Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-05-25] British Columbia. Supreme Court May 25, 1992

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 878  Submissions by Mr. Rush  1 Vancouver, B.C.  2 May 25, 1992  3  4 THE REGISTRAR:  Order in court.  In the Court of Appeal of  5 British Columbia, Monday, May the 25th, 1992.  In the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lords.  8 TAGGART, J.A.:   Mr. Rush.  9 MR. RUSH:   This is the last day of the appellants' submissions,  10 my lords, and I wanted to give you an outline or a map,  11 if you will, of what the appellants intend to do today.  12 Firstly, there are a number of outstanding matters  13 arising from questions from the bench, arising from  14 some issues raised by counsel, and I'd like to deal  15 with those first.  I'll take a few minutes to do that.  16 Secondly, I want to address you on the use of Plate 13  17 of the Historical Atlas as evidence for all purposes,  18 and I will be making a brief submission to you on that  19 question.  20 Then I'm going to ask your lordships to turn to  21 Appendix D, which is the argument on reputation  22 evidence.  Then next I will be going to the argument on  23 territories and, following that, submissions will be  24 made in response to questions and exchanges with  25 counsel from Mr. Justice Macfarlane regarding the laws  26 and universality of Gitksan and Wet'suwet'en laws.  27 That, my lords, believe it or not, will take the  2 8 morning.  29 This afternoon we will be making submissions on  30 the questions raised by Mr. Justice Lambert with  31 regard, inter alia, to the origin of and the nature of  32 collective rights.  This will not be our full  33 submission, but it will be the submission in aid of our  34 remedies argument, which will be the next and final  35 argument that we will make.  This argument will deal  36 with the nature of the remedies sought by the  37 appellants as well as the jurisdiction of the court to  38 make the declarations and orders which the appellants  39 seek.  40 So if I may begin the first matter, and that is a  41 number of the outstanding matters that may be called  42 administrative in nature, the first is a one-page  43 response in respect of a question asked by Mr. Justice  44 Hutcheon regarding the Quebec act as repealing portions  45 of the Royal Proclamation. Ms. Mandell gave a partial  4 6 answer to that and we have an answer which is somewhat  47 more fulsome.  I would just ask Madam Clerk to hand 879  Submissions by Mr. Rush  1 that up.  2 TAGGART, J.A.:   This goes into Appendix K, doesn't it?  3 MR. RUSH:   Yes.  It should indicate at the top of each one of  4 these additional notes, if you will, where they are to  5 be inserted.  6 Next, my lords, I have additional notes which  7 constitute a written response to questions posed to Mr.  8 Jackson by Mr. Justice Lambert regarding the principle  9 of Indian consent as part of the common law.  This is  10 to be inserted at your lordships' paragraph 997 and it  11 also is in respect of the constitutional convention  12 argument.  13 Next, my lords, there was an issue raised about  14 the admissibility, or perhaps, to put it more  15 correctly, the status of the text on the maps that are  16 contained in the map atlas, Exhibit 358, and this is  17 with exceptions to maps 22 and 23, which were discussed  18 in evidence.  We have provided your lordships with a  19 brief written response as to where it is in the  20 transcript that it demonstrates that these were  21 admitted for all purposes and the text should be  22 considered along with the map in the map atlas.  This  23 document can be placed at the beginning of your volume  24 which contains the maps.  25 Next, my lords, there was a question raised as to  26 the status of a reference, that of Dr. Coe's treatise,  27 "Shattered Images", and we have a submission here in  28 written form as to why your lordships should take this  29 into account in terms of the argument that was  30 addressed to you at that time, and this is for  31 insertion at paragraph 18 of Appendix C.  32 Questions were asked of Mr. Adams regarding  33 references to the trial judge's remarks regarding the  34 tension between participant observation and  35 professional objectivity, and I have here for insertion  36 in Appendix E at paragraph 33 those references.  37 And finally, my lords, your lordship Mr. Justice  38 Lambert requested of the appellants as to whether or  39 not we could prepare a map showing the Gitksan and  4 0 Wet'suwet'en villages and camps.  And although I won't  41 be referring to this map now, I will be making  42 reference to it during the course of the territorial  43 argument.  What we have done is to photocopy Exhibit  44 646-9A and 9B and place in orange on this map the  45 location of the village sites.  And you will see that  46 the map also indicates the individual house territories  47 and the relationship of the village sites to those 880  Submissions by Mr.  Rush  1 territories.  2 TAGGART, J.A.:   These should go in the map volume?  3 MR. RUSH:   Yes, my lord.  In terms of this map, there are  4 references on the map to camp locations which are found  5 on Reverend McDougall's map and it's indicated in this  6 map as well.  7 Next, my lords, I want to refer you to a binder  8 that has been provided to you, which is R-12-A, which  9 is this binder.  This refers to an argument that we  10 will summarize or at least take your lordships through  11 briefly, which has to do with the use to be made of  12 Exhibit 893, which is Plate 13 from the Historical  13 Atlas.  During the course of the appellants' argument  14 interjection came from counsel for Canada, and this  15 objection had to do with the nature of the status of  16 this exhibit.  And it's our submission, having reviewed  17 the evidence and the legal authorities, that this  18 document, Plate 13, is and should be accepted by the  19 court as evidence for all purposes.  And if your  20 lordships will just bear with me for a moment and  21 direct your attention to this volume, 12-A, I won't  22 take you to any of the references here, but what is at  23 issue is this document, Plate 13, and the use to be  24 made of the text which is contained on the face of the  2 5 map.  26 What I would like to do, my lords, is just ask  27 you, if you will, to turn to the argument.  We note in  28 our argument at paragraph 1 that in --  29 TAGGART, J.A.:   This is in argument in R-12?  30 MR. RUSH:   This is -- yes, that's correct, and I'm just going to  31 make a brief submission here to acquaint your lordships  32 with the nature of the argument and then I'll ask you,  33 if you will, to consider this at your leisure and  34 consider the references in more detail.  But our point  35 is that the fact is in the appellants' factum at  36 paragraphs 612 to 615 we rely on archeological and  37 other evidence that's summarized in this Plate 893.  38 And I note at paragraph 2 that on May the 15th, the  39 respondent Canada raised a question of whether the  40 information summarized in the plate is evidence for all  41 purposes or whether it is evidence only to demonstrate  42 the existence of pre-historic trails and trade in and  43 out of the Gitksan and Wet'suwet'en territories.  44 Now, the appellants consider this of some  45 significance because much of the information on Plate  46 13, we say, clearly contradicts the trial judge's  47 findings about the extent and antiquity of Gitksan and 881  Submissions by Mr. Rush  1 Wet'suwet'en territories, boundaries and trade, and the  2 trial judge does not mention and gives no reason for  3 rejecting this evidence.  4 What we do in this brief is to argue that the  5 information on Plate 13 is admissible for all purposes,  6 including for the truth of the contents of the text.  7 On page 3 we set out the five reasons for this, and  8 briefly stated they are these:  The map, chart and text  9 on Plate 13 were adopted by Professor Ray and Dr. Daly.  10 Secondly, the map of the trade trails and the  11 chart of trade goods are integrally related to and, we  12 say, can only be explained by the accompanying text.  13 Thirdly, we say that the sources for Plate 13  14 which are relevant to the Gitksan and Wet'suwet'en are  15 all in evidence independently.  Mr. Grant made that  16 point in his argument, but we have added to the brief  17 here what those sources are and I'll be making brief  18 mention of them.  19 Fourth, the trial judge ruled that all facts  20 stated in treatises, including material like Plate 13,  21 are prima facie true.  22 And fifthly, we rely on the Supreme Court decision  23 in Sioui that documents of a historical nature, whether  24 or not in evidence in a lower court, are admissible in  25 an appellate court to facilitate the court's own  26 historical researches.  27 I go through each one of these points in turn, my  28 lords, and we begin in the first argument on page 4.  29 What I want to do is to take you over to paragraph 10  30 and draw your lordships' attention to the fact that,  31 apart from Plate 13, other plates from the Historical  32 Atlas were in evidence.  And I note here that the other  33 plates that we are referring to are 2, 8, 36, 37, 40,  34 41, 59 and 66.  So it's not just Plate 13 that was  35 placed in evidence or was a matter of discussion in the  36 argument below.  37 Then on this point I take you over to paragraph 14  38 of the argument.  In respect of Professor Ray's  39 examination, I note that he testified that he was  40 familiar with MacDonald's sources, a combination of  41 archeological and ethnological material.  Professor Ray  42 relied on the plate for this opinion, that there was an  43 extensive trading network up and down the Skeena that  44 seems, by best estimates of archeologists, to go back  45 well into the pre-contact period.  46 Now, in addition to that, on re-examination, and I  47 take you to paragraph 17 now, Professor Ray quoted -- 882  Submissions by Mr. Rush  1 and we submit clearly adopted, if that's necessary in  2 the course of this argument -- the text relied upon by  3 the appellants in paragraph 615.  4 Now, in 615, just to remind your lordships, the  5 argument that we make there is that there are  6 interlinking trails and movement of surplus trade goods  7 in and out of the territory before contact.  Now,  8 Professor Ray says, and I quote here:  9  10 "There is this discussion about all of this  11 change that is supposed to have occurred as a  12 result of the early European contacts, and the  13 point was -- this, I thought, was the important  14 point,"  15  16 And then he recites MacDonald on the text of Plate 13:  17  18 "On the eve of the European contact the  19 Tsimshian had lived along the Skeena and Nass  20 Rivers and adjacent to the North Pacific Coast  21 for thousands of years.  There may have been 10  22 to 12,000 Tsimshian and three linguistic and  23 cultural groups."  24  25 "He goes on --" and this is Professor Ray speaking:  26  27 "I'm not going -- I can read the whole thing,  28 your honour, if you want, but I'm jumping to  29 this paragraph at the top of the page here, he  30 says:  31  32 'Forty-eight village sites known in the  33 Prince Rupert harbour area each marked by a  34 huge shell midden, some apparently continuously  35 occupied it for at least 5,000 years.'  36  37 So my point was, is that MacDonald's point was  38 that there was expansion from -- northward from  39 a core area perhaps, but the archeological  40 evidence did not suggest vast dislocations of  41 population in this area as a result of the fur  42 trade; that was my point."  43  44 We say that that evidence coupled with Professor  45 Ray's earlier testimony is sufficient to adopt the text  46 and the facts contained in Plate 13.  47 Now, added to this at paragraph 18, our second 883  Submissions by Mr. Rush  1 point is that we say that the map of trails and  2 territories are so integrally related to the text on  3 Plate 13 that they cannot be severed.  The map and the  4 chart are meaningless, we say, without the accompanying  5 text which explains who the peoples were and who were  6 engaged in the trade and what the territorial  7 boundaries depicted on the map mean.  8 Our third point at 19 is that Plate 13 is based on  9 primary and secondary sources which independently were  10 placed in evidence in the trial.  And at 20 I note that  11 the Barbeau-Beynon field notes and Tsimshian notes are  12 exhibited and I give the exhibit numbers.  There is, in  13 the reference material related to paragraph 20, a list  14 of exhibits with regard to Barbeau in exhibit number  15 order.  There is quite a substantial number of those.  16 Similarly, the Allaire and Inglis and MacDonald  17 references for Plate 13 are in Exhibit 1190.  Coopland  18 is 1191-32.  At page 10, paragraph 23 I draw your  19 lordships' attention to Exhibit 1190, which is a paper  20 entitled "Stable and Resilient Systems Along the Skeena  21 River", authored by Kenneth Ames, in evidence.  And the  22 portion that I draw your lordships' particular  23 attention to in that exhibit is at the bottom of the  24 page in bolding.  I ask you to note that:  25  26 "The system of houses owning resource  27 territories which included whole stream  28 basins -- "  29  3 0 cites Adams,  31  32 "-- ensured that both drainages were used."  33  34 In other words, what is being talked about is that it's  35 the drainage systems which constitute the resource base  36 for the individual kinship groups or houses.  37 Now, over to page 11, my lords, I take you to  38 paragraph 25, where our fourth point is that the  39 admissibility of the entire plate for the proof of its  40 contents is the trial judge's own ruling.  We have set  41 out the trial judge's ruling, which is contained at 38  42 B.C.L.R.  His lordship comments on the argument that  43 was addressed to him as to the utility of the treatises  44 and we note his comments in paragraphs 25 and 26.  Then  45 I'll take you over to page 13, paragraph 27.  I ask  46 your lordships to note his lordship the Chief Justice's  47 decision here.  After quoting Wigmore in support of the 884  Submissions by Mr. Rush  1 necessity of receiving such evidence and its  2 trustworthiness, the court ruled at page 188:  3  4 "It is therefore my conclusion that the  5 treatises, as defined earlier, are admissible  6 in evidence and that the facts they state are  7 to be treated as prima facie true for the  8 purposes of this trial only, subject always to  9 the question of weight at the end of the trial,  10 that is, after argument."  11  12 What we say, my lords, is that this rule was not  13 appealed by any party.  The appellants submit that  14 Exhibit 893 on this ground is a treatise within his  15 lordship's definition and is therefore prima facie  16 proof of the truth of its contents.  17 Finally, our fifth and final point, we found our  18 argument on the admissibility of such documents as  19 determined by Sioui, where, in that case, documents of  20 a historical nature were found to be admissible whether  21 or not they were part of the record in the court below  22 as part of the court's entitlement to rely on its own  23 historical knowledge and researches.  I draw your  24 attention to the type of document that was admitted in  25 the Sioui case in paragraph 31.  Then we set out our  26 conclusion in paragraph 32.  We say that on all of the  27 grounds we have cited, the facts stated in Plate 13  28 about the social and territorial organization of the  29 Gitksan and the trading activities of the Gitksan are  30 admissible for all purposes.  31 I ask your lordships to take account of our  32 argument in paragraph 34 and in particular his  33 lordship's comment, in the course of the case, that:  34  35 "The parties cannot be expected to prove by  36 conventional methods every finding and fact  37 that has gone into the formation of many  38 learned opinions which the court must have if  39 it is to reach proper decisions."  40  41 Then I take you to 36, and our point here is that  42 the trial judge specifically relied on Dr. MacDonald,  43 one of the authors of Plate 13, and we cite the places  44 in his lordship's reasons where he does so.  He  45 specifically relied on Professor Ames and again we cite  46 the places in the reasons, and he specifically referred  47 to the Historical Atlas as compiled by many of Canada's Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. RUSH  leading historians and geographers.  Yet he gave no  reason for rejecting or disregarding the evidence  contained in Plate 13 and its sources.  He did not  mention Plate 13 at all and made no reference to those  parts of its sources which are in evidence and which  state the same facts.  We say, then, that the trial judge ignored the  fact that the authors and sources for Plate 13 and  Exhibit 1190 all relied on oral histories as primary  sources for the pre-contact history of the territories.  And instead, at page 204 of his reasons, his lordship  said:  "I am unable to accept adaawk, kungax, and oral  histories as reliable bases for detailed  history, but they could confirm findings based  on admissible evidence."  Now, we say in our ultimate conclusion, my lords,  that with respect to the facts stated in Plate 13 and  its sources, the reasons for judgment disclosed, in the  words of the Supreme Court in Geffen, "a lack of  appreciation of relevant evidence and more particularly  the complete disregard of such evidence", and that  consequently "it falls upon the reviewing tribunal to  intercede".  We do ask that your lordships consider Plate 13  and its text for all purposes in support of the  argument that was advanced.  My lords, I don't wish to take you to any of the  references.  I'll ask you to turn to the next subject  that the appellants will deal with this morning, and  that is the appellants' argument with regard to the  reputation evidence.  This is to be found at Appendix D  of the appellants appendices.  My lords, I'm not  intending to take you through chapter and verse of this  argument.  I intend to summarize the points that we  make in this argument.  J.A.:   Let me put this tab 13 back where it belongs.  It comes right after those.  Now, you are moving where?  I'm now moving to the submission in Appendix D with  regard to reputation evidence, my lord.  It is Volume 2  and the title of this appendix is "Reputation Evidence  of Land Ownership".  I'll be making a brief submission  on this and then I'll be asking your lordships to  consider our submissions with respect to the territory 886  Submissions by Mr. Rush  1 which is subject to the appellants' aboriginal title  2 and rights.  3 My lords, I want to begin by summarizing briefly  4 what the findings of the trial judge were with respect  5 to the reputation evidence.  In my submission the  6 summary of this evidence is as follows:  Firstly, he  7 found that the community for the reputation includes  8 not only the appellants and their ancestors but their  9 aboriginal neighbours and non-Indians.  For convenience  10 I will ask you to note that this is in his lordship's  11 reasons at page 440.  12 Secondly, he found that the appellants have been  13 discussing land claims since before the litigation  14 arose and therefore evidence of declarations of  15 ownership and reputation are deprived of objectivity.  16 That is at page 441.  17 Thirdly, he found that reputation must be  18 undisputed.  Since there are claims by aboriginal  19 neighbours -- and I underline the word "claims" -- on  20 the external boundary, their reputation cannot  21 therefore be certain, and this is 441 to 442.  22 Finally, he found that non-Indian residents, and he  23 gives the example of Mr. Cyril Shelford, are part of a  24 relevant community on the issue of reputation.  25 As a consequence, the declarations of ownership or  26 use made by the appellants, he found, were inadmissible  27 to prove the appellants' ownership of particular tracts  28 of land contained within the external boundary of  29 646-9A and 9B.  30 Now, my lords, those are his lordship's findings  31 and again I'm summarizing what's contained in our  32 Appendix D.  Our response to these can be summarized in  33 this way.  34 The trial judge was in error for these reasons.  35 We say that on the strength of the Pasco case,  36 reputation evidence of ownership goes to proving that  37 the appellants' ancestors owned lands in the claimed  38 territory as against other aboriginal groups at the  39 relevant date of 1846.  40 Now, the two operative points in this proposition  41 are that the reputation evidence bears down as against  42 other aboriginal groups, and secondly, as at the date  43 of 1846, that date being relevant as the date of the  44 claim by Britain to sovereignty of the mainland land of  45 British Columbia.  46 Now, we say that the reputation evidence does not  47 apply as against a Crown claim.  The Crown did not have 887  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. RUSH:  HUTCHEON,  a competing ownership claim or aboriginal interest  prior to 1846.  The evidence of the appellants was that  as against their neighbours, they, the appellants, were  the owners of the territory.  Now, we make the  additional points that the trial judge noted that there  were conflicting overlapping claims as against the  appellants' territory and references given to a map  that was created by a Mr. Magwood from various claims  that were advanced by some of the Gitksan and  Wet'suwet'en neighbours.  And his lordship's reasoning  was that the appellants' aboriginal neighbours, on the  basis of these claims, do not share the appellants'  reputation.  Now, what we say is that there is no evidence from  the appellants' aboriginal neighbours which was called  to prove those bare claims.  Where the appellants  provided evidence of their claims by their declarations  of ownership, their neighbours didn't.  The Province  did not, nor did Canada, tender evidence of the same  kind as the appellants to prove the bare claims.  And  we say, therefore, that there was an absence of proof  of another nation's ownership to the land area, the  territory claimed by the appellants in this action.  