali Lake Band, was charged with the  4 killing of a deer out of season without being  5 the holder of a permit."  6  7 He was convicted.  He killed the deer for food on the  8 traditional hunting grounds of the Alkali Lake Band  9 outside a reserve.  He was convicted, and his appeals  10 were dismissed all the way up to the Supreme Court of  11 Canada, where the appeal was dismissed.  Now, the  12 issues that were raised were the constitutional  13 applicability of the Wildlife Act.  14 Now, going to the decision itself, the facts --  15 Mr. Justice Beetz, starting at page 312, states:  16  17 "The facts are not in dispute.  They are  18 summarized by Lambert J.A., dissenting in the  19 British Columbia Court of Appeal..."  20  21 And the facts are set out, and it was -- in the  22 recitation of facts, Mr. Dick is a member of the  23 Alkali Lake Band, comprised of about 10 families,  24 approximately 350 people.  25  26 "They catch fish for food and they kill deer and  27 moose for food and other uses.  28  29 The Shuswap word for May is..."  30  31 I hesitate to even attempt to pronounce it.  There is  32 a word for it.  33  34 "It means 'time to go fishing'.  In response to  35 this imperative,"  36  37 and then the recitation of facts go on.  38  39 "One precision should perhaps be added.  The  40 killing of the deer occurred in the traditional  41 hunting groups of the Alkali Lake Band but  42 outside a reserve.  I now return to the recital  43 of the facts..."  44  45 It was a closed season.  And then it -- the facts  46 recite what happened before the provincial court judge  47 and then on appeal before reaching the Court of 1533  Submissions by Mr. Taylor  1 Appeal.  2 Now, the fact of the matter is there was a great  3 deal of evidence in that case concerning the  4 importance of hunting to the Alkali Lake Band, as  5 appears from the recitation of facts that follow.  6 Now, the issues were stated as follows:  7  8 "Is the practice of year-round foraging for food  9 so central to the Indian way of life of the  10 Alkali Lake Shuswap that it cannot be  11 restricted by ss. 3(1) and 8(1) of the  12 Wildlife Act... without impairment of their  13 status and capacity as Indians, and invasion of  14 the federal field under s. 91(24)..."  15  16 And that's the first issue.  The second issue is:  17  18 "If the answer to the first question is in the  19 affirmative and, consequently, the Wildlife Act  20 cannot apply ex proprio vigore to the  21 appellant, then is this Act a law of general  22 application referentially incorporated into  23 federal law..."  24  25 And there s. 88 is set out.  And there was a third  26 issue, which really had to do with the question of  27 whether it was a question of fact or law alone.  28 It was stated on the next page, 315:  29  30 "One issue that does not arise is that of  31 Aboriginal Title or Rights."  32  33 The parties specifically decided not to include that  34 issue in the case.  35 And under III, the first issue, it was stated:  36  37 "Appellant's main submission which was  38 apparently presented in the Court of Appeal as  39 an alternative argument, is that the Wildlife  40 Act strikes at the core of Indianness, that the  41 question stated in the first issue should  42 accordingly be answered in the affirmative and  43 that the Wildlife Act, while valid legislation,  44 should be read down so as not to apply to  45 appellant in the circumstances of the case at  46 bar."  47 1534  Submissions by Mr. Taylor  1 And then there's a citation from the County Court  2 proceedings.  3 And then over at page 317, starting at the second  4 paragraph, Mr. Justice Beetz stated:  5  6 "The reasons of Lambert J.A., dissenting,  7 are quite elaborate.  For the greater part,  8 they expound the similarities and differences  9 between the case at bar and Kruger and his  10 understanding of the tests adopted in the  11 latter case to determine whether a law is one  12 of general application, a matter to which I  13 will return...But he used the same tests to  14 answer the question stated in the first issue,  15 namely whether the application of the Wildlife  16 Act to appellant would regulate him qua  17 Indian...  18  19 ' seems to me that the same tests as  20 are applied to determine whether the  21 application of a provincial law to a  22 particular group of Indians in a particular  23 activity is the application of a law of  24 general application, should also be applied  25 to determine whether the application of a  26 provincial law to a particular group of  27 Indians in a particular activity is  28 legislation in relation to Indians in their  29 Indianness.'"  30  31 And I should point out, my lords, that, in fact,  32 that test was held -- the same test -- it was held  33 that the same test should not be applied.  It was  34 something different.  That's one of the points in the  35 case.  The other point which I wish to draw upon and I  36 will deal with hopefully fairly briefly now is that to  37 show something that Indians do to be at the core takes  38 evidence to be able to persuade the court clearly, as  39 is stated by Mr. Justice Lambert at page 320 in the  40 quote.  And if I can just take you there briefly  41 before -- I may have to carry on with this tomorrow.  42 The effect of the evidence -- and perhaps I can just  43 leave it to your lordships.  It's quite an extensive  44 discussion of the evidence for a Supreme Court of  45 Canada decision.  It's stated in the second paragraph:  46  47 "In my opinion, it is impossible to read the 1535  Submissions by Mr. Taylor  1 evidence without realizing that killing fish  2 and animals for food and other uses gives shape  3 and meaning to the lives of the members of the  4 Alkali Lake Band.  It is at the centre of what  5 they do and what they are."  6  7 That's on the facts.  That's on the facts that the  8 foraging parties fed families and they didn't have  9 enough meat on hand to feed their families, and since  10 they lived in one area and could only hunt in that  11 area, they're only allowed one deer, whereas if they  12 were like other hunters, they could get in their car  13 and go from area to area and get a maximum of three  14 deers, which is maybe okay from a hunter from  15 Vancouver, but not for a member of the Alkali Band,  16 who depended on this food to live.  And that was the  17 finding and that was the critical difference in this  18 case as opposed to Kruger.  There was no such evidence  19 in Kruger.  And Mr. Justice Beetz was prepared to  20 assume, without agreeing, because the other judges in  21 the Dick case didn't agree that it went to the core,  22 they didn't assess the evidence in the same way as my  23 lord Justice Lambert, but Mr. Justice Beetz was  24 prepared to assume that that was the case, and, in  25 fact, he said I think there's probably some good  26 reason for it because next door in Alberta they can  27 hunt year round.  28 LAMBERT, J.A.:  Yes, he says he's prepared to assume without  29 deciding, but he says, "I must confess at being  30 strengthened in this assumption" by that very point  31 that you just made.  32 MR. TAYLOR:  Yes.  But that's an extraneous point, I would  33 submit, my lord.  It's true that happened, but when  34 you look at the facts, I think you can see, and I hope  35 it's clear, that the facts in that case were very  36 strong facts and this really was an integral, core  37 matter concerning Indians.  It was their very  38 livelihood, putting food on the tables of their  39 families, and that was what distinguished it from  40 Kruger, at least for the purpose of being prepared to  41 assume it.  But, in any event, I'll be asking your  42 lordships to look at those facts and that finding.  It  43 is at the centre of what they do and what they are.  44 So the facts as found by the learned trial judge in  45 this case -- now, I'm -- it's not on the same issue.  46 He wasn't addressing his mind to what is the core.  It  47 concerns different questions.  But there's a number of 1536  Submissions by Mr. Taylor  1 findings which I would submit gives rise to the  2 conclusion that it's not the same level of intensity.  3 It doesn't have the same intimacy to the identity of  4 the Indians in this case that it did to the Alkali  5 Band, and perhaps I can deal with that tomorrow  6 morning.  7 TAGGART, J.A.:  All right.  Thank you.  8 THE REGISTRAR:  Order in court.  Court stands adjourned until  9 ten o'clock tomorrow.  10  11 (PROCEEDINGS ADJOURNED AT 4:03 P.M.)  12  13 I hereby certify the foregoing to  14 be a true and accurate transcript  15 of the proceedings transcribed to  16 the best of my skill and ability.  17  18  19  20  21  22 Leanna Smith  23 Official Reporter  24 UNITED REPORTING SERVICE LTD.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


Citation Scheme:


Citations by CSL (citeproc-js)

Usage Statistics



Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            async >
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:


Related Items