Now, a question was raised by Mr. Justice Lambert,  I believe, as to whether the most important evidence of  reputation was evidence of the neighbours.  And we say  that it is relevant but it's not the most important  evidence.  Clearly, if there is a boundary, there are  two parties that are involved, one on each side of the  boundary.  But we say here that the appellants'  evidence was the most important evidence because it was  the only evidence.  Contrary to the trial judge's  observations, the unsubstantiated claims of the  neighbours should have been overlooked, we say, and we  say indeed discounted.  It is true that the neighbours may be part of and  were part of the 1846 community, being on the other  side of the boundary, but there was no proof from them  of a similar kind of evidence which would have the  effect of undermining the reputation of ownership  established by the appellants.  J.A.:   Where is the source of the conflict?  I'm not  with you, quite.  Where did the trial judge find the  source of the conflict?  Could you just give me some  example?  You referred to some map.  Yes, my lord.  J.A.:   Is that the kind of thing he did? Submissions by Mr. Rush  1 MR. RUSH:   Yes.  What occurred was that claims that were put  2 forward to the Office of Native Claims, a federal  3 agency that entertains land claims on behalf of  4 individual aboriginal groups, these claims, which were  5 put forward in the form of a written submission and  6 sometimes with an appended map, were gathered together  7 and provided to a Mr. Magwood, who was a  8 cartographer --  9 HUTCHEON, J.A.:   I see.  10 MR. RUSH:   -- with the provincial government.  Then what Mr.  11 Magwood endeavoured to do was to assemble the  12 information here in a map of his own.  And the map that  13 he drew showed that at various points along the  14 external boundary, the claims made by the aboriginal  15 neighbours of the Gitksan and Wet'suwet'en transversed  16 the boundary line into the territory claimed by the  17 Gitksan and Wet'suwet'en.  18 So what you have is an attempt by Mr. Magwood to  19 depict these, and for various reasons that he indicated  20 there was a substantial weakness in his ability to map  21 these.  But I think that's all irrelevant to the point,  22 that these claims were depicted in the mapping that was  23 done by Mr. Magwood and demonstrated that there were  24 claims to the territorial area similar -- that was in  25 issue in this litigation.  26 LAMBERT, J.A.:   I'd like to ask a question, really, on the same  27 subject.  As I understand it, we are being asked  28 through the pleadings, at least, though it may be that  29 there is agreement that we shouldn't decide the  30 question of where the outside boundary line is of the  31 Gitksan and Wet'suwet'en aboriginal land area in a  32 context where the adverse claimants, the adverse  33 aboriginal claimants and the other adverse claimants  34 are not before us.  And in those circumstances, unless  35 there is some form of waiver made by people who might  36 be thought to be interested of any claim in relation to  37 this area, I wouldn't have thought that it was  38 appropriate for us to make an adjudication that forms a  39 part of an order of the court setting out the boundary,  40 at least insofar as we are being asked to say that the  41 rights of the Gitksan in that area are exclusive  42 rights.  43 So I don't, perhaps, have a sufficient background  44 about the nature of the claim in that respect.  It  45 would certainly put my mind at rest if you could help  4 6 me out.  47  MR. RUSH:   My lords, I have two responses.  The first is that it 889  Submissions by Mr. Rush  1 will be submitted to this court that as part of the  2 remedies that the precise boundaries of the territory,  3 subject to the aboriginal rights of the appellants, be  4 a matter that this court defer in its adjudication to  5 allow a negotiation with respect to the territorial  6 extent or the geographic extent of the aboriginal  7 rights of the appellants.  8 So the remedy that we propose in respect of the  9 question of the geographic extent is one of seeking  10 this court to retain a jurisdiction on the issue of  11 territoriality and to permit the parties to resolve it  12 in a negotiated process.  13 Having said that, however, it's our submission  14 that if we are not successful in convincing your  15 lordships of this as a means of disposing of this and  16 other issues that we will be submitting to you upon,  17 then it falls to be decided as a live issue, one which  18 we say the trial judge erred on in terms of determining  19 the land area subject to the appellants' rights.  And  2 0 one of the arms of our argument to demonstrate what the  21 geographic extent is, what are the territories subject  22 to those rights, is the evidence on declarations of  23 ownership that come in through the hearsay exception on  24 reputation evidence.  25 And what we say is that it was for the appellants  26 to call competent evidence, the best evidence that they  27 had, with respect to their territory, and they did  28 that.  We say it is evidence that should have been  29 accepted by the trial judge, and for various reasons I  30 will come to in a moment, it wasn't.  But we say that  31 this court is in as good a position to make a  32 determination on this evidence if need be, and should  33 make the determination about what the external boundary  34 is of the area claimed by the Gitksan and Wet'suwet'en.  35 Here, as I have indicated in our earlier  36 submissions, we don't put in issue the question of the  37 internal boundaries.  That is an issue that we leave  38 outside of the ambit of our submissions.  But having  39 called the best evidence, it's our submission that it's  40 not incumbent upon the appellants either to call all of  41 the evidence, all of the potential evidence that may  42 bear down on reputation, and it is not incumbent upon  43 them to call evidence of general views which may be  44 expressed by their neighbours or anyone else that  45 doesn't bear down on the relevant date of 1846.  46 Now, our submissions are that the reputation  47 evidence advanced by the appellants was that it bore 890  Submissions by Mr. Rush  1 down on the relevant date of 1846 and that it bore down  2 on the extent of their territory in relation to the  3 neighbours on their boundaries.  And that's --  4 LAMBERT, J.A.:   What I don't understand is how we can make any  5 decision on that without the neighbours being before us  6 or without them having waive their claims.  7 MR. RUSH:   Well, my lords, there isn't an issue here between the  8 Gitksan and Wet'suwet'en and their neighbours.  It is  9 in respect of the Province.  And in our submission,  10 once again it is not the rights that the court is being  11 asked to declare and will be asked in our remedies;  12 it's in respect of declarations as against the  13 province.  14 But in the course of that, again, if we are not  15 successful in convincing you that this is a proper  16 matter for negotiation, there is a geographic extent to  17 which the appellants' rights apply.  The appellants'  18 rights can't simply be declared in the air or in the  19 absence of it touching the ground, where the people  20 were.  And in our submission, neither a waiver is  21 required nor are the neighbours required to be present,  22 except, I submit, in the form of the way -- through the  23 umbrella organizations which are part of the intervenor  24 groups that are before this court.  25 Now, I don't say that that in any way would  26 satisfy your lordships' concern that they should have  27 been part of the litigation and trial.  But in my  28 submission it's not necessary for this court to have  29 those parties before you to make a determination in  30 respect of their geographic extent.  31 We seek these declarations against the province  32 and we say that in order to make sense of those  33 declarations, it must attach to a geographic base which  34 is the homeland of the Gitksan and Wet'suwet'en.  And  35 so this evidence, the reputation evidence, is, as I  36 say, one peg in support of why it is that you should  37 look to the declarations of the ancestors and the  38 appellants, declarations of ownership to the  39 territories and to places on those territories, as  40 evidence of that territory.  41 LAMBERT, J.A.:   Thank you.  42 MACFARLANE, J.A.:   Well, this, as you have just said, is only  43 one aspect of the question of ownership.  4 4  MR. RUSH:   Yes.  45 MACFARLANE, J.A.:   Yes.  And your attack on the trial judge in  46 other respects is that he disregarded evidence, you  47 say, of the anthropologists and other evidence which 891  Submissions by Mr. Rush  1 would have gone to show the extent of the territory and  2 so on.  If we should accept the submission that there  3 was a disregard of evidence in reaching the conclusion  4 that the claims were confined to village sites, then  5 wouldn't the proper course be, after negotiation has  6 been attempted, to have it referred back?  7 MR. RUSH:   Yes.  That —  8 MACFARLANE, J.A.:  I mean back to a trial judge.  You see, what  9 I'm saying is that it's a simple question.  Normally if  10 there is a disregard of evidence by a trial judge, the  11 normal course, I think, is to refer it back to the  12 trial judge to reassess the evidence that he's  13 disregarded.  Isn't that generally what ought to be  14 done here rather than having it come back to this  15 court?  16 MR. RUSH:   My response to that, my lord, is that it is a  17 conventional response of the Court of Appeal, where  18 there has been an absence of consideration of relevant  19 evidence.  Yes, I agree with that.  20 MACFARLANE, J.A.:  Yes.  21 MR. RUSH:  But in this circumstance I say that the preferred  22 response, given the nature of the declarations that are  23 being sought by the appellants, is to permit, by this  24 court retaining jurisdiction, a process to evolve by  25 which issues like the territorial question be  26 negotiated.  And we will be making submissions to you  27 as to why it is desirable, why you should exercise your  28 discretion here on the facts of this case.  29 MACFARLANE, J.A.:   Well, then, you see, my concern is that we  30 are then converted into a trial tribunal, and we are  31 not equipped to do that sort of work, to deal with that  32 sort of detail.  33 I notice that one of the submissions suggested  34 that it might be a matter -- some of these might be  35 matters to be referred to a registrar or to some  36 official, court official, to make a report and come  37 back.  I suppose that's one way, but why isn't the  38 traditional route desirable?  39 MR. RUSH:   Because in our submission section 35 -- the  40 preference for negotiations clearly stated by the court  41 has overtaken that type of approach, my lord, and we  42 are now looking for more novel remedies that will deal  43 in a more compendious way with the kinds of  44 consequences, if you will, of the declarations that we  45 seek from the court.  46 MACFARLANE, J.A.:   I am not for a moment suggesting to you that  47 negotiations are not the right way to go and that's 892  Submissions by Mr. Rush  1 what section 35 has in mind.  A number of courts have  2 said that that's the only way these issues can finally  3 be resolved.  But what I'm saying is that should  4 negotiations fail, then it seems to me that most of  5 these issues that you've addressed, where your argument  6 is that there has been a complete disregard of  7 evidence, of material evidence in making a finding,  8 that you send it back to a court that's equipped to  9 have regard to all of that great body of evidence --  10 and it is a great body of evidence -- and to determine  11 those issues.  12 MR. RUSH:   My lord, I'd like to differentiate between some kinds  13 of issues which we in our submission say this court can  14 adjudicate on.  It is in as good a position as the  15 trial judge.  And we can go back to certain types of  16 those issues, such as the determination of whether or  17 not the appellants have a proprietary interest in land.  18 But in addressing this issue, this question of  19 territoriality --  20 MACFARLANE, J.A.:   The boundaries issue.  21 MR. RUSH:  -- the boundaries issue, it is a complex issue.  It is  22 a detailed issue; I agree with that.  And the various  23 remedies that have come forward from the parties have  24 ranged from a reference to a registrar to your  25 lordship's suggestion of the conventional method of  26 sending it back to the trial judge for  27 reconsideration.  But again I say I don't discount  28 those as a way of proceeding.  29 What we are asking your lordships to do as a  30 matter of preference, and I simply repeat our argument,  31 that the discretion is to be exercised to prefer  32 negotiations.  And yes, it might be that the  33 negotiations will fail, and that is something, in my  34 submission, that has to be clearly understood at the  35 beginning.  But even accepting that possibility, it is  36 still open to this court, if negotiations fail, that  37 the question of the determination of boundaries could  38 be referred back to the trial judge or to a registrar  39 or to any other convenient means that the parties might  40 themselves bring to the court to adjudicate the  41 question of where the boundaries are located.  42 MACFARLANE, J.A.:   All right.  I guess we are both repeating  43 ourselves, but I have great difficulty with that  44 concept, of this court trying to tackle that problem.  45 MR. RUSH:   My lord, our submissions this afternoon on the  46 question of why the court should exercise its  47 discretion are aimed at that very point.  And we will 893  Submissions by Mr. Rush  1 try to convince you, and I think the authorities are  2 with us here, that the Supreme Court of Canada has  3 retained a jurisdiction and has, through successive  4 adjudications, acted as though it were in a reviewing  5 capacity of orders or steps taken by the parties.  I  6 think on two occasions -- in one of these cases the  7 parties came back before the court and a new  8 adjudication was made.  I see no reason why this court  9 cannot be in as good a position to make a determination  10 in two years as --  11 MACFARLANE, J.A.:   Was it a fact finding adjudication?  12 MR. RUSH:   It was not a fact finding adjudication per se.  13 MACFARLANE, J.A.:   You see, that's the real problem.  14 MR. RUSH:   But, my lord, what I say is that it may be open to  15 the court, this court, in two years, however  16 constituted, in two years to hear submissions from the  17 parties as to the best way to deal with the territorial  18 extent of the appellants' claims.  And it may not be  19 that we would be asking this court to adjudicate that.  20 Obviously your lordship is very reluctant to have  21 this court embark upon that process, but there may be  22 another more preferred route to deal with the question  23 of the boundaries, which I say is as open to your  24 lordships to determine in two years as in six months.  25 MACFARLANE, J.A.:   Well, let me come to it by saying that I have  26 the same concerns as Mr. Justice Lambert about making a  27 decision as to ownership of land when there are obvious  28 people, neighbours, who may have a claim and were not  29 before the court.  I mean, it is of no use, in my view,  30 to say, "Oh, well, it's an argument between us and the  31 province."  32 When it comes to ownership of land, the issue is  33 one that is joined between all people who may have  34 claims to those lands.  And I think it would be quite  35 wrong for a court to say, in the absence of hearing  36 from other parties -- and we have been told enough now  37 to know that there are other parties who may have a  38 claim -- "We don't agree with your claim."  So I join  39 with Mr. Justice Lambert in expressing concern about  40 that.  That's another reason why I would think that if  41 it comes to that -- that is, a failure of negotiations  42 as to settling the boundaries -- that the boundary  43 dispute will have to be settled some other way.  44 MR. RUSH:   I have your lordship's —  45 MACFARLANE, J.A.:  Probably the parties by that time will come to  4 6 an agreement as to how it might be done.  47 MR. RUSH:   Well, of course, one of the desirable features of the 894  Submissions by Mr. Rush  1 negotiation remedy, we will be submitting to your  2 lordships, is the fact that it takes into account,  3 through the participation of the Province and Canada,  4 the interests of the citizenry of the province as well  5 as the appellants' interest.  6 But with respect, my lords, I stand by our  7 submission that it's not for the appellants to have  8 joined in this litigation persons who have advanced a  9 claim -- whatever the nature of that claim -- and to  10 have brought them into this litigation to determine  11 their rights as against the Province.  And in my  12 submission, my lords, it was open to the parties here  13 to call whatever evidence they wanted.  The Province  14 and Canada chose not to call any evidence from the  15 neighbours.  And we, the appellants, say we put forward  16 the best evidence here and it should be accepted for  17 what it is -- the best evidence of the question of  18 declarations of ownership.  19 I can say no more than that, that the views  20 expressed by people in their claims are not evidence.  21 The trial judge didn't accept them as evidence, and in  22 my submission, neither should this court.  23 Now, my lords, my argument on reputation proceeds  24 along to the next point, which I won't develop but will  25 simply summarize, that the trial judge found that  26 Europeans are part of the relevant community, and he  27 relied on Cyril Shelford as a proponent of that  28 community.  We say simply that the only relevant  29 non-Indian evidence would be evidence in 1846.  It was  30 at that time that perhaps the only relevant evidence  31 would be from someone like a Hudson's Bay trader, but  32 we would submit further that there was --  33 MACFARLANE, J.A.:   Well, I find that unusual in view of the  34 argument that was made not long ago by the appellants  35 that the conduct of the appellants over the years after  36 1846 ought to be looked at as confirming their claims.  37 MR. RUSH:   My lords, the evidence that was called there was to  38 look at what people did and said after 1846 as evidence  39 of the state of the social organization and system in  40 place before 1846.  But that was the thrust of the  41 evidence.  And bearing down upon Mr. Cyril Shelford's  42 testimony, I say what relevance can Mr. Shelford's  43 evidence have in 1987 to what the state of affairs was  44 in 1846 unless Mr. Shelford can say, which he didn't,  45 that someone in 1846 from his community had knowledge  46 of what the state of the Gitksan and Wet'suwet'en  47 reputation was in 1846. 895  Submissions by Mr. Rush  1 MACFARLANE, J.A.:   Well, of course, I haven't read the evidence  2 and haven't been referred to it, but as I understood  3 that large body of evidence that was referred to the  4 last time we were here, it was not only evidence of  5 conduct establishing the institutions but generally  6 conduct asserting ownership or consistent with  7 ownership.  So you are saying, "Well, there is evidence  8 of ownership before 1846."  9 MR. RUSH:   Yes.  10 MACFARLANE, J.A.:  "And there is evidence that the rights were  11 never abandoned.  There is a continued assertion of  12 ownership up through the end of that century and into  13 the 1900s.  14 MR. RUSH:   But on the strength of Pasco, my lords, we say that  15 that evidence gives rise to the logical inference of  16 the state of affairs prior to 1846.  17 MACFARLANE, J.A.:   I really only raised the question.  It seems  18 to me that somebody like Mr. Shelford could come and  19 give evidence as to whether or not there was an  20 assertion of ownership continuing, or whether it had  21 been abandoned.  If there had been ownership, was it  22 abandoned?  23 MR. RUSH:   Yes, he could.  24 MACFARLANE, J.A.:   It's relevant to that.  25 MR. RUSH:   It's relevant to that, but that's not the issue that,  26 in my submission, is pertinent to the question of  27 declarations of reputation or declarations of  28 ownership.  29 MACFARLANE, J.A.:   I didn't understand that Mr. Shelford's  30 evidence was of that quality --  31 MR. RUSH:   Well, perhaps not, but the juxtaposition of his  32 lordship's position with the use of Mr. Shelford's  33 evidence is such as to lead to the conclusion that Mr.  34 Shelford was being advanced as a representative or a  35 party of the non-Indian community.  And we say that  36 that evidence can only be relevant if it's directed at  37 the 1846 community.  38 Now, my final point on reputation, my lords, is  39 again borne out in Appendix D and that is that the  40 trial judge discounted the appellants' reputation  41 evidence on the basis that the evidence was assembled  42 communally in anticipation of litigation.  We make the  43 point that the Crown does not say here that it held  44 aboriginal title to the lands claimed by the appellants  45 and that reputation of ownership between the appellants  46 and the Crown was an issue as between them.  The  47 controversy in the litigation concerns the Crown 896  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. RUSH:  THE COURT  MR. RUSH:  TAGGART,  MR. RUSH:  LAMBERT,  MR. RUSH:  interference, we say, with aboriginal rights on the  land and the boundaries of which between the appellants  and the Crown are not the issue of the litigation or  the appeal.  The further point and the final point in this  argument is that the appellants' claim to aboriginal  title has been outstanding for a long time.  That's  true.  His lordship notes that.  But reputation  evidence should not be discounted where it is the  principal evidence going to pre-sovereignty rights,  titles and boundaries simply because the question of  aboriginal claims has been outstanding for a long  period of time.  We say to do so is in fact to create a  procedural hurdle which in most cases is impossible to  overcome.  I make the point finally, my lords, a point that  I've made in my submissions in response to Mr. Justice  Macfarlane, that the appellants in this case brought  forward the best evidence.  His lordship conceded that  and we say that on the strength of the Simon case it  should have been accepted.  Now, the fuller exposition of the appellants'  argument on reputation evidence of land or ownership is  set out in Appendix D and I will ask you to consider  that as a fuller statement of my summary of that  argument.  But now I want to take your lordships to the  question of the issue of territoriality and that's to  be found in tab 6 of the appellants' argument.  I will ask that your lordships have before them the  argument in tab 6, and I'll ask you to note that there  are three volumes of reference books.  These are  reference books 13, 14 and 15.  J.A.:   This is —  Volume 1, my lord.  :   Volume 1, tab 6?  Yes.  J.A.:   And the references are?  The reference book numbers are reference books 13, 14  and 15.  There are three reference volumes supporting  the arguments for tab 6.  J.A.:   13, 14 and 15.  Yes, my lord.  You have been provided with copies and  they should be accessible to you.  I again, considering  the time limitations on my submissions here, will be  summarizing some of this argument.  You have heard some  of it in respect of reputation. 897  Submissions by Mr. Rush  1 The point I want to make at 635 is that we have  2 submitted in the section on the system of ownership --  3 and this is a system of ownership that has been set out  4 in tab 4 of our factum -- that if the trial judge had  5 applied the correct tests to determine the nature of  6 Gitksan and Wet'suwet'en rights and title and  7 sovereignty and then reviewed the evidence concerning  8 those rights, he would have found that the ancestors of  9 the appellants had an established system of land tenure  10 and were present on the land as owners in the parts of  11 the territory beyond the arbitrary lines and the  12 village enclaves which he created.  13 At 637 we say that in this part of the factum we  14 address the issue of the actual geographic territory.  15 I suppose, my lords, that your concerns voiced by Mr.  16 Justices Lambert and Macfarlane are to some degree  17 prefacing the arguments that we make, but I say that  18 there was substantial evidence placed before this court  19 with regard to the territorial extent and reach of the  20 aboriginal rights claimed by the appellants.  21 Now, we say in 638 that the judge's determination  22 of the territory subject to the appellants' rights was  23 based upon two basic principles.  The first is that  24 their presence in the distant territory was a response  25 to the post-contact fur trade and the second is that  26 the appellants only occupied the village and localities  27 reasonably close to the villages.  28 In respect of both of these submissions we have  29 made argument saying why these constitute an error.  30 However --  31 MACFARLANE, J.A.:   Pardon me just a minute.  Madam Registrar, I  32 don't have anything at tab 6.  I was just asking if  33 there was an extra copy.  34 MR. RUSH:   Of tab 6?  We can certainly provide your lordships  35 with one.  36 MACFARLANE, J.A.:   Thank you.  37 MR. RUSH:   My lord, I'm at page 262 at paragraph 639 of the  38 submissions.  Having regard to the considerations that  39 are set out at 638, the trial judge found what he  40 called his "Alternative 3" regarding the boundaries,  41 that a large portion of the territorial claim shown on  42 map 5 was proven on the evidence to be subject to the  43 appellants' aboriginal rights.  I pause here to say not  44 their rights of ownership and jurisdiction as claimed  45 and as submitted by us to be the appropriate  46 declarations in respect of this area but, rather, the  47 narrowly defined rights as subsistence rights. Submissions by Mr. Rush  1 I pause here to direct your lordships to the  2 original reasons for judgment which contain a coloured  3 map, which is map 5, and this map indicates in brown  4 shading the area which his lordship found subject to  5 what he calls the subsistence rights of the  6 appellants.  And the larger area encompassed by the  7 black line is the area that is claimed and shown in  8 Exhibit 646-9A and 9B.  So when I refer to map 5, my  9 lords, I am referring to this document; this brown  10 area, the area subject to his lordship's ruling of the  11 subsistence rights, the larger area being the area of  12 the claim of the appellants.  13 TAGGART, J.A.:   What's the page number in the original judgment  14 on that?  15 MR. RUSH:   My lords, it follows page 280 but it is not itself  16 referenced by a page and it is map 5.  Now, it might be  17 helpful to have that map handy because our submission  18 is that in fact his lordship discounted considerable  19 evidence which showed that the appellants' rights apply  20 to the areas that he excluded.  I make the point,  21 however, at paragraph 639, and you can see this readily  22 by glancing at map 5, that his lordship accepted most  23 of the western and eastern boundaries as presented in  24 evidence and we say implicitly adopted the means of  25 proof used to demonstrate them.  In order to arrive at  26 the boundaries which he fixed, he had to accept that  27 the appellants' ancestors were required to go a  28 considerable distance out of their villages in order to  29 hunt game, even though elsewhere he said that they were  30 confined to the vicinity of their villages.  And the  31 reference is 453 for that finding.  32 My lords, I will take you to 641.  We take issue  33 with the factors considered by the trial judge in  34 arriving at the land areas subject to the rights and  35 the elements used, we say, are not ones specific to  36 their social and legal system, nor do they accord with  37 the reality of their history or experience.  In effect  38 what the appellants did was to advance their laws,  39 institutions, their social system, the fact that the  40 territoriality of the house, ownership of territories  41 through the feast, was the system by which we determine  42 the land of the appellants.  43 His lordship, for the reasons that we have argued  44 about for the last two weeks, rejected some of that  45 evidence and he chose, as I say, in 643, criteria  46 originating in his earlier findings of the appellants  47 as village-based user societies which we say were not 899  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  LAMBERT,  MR. RUSH  LAMBERT,  reflective of the appellants' social system and  history.  For example:  the people search for food and  other products largely in the vicinity of the villages;  the appellants' ancestors used the lands alongside the  rivers and the territory between village locations;  they used an area 20 miles in radius north of the  village of Gitanqasx from the Skeena as land in the  vicinity of the village; and the Wet'suwet'en lived in  the valleys along the Bulkley and Morice Rivers in a  20-mile zone along both sides of Morice Lake, Morice  River, junction of the Bulkley northerly along the  Bulkley to its confluence with the Skeena.  What we say, my lords, is that the Gitksan and  Wet'suwet'en certainly occupied, possessed and we  submit owned the lands described by the trial judge.  No contest there.  But they did so for reasons quite  different from those adopted by him.  For example,  there is no principle that can be garnered from the  evidence that the ancestors of the appellants only  possessed land 20 miles from their principal villages  because that's as far as they could walk in one day.  It is true that the people were present along the  rivers and used the valleys and waters of the rivers in  their territory between the villages, but not only  because of use; rather, because there was a system in  place which organized and permitted the people to be  there, and once there enjoined them to husband the  resources according to their laws.  Now, my lords, I take you to 646, and basically  what is the heart of the evidence that we are advancing  is that the facts supporting the appellants' ownership  of their territory in 646-9A and 9B we say apply  equally to the land excluded by the trial judge in the  north and south as to the area defined within his map  5.  So in essence what we say is that in terms of his  map 5, in terms of the rights asserted by the  appellants in this action, the determination of the  brown shaded area is without principled reference to  the underlying facts which support the appellants'  rights both for the included territory and the excluded  territory.  J.A.:   Am I not right in saying that there aren't  village sites in the area that the Chief Justice  excluded?  Am I bringing you to this before it's an  appropriate time?  No, my lord.  I anticipated the question --  J.A.:   Of course. 900  Submissions by Mr.  Rush  1 MR. RUSH:   -- that territories are related to villages.  2 LAMBERT, J.A.:   That's, as I understand it, part of the Chief  3 Justice's reasoning.  4 MR. RUSH:   It was —  5 LAMBERT, J.A.:   Yes.  6 MR. RUSH:   -- part of his reasoning; erroneously, we say.  7 LAMBERT, J.A.:   Oh, of course.  I understand you.  8 MR. RUSH:   For the simple proposition that each of these  9 villages are located around critical watersheds.  And I  10 ask your lordships to be mindful of the claim made by  11 the Kispiox people to Laurier in 1924.  "We claim 70 to  12 100 miles up the Kispiox River."  These village sites  13 are located where there are watersheds that permit the  14 movement of people to their territories in the north  15 and in the south.  16 And in my submission, my lords, the finding that  17 territories were necessarily related to the village  18 sites belies the evidence that the social system was  19 organized around house territoriality.  The evidence  20 did not relate that it was the territory 20 miles  21 around Gitanqasx.  The evidence was that chiefs whose  22 origins were from Gitanqasx or whose present day  23 location was Kisgegas or Kispiox, that those chiefs had  24 house territories within their clan that were related  25 to them through their histories and their crests along  26 historic watersheds.  And that's the point.  That's why  27 we place, my lords, the Kitwancool site -- although not  28 part of the claim, it is clearly at the base of the  29 watershed that moves north to the Miziadin Junction,  30 which is a part of their claim.  31 I say with respect, my lords, that his lordship's  32 findings centering the territories around villages is  33 simply in complete discord with the evidence that was  34 called in this hearing.  And what I say is that yes,  35 there are villages and yes, there is some relationship  36 between territories and villages, but the system upon  37 which the territory is based is not a village system.  38 We ask you to look, my lords, at 647, the types  39 of evidence that we called in relation to the  40 determination of where the territories were located.  41 We set out in 647 that there were basically four types  42 of evidence that are relevant to the kind of  43 consideration that should have been embarked upon by  44 his lordship but was rejected for the many reasons that  45 we have attempted to refute.  And they are that the  46 names of places and topographic features throughout the  47 entire territory are in the Gitksan and Wet'suwet'en 901  Submissions by Mr.  Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  languages.  We say that in addition to that, the  presence of the people in the territory is throughout  the entire territory and not in the brown shaded area  of map 5, similarly with respect to oral histories and  declarations of ownership, and on the declarations of  ownership I have made submissions to you as to  reputation evidence.  Perhaps I will just complete this  point, my lords, and then follow to the adjournment.  We say that these four types of evidence are the  kind of evidence to which a court would reasonably turn  to decide what specific land was the subject of  aboriginal rights of an oral society.  We make the  obvious point that there weren't any deeds.  The type  of evidence and the standards of evaluation pertaining  to deeds should not be required of a non-literate  society.  It is the best evidence which counts and that  was presented here.  And the evidence in each one of  these categories, we say, establishes the appellants'  rights of ownership to the whole of the territory  claimed in 646-9A and 9B.  Thank you, my lords.  It's a convenient time to  break.  TAGGART, J.A.:   All right; 15 minutes.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  MORNING RECESS  THE REGISTRAR  TAGGART, J.A.  MR. RUSH:  Order in court.  Yes, Mr. Rush.  Notwithstanding you, my lords, if you will bear with  me, I am going to be making my submissions on the  territories for the next 20 minutes, so by force of  necessity I am going to be truncating the submission  and directing you to the highlights of it.  I will first take you to paragraph 650 and just  ask you to note the proposition here that places and  topographic features throughout the territory were  identified in the evidence by the Gitksan and  Wet'suwet'en names.  These sites were known to the  appellants and to the ancestors by these names.  The  places, the place names marked and described variously  activities, events or physical features on the ground.  I want to just take you to 653 and I only ask you  to note, my lords, that there is an error in 653 that  the reference point is to a river, not to a ridge, and  the river is called Xsauwhl Xsagangagsda; that is, the 902  Submissions by Mr.  Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. RUSH  LAMBERT,  MR. RUSH  word which should precede it is "X-s-a-u-w-h-1", and  that is the place where the murder of the elk occurred,  if you'll just make the note of that change.  That's  borne out in the reference at 653.  Then I ask you to follow along with me, my lords,  to 655 and just note that the place names that I'm  talking about here were mapped as part of of the  preparation of the final maps here.  And for your  reference, composite maps which contain the place names  that I'm referring to are set out here, Exhibits 1007  and 1011.  These names were also recorded in part, in major  part, in the territorial affidavits, if you will make a  note that those affidavits are found at Appendix H.  Then I take you to 658, and at 658 you will see a  number of examples of the kind of Gitksan and the type  of Wet'suwet'en name.  I just ask you to take note of  D.  Miin Lax Mihl is the name for an area on the east  side of the Nass River.  In Gitksan it means "the foot  of the burn".  That is an area excluded by the trial  judge.  I make the point, my lords, at 659, that where the  names are, so were the people.  And there were over  2,000 Gitksan and Wet'suwet'en names for features and  places in the appellants' land.  The names in the  Gitksan and Wet'suwet'en languages are throughout the  territory excluded by the trial judge.  And this is  where, if we had the time, my lords, I would  demonstrate by both what I would refer to you in  Appendix H and as well the map which I've provided to  your lordships here, that the names are throughout the  area excluded by the trial judge.  I would ask you to  note, my lord, beside 659 that Appendix H is a list of  the names in Gitksan and Wet'suwet'en of topographic  and physical features.  For example, the first one is  Aak Tselasgwit.  It's identified as a canyon.  It is  described as an unnamed canyon but is locally known as  Four Mile.  It tells you the territory that it's in; it  tells you the chief;  exhibit number and the  affidavit.  So I ask you simply to note that here is a  compendious list of both the Gitksan and the  Wet'suwet'en names by reference to the affidavits.  J.A.:   That's in tab 9 of Volume 2?  No, my lord, this is at tab H, Volume 3.  J.A.:   Tab H, Volume 3.  And I should point out to your lordships that in  addition to those two lists, evidence was given at 903  Submissions by Mr. Rush  1 trial -- for example, from Alfred Joseph, who proved  2 his territory by direct evidence rather than through  3 the affidavit medium -- as to physical places and names  4 in Wet'suwet'en.  So there are, in addition to that  5 list, other names in the Gitksan and Wet'suwet'en  6 languages.       Then as I move through this argument I  7 just ask you to note at 662 that there were names which  8 delineated boundaries and described boundaries; at 669,  9 that there were Wet'suwet'en names for directions.  I  10 ask you to note at 673 that here are two territories  11 described by Mr. James Morrison that are outside of the  12 area that was defined by the trial judge.  13 Then Mr. Richard Benson, he's describing a land  14 feature which is in a territory, Wii Goob'1 territory,  15 at paragraph 674, outside of the trial judge's brown  16 shading.  17 And then our second major point to demonstrate  18 proof of ownership is presence of the people in the  19 territories.  And we say that the evidence supports the  20 conclusion at paragraph 676 that prior to 1846 the  21 Gitksan and Wet'suwet'en people were everywhere on  22 their territory and they were not roaming around by  23 instinct.  Rather, they were organized around hunting,  24 trapping and fishing activity and general resource  25 utilization according to house allocation of land.  26 Then what I've done, my lords, is to set out in two  27 sections Wet'suwet'en lands which the trial judge  28 excluded, and then running from 678 are a number of  29 examples.  First at 679 is historical evidence of  30 Father LeJacq in 1869 placing Wet'suwet'en people at  31 Francis Lake, and so on in the historical record.  32 There are various accounts in that record running over  33 to page -- excuse me, to paragraph 685.  34 Then I ask you to note that at 686 archeological  35 finds running from paragraph 686 through to 687 were  36 placed before the trial judge and not mentioned by him  37 in the course of his judgment, which demonstrate that  38 there was presence at various places outside the area  39 excluded by the trial judge leading to an inference  40 that in fact it was the Wet'suwet'en presence.  41 Then at 688 I draw your attention to the fact that  42 there was harvesting of resources on the Wet'suwet'en  43 house territories.  44 LAMBERT, J.A.:   Sorry, could I just stop you at the  45 archeological findings?  If we wanted to see in the  46 evidence what they were, you've given a reference to  47 Exhibit 845, for example -- 904  Submissions by Mr.  Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:   Appendix C, page 2, yes.  LAMBERT, J.A.:   Yes, and that's a compilation there of all the  archeological evidence there relating to --  MR. RUSH:   That's right.  This is a distillation of what's there  at that site, that's correct.  LAMBERT, J.A.:  Good, thank you.  MR. RUSH:   Similarly with the other points.  Again, my lords, I just ask you to proceed from  paragraph 688, references to Goosley Lake, and I'll be  coming to that in a moment.  That's an excluded  territory.  Similarly at 691 we have Uncha Lake, a  territory described by Mrs. Elsie Quaw.  That's outside  of the trial judge's boundary.  Again at 693 we have Pack Lake, the Knedebeas  territory.  Again that's south of Mr. Alfred Joseph's  territory and it's excluded; similarly running all the  way over to page 283.  Then, my lords, commencing at 697, this section  follows a similar structure as the Wet'suwet'en  section, showing again here that there is ample  evidence disregarded by the trial judge demonstrating  Gitksan presence and names and so on on territories  excluded by the trial judge.  Again at 699 we begin with the historic evidence;  700, Blackwater Lake.  Reference is made at 701 to the  headwaters of the Skeena.  The headwaters of the  Skeena, of course, reported by Loring are at the very  top of this map in the Geel and Kliiyem lax haa  territories.  I ask you to take particular note, my  lords, of a comment I directed you to, Ashtown Green at  paragraph 703.  This supports the point I was making  earlier to your lordship Mr. Justice Lambert, that the  village sites were located at the base of -- or at the  point of a drainage basin or a river system.  And at  the top of 285 Mr. Green notes that:  "The Indians tell me there were many other  hunting lodges from 70 to 100 miles up the  Kispaiax River -- "  The village of Kispiox being at the juncture of the  Skeena and Kispiox at the south end.  "... all these places were formerly used by the  Indians in the winter when trapping, and that  they are really part of the hunting territories  and berry picking mountains to which they still 905  Submissions by Mr. Rush  1 lay claim."  2  3 And the areas or the territories encompassed by the  4 area described by Mr. Green are set out in paragraph  5 7 04 and we run through them beginning with Ma'uus right  6 up the river -- from the village of Kispiox up the  7 Kispiox River.  8 I'd ask you to go to 707, the evidence of Neil  9 Sterritt Sr., carrying the name of Wii Gaak, of his  10 territory north of the Sustut River, and he discusses  11 how he and his family got there and where he was.  And  12 I'd ask you just to run through the next few  13 paragraphs. Red Creek is on the northeast, Fort Creek  14 and so on.  All of these territories running from 708,  15 712, right through to 719, my lords, these are all  16 territories which are part of the northern territorial  17 group of the Gitksan people which were excluded by the  18 trial judge based on his what we say is an erroneous  19 view of the factors which determine the territorial  20 extent of the rights of the people.  21 Then at 720, my lords, we have the third of the  22 major propositions which we advance, and that is that  23 the oral histories themselves are a direct source of  24 knowledge of ownership of the land by the Gitksan and  25 Wet'suwet'en.  And had they be examined by the trial  26 judge for that purpose he would have found that they,  27 too, make reference to geographic territories as well  28 as identifying geographic locations.  And that point we  29 make at 721.  30 We say that the oral histories are, for an oral  31 society, similar to a deed of land in a written society  32 and should be accorded the same recognition.  33 Then, my lords, you have heard submissions with  34 respect to the way in which the oral histories identify  35 places and events in territories, territories owned by  36 present day Gitksan and Wet'suwet'en chiefs, and Mr.  37 Grant has made submissions to you on that.  We parallel  38 some of that evidence running from paragraph 722 right  39 the way through to 739.  And I'll just ask you to note  40 one change which is at 733; that is that the oral  41 history of the Goosley territory is told by Alfred  42 Mitchell, not Emma Michell.  43 Then we are on to our last point, my lords, which  44 is at page 298 and paragraph 740, here a proposition  45 that I advanced in respect of our reputation argument.  46 We say that ownership of particular territories was  47 proved at trial by both direct and reputation evidence, 906  Submissions by Mr.  Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  LAMBERT,  MR. RUSH  LAMBERT,  and we say that the three occasions on which reputation  evidence would be admissible would be where there were  declarations of ownership by witnesses who were  physically present on the territory or who were in a  feast when the territory was described and finally in a  feast by the telling of an oral history.  Then, my lords, we go through and indicate in what  way these declarations of ownership were made.  And I  ask you to note the argument that is advanced in 741  and 742.  Then running from 743 to 758 we provide  examples in the evidence where witnesses told how  declarations of ownership of tracts of lands were made  and confirmed and validated in the feast.  These  examples are in respect of territory outside of the  trial judge's map 5 line.  And I can give you -- I'll  take you to one example which is at 747.  This again makes the point about the relationship  of a watershed to the village site.  The trial judge  excluded a significant part of the territory of the  Gitksan house of Gyolugyet from the territorial map.  And I can tell you, my lords, that the portion of the  territory of Gyolugyet is at the northwest end of this  map that I have provided to you.  At 747 we note that  this territory was described at the funeral feast for  Marion Jack in 1959.  The particular watershed  locations which together encompassed the entire  territory were described at this succession feast,  including -- and I will give the English names --  Shanalope Creek, Kuldo Creek, Saaniskoot Creek and then  Shaaladamus Creek, Nass River near Mike Creek.  I pause to note, my lords, that if you see the  relationship between Kuldo, old Kuldo, and Gyolugyet,  Gyolugyet is a Kuldo chief.  She takes her derivation,  her historic derivation, from old Kuldo.  And you'll  see that old Kuldo once again is at the foot of Kuldo  Creek, which runs north up through her territory, up  Gyolugyet's territory in the south, the second  Gyolugyet and the third Gyolugyet all managed by  separate chiefs of her house.  J.A.:   I wonder if you could explain to me what you  mean by particular watershed locations.  What does  "watershed" mean?  In the sense, my lords, that there is a relationship  of a village site to territories based upon river  drainages, drainage systems.  J.A.:   When it says Shanalope Creek, what you are  meaning is the area covering by the range of mountains 907  Submissions by Mr.  Rush  1 which drain into Shanalope Creek.  2 MR. RUSH:   Yes.  Shanalope Creek, I'm not — this map  3 unfortunately doesn't help us as to where its precise  4 location is.  But it drains out of a mountain range and  5 I believe it is -- well, I shouldn't say.  I can't  6 recall whether it's the east or west range on Kuldo  7 Creek, but it would drain the mountain range and it  8 would run down into one of the other major river  9 systems.  10 LAMBERT, J.A.:   And the house territory, the house territories  11 as on this map would therefore tend to be defined by  12 the crest of a range of mountains?  13 MR. RUSH:   Yes, my lord.  The features which define territories  14 tended to be mountain ridges, tended to be major water  15 routes, tended to be mountains and mountain slopes,  16 tended to be ridges.  All of these types of features  17 constituted the physical topography which would define  18 a particular territory.  19 In this case you have Gyolugyet's territory being  20 defined in terms of these watersheds, and these  21 watersheds, of course, would run to a ridge line or the  22 top of a mountain.  23 The boundary, for example, of the southern  24 Gyolugyet territory, and you can see it -- well, it's  25 very difficult to see.  At the point where Kuldo, at  26 the point where old Kuldo is located, is Kuldo Creek,  27 and it's called in Gitksan Xsagangagsda.  28 I just ask you to take notes note of the various  29 types of expressions by various witnesses having heard  30 validated in the feast hall territories and territorial  31 descriptions, and that runs through both Gitksan and  32 Wet'suwet'en witnesses and this takes us over to 758.  33 My lords, I state our conclusion at 759, that the  34 description of the territories together with the  35 recounting of names and geographic landmarks of feasts  36 of the Gitksan and Wet'suwet'en, we say, proves what  37 land is owned by the houses, that is to say, subject to  38 the appellants' rights of title.  The fact that people  39 are still describing particular tracts of land in the  40 four corners of the territory, which is the land  41 described by the Bay employees when they first  42 encountered the appellants' ancestors in 1822 and the  43 fact that their descriptions are made using names of  44 places in the territory which appear in the oral  45 history and in the written documents, and the fact that  46 these accounts coincide with the areas from which  47 resources were taken by the work of people on the land 908  Submissions by Mr. Rush  1 we say establishes that this land was the territory  2 owned by the appellants' ancestors in 1846.  Our  3 ultimate conclusion is that it remains subject to their  4 aboriginal rights today.  5 Now, what we have done, my lords, is to take at  6 paragraph 760 one example of one territory, the Goosley  7 territory of Namox, to highlight it, to demonstrate  8 that as one territory excluded by the trial judge, it  9 demonstrates how wrong the trial judge was in his  10 assessment of the evidence that was available to him to  11 determine that this was a territory subject to the  12 appellants' rights.  13 I just want to show you, my lords, that where this  14 territory is located on this map we are talking about  15 the Namox territory.  Namox is located here.  It is  16 just to the right of the designation "winter camp", the  17 McDougall map.  When you compare the location on this  18 map of Namox to his lordship's brown shaded map in map  19 5, you will see that the Namox territory is outside of  2 0 his map 5.  21 What we say, my lords, is that Goosley Lake, which  22 is the name for the Namox territory, is one of 34  23 territories or parts of territories excluded by the  24 trial judge, and I'm at 760 of the factum.  And this  25 territory is located in the middle of what we say are  26 excluded Wet'suwet'en territories.  We note that this  27 is a particularly strong example, and we say that the  28 evidence for the other territories was sufficient to  29 warrant their being included in what we say is within  30 the external boundary of the territories.  31 My lords, I just ask you to note that in respect  32 of this one territory there were three witnesses who  33 testified about it at paragraph 763:  Alfred Michell,  34 Dan Michell and Emma Michell.  I can tell you that Dan  35 Michell is the son of Emma.  Alfred Michell is Dan's  36 cousin.  And Dan Michell at 764 explained why the  37 territory belongs to his house.  He says:  38  39 "... it's been handed down from generation to  40 generation.  Every time, you know, like,  41 another head chief passes on, then it -- the  42 successor has to bank up material and meat for  43 the feast, get ready for the  feast to take  44 over the name.  It usually takes about three  45 feasts, I think, before it's completed."  46  47 I just want to emphasize the point that's made by Mr. 909  Submissions by Mr. Rush  1 Michell's evidence here, that the relationship of the  2 land and the products from the land are integrally  3 related to the feast and the feast is the institution  4 through which the territoriality is passed and the  5 system is maintained.  6 Firstly, in relation to the various categories or  7 types of evidence that bear on what territory zone, we  8 note the oral history.  I ask you to look at 765, where  9 the crest of Namox House is the beaver.  And the  10 importance of that is that this crest links the house  11 to the Goosley territory.  And the people know that in  12 the community.  13 According to the oral history of Kweese, the other  14 chief of the Tsayu clan, which is the clan to which  15 Kweese and Namox belong, the beaver crest originated  16 with the Kweese raid on the Haisla people at Kitimat  17 and has been handed down generation to generation.  The  18 oral history confirms that the territory is owned by  19 Namox.  That again goes back to -- that goes back to  2 0 time immemorial.  We don't even know how long it's  21 been.  It's been for ages.  22 Important, my lords, is the evidence of Dan  23 Michell here about the sacred footprints in the ground  24 at Goosley lake.  The trial judge was taken and shown  25 these footprints.  I want to ask you to note that at  26 767 of your reference book, there is a photograph.  27 This is R-15, my lords.  I won't take you to any of the  28 references here, but this is significant in terms of  29 the importance of this particular territory to the  30 Namox people in that these particular footprints are  31 considered by the Namox and Wet'suwet'en people to be  32 sacred in the sense that they were placed there by the  33 creator and that they have a special property; namely,  34 that nothing grows in them.  They are recessed, as you  35 can see by the photograph here, about four inches into  36 the ground.  And about them the importance for Dan  37 Michell, my lord, is set out in this paragraph.  38 They have a particular geographic and physical  39 importance in the sense that he says:  40  41 "... it's something that our people, like I've  42 said, that they are part of the land, like I  43 said before, and this is one way they know,  44 like them days they don't have no calendar or  45 time piece -- "  46  47 So this is what tells them when it's time to go back to 910  Submissions by Mr. Rush  1 Moricetown for fishing.  These were people living in  2 the Goosley territory and how they knew that, he says:  3  4 "When they start off, when the sunrise is over  5 the certain mountain when -- "  6  7 standing in the footprints,  8  9 "-- they're facing it, and then they know it's  10 time to go back, and they get back in time for  11 fishing back in Moricetown."  12  13 And it is in this place where one stands and looks to  14 the mountains and determines when the sun rises through  15 a particular valley formation that the people knew it  16 was time to return to there village in Moricetown for  17 summer fishing.  18 My lords, at 768 Alfred Michell — Mitchell, and  19 it's important to note that Alfred Mitchell was on the  20 father's side, if you will.  He did not have rights as  21 a house member to be there, but he was given those  22 rights by permission to hunt and trap there because his  23 father was a member of this house.  And his father was  24 Big Tommy Mitchell and it was Big Tommy Mitchell who  25 pointed out the boundaries and landmarks to his son  26 Alfred.  And Alfred testified extensively about his  27 knowledge of the territory.  28 At 769 Dan Michell talks about his first  29 experience there.  And these are men, my lords, in  30 their fifties and sixties.  Only Emma is the preceding  31 generation.  Dan talks about the teaching that he was  32 exposed to and how he was told to respect the animals  33 and the territory.  34 At 770 I note that, if I can call it that, the Dan  35 Michell family and the Alfred Mitchell family divided  36 up or allocated different parts of this territory for  37 use by different family groups of the same house.  38 Then, my lords, I take you over to 772 and I ask  39 you to note here that Alfred Mitchell in his testimony  40 went through 33 geographical features and described  41 them in their Wet'suwet'en name.  And why did he do  42 that in this way?  And it's pointed out in the second  43 of these two passages.  He said:  44  45 "Like I said earlier our ancestors they didn't  46 have maps like this.  My father walked around  47 with me in this area.  That's how I know the 911  Submissions by Mr. Rush  1 hills, creeks, and all the lakes.  Our map --  2 ancestors' map is in their head.  Not like this  3 one here.  That's how I know.  I didn't learn  4 this territory boundaries by map, I learned it  5 by my father."  6  7 And, my lords, what follows from 733 on, and I will ask  8 you to look at a number of the photographs here, is  9 that Alfred Mitchell, in effect, walked the court  10 through various parts of this territory by reference to  11 a map Exhibit 184, and that's at 773, and photographs  12 of the various topographic features which he was taught  13 about.  You can see at 774 the description of one.  14 At 775 there is another area, C'ass'an, and that's  15 shown in Exhibit 196.  Similarly at 776 there are both  16 photographs and references to the sketch map where he  17 is identifying a place on the ground by its  18 Wet'suwet'en name.  It's in the photograph and it's  19 shown on the sketch map.  Similarly at the bottom, my  20 lords, 779, Dan Michell, subchief in the Namox house  21 corroborated the boundary in the sketch map.  I just  22 ask you to note another change here at the bottom of  23 779.  24 Dan was trained about the boundaries by the elders  25 of the house including Lucie Namox, and you should add  26 the word "and" his mother.  His mother is Emma Michell.  27 Now, my lords, I'm just going to ask you to turn  28 to 784, and I'm still on R-15.  And if you'll turn to  29 784, my lords, there is a photograph of Sam Goosley  30 Lake.  This is the central feature of the Namox  31 territory.  And what I want to direct your lordships  32 to, if you'll just carry on through the reference pages  33 at this point, I want to direct your attention to the  34 photograph which is one reference further along.  It's  35 Exhibit 202.  This is -- my lords, I ask you to take  36 note -- this is Alfred Mitchell in sunglasses here in  37 the front of this photograph with another Gitksan  38 chief.  And this is the Alfred Namox who held the Namox  39 name, his cabin, built in the 1930s.  And his whole  40 family lived in this cabin, including Pat Namox, John  41 Namox, Sarah Tate.  As I said, the other side of the  42 family, the Alfred Mitchell family, lived there as  43 well.  44 What's important about this in terms of this being  45 an encampment, or, as the Wet'suwet'en people prefer to  46 call it, a Wet'suwet'en village, is the fact that as  47 you move along through the photographs on the next page 912  Submissions by Mr. Rush  1 you'll see another photograph of the cabin.  But I want  2 you to turn to the next following photograph, which is  3 Exhibit 204, which is a smokehouse that was built  4 adjacent to the cabin for smoking fish and meat.  And  5 then there is another photograph of Alfred Mitchell  6 beside a sweat house which is built into the ground,  7 and the formation is the top of the sweat  8 house in the location of the house at paragraph 202.  9 And then, my lords, that house has been replaced  10 by a more modern structure, and that's to be found at  11 Exhibit 785.  I just draw your attention to the fact  12 that this is the present day house that was built for  13 utilization of the resources in this territory by the  14 family members there.  Actually, as you move through  15 these tabs, my lord, there is another photograph  16 showing that beside this house is one that it replaced.  17 I ask you also to note that on the map 184 there  18 is, by reference to darkened triangles, both main house  19 and old cabins located on the territory and they are  20 shown as part of the legend of this territory.  21 My lords, I'll conclude by simply saying that at  22 the beginning of paragraph 790 we indicate how the  23 territory was used for hunting and which kinds of  24 wildlife are on the territory, how the territory has  25 been used for recreational purposes.  I'll ask you to  26 note that Emma Michell described the route that was  27 travelled by her and her family in the days before  28 vehicles, where they walked to Decker Lake and and then  29 from Decker Lake they proceeded along the Bulkley River  30 Valley to Moricetown.  31 At paragraph 797 I point out the authority that  32 was exercised by Dan Michell, who is, I should point  33 out, the successor to the name of Namox, the designated  34 successor, that is.  And I draw your attention to the  35 fact that at 803 this evidence, in our submission,  36 shows that the Goosley territory is particular land  37 owned by the Namox house, yet this territory was  38 excluded, notwithstanding all of this evidence, by the  39 trial judge in his determination.  40 So with that, my lords, I will conclude my  41 submissions on the territoriality.  And the fact that I  42 haven't taken you to a particular reference is by no  43 means an indication of its lack of importance.  I would  44 ask if you are concerned about particular references,  45 that you direct your attention to the specific  46 reference point in the reference books.  47 I will ask Mr. Grant to begin the next 913  Submissions by Mr. Grant  1 submission.  2 MR. GRANT:  My lords, my submission is related to the questions  3 raised by his lordship Mr. Justice Macfarlane last  4 week, specifically with respect to the question of the  5 applicability of the laws as indicative of the exercise  6 of jurisdiction throughout the territory.  At the top  7 of this I would ask that possibly arrangements could be  8 made at the break, or whenever, that this would go in  9 as an addendum to the appellants' factum at tab 4,  10 paragraph 414.  I will subsequently provide you with a  11 small reference book referring to the references that  12 are cited here, and I'm not providing you with that now  13 as I don't see it as necessary.  14 TAGGART, J.A.:   Tab 4.  15 MR. GRANT:   Tab 4, paragraph 414.  If I could just start my  16 submissions at paragraph -- this also, for your  17 cross-referencing, was raised by his lordship Mr.  18 Justice Macfarlane on May 13th while I was arguing the  19 issue of self-government.  20 As I perceive the question your lordship raised,  21 it was whether there is evidence of law as applying to  22 the Gitksan and Wet'suwet'en people throughout the  23 territory which the trial judge disregarded or failed  24 to appreciate.  And I quote from the May 13th extract  25 at paragraph 2, the last paragraph there:  26  27 "... the evidence doesn't go far enough to say  28 that all of the chiefs of all of the Houses and  29 all of the territory were of one mind as to the  30 laws as to who owned what and the laws which  31 would apply on the territory."  32  33 Arising out of this inquiry, your lordship  34 questioned whether the trial judge gave the feast any  35 less significance than the appellants did.  We submit  36 that the appellants and the trial judge did not give  37 the feast the same significance.   The trial judge,  38 with respect, ignored the feast as a central  39 institution with respect to, and I quote, "the role it  40 had in the management and allocation of lands," and  41 that is what is key here.  By this finding he  42 disregarded the evidence of the feast in its most  43 significant aspect for the purpose of the issue before  44 the court, as an institution in which Gitksan and  45 Wet'suwet'en laws with respect to the land are  4 6 implemented and enforced.  47 Your lordship also referred to the trial judge's 914  Submissions by Mr. Grant  1 reliance in an actual citation from Mr. Sterritt and  2 the plaintiffs' final argument, which suggested a basis  3 for his conclusion that there were no universal Gitksan  4 and Wet'suwet'en laws.  At the end of this submission  5 I'm going to deal with that.  6 The first point I wish to make is that there are  7 laws among the Gitksan and Wet'suwet'en that apply to  8 all the people and in respect of all the territories.  9 I cite there, at the end of the section on aboriginal  10 jurisdiction or sovereignty in the reasons, and I will  11 not quote it all, the trial judge stated:  12  13 "It became obvious during the course of the  14 trial that what the Gitksan and Wet'suwet'en  15 witnesses describe as law is really a most  16 uncertain and highly flexible set of customs  17 which are frequently not followed by the  18 Indians themselves."  19  20 Then he says:  21  22 "In my judgment these rules are so flexible and  23 uncertain that they cannot be classified as  24 laws."  25  26 Then he goes on, and on the top of page 3 of my  27 submission he states:  28  29 "... but they had little need for what we would  30 call laws of general application."  31  32 He refers to this, and what I say and I said to your  33 lordships last week is that really, when you look to  34 his findings on what is the system of the appellants,  35 it is at pages 371 and 372 of his reasons where he  36 answers each of the points in paragraph 57 of the  37 statement of claim.  And, of course, on the laws he  38 said:  39  40 "... I am not persuaded their ancestors  41 practised universal or even uniform customs  42 relating to land outside the villages."  43  44 Now, with respect to the trial judge this is a fatal  45 flaw and I am going to come to the problem that he had.  46 And it's indicative of the problem when he disregarded  47 certain types of evidence that we have argued he should 915  Submissions by Mr. Grant  1 not have.  But the point we make is that we submit that  2 at the relevant date of 1846, the laws were in place  3 and applied throughout the territory that Mr. Rush has  4 demonstrated, we say, is the one on the map,  5 appropriate to the nature of the Gitksan and  6 Wet'suwet'en kinship societies which possessed and  7 occupied those territories.  8 The trial judge erred in looking for a central  9 institution of laws rather than a kinship society.  He  10 asked himself the wrong question.  To begin the inquiry  11 as to whether there were universal laws governing the  12 Gitksan and Wet'suwet'en people in their territories,  13 by asking whether there was a leglislative body capable  14 of decision making and created at a single moment or by  15 a single act and, as your lordship raised, one mind as  16 to the laws is to ignore the particular nature of the  17 kinship societies of the appellants and the laws in  18 those societies.  19 We submit that judges, when assessing the nature  20 of aboriginal society, must not utilize European  21 concepts of law to determine if the aboriginal society  22 has any laws any more than you would use European  23 property concepts to determine the nature of the  24 proprietary right.  25 The trial judge, in his examination of the  26 evidence, was looking for a counterpart to a central  27 institution for the making of laws of general  28 application.  29 Now, you see, your lordships, if you consider this  30 carefully, as to the questions raised to Mr. Rush this  31 morning we always -- and it's natural for us -- try to  32 understand something we can't understand in the context  33 of something we do understand.  So, for example, with  34 territories, the trial judge -- it was easier to deal,  35 and it is easier in a western thinking, how we think,  36 to deal with a central focus such as a village, the  37 village as a central unit.  38 The problem that arises, as Mr. Rush showed in the  39 Namox territory, is that the Wet'suwet'en, for example,  40 their organization is such that they are out on the  41 land most of the time, the Namox territory at Goosley.  42 So the village theory doesn't work.  And that's why you  43 have so much of their land and the territories, the  44 houses.  Similarly with the laws.  45 There is no compendium of laws in Gitksan and  46 Wet'suwet'en societies comparable to the laws of the  47 Europeans.  There is no parliamentary body. 916  Submissions by Mr. Grant  1 As the Commissioners of the Manitoba Justice  2 Inquiry said, though -- and this is the closest  3 analysis that we can look at where justices of this  4 country have had to try to analyze what do we do about  5 these laws -- they say:  "No society can exist without  6 laws."  One would consider, prior to this judgment,  7 that that would be obvious.  8  9 "Laws grow from the customs, traditions and  10 rules of a society of people.  They exist to  11 inform people what that particular society  12 considers to be acceptable and unacceptable."  13  14 Now, the trial judge considered certain laws, and I'll  15 come to them, but here, of course, keep in mind -- I  16 ask you to highlight this paragraph -- when we are  17 looking at the laws relating to the land and the  18 management of the resources.  19 Now, Dr. Daly, one of the anthropologists that the  20 judge said he did not need to consider, relied on  21 Marshall Sahlins, a renowned anthropologist and the  22 author of a seminal work, I would say, Tribesmen, or a  23 major work, to explain the nature of kinship societies  24 and, in particular, the Gitksan and Wet'suwet'en  25 societies.  This quote, by the way, my lords, is Dr.  26 Daly's quote after referring to Sahlins; as you can  27 see, extracts from Tribesmen are referred to.  Sahlins  28 in fact talks specifically about the northwest coast  29 societies as an exceptional tribal type society because  30 of the salmon resource.  But I will take you to what  31 Dr. Daly has highlighted, that:  32  33 "... peace keeping is reflected in this too,  34 because there is no over-arching system of  35 authority.  There is no police force.  There is  36 no standing army.  There is no hierarchy of  37 authority figures to keep the peace who are  38 above the sectional interest of the groupings  39 at a lower level."  40  41 A common question you may be referred to by the amicus  42 or Canada to witnesses was:  Who is the head chief of  43 your village?  Who is the one chief?  And they kept  44 saying, "Well, there is this for the Fireweed and this  45 for the Wolf."  There was no one chief for the  46 village.  The hierarchy does not work within this kind  47 of society, and that's what Dr. Daly tried to explain. 917  Submissions by Mr. Grant  1 And he explained the distinction between the  2 appellants' kinship societies and the state society.  3  4 "In the Canadian society, function-specific  5 institutions abound -- there are specific  6 bodies for dealing with marital, economic,  7 welfare, political, spiritual and other  8 affairs — "  9  10 And, of course, as we know, legal affairs.  11  12 "This is not so in the Gitksan and Wet'suwet'en  13 social systems.  In these systems we find  14 institutions which deal simultaneously with  15 many aspects of social life.  The system of the  16 matrilineal House groupings is one such  17 institution.  The House is family-oriented; it  18 is economic and political; it deals with the  19 socialization of children, with social welfare,  20 with the storage of information, and so on."  21  22 And I say there, when he's talking about dealing with  23 the socialization of children, that includes the  24 training and the laws of the societies.  25 The passages I have already cited to your  26 lordships from the Aboriginal Justice Inquiry  27 demonstrate that these laws in kinship society are of a  28 different order.  But I am now taking you to another  29 quote which I do not believe I cited last week to help  30 in answering this question:  31  32 "Law in an Aboriginal community was found in  33 unwritten conventions before the arrival of  34 Europeans.  Although these rules were never  35 codified, we observe that there were consistent  36 patterns in the treatment of such matters as  37 relations with other nations, family problems,  38 and disputes about behaviour and property."  39  40 This is key to looking to where the laws relating to  41 land are, this next statement:  42  43 "These patterns became part of aboriginal oral  44 tradition and were passed from generation to  45 generation."  46  47 I say the evidence establishes clearly that was the 918  Submissions by Mr. Grant  1 case with the Gitksan and the Wet'suwet'en.  2  3 "One can easily speak about these patterns in  4 terms of 'law' and 'justice'."  5  6 Then the commission deals with the same problem that we  7 even see when we look at the anthropological analysis:  8  9 "... Scholars have sketched a picture of  10 hunting-based and agriculture-based societies,  11 of trade and of material culture that  12 demonstrates how effectively they adapted to  13 their environment.  The social structures of  14 these communities, however, their politics,  15 diplomacy, and family relations, are less  16 evident."  17  18 And that should be it.  19  20 "It is much more difficult to create a picture  21 of a society in which these people lived their  22 lives.  Our brief description of the customary  23 law that prevailed in these aboriginal  24 communities, drawn from oral histories of the  25 people and written accounts of early contacts,  26 will suffice to underline our conclusion that a  27 separate and distinct legal system existed in  28 pre-contact Aboriginal history."  29  30 What they are saying here is it's hard for us, because  31 we are used to how legal structures are based, to look  32 at the oral histories and say, "Well, where is the  33 law?"  But it is there, just as powerfully and as  34 strongly as the Criminal Code prohibits murder in our  35 society.  36 The trial judge, I would submit, failed to  37 appreciate the evidence of these universal laws.  38 I'm not certain, my lords, if you wish me to stop.  39 TAGGART, J.A.:   If you are going into a new area, could we break  40 now for lunch?  41 MR. GRANT:   Yes.  42 THE REGISTRAR:  Order in court.  Court stands adjourned until two  43 o'clock.  44  45 LUNCH RECESS  46  47 919  Submissions by Mr. Grant  1 I hereby certify the foregoing to  2 be a true and accurate transcript  3 of the proceedings herein, to  4 the best of my skill and ability.  5  6  7  9 Dianne Olsen,  10 Official Reporter,  11 UNITED REPORTING SERVICE LTD.  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 920  Submissions by Mr. Grant  1 PROCEEDINGS RESUMED  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Yes, Mr. Grant.  5 MR. GRANT:  Thank you, my lord.  I was at the supplementary  6 speaking notes on the issue of the laws, and I was at  7 page 6, paragraph 16, and referring to the Manitoba  8 Justice Inquiry again, that the trial judge here  9 repeated the error often made in the past in which the  10 Justice Inquiry warned against, and they describe how  11 there had been a failure in the past.  He said:  12  13 "We cannot continue to ignore the cultures of  14 Aboriginal people and the laws, customs and  15 values they generate.  We cannot keep denying  16 their existence."  17  18 And it says :  19  20 "It must first recognize and respect their  21 cultures, their values, and their laws."  22  23 Now, I paraphrase at paragraph 17 from the earlier  24 quote from the Justice Inquiry, but say that the trial  25 judge failed to perceive a picture of society in which  26 these people, the Appellants, lived their lives, and,  27 in particular, failed to appreciate the Appellants'  28 separate and distinct legal systems which existed in  29 pre-contact aboriginal history.  Now, applied to the  30 Appellants in 1846, the inquiry would have  31 demonstrated, we say, the existence of laws applying  32 throughout their territory to all the Gitksan and  33 Wet'suwet'en.  And, therefore, I repeat, it simply is  34 inappropriate to be looking for a centralized  35 lawmaking body.  36 Now, I refer you to the Nikal decision, which of  37 course your lordships heard argument on in March.  In  38 that decision Mr. Justice Millward, dealing with the  39 Wet'suwet'en fishery right, where the right was  40 clearly reserved within -- in the sense of being at  41 the Moricetown -- that -- and that's analogous of  42 course to the aboriginal right, he had no difficulty  43 in that case in appreciating that the right included a  44 right to manage the resource, and he -- I put the  45 quotation from there, which you have before you, and  46 of course you considered it there.  This is what we  47 submit, a Wet'suwet'en right to manage the fishery. 921  Submissions by Mr. Grant  1 Now, the trial judge, going back to paragraph 19  2 here, that is in this case, conceded there was a  3 social system in place in the pre-contact organized  4 societies inside the villages, and I've quoted some  5 examples there.  6 Paragraph 20 states that chiefs, clans, houses,  7 marriages and "things like that" are the common  8 elements of the social system which he found, but they  9 both require and service as evidence of a system of  10 laws.  The trial judge accepted those elements, and we  11 say chiefs, presumably include suggestion of chiefly  12 names, at least, how else could you have a system of  13 chiefs.  And things like that would presumably include  14 such items such as adoption and divorce, which he  15 didn't expressly comment on but would certainly come  16 within the ambit, yet he disregarded or failed to  17 appreciate the evidence, and this is one of the  18 problems of disregarding and finding he didn't need  19 anthropology, which showed that the laws relating to  20 land and resources were integrally related to these  21 kinship laws.  And I set there the rights of access,  22 the laws of conservation and management of the  23 resources, and dispute resolution to the extent it  24 applies to the land.  And I quote on paragraph 23,  25 where he keeps reiterating at different parts of his  2 6 judgment that the laws -- he couldn't find laws  27 outside the villages.  And what we say, my lords, is  28 that neither society, Gitksan and Wet'suwet'en, can  29 exist as a distinct society without these necessary  30 elements:  The chief, the clan and the house systems  31 throughout the territory.  32 I refer you, as an example, to Heather Harris,  33 which -- whose opinion was accepted by the trial  34 judge.  And she describes, and Mr. Rush referred you  35 to this in the early part of our argument, that they  36 see themselves, that is the members of a house, as  37 being related to all members of the adaawk, which is  38 clans, because they are members of a house which  39 belongs to that clan and have the same major crest.  40 Now, on paragraph 26 I point out that the  41 foundation for the laws governing land and access  42 rights is the crest and the history of the House.  43 There is what's so difficult in our understanding of  44 how this system of laws works, and where the judge  45 again made an error, because, as with anthropology, he  46 disregarded the oral history.  And it's not just that  47 it's history, but it's a foundation for the system of 922  Submissions by Mr. Grant  1 laws.  And I will come back to that in a moment.  2 Going to page 10, and I'm going through this  3 quickly, as you will have it to consider yourselves, I  4 say that among the clans and chiefs, the laws of  5 succession to names and properties is universal.  Now,  6 here is what Miss Harris, who studied the system in  7 terms of the kinship society, here is what she says  8 and shows the integration of the two, that is those  9 laws relating to chiefs and property:  10  11 "When a chiefly title is inherited all property  12 owned by the house is inherited with it.  The  13 primary property owned by the house is its  14 territory or territories and its fishing  15 sites."  16  17 Now, on page -- paragraph 29 I focus on the feast,  18 where the succession is witnessed and validated by  19 chiefs from other clans -- not only from other clans,  20 but also from other villages.  And the last sentence  21 there I say is the critical point.  The critical  22 function of validation can only work, it can only be  23 fulfilled, if both the host clan from a particular  24 village and the witnessing clans from that and other  25 villages have a common point of reference which is the  26 laws of succession.  Everybody knows what's being  27 talked about, who's going to get the name to this  28 territory.  And Stanley Williams, in his -- in his  29 evidence, one of the elders who was born in 1908, he  30 says:  31  32 "Our laws are very, very serious."  33  34 And he refers to the laws in connection with the  35 feast:  36  37 "This is how our law is...It's just like an  38 ancient tree that had been standing there and  39 the roots have been imbedded deeper and deeper  40 into the ground...and this is...this concerns  41 our territory."  42  43 Now, you can see -- I ask you to keep thinking  44 back to what the Justice Inquiry in Manitoba found.  45 It is hard to understand in our context what the laws  46 are.  What Mr. Williams is trying to do here is  47 explain from the pespective of the Gitksan what the 923  Submissions by Mr. Grant  1 laws mean to them in language that we can understand,  2 first of all in the English language, but also from  3 his own training.  The other key element about the  4 significance of the feast, as demonstrative of the  5 laws, is that the evidence, and those are all  6 exhibited and cited at the reference in paragraph 156  7 of our Appellants' Factum, are the seating charts.  8 And when you go to those seating charts, you will see  9 that the different Houses of the Gitksan and the  10 Wet'suwet'en are all represented.  So you have in the  11 far north Kliiyem lax haa, at the same feast as you  12 have somebody from much closer down say to Kispiox,  13 Gutginuxw, and if you look at the seating chart and  14 you compare it -- although that map is better, with  15 the names internally in here, you can quickly see that  16 all of this area is represented within the feast hall.  17 And again, I say that was an error of the trial judge.  18 He couldn't have considered or he couldn't have fully  19 appreciated the evidence in saying that the feast hall  20 didn't deal with the management of land outside the  21 villages.  22 I focus on the training, and I think this is  23 another element that we take for granted, and I can  24 only say, my lords, why is it that in our society a  25 person doesn't steal?  A person is taught as a child  26 not to steal, part of our moral -- yes, there's a law  27 against it, but it's also part of our moral training.  28 Similarly, you have here, how is Dan Michelle, who is  29 in his 60's, how was he taught to conserve and manage  30 the resource of his land.  And I think this comes  31 close to the heart of the concerns raised by your  32 lordship, Mr. Justice Macfarlane, and although not  33 fully satisfactory, because there isn't a code, it's  34 just as effective as the fact that we have a Wildlife  35 Act or Fisheries Act that says we have to have a  36 fishing licence to sports fish.  Dan Michelle said at  37 the bottom of page 11, paragraph 33, when asked "What  38 do you consider your authority to regulate the  39 resources to be":  40  41 "It's always been that way in the past, it was  42 handed down to us by our forefathers.  And we  43 were brought up in this territory that we know  44 that we belong to the land and the land belong  45 to us."  46  47 And I'm skipping down to the bolded area: 924  Submissions by Mr. Grant  1 "That is the reason why we were always taught to  2 respect the land and everything that's in it.  3 You see like even from experience I learn from  4 our forefathers that we are created by our  5 creator, and the land that we live on was  6 created by the creator."  7  8 And he says:  9  10 "And we look after the resources, as I would  11 explain it, like it would be like money in the  12 bank with the white man.  He don't clean it out  13 and get it empty.  He always took care of it  14 and just use so much of it and leave the rest  15 for like safe keeping.  You look after it, eh.  16 You don't kill off all the moose or all the  17 other animals.  You always took just what you  18 need off the land.  And the same thing with  19 berry patches.  They really protect that."  20  21 He then goes into a situation of the laws of where  22 women -- young girls, when they have their first  23 menstruation are not to go in the berry patches and  24 are not to eat fresh meat, and the evidence  25 independent from other witnesses is that went on for  26 their first year of menstruation.  27 Now, I refer you then to examples in paragraph 34  28 of other chiefs.  The point I'm trying to make there,  29 where I refer you to these different examples, is you  30 can go from the far north of Kuldo, all the way out to  31 the western edge of the boundary to Tenimgyet.  And  32 you can go down into the -- and Glen Williams from  33 Kitwancool, and you can go down to the Wet'suwet'en in  34 the Namox territory and in that area, and you find the  35 laws are the same, these different people described in  36 the same way and they're from different communities,  37 they're from different houses, different clans.  This  38 was particularly demonstrated, and I've given you the  39 citations there, I would ask you to make this note  40 after paragraph 35, Mary Johnson at transcript 11,  41 pages 675 to 699, and Olive Ryan --  42 TAGGART, J.A.:  Pages 695 —  43 MR. GRANT:  675, my lord, to 699.  44 WALLACE, J.A.:  That's transcript 11?  45 MR. GRANT:  TR-11, yes, Mrs. Mary Johnson and Olive Ryan, TR-17,  46 pages 1110 to pages 1116.  And I will, as I say, give  47 you a reference book that will match these.  The 925  Submissions by Mr. Grant  1 significance of those two examples is that Mrs. Ryan  2 is a chief of Hanamuxw's House in Kitsegukla, and you  3 can look at your map later and see that down in sort  4 of the south-west part of the Gitksan territory, but  5 it's in the centre of the map, but -- and Mrs. Johnson  6 is from Kispiox, a chief who has territory in the far  7 north.  They both describe in those pages the same  8 oral history, which is the one-horn goat adaawk.  In  9 that there is a major punishment and a famine as a  10 result of complete abuse of the animal.  And they both  11 describe it, they're both trained in it, because  12 they're both from the Fireweed Clan.  It's an ancient  13 origin, and it's part of their training.  And that's  14 what I say is significant, is that these oral  15 histories are throughout this Gitksan territory within  16 the same clan, and then the different clans have their  17 own renditions.  18 I point out at paragraphs 36 and following to the  19 access laws.  And I just point out to you in 39 and 40  20 examples again of people from Kuldo in the far north  21 marrying into Kitsegukla and their rights are the  22 s ame.  23 On paragraph 42 I point out that the trial judge  24 did not comment, he said nothing in -- particularly in  25 the section dealing with laws about dispute resolution  26 and settlement.  But I've given you a cite of Martha  27 Brown, and I point out in the end of paragraph 42, the  28 evidence that both the Stikine, in that case, and the  29 Gitksan, they knew not only the method to resolve  30 disputes, that was giving the land, but also the  31 protocol of offering a settlement through this  32 particular ceremony of tsiisxw or peace keeping, and  33 that demonstrates the universal nature of such laws in  34 pre-contact times.  Dr. Daly refers to that, and I've  35 put his quotes in following that.  36 And I emphasize at paragraph 45 that the point of  37 departure between the trial judge and the Appellants  38 with respect to the role of the feast is we say the  39 feast is how the houses and clans exercise control  40 over individual territories.  41 If I can take you over to page 17, and just refer  42 you here to paragraph 48.  I've summarized the laws  43 that are -- that were given in paragraph 46 and 47.  44 People were organized in villages, and when they  45 walked outside the villages to carry on harvesting and  46 conservation on the land they were still organized  47 under their system of law.  It only made sense that 926  Submissions by Mr. Grant  1 way.  Every society has laws, as the Manitoba Inquiry  2 said.  That's what happened.  It's not when they  3 walked outside the village they could do as they  4 pleased.  Their social organization was based on  5 universally accepted rules governing conduct, access  6 and use of lands and fishing sites.  These were not  7 simply local customs.  8 Then I refer you to the evidence of Glen Williams,  9 who cared for his blind grandfather's fishing site at  10 Boulder Creek.  That's downstream on the Skeena River  11 at Gitwangak.  It's one of the many examples of the  12 exercise of Gitksan and Wet'suwet'en law beyond the  13 villages.  And that's shown on that large fishing  14 sites map, if you want to cross-reference, Exhibit  15 358-22 on your map atlas, the fishing site we're  16 talking about.  And I list in 49 other examples  17 throughout the territory of these rights of access.  18 So what we say in conclusion on this point is that the  19 evidence establishes the society's operated on the  20 basis of general laws, laws of general application  21 throughout the territory.  22 Now, there's another point your lordship raised,  23 and that was the fact that the trial judge referred  24 extensively to Mr. Sterritt's evidence and to my  25 concluding argument.  Now, my concluding argument was  26 dealing with the interaction of Section 92 and the  27 aboriginal right of jurisdiction in a contemporary  28 sense, that is now, not as to the basis for the laws.  29 Similarly, Mr. Sterritt, if you read what the trial  30 judge questioned Mr. Sterritt on, it was on the effect  31 in a contemporary way, but at paragraph 53 I point out  32 to you that Mr. -- the trial judge cited Mr.  33 Sterritt's submission to the Penner Commission as  34 evidence of the considerable difficulty with the claim  35 for aboriginal sovereignty.  And then in 54 I quote  36 from the Penner Commission, right after the section  37 cited by the trial judge in the evidence in the Penner  38 Commission, he talks about how the people come from  3 9 mi1e s:  40  41 "So your witness was your community.  The whole  42 community came to witness."  43  44 And Mr. Sterritt describes he was referring to a feast  45 system in place in 1850, as well as more recently.  46 Now, then I quote from the trial judgment, the  47 only passage of Mr. Sterritt's evidence that's 927  Submissions by Mr. Grant  1 relevant to the issue that the trial judge was dealing  2 with, that is the question of whether or not there was  3 a system of laws in place.  And I quote that -- that's  4 from the reasons, and you have it there, but he said  5 in his evidence, Mr. Sterritt:  6  7 "The laws apply throughout the territory and in  8 a similar way, laws passed by the Gitksan and  9 Wet'suweten would be common throughout the  10 territory."  11  12 That's what he was saying.  And that's the only  13 relevant evidence on the point.  14 In conclusion on this first arm of this argument,  15 we say that the -- we say the trial judge only made  16 his finding on the basis of his analysis of  17 Neg'edeld'es law, which we have already argued why  18 that is in error.  19 And at page 59 -- or paragraph 59, we summarize  20 the -- those aspects of evidence that the trial judge  21 had to disregard or failed to appreciate.  And in  22 considering this, I ask you to carefully consider the  23 problems already alerted to and subsequent, of course,  24 to the trial judgment by the Manitoba Justice Inquiry.  25 And I just like to take one or one and a half minutes,  26 if I can, to go to another implicit question of the  27 trial judge and of your lordship, Mr. Justice  28 Macfarlane.  The principal issue we say addressed in  29 the response and the one before this court is whether  30 at the relevant date, 1846, the Appellants had a  31 system of laws which applied generally throughout the  32 territory.  That is the issue for your lordships to  33 decide, and that, we say, is the only question raised  34 in this litigation on this issue of the laws.  But the  35 trial judge's perception that the Appellants' laws  36 were nothing more than a "highly flexible set of  37 customs" may have been caused in part by the evidence  38 of the repression of the Appellants' laws through  39 prohibition and denials of those laws since the 1880's  40 by the Federal and Provincial Respondents, page 22.  41 This repression over the last hundred years has denied  42 the Appellants the ability to negotiate and develop  43 with the Provincial and Federal Respondents the  44 interrelationship between their laws and Provincial  45 and Federal laws.  That's true, and the Appellants  46 don't say it is not true.  That does not mean though,  47 my lords, they don't have a system of laws.  And the 928  Submissions by Mr. Grant  Submission by Mr. Jackson  1 trial judge referred at length to answers relating to  2 that relationship, both in final argument and from Mr.  3 Sterritt's evidence.  4 Now, we submit that there may be another question  5 implicit in what's raised by the trial judge's  6 findings and your lordships' findings, that is whether  7 today the Appellants have a developed body of laws  8 which can be placed alongside provincial laws in  9 relation to resource management.  10 The Appellants have, in fact, begun the process,  11 which in some cases is quite developed, of  12 articulating a contemporary legal framework for  13 management, harvesting and conservation of the  14 resources.  Particular examples of this are the  15 fishery bylaws such as you saw in Nikal, that bylaw is  16 in evidence in this case, and the blanket trapline.  I  17 just ask you to make a reference at paragraph 64 to  18 the Appellants' Factum, volume 1, tab 9, paragraphs  19 1149 and 1150, because both of those references are  20 there in that reference book that you're going to be  21 given shortly, in a few moments, those references are  22 there.  23 WALLACE, J.A.:  What are the pages, sorry, tab 9?  24 MR. GRANT:  Paragraphs 1149 and 1150.  25 WALLACE, J.A.:  Thank you.  26 MR. GRANT:  Okay.  What we say, my lords, is that this is an  27 ongoing process, and one likely to be spurred by the  28 opening of real negotiations with the Respondents, and  29 what's important for this court, through its  30 declarations, is providing the legal and  31 constitutional space for the Appellants' laws to be  32 able to be negotiated.  33 Those are my submissions on the laws.  34 TAGGART, J.A.:  You gave us tab 9, pages 1149 and 1150?  35 MR. GRANT:  Sorry, my lords, it was paragraphs 1149 and 1150.  36 TAGGART, J.A.:  And tab 9.  Was that volume 2?  37 MR. GRANT:  Appellants' Factum, volume 1, that's our section on  38 remedies that will be explain shortly.  Now, Mr.  39 Jackson is going to address questions arising from Mr.  40 Justice Lambert.  41 TAGGART, J.A.:  Yes, Mr. Jackson.  42 MR. JACKSON:  Thank you, my lord.  Your lordships will recall  43 that my lord Mr. Justice Lambert posed a series of  44 questions to counsel on May the 15th regarding the  45 nature and scope of aboriginal rights, and I've set  46 out the questions at page 1 of the speaking notes, and  47 I just take your lordships to the first paragraph. 929  Submission by Mr. Jackson  1 The first question is what makes an activity,  2 custom, practice or institution, into a right in the  3 context of aboriginal rights generally, and in the  4 context of Section 35 of the Constitution Act.  This  5 question asks what makes something a right.  The  6 second question is what makes an activity, custom  7 practice or an institution carried on by aboriginal  8 peoples into an aboriginal right.  This question asks  9 what makes a right aboriginal.  10 And going to paragraph 2, I would inform your  11 lordships that in the last week counsel have spent a  12 considerable amount of time in the law library going  13 through the very extensive body of jurisprudential  14 literature dealing with rights, and we are still in  15 the process of preparing for the court a summary of  16 that literature as it pertains to your lordships'  17 questions.  Counsel are able, however, at this stage,  18 to make a number of submissions which may help the  19 court in understanding the Appellants' conceptions of  20 aboriginal rights and the nature of the rules sought  21 in this case.  22 I would like just to make a comment that whatever  23 use your lordships may find this review in terms of  24 Section 35, speaking for myself, it has poured content  25 meaning into another section of the Constitution,  26 Section 12, which guarantees against cruel and unusual  27 punishment.  There is an argument which could be  28 addressed, I will leave it for others to make it, that  29 if one looks at matters in terms of their purpose and  30 effect, my lord Mr. Justice's questions may impose  31 cruel and unusual punishment on counsel, but, as I  32 say, others may make that argument, mine is a more  33 limited submission.  34 The point I make at paragraph 3, under the heading  35 "A Caveat On The Application Of The 'Rights' To  36 Literature", is that, as I understand it, my lord Mr.  37 Justice Lambert's questions proceed upon the  38 assumption that jurisprudential analysis of the nature  39 of rights will provide assistance to this court in  40 formulating answers as to the nature and scope of  41 aboriginal rights.  And in terms of the review I've  42 conducted to date, I would suggest that while this  43 analysis may be of considerable assistance to this  44 court in characterizing the nature of the relationship  45 between aboriginal rights on one side and corellative  46 duties, particularly if fiduciary duties on the Crown  47 on the other, the rights literature may have less 930  Submission by Mr. Jackson  1 application in the characterization of aboriginal  2 rights themselves inter se, as it were, in a  3 particular aboriginal society.  And the principal  4 reason I say that is because my understanding of the  5 standard jurisprudential standard rights literature is  6 that concepts of rights have been very much the legal  7 product and emanation of a theory of rights which in  8 western society is very much grounded in individual  9 rights in a state society, in which the law seeks to  10 protect and defend particularly private property  11 rights and seeks to create fences in the context of a  12 zone of freedoms, free from the interference of the  13 state.  And given that aboriginal rights are  14 collective rights and are grounded in the historical  15 and cultural reality of a communal relationship to  16 territory, a judicial inquiry directed to  17 understanding the nature of aboriginal rights as  18 collective rights may not be well served and may be  19 unnecessarily constrained by drawing on concepts  20 derived from legal and political cultures different  21 from those characterizing aboriginal societies.  And  22 the last sentence on page 3 of my submission, I make  23 the point that in the same way as the privy council in  24 Amodu Tijani, which I referred your lordships at some  25 length two weeks ago, and the Supreme Court in Guerin,  26 have warned against analysing aboriginal title in  27 conceptual terms appropriate to English property law,  28 a similar caveat must be placed upon a purposive  29 analysis of aboriginal rights cast in conceptual terms  30 drawn exclusively from western legal and political  31 discourse.  32 So, in summary, we say that careful attention has  33 to be paid to the application of this rights  34 literature, and, as I say, we will be presenting a  35 more fuller submission on this at a later point when  36 our thoughts have crystalized more than they have at  37 this point.  38 LAMBERT, J.A.:  In the third paragraph that you quoted from the  39 question a significant amount has been dropped from  40 what I said without any dots.  41 MR. JACKSON:  Yes, my lord.  42 LAMBERT, J.A.:  I don't know whether that was a mistake or  43 intentional.  44 MR. JACKSON:  No.  I appreciate that's not the whole of the  45 question in terms of your full question, my lord.  I  46 was trying to summarize the essence, as I understood  47 it, of your question. 931  Submission by Mr. Jackson  1 LAMBERT, J.A.:  It's the bit you've got single-spaced is not a  2 quotation in fact.  3 MR. JACKSON:  It is a quotation of the part which I abstracted  4 from the three or four pages of the transcript, my  5 lord.  6 LAMBERT, J.A.:  The point I'm making is that — well, all right.  7 Right in the middle of that third paragraph there's a  8 discussion about some aspects of rights, but it isn't  9 the entire thing that I said, so --  10 MR. JACKSON:  You're talking about the third paragraph of my  11 submission, my lord, are you?  12 LAMBERT, J.A.:  Yes, that's right.  13 MR. JACKSON:  Oh, I see, okay.  14 LAMBERT, J.A.:  And it appears as if it were a quotation, but it  15 is not an accurate quotation.  16 MR. JACKSON:  I will read it again, my lord.  My point was not  17 to suggest all we were going to address is what's in  18 those paragraphs, but I was trying to synthesize the  19 essence of what I understood your lordship's questions  20 to be.  21 LAMBERT, J.A.:  Yes.  22 MR. JACKSON:  At page 4, my lord, I raise another preliminary  23 issue, which I've quoted "The Problem Of Definitional  24 Precision".  And I have assumed that your lordship's  25 questions seek understandably some definition on  26 conceptual precision in determining what makes  27 something an aboriginal right.  And while the  28 Appellants will be proposing what we say is a critical  29 path of judicial inquiry directed to the question  30 posed by your lordships, the search for definitional  31 precision in the context of this litigation is  32 somewhat problematic.  And I've referred your  33 lordships there to the statement of Karl Llewellyn,  34 one of the leading theorists of the American Realist  35 Movement in the United States.  That addresses this  36 point in ways which I think have application to your  37 lordships' deliberations:  38  39 "A definition both excludes and includes.  It  40 marks out a field.  It makes some matters  41 inside the field; it makes some fall outside.  42 And the exclusion is almost always rather  43 arbitrary.  I have no desire to exclude  44 anything from matters legal.  In one aspect law  45 is as broad as life, and for some purposes one  46 will have to follow life pretty far to get the  47 bearings of the legal matters one is 932  Submission by Mr. Jackson  1 examining.... I shall not describe a periphery,  2 a stopping place, a barrier.  I shall instead  3 devote attention to the focus of matters legal.  4 I shall try to discuss a point of reference; a  5 point of reference to which I believe all  6 matters legal can most usefully be referred, if  7 they are to be seen with intelligence and with  8 appreciation of their bearings.  A focus, a  9 core, a centre - with the bearings and  10 boundaries outward unlimited.  Pardon my saying  11 it so often; but I find it very hard to make  12 people understand that I am not talking about  13 putting or pushing anything out of the field or  14 concept of law.  People are so much used to  15 definitions - although definitions have not  16 always been of so much use to people."  17  18 And then over on page 5, my lord, Professor Llewellyn  19 reviews a number of theories of jurisprudence and a  20 number of theories of rights.  And I would take you  21 down to the very last sentence on page 5, when in  22 summarizing what Professor Llewellyn and another  23 eminent jurist, Dean Roscoe Pound had to say about  24 their view of jurisprudential thing:  25  26 "And I gather one lesson Pound has drawn from  27 his study of these and other schools has been  28 to insist rather on what goes into the idea of  29 law than what is to be kept out of it."  30  31 The point of this, my lords, I say at page 6 under the  32 heading of "The Appellants' Conception of Aboriginal  33 Rights", Professor Llewellyn's caveat in relation to  34 definitional exclusion is particularly appropriate to  35 the interpretation of Section 35.  In light of the  36 relative infancy of jurisprudence on the meaning and  37 scope of aboriginal rights, this court should not  38 apply technical definitions of rights so as to limit  39 the development of new understanding of these rights,  4 0 which though they have deep roots in the common law,  41 until quite recently virtually disappeared from the  42 lexicon of Canadian lawyers.  And I referred your  43 lordships there to Sparrow and the statement made by  44 the Supreme Court that:  45  46 "For many years the rights of the Indians to  47 their aboriginal lands, certainly as legal 933  Submission by Mr. Jackson  1 rights, were virtually ignored."  2  3 And I take your lordships to Sparrow as providing some  4 threshold guidelines in relation to what I say is this  5 critical path for an appropriate conception of  6 aboriginal rights.  The court in Sparrow said, in the  7 first quote which I've set out in paragraph 9:  8  9 "The approach to be taken with respect to  10 interpreting the meaning of s. 35(1) is to be  11 derived from general principles of  12 constitutional interpretation, principles  13 relating to aboriginal rights, and the purposes  14 behind the constitutional provision itself."  15  16 And at paragraph 10 I refer to two further guidelines:  17  18 "When the purposes of the affirmation of  19 aboriginal rights are considered, it is clear  20 that a generous, liberal interpretation of the  21 words in the constitutional provision is  22 demanded."  23  24 And a third and most significant guideline "They",  25 aboriginal rights:  26  27 "-- are rights held by a collective and are in  28 keeping with the culture and existence of that  29 is...crucial to be sensitive to the  30 aboriginal perspective itself on the meaning of  31 the rights at stake."  32  33 And our submission is that in framing up an answer to  34 the questions posed by my lord Mr. Justice Lambert,  35 such a framework must pay careful attention to these  36 guidelines.  37 At paragraph 12 I suggest that the core of Section  38 35, in recognizing and affirming the existing rights  39 of aboriginal peoples, the core, the centre, the  40 focus, to use Professor Llewellyn's terms, is the  41 existence, survival and development of aboriginal  42 peoples.  And stated more fully, the Appellants say  43 that Section 35 provides the legal and constitutional  44 basis for the survival, development and integrity of  45 aboriginal peoples as distinct, strong, healthy and  46 productive societies.  47 Now, Section 35 refers to the rights of aboriginal 934  Submission by Mr. Jackson  1 peoples.  And both words are significant for a  2 purposive analysis.  "Peoples" are recognized as  3 having rights under international law.  And your  4 lordships will recollect that I took your lordships to  5 scholarship at the very dawn of western colonization  6 in terms of the writings of Francisco De Vitoria, who  7 affirmed as a matter of aboriginal law that the that  8 the indigenous peoples of North America, like other  9 peoples, had rights to their territory and rights to  10 self-government.  In like manner, I have taken your  11 lordships to the seminal decisions of the Marshall  12 court, which again paralleled this early international  13 law in affirming as aboriginal rights, as a matter of  14 common law, the rights to possession of territory and  15 the rights to self-government.  And I also say that  16 contemporary international law, not simply the law of  17 the 16th century, not simply the law as it was  18 crystalized by Chief Justice Marshall in the 19th  19 century, but contemporary late 19th century  20 international law acknowledges and recognizes the  21 collective rights of peoples.  22 And at paragraph 14 and following I have set out,  23 borrowing in this regard from the Factum of the  24 intervenor, The Union of B.C. Indian Chiefs, the  25 material which points to the contemporary  26 international law dealing with the rights of people.  27 And the International Covenant on Civil and Political  28 Rights and on Economic, Social and Cultural Rights,  29 which Canada is a signatory, both affirm that all  30 peoples have the right to self-determination and all  31 peoples have a right to their resources.  32 A question which has come up in contemporary  33 international law scholarship is who are peoples?  And  34 I've referred your lordships there to some material  35 which suggests that indigenous peoples within the  36 boundaries of an existing state society are peoples.  37 And paragraph 16 and paragraph 17 I've referred to  38 several contemporary international definitions of  39 peoples, and you will see that paragraph 16, one of  40 the definitions adopted, as I say, on the eve of the  41 Charter, meaning at a point contemporary with the  42 Charter, an international law scholar says that:  43  44 "a)  The term 'people' denotes a social entity  45 possessing a clear identity and its own  46 characteristics;  47 b)  It implies a relationship with a territory, 935  Submission by Mr. Jackson  1 even if the people in question has been  2 wrongfully expelled from it and artificially  3 replaced by another population;  4 c)  A people should not be confused with ethnic  5 and religious minorities whose existence and  6 rights are recognized in Article 27."  7  8 Paragraph 17, there's a more comprehensive  9 definition by the International Commission of Jurists,  10 and they refer to a common history, cultural and  11 linguistic ties, a common geographic location and  12 common economic base and other criteria.  And your  13 lordships will see in paragraph 18 we say that  14 applying these contemporary definitions of peoples,  15 the Appellants are peoples within the meaning of these  16 covenants and this literature.  And, for example, I  17 point out that they share a common history, they share  18 a common institution, the feast system, system of  19 House plans, and hereditary chiefs, they have common  20 languages coincident with in most regards their  21 territorial boundaries, they occupy common  22 territories, they have a common economic base and  23 common laws of dispute resolutions have enabled the  24 Appellants, we say, to maintain good order and  25 peaceful government since "before the memory of man  26 runneth not to the contrary".  27 I also at paragraph 20, my lords, refer you to a  28 draft United Nations covenant on the rights of  29 indigenous peoples, and you will see in relation to  30 the two paragraphs I've cited from that it also  31 parallels the original conception of aboriginal rights  32 in international laws, it parallels the Marshall  33 decisions, it parallels what we say are the principles  34 of the common law in recognizing the dual nature of a  35 plenary right of aboriginal peoples to their  36 territories and to the rights of self-government.  And  37 so what we say, and it's summarized in paragraph 21,  38 is that Section 35, in referring to and affirming the  39 rights of aboriginal peoples, is using a term which  40 has meaning, which has substance, which has content,  41 and it is used in the context of contemporary  42 international law in our Constitution.  43 Now, Section 35 doesn't simply affirm the rights  44 of peoples, it affirms the rights of aboriginal  45 peoples.  And, my lords, Mr. Justice Lambert has posed  46 the questions "What makes a right aboriginal and  47 whether the right has to be one that is enjoyed only 936  Submission by Mr. Jackson  1 by aboriginal people and not by others".  Now, one  2 answer to that question we say can be taken from an  3 application of what the Supreme Court has said in both  4 Guerin and Sparrow.  What makes aboriginal rights  5 different from other peoples' rights is that they are  6 collective and pre-existing; collective in terms of  7 what Sparrow says, pre-existing in terms of what  8 Guerin says.  No one else's rights in Canada have  9 these dual characteristics.  This answer does not  10 therefore require the court to search for any further  11 feature in the nature or exercise of an aboriginal  12 right in order to determine that it is truly  13 aboriginal.  Under this analysis, the exercise of the  14 aboriginal proprietary right of profitable possession  15 and enjoyment of land, whether it takes the form of  16 fishing, the harvesting of timber or other resource  17 development, does not have to conform to some  18 distinctive aboriginal practice qualitatively  19 different from non-aboriginal fishing, timber  20 harvesting or resource development.  And in the same  21 way we say the exercise of a right to self-government,  22 whether it takes the form of making decisions  23 regarding health, education or a system of dispute  24 resolution, does not have to take any different  25 aboriginal shape to qualify as a legitimate exercise  26 of the right.  27 And at paragraph 23 I've referred your lordships  28 back to statements made by the Marshall Court in the  29 context of aboriginal title which we say affirms this.  30 Aboriginal people have a right to use their  31 territories according to their own discretion, in  32 their own way, for their own purposes, and we say this  33 speaks of conception of the rights in which aboriginal  34 peoples have the right to maintain themselves in their  35 homelands and to utilize the lands and the resources  36 as the economic and social foundations for their  37 societies.  38 My lords, at paragraph 26 I say that this answer,  39 placed upon Guerin and Sparrow, which would limit the  40 difference between an aboriginal right and any other  41 right to the dual characteristics that they are  42 existing and collective -- pre-existing and  43 collective, may not take into account the full scope  44 of what is protected by Section 35.  And we say that  45 what is missing from this answer is any reflection of  46 the aboriginal perspective and the fact that  47 aboriginal peoples are distinctive from other peoples 937  Submission by Mr. Jackson  1 in Canada over and above the fact that they were here  2 first.  This element of distinctiveness, my lords, has  3 been well synthesized, and I think appropriately done  4 so, by Professor Mary Ellen Turpel, who is one of a  5 very small number of aboriginal law professors in this  6 country.  And it's therefore with some deference that  7 I cite her comments trying to capture what is this  8 extra dimension over and above pre-existing and  9 collective which characterize the nature of aboriginal  10 rights.  And Professor Turpel says:  11  12 "Underlying the use of human rights terminology  13 or the framework of rights claims is a plea for  14 recognition of a different way of life, a  15 different idea of community, of politics, of  16 spirituality, differences which have existed,  17 in the view of aboriginal peoples, since time  18 immemorial, but which have been cast as  19 differences to be repressed or transformed  20 since colonialization.  Aboriginal rights  21 claims are, in my view, requests for the  22 recognition by the dominant (European) culture  23 of the existence of another, and for toleration  24 of, and respect for, the practical obstacles  25 that the request brings with it.  While this  26 may be cloaked in rights, there is something at  27 stake which is larger than rights....what is at  28 stake is a more basic, less 'legalized'  29 condition of survival:  the dignity of existing  30 as peoples."  31  32 And in paragraphs 28 through to 31 I have set out  33 a series of statements which build upon Professor  34 Turpel's analysis in saying that aboriginal peoples'  35 relationships to their homelands, to their system of  36 authority, to their social and economic relationships,  37 are different.  Dan Michelle, one of the Appellants'  38 witnesses, one of the hereditary chiefs whose comments  39 was cited to you earlier today by both Mr. Grant and  40 Mr. Rush, synthesized the relationship he feels as an  41 aboriginal Wet'suwet'en person to his territory when  42 he says:  43  44 "We know we belong to the land and the land  45 belongs to us."  46  47 A symbiotic relationship that goes far beyond a 938  Submission by Mr. Jackson  1 proprietary existence which is not captured by a deed  2 or anything of that nature.  And we say that the  3 Appellants' conceptions of their relationship to the  4 land, their respect for the land, their respect for  5 animals and other living things, goes far and beyond  6 what we in western society have come to embrace as  7 principles of the environmental protection.  And I go  8 on in the following paragraphs to point out some of  9 the distinctions.  10 My lords, at paragraph 32 I say that the  11 distinctiveness and differences between aboriginal  12 societies are often subtle, and many of them lie well  13 below the surface so that they allude understanding  14 and appreciation by people not of that society, but  15 particularly people from a non-aboriginal society.  16 And of course one of the points Mr. Grant has  17 addressed you on is the difficulty we have in  18 understanding the nature of a non -- of an aboriginal  19 legal system which doesn't have central institutions  20 of authority, which doesn't have a police force, which  21 doesn't have something we can look for to identify  22 these are the laws.  23 Now, sometimes the differences, however, are  24 palpable, and I've referred your lordships to the  25 comments of my lord Mr. Justice Lambert in Dick, where  26 I think your lordship was able to capture and  27 articulate the difference of aboriginal hunting for  28 the Chilcotin people.  I think you captured it very  29 well when you said:  30  31 "It is impossible to read the evidence without  32 realizing that killing fish and animals for  33 food and other uses gives shape and meaning to  34 the lives of the members of the Alkali Lake  35 Bands.  It is at the centre of what they do and  36 what they are."  37  38 It is different from the way aboriginal people -- the  39 way non-aboriginal peoples conduct their hunting.  40 It's not simply you can analyse it and say they both  41 use guns, they both use 4 X 4s to get into the bush,  42 or horses; you can analyse it in a number of ways and  43 say it looks the same, but your lordship is able to  44 say that there is a distinctiveness which makes this  45 something which is entitled to and is in fact given  46 constitutional protection.  47 Now, at paragraph 33 I pose the question what is 939  Submission by Mr. Jackson  1 then the relationship between what I've said is this  2 trinity of aboriginal rights being pre-existing,  3 collective and distinctive.  And at paragraph 34 I say  4 that aboriginal distinctiveness is an integral part of  5 aboriginal rights because it acknowledges a historical  6 and contemporary reality and reflects the aspirations  7 of aboriginal peoples to maintain that distinctiveness  8 into the future.  Furthermore, constitutional  9 recognition requires respect for that distinctiveness  10 based upon principles co-existence rather than the  11 past policies of assimilation.  However, and this is a  12 vital point, my lords, respect for distinctiveness  13 should not be erected into a restrictive covenant upon  14 the exercise of the pre-existing and collective rights  15 of aboriginal peoples.  These rights to possession of  16 their homelands and to self-government within them  17 must be interpreted in a large and liberal way to  18 permit their evolution and growth consistent with the  19 evolution and growth and integrity of aboriginal  20 societies for whom these rights are essential  21 foundations.  22 It is because these rights are the essential  23 foundations for future growth of aboriginal peoples  24 that the answer to the question what makes a right  25 aboriginal cannot, and should not, be found in an  26 inquiry directed to particular activities carried on  27 in a long distant past.  And I've referred your  28 lordships to the statements of one of the Appellants'  29 anthropologists, Mr. Brody, and I will take your  30 lordships to it, because I think it very much speaks  31 to questions which in one form or another both my lord  32 Mr. Justice Taggart, and my lord Mr. Justice Lambert  33 and my lord Mr. Justice Macfarlane have posed to me,  34 and from reading the transcripts in the  Dick and  35 Alphonse appeals, and Van Der Peet and the Nikal  36 appeals, this is a recurrent question, where does this  37 court find what makes a right aboriginal.  And Mr.  38 Brody's position, which is adopted by the Appellants  39 in terms of a search for aboriginality in the past is  40 criticized in this way:  41  42 "Dismissal of Indian culture as insufficiently  43 aboriginal is a persistent theme in  44 Euro-Canadian judgments on Indian authority and  45 fact, the dichotomy traditional:  46 non-traditional is false and misleading.  It is  47 false because neither Gitksan nor Wet'suwet'en 940  Submission by Mr. Jackson  1 life relied on complete self-sufficiency prior  2 to the arrival of whites.  For hundreds,  3 perhaps thousands of years, some part of their  4 necessary food and clothing, along with much  5 material culture, was imported by one group  6 from another.  Trade routes and grease trails  7 created a web of interconnection throughout the  8 northwest coast region.  This meant that no  9 community existed in economic isolation, and  10 that use and value of a resource was not  11 limited to its place of harvest.... it follows  12 that if we equate tradition with  13 subsistence" --  14  15 And of course that's how the trial judge did equate  16 aboriginal rights:  17  18 "-- if we equate tradition with subsistence, the  19 Gitksan and Wet'suwet'en have not been  20 traditional since time immemorial.  The  21 absurdity of this conclusion is some indication  22 of how misleading the use of the categories  23 traditional; non-traditional can be.  They  24 blind us to the way in which Gitksan and  25 Wet'suwet'en economies, like those of many  26 other Indian groups, are open and mixed.  If we  27 abandon the use of the terms traditional or  28 non-traditional we can see Gitksan-Wet'suwet'en  29 economies in 1980, 1950, 1930, and at the point  30 of first contact with the whites and recognize  31 at each of these moments a particular mixture  32 of economic elements - a blend of subsistence,  33 trade, and wage labour.  This is not a slide  34 from a pure isolation, a time of aboriginal  35 purity, to ever worsening contamination by  36 alien economic elements .... The continuity that  37 has led the people themselves to insist every  38 turn that they are who they say they are, that  39 they have the rights they claim are theirs -  40 notably, the right to territory rather than to  41 any particular form or way of making use of  42 these territories - is possible only if we move  43 away from an ossified notion of 'tradition'.  44 We can then more easily recognize the extent to  45 which the Gitksan and Wet'suwet'en systems are  46 intrinsically open and adaptive.  47 The gain here in understanding is extensive for 941  Submission by Mr. Jackson  1 it means we can discuss Gitksan and  2 Wet'suwet'en culture in the same terms as we  3 usually discuss our own culture.  That is to  4 say, by reference to institutions of ownership  5 and territoriality as socio-economic  6 foundation.  Cultures without these foundations  7 are properly understood as ethnic groups or  8 sub-cultures.  Cultures with these foundations  9 look to their boundaries and territories as the  10 basis for their well-being and identity in the  11 present and the future - as well as in the  12 past."  13  14 And I say at paragraph 36 by way of summation that  15 the Appellants submit that if this court accepts their  16 argument and grants the declaration sought, aboriginal  17 rights include a proprietary interest to the  18 possession and enjoyment of a defined territory and  19 the right to self-government within that territory, in  20 accordance with their political, legal and social  21 institutions, the court need not address the question  22 of what makes an activity, custom, practise, or an  23 institution into a right generally, or into an  24 aboriginal right specifically.  The relevant question,  25 we say, is whether what is being asserted by  26 aboriginal peoples as the basis for legal protection  27 is an integral part of the possession and enjoyment of  28 their territory or an integral component of their  29 right to self-government in a contemporary world.  The  30 outer parameters of possession and enjoyment of  31 territory and the right to self-government are not  32 determined by the manner in which those rights were  33 exercised by aboriginal peoples prior to the assertion  34 of British sovereignty.  We say that those parameters  35 are more properly shaped by a purposive analysis which  36 asks whether the assertion of the right is consistent  37 with the determination and control of their  38 development as aboriginal peoples, according to their  39 own values and priorities, to ensure the integrity of  40 their societies.  That is, as far as my thinking has  41 been developed, my lords, in relation to Mr. Justice  42 Lambert's questions, and as I advised your lordships,  43 there will be a further and hopefully better  44 submission before the Appellants finally sit down.  45 Would that be a convenient place to take the break.  46 TAGGART, J.A.:  Yes.  Take the afternoon break.  47 THE REGISTRAR:  Order in court.  Court stands adjourned for a 942  Submission by Ms. Mandell  1 short recess.  2  3 AFTERNOON RECESS  4  5 THE REGISTRAR:  Order in court.  6 MS. MANDELL:  My lords, I've asked madam registrar to hand up to  7 your lordships the speaking notes which will be  8 inserted at the beginning of tab 9.  I will be  9 addressing your lordships with respect to remedies and  10 declarations which the Appellants are seeking, and I  11 also might advise your lordships that you have also  12 been handed up the tab 9 reference volume, and with  13 the exception of a tab which is marked A and B at the  14 front of it, which I will be referring to only tab B,  15 tab A is empty, I'm going to advise your lordships  16 that the numbering inside the rest of the volumes will  17 correspond with the paragraph numbers in your tab 9.  18 I'm going to be -- I have merged primarily the  19 material from tab 9 and 10, the speaking notes, and  20 you will be able to follow my submission to your  21 lordships from the speaking notes.  I might advise,  22 however, that I will be turning you into a few of the  23 paragraphs inside tab 9, so I suggest that we --  24 LAMBERT, J.A.:  If at the end, Miss Mandell, we were to accept  25 the submission that was made just before the start of  26 the hearing --  27 MS. MANDELL:  Yes.  28 LAMBERT, J.A.:  That some of the matters ought not to be dealt  29 with immediately but should go over, then this whole  30 argument is a part of what you submit should go over?  31 MS. MANDELL:  Yes.  And why —  32 LAMBERT, J.A.:  All right.  33 MS. MANDELL:  And it is within your jurisdiction to do that.  34 LAMBERT, J.A.:  It is all being dealt with in here?  35 MS. MANDELL:  Yes.  36 TAGGART, J.A.:  Thank you.  37 MS. MANDELL:  I introduce this area by advising your lordships  38 that, that the submission addressed declarations which  39 the Appellants seek, the reasons why those  40 declarations were appropriate to this case, and this  41 court's jurisdiction to make declarations and to refer  42 some issues to negotiation, while retaining  43 jurisdiction to resolve those issues only if  44 necessary.  45 And I advise your lordships that the remedies  46 sought in paragraph 2 are the same remedies which are  47 spelled out at tab 10 of your factum.  These are the 943  Submission by Ms. Mandell  1 full remedies which the Appellants seek in this case.  2 However, I will be making submissions to you that  3 there should be immediate declarations made and  4 certain aspects of the full remedy deferred until the  5 outcome of negotiations, hopefully successfully.  6 If I could turn your lordships to the declaratory  7 relief which is being sought.  The Appellants are  8 asking this court to declare, and this is in the large  9 sense of it, we're not asking for this now in the  10 immediate declaration, but in the large sense, the  11 court is asking for this court to declare that the  12 Appellants have a right of ownership over the  13 territory, which extends to the enjoyment and  14 possession of the territory and its resources,  15 including the right to harvest, manage and conserve  16 the land and natural resources.  That the Appellants  17 have an inherent right of self-government over the  18 territory themselves, and the members of the Houses  19 represented by the Appellants, in accordance with the  20 Gitksan and Wet'suwet'en political, legal and social  21 institutions.  And that the Appellants' ownership of  22 and jurisdiction over the territory continues to  23 exist, within the meaning of Section 35, and has never  24 been lawfully extinguished.  25 I say to your lordships that the Appellants had  26 full ownership and jurisdiction over their territory  27 at the time of the assertion of sovereignty.  And  28 there is no principled legal reason why in the absence  29 of a treaty with Canada, they do not have full rights  30 today.  The onus is on the Respondents to show whether  31 and how, as -- and I stress these words -- as matters  32 of law, the Appellants' rights have been extinguished.  33 It is not sufficient to say merely that "things have  34 changed".  Rights are lost by reference to legal  35 tests, and the Appellants have argued that the  36 Respondents have not met the appropriate tests.  The  37 Appellants assert in this action the full scope of  38 their rights.  39 And if I could ask your lordships to be reminded  40 of the footprints which Mr. Rush took you to today on  41 Namox's territory.  These are ancient markings which  42 speak to the Wet'suwet'en of their belonging to the  43 land in the way that Dan Michelle spoke of it, that  44 the land belongs to them and they belong to the land.  45 It's a spritual connection which they say they were  46 intended to belong to that particular land.  The  47 Appellants lived in their homelands for many thousands 944  Submission by Ms. Mandell  1 of years before the Europeans arrived.  They were  2 there first, and we say that as the original people  3 they assert the right to continue to be there.  I know  4 that, Mr. Justice Macfarlane, you asked earlier  5 whether the rights which are being asserted are  6 exclusive, and from the Appellants' point of view,  7 what they say is yes, they are asserting the fullness  8 of the right, but they say that the declarations that  9 they're seeking from this court, and this will be the  10 submission to which I will now address, are not for  11 the purposes of excluding others from their territory.  12 To the contrary, they're trying to achieve a  13 principled process where they can include others, but  14 to do that they want to do that in a way which  15 enhances their survival as peoples that not leads to  16 their demise.  And what they're urging of this court  17 is to recognize and support negotiations leading to a  18 treaty as the principled and preferred means to  19 achieve a lasting and peaceful co-existence with the  20 Province and their non-Indian neighbours.  They seek a  21 relationship with Canada which is based on consent.  22 And I wanted to remind your lordships that it was  23 the Crown, who, as a primary colonizer, assumed the  24 fiduciary responsibility to conclude the treaty.  It  25 was the Marshall cases, where your lordships have been  26 referred to the passages where the origin of fiduciary  27 duty was in the arrangements, whereby First Nations  28 relinquished their right to wage war against the  29 settlers in return for Crown protection, and in the  30 further fact that upon discovery under colonial law  31 aboriginal title became inalienable, except to the  32 Crown.  And the role of the Crown is to safeguard  33 aboriginal peoples in the land which was essential to  34 their well-being and survival, and to establish a fair  35 procedure enabling settlement to continue.  And these  36 are some of the very basic features which were  37 recognized in the Royal Proclamation, and your  38 lordships will be hearing from the intervenor,  39 Assembly Of First Nations, who speaks of these  40 fiduciary duties, that is the duty to establish a fair  41 procedure to enable settlement as imposing limitations  42 on the Crown sovereignty.  We say that the Appellants  43 are saying that they want a relationship with Canada  44 which is based on these fundamental principles which  45 the Crown has acknowledged as part of its fiduciary  46 responsibility.  47 In acknowledging the underlying title of the Crown 945  Submission by Ms. Mandell  1 in this action, and that is in excluding fee simple  2 title holders from the reach of this action, by  3 entering into a Memorandum of Understanding with the  4 Province to pursue negotiations on the issues of this  5 case, they've shown their good faith to approach the  6 difficult problems facing them and the Province  7 fairly, and to seek to define a mutually agreeable  8 future together within their homeland.  9 I just wanted to stop for a minute, my lords, and  10 comment on what perhaps may seem to be standard fare,  11 but when the Appellants instructed counsel to  12 acknowledge the underlying title of the Crown, they  13 did so understanding that that concept embodies a  14 doctrine by today's standards encapsulate outdated  15 principles of colonization, which those principles  16 itself have been condemned internationally.  It's the  17 doctrine of discovery where the colonizers could come  18 over and lay their flag and then proceed to achieve  19 some kind of domain inside the territory of somebody  20 else.  But when the Appellants accepted the doctrine  21 of underlying title, they were accepting the fact that  22 they would then enter into treaties with Canada and  23 not with some other country.  And the Appellants have  24 renewed their faith in accepting the underlying title  25 of the Crown, even in spite of the doctrine that it I  26 embraces as still expressing a willingness, in fact,  27 indeed, an understanding that their treaties will be  28 with Canada, notwithstanding the fact that there's  29 been largely an ignoring by Canada of the rights for  30 almost a century.  31 They also, in the course of litigation, excluded  32 fee simple title holders.  And, my lords, what they  33 say is that they're not claiming that land, although,  34 in respect of compensation, it's going to be something  35 which they will seek as against the Province.  And if  36 your lordships -- for your lordships to really  37 appreciate the significance of this, I think it's best  38 illustrated with the Wet'suwet'en, because the fee  39 simple holders are all -- they've all claimed land in  40 the Bulkley Valley.  This is the heartland of the  41 Wet'suwet'en country.  Cybil Housler, who was a  42 witness for the plaintiffs, illustrated where the  43 various land tenure systems were located overlaid onto  44 the harvesting potential of the land, and the  45 Wet'suwet'en -- all their best land has been taken up.  46 This is the land that you heard Basil Michelle and  47 some of his uncles, they were burned off of in order 946  Submission by Ms. Mandell  1 to give this land away to white people.  So it's not a  2 small concession where the Wet'suwet'en and the  3 Gitksan say for the purposes of getting on with this  4 case we exclude a claim to fee simple lands and we  5 want to get on with talking about our co-existence  6 with the Province.  7 And finally, your lordship was asked to take  8 notice of a Memorandum of Understanding which Mr.  9 William brought to your attention at the beginning of  10 the appeal.  This is a really historical agreement  11 where our -- the Appellants and the Province have  12 signed an agreement to pursue a treaty process, and  13 certain of the issues which I will be drawing to your  14 lordships' attention have been agreed by the parties  15 that the parties are willing to enter into a treaty  16 process to attempt to resolve those particular issues.  17 I will be drawing your lordships' attention in more  18 detail to the issues which the parties have agreed to  19 attempt to resolve by negotiation.  We say that  20 negotiation as to the preferred method of resolving  21 aboriginal claims has been endorsed by members of this  22 court.  Mr. Justice Macfarlane, you've been quoted  23 continuously on this, and I won't repeat back to you  24 yet again, but also in the hearing of Alphonse and  25 Dick, Mr. Justice Lambert said, which the Appellants  26 agree with, what the court says:  27  28 "What the courts say will represent pegs in  29 those negotiations, those pegs could be moved  30 by negotiations or treaty or in any way, but we  31 (the courts) have to be very conscious that the  32 things we say will be treated as pegs around  33 which a full picture will be drawn."  34  35 Section 35(3), your lordships have been drawn into,  36 which provides that rights acquired under land claims  37 agreements are automatically recognized and affirmed  38 under Section 35(1).  Thus, aboriginal peoples and the  39 non-Indian governments have constitutional authority  40 to pour content into Section 35(1) by making treaties.  41 And Section 35(1), in our submission, has been  42 endorsed by the Supreme Court of Canada as providing,  43 in the words of the court, a solid constitutional base  44 upon which subsequent negotiations can take place and  45 endorse the view that Section 35 "calls for a just  46 settlement for aboriginal peoples", reflecting a  47 constitutional preference for negotiation over 947  Submission by Ms. Mandell  1 litigation, at least where there are willing parties.  2 And up until the Memorandum of Understanding, which  3 has been signed between the Province and the  4 Appellants, there were no willing parties.  The  5 Appellants have lived in a Province which has  6 virtually denied the existence of their rights for a  7 hundred years.  8 But we say that the Province's new willingness to  9 acknowledge that the Appellants have some  10 unextinguished aboriginal rights, and to participate  11 in negotiations, removes what has been an insuperable  12 political obstacle to treaty negotiations for a  13 hundred years.  14 And it is in the context of the constitutional  15 mandate for land claims negotiations created by  16 Section 35(1) and (3), and of centuries of  17 treaty-making as the appropriate vehicle for defining  18 the relationship between aboriginal peoples and the  19 Crown that the Appellants and the Province jointly  20 approached this court on April 29th to seek a deferral  21 on a number of issues to negotiation, and only to  22 resolve them by this litigation if negotiation fails.  23 So the Province and the Appellants are therefore in  24 general agreement that the appropriate remedy at this  25 stage is for the court to make general declarations  26 and to respect the attempt by these parties to  27 negotiate to resolve other issues by consent.  28 Thus, the Appellants submit that the appropriate  29 course of action is to make these declarations to  30 retain jurisdiction to enable the parties to further  31 negotiate the issues and, in the event only that the  32 parties are unable to reach agreement, this court will  33 be asked to complete its order and to grant the full  34 relief sought in tab 10 of the Appellants' Factum.  35 And that's the paragraph which I have set out as  36 paragraph 2 of these notes.  37 So I would like to first address the question of  38 immediate declarations, what we are asking the court  39 to do at this point.  40 The Appellants seek declarations which would make  41 clear that aboriginal rights include both a  42 proprietary interest in land, and that's the right Mr.  43 Jackson spoke about to you a few minutes ago, that is  44 a right in the territory or a right to territory, and  45 an inherent right to self-government, that is a right  46 of the people to govern themselves through their  47 institutions, and that the Appellants' rights are 948  Submission by Ms. Mandell  1 shaped by their own laws and institutions.  Unless  2 these basic principles are settled by the court, the  3 Appellants fear an early impasse on these issues in  4 negotiation.  And so I've set out for your lordships  5 the form of order that we would seek, and I would like  6 to deal with each part of it in turn.  The first is  7 that the appeal be allowed in part.  We say in part  8 because your lordships are going to be asked to retain  9 jurisdiction in respect of the whole of the relief.  10 Without declaring the full content of the right, this  11 court declares, and this is what we are asking of your  12 lordships:  13 i)    The Appellants have existing aboriginal rights  14 to the territory, the precise boundaries to be  15 defined through negotiations;  16 ii)   The Appellants' existing aboriginal rights  17 include a proprietary interest in the  18 territory, which is sui generis and the right  19 to harvest, manage and conserve the territory  20 and its natural resources;  21 iii)  The Appellants' existing aboriginal rights  22 include an inherent right to self-government  23 over the territory, themselves and the members  24 of the Houses represented by the Appellants,  25 in accordance with Gitksan and Wet'suwet'en  26 political, legal and social institutions, and;  27 iv)  The Appellants' aboriginal rights and title  28 are protected by Section 35.  29 And I would like to pause here and explain to your  30 lordships that the threshold on declarations, if I can  31 summarize them, are that the Appellants have an  32 interest in their homeland, it's a right in their  33 territory.  We're not saying or asking this court to  34 say how that right will be exercised in respect of  35 which lands, but we're saying that it is an interest  36 in respect of the territory.  The second is in respect  37 of the right of self-government.  Again, we're not  38 asking this court to declare what areas over which the  39 Appellants will exercise that right of  40 self-government, this will be the subject of ongoing  41 negotiations, and perhaps later I will deal with  42 whether the matters might come up again in either the  43 constitutional -- new constitutional talks or  44 litigation, but at the moment, except for the fact  45 that we're seeking specific declarations that there's  46 a right to harvest, manage and conserve the resources  47 which we're saying is part of the bundle of rights of 949  Submission by Ms. Mandell  1 self-government, we're not, in any other respect,  2 asking that areas over which the self-government right  3 would be exercise ought to be declared by this court,  4 simply that there is a right of self-government, and  5 finally that the aboriginal rights are protected by  6 the constitution.  And I would just like to say that  7 in that respect, I don't have time to turn your  8 lordships to it, but I hope the Assembly of First  9 Nations Intervenors will, we say that that's what  10 Section 35 intended to do anyways.  The debate which  11 included Section 35 in the Constitution was an order  12 to change things, was an order to repair the hundred  13 years where the Crown has been ignoring aboriginal  14 rights, and make a change so that people can in a  15 remedial sense become operating within their rights  16 and not simply being subject to the doctrine of  17 parliamentary supremacy so that there is no effective  18 operation or scope of operation for them.  19 MACFARLANE, J.A.:  Could I ask you a question.  2 0  MS. MANDELL:  Yes.  21 MACFARLANE, J.A.:  You want us to declare that the Appellants  22 have existing aboriginal rights to the territory, and  23 I'm looking back to your remedies sought.  The first  2 4 was:  25  26 "That the Appellants have a right of ownership  27 over their territory."  28  2 9  MS. MANDELL:  Yes.  30 MACFARLANE, J.A.:  Now, you want us to say in the order that,  31 excluding any right to lands held in fee simple by  32 third parties and any right to resources that the  33 right to which had been granted exclusively by the  34 government to third parties?  35 MS. MANDELL:  My lord, in respect of third parties, the order —  36 the order is -- there's no claim being made by the  37 Appellants, except in respect of damages to third  38 party grants in fee simple.  So if your lordship would  39 be inclined to frame that in the order, then that  40 would be consistent with the relief that the  41 Appellants are seeking.  42 MACFARLANE, J.A.:  I was thinking what would lead up to the  43 order.  What would lead up to the order would be a  44 discussion of course of aboriginal rights, and the  45 first thing that would be acknowledged would be that  46 there would be no claim made to lands held in fee  47 simple. 950  Submission by Ms. Mandell  1 MS. MANDELL:  That's right.  2 MACFARLANE, J.A.:  There would have to be a discussion then, I  3 think, as to whether there was any -- whether the  4 grant of title in fee simple to third parties would  5 extinguish the aboriginal right to those lands and  6 therefore the right to compensation.  7 MS. MANDELL:  Yes, my lord.  In respect to that second point, as  8 to whether or not there is effective extinguishment by  9 the grant, the Appellants will deal with that on  10 reply.  This is a point which is being raised by my  11 friends as an extinguishment argument, and we don't  12 say that the title was extinguished by the grant,  13 we're saying that for the purposes of this order --  14 this is -- the Appellants will argue that as a matter  15 of law the -- normally the principle is that the grant  16 remains burdened of an aboriginal title, but as a  17 matter of these proceedings the Appellants have  18 excluded fee simple title except in respect of their  19 compensation claim.  20 MACFARLANE, J.A.:  Well, until we get through all of that we  21 really can't -- at least I can't know just what sort  22 of an order --  23 MS. MANDELL:  In respect of third parties —  24 MACFARLANE, J.A.:  — would be appropriate.  This is far too  25 broad.  26 MS. MANDELL:  I'm sorry?  27 MACFARLANE, J.A.:  This is far too broad.  28 MS. MANDELL:  Well, my lord, I think that the question as to  29 how -- I must advise your lordships that in the  30 absence of the extinguishment arguments in their  31 fullness, which we're at this stage not addressing,  32 the Appellants' position is that there were no  33 extinguishment of rights at all from the time of  34 assertion of sovereignty to the present, and the  35 orders that we're asking your lordships to --  36 MACFARLANE, J.A.:  Well, just a minute now.  If you're asking —  37 if you're asking for an order that the Appellants have  38 existing aboriginal rights to the territory --  39 MS. MANDELL:  Yes.  40 MACFARLANE, J.A.:  — there are all sorts of questions which  41 arise.  And the first question which arises is  42 aboriginal rights to what.  You agree that there's --  43 you're not suing for any -- not advancing any claim to  44 the land held in fee simple.  45 MS. MANDELL:  Yes.  46 MACFARLANE, J.A.:  I don't know whether you're advancing any  47 claim with respect to resources which have been -- 951  Submission by Ms. Mandell  1 MS. MANDELL:  Yes, we are.  2 MACFARLANE, J.A.:  All right.  3 MS. MANDELL:  We're advancing a claim with respect to the  4 aboriginal territory, aboriginal rights to the  5 territory, and, as I will now get into, my lords, the  6 precise boundaries we're asking should be defined  7 through negotiations.  We are advancing an aboriginal  8 claim in respect of the whole of the territory.  9 MACFARLANE, J.A.:  And unless your claim goes beyond the seeking  10 a bare declaration that you have ownership rights and  11 rights to self-government, then, you know, I would  12 like to know what the order ought to say as to  13 aboriginal rights.  What do you mean by "aboriginal  14 rights"?  If you mean just ownership, and we have a  15 inherent right to self-government, then that's that,  16 and the right to develop the resources on the land,  17 then I guess that's one claim.  18 MS. MANDELL:  My lord, if you can go back to paragraph 15, sub  19 2.  20 MACFARLANE, J.A.:  You don't need to answer these questions at  21 this point.  22 MS. MANDELL:  Although I did want to draw your lordships'  23 attention to the fact that we've attempted a  24 definition of aboriginal title or aboriginal rights  25 involving the lands.  26 MACFARLANE, J.A.:  Sorry, where?  27 MS. MANDELL:  This is paragraph 15, subsection 2, page 5.  28 MACFARLANE, J.A.:  Oh, I see.  29 MS. MANDELL:  My lord, if — the Appellants' existing aboriginal  30 rights include a propretary interest in the territory,  31 which is sui generis and the right to harvest, manage  32 and conserve the territory and its natural resources.  33 And if your lordships will notice that in the relief  34 that we're seeking in terms of the whole of the case,  35 that wording is found in paragraph 2, sub B on page 1  36 of the speaking notes.  And this described -- 2(a),  37 I'm sorry, that the Appellants have a right of  38 ownership over the territory which extends to the  39 possession, enjoyment and possession of the territory  40 and its resources, including the right to harvest,  41 manage and conserve the land and natural resources.  42 So what in the interim we're asking your lordships to  43 do is make to a declaration, which is that the right  44 includes a proprietary interest which is sui generis  45 and the right to harvest, manage and conserve.  We're  46 not asking your lordships to make a declaration in  47 respect of full ownership, and we are not asking your 952  Submission by Ms. Mandell  1 lordships to make a declaration which spans the full  2 scope of the right of harvest, manage and conserve,  3 or, for that matter, the full scope of the proprietary  4 interest.  There is something which we're going to  5 urge your lordships to take that aspect of the  6 declaration, allow the parties to negotiate, and only  7 if there could be no resolution we would -- we seek to  8 have a final determination on that question from this  9 court.  10 WALLACE, J.A.:  Sorry.  I'm having a bit of difficulty, perhaps  11 you can help me.  In 2 (ii) --  12 MS. MANDELL:  Yes.  13 WALLACE, J.A.:  -- you say you're not asking for ownership.  14 MS. MANDELL:  That's right.  15 WALLACE, J.A.:  I presume —  16 MS. MANDELL:  In the interim —  17 WALLACE, J.A.: -- limited ownership, but with that declaration  18 that the Appellants have aboriginal rights which  19 include ownership and the right to harvest, manage and  20 conserve, what's left?  21 MS. MANDELL:  Sorry.  My lord, the interim declaration, the one  22 that we're asking your lordships to make now --  23 WALLACE, J.A.:  Yes.  24 MS. MANDELL:  — we're not asking for the right for full  25 ownership, we're asking for a proprietary interest in  26 the territory.  27 WALLACE, J.A.:  Isn't that equivalent to ownership?  28 MS. MANDELL:  I don't think so.  I think if your lordship could  29 accept the explanation that we're working from, we're  30 saying that there's some -- there's an interest in  31 land, there's an interest in the territory, which the  32 full scope of it, the full exercise --  33 WALLACE, J.A.:  Which includes a right to harvest, manage the  34 territory.  35 MS. MANDELL:  Yes.  But we don't say —  36 WALLACE, J.A.:  And it's natural resources.  37 MS. MANDELL:  But we're not asking this court to prescribe any  38 limits on that, and perhaps I could --  39 WALLACE, J.A.:  No.  But if that's the foundation of which you  40 speak --  41 MS. MANDELL:  Yes.  42 WALLACE, J.A.:  -- that's everything.  I wonder why you would  43 negotiate it?  44 MS. MANDELL:  Well, my lord, I would say that your lordship  45 would have more of a concern if at this stage we were  46 asking for a right of full ownership.  At that point  47 you would say "Well, what is there to actually 953  Submission by Ms. Mandell  1 negotiate from", but what we're asking your lordships  2 instead to declare is consistent with C.P. and Paul  3 and the other cases which have already defined  4 aboriginal rights as a right of occupation and  5 possession and something else.  We're asking your  6 lordships to accept the common law definition of  7 aboriginal rights in its general sense, and that in  8 our submission summarizes as being including of a  9 proprietary interest in the territory, sui generis,  10 and there is a right in the territory.  We are not  11 saying what kind of right it is to the extent that we  12 say over what resources it encompasses or how -- and  13 this is the important question, my lords -- how that  14 right is going to interface with the Province.  This  15 is really the important question, which we say remains  16 for the negotiation table.  And if I could perhaps  17 take you one step further and ask --  18 WALLACE, J.A.:  Well, you don't say the right to harvest to some  19 extent or to manage in a limited way, or --  2 0 MS. MANDELL:  In some way.  21 WALLACE, J.A.:  Or have control over some of its natural  22 resources.  You say the right to harvest, manage and  23 have control over its natural resources.  What else is  24 there?  25 MS. MANDELL:  Well, my lord, the question is how absolute is  26 that, to what extent does that include the provincial  27 government and the interests which the province may  28 have?  And we're not asking your lordships to attempt  29 to define the outer limits of the right.  What we're  30 asking your lordships to do is to say that it's an  31 interest in land, it's not some ephemeral personal  32 right which is part of the right to hunt, it's the  33 right in the land, and it's a right to govern  34 themselves.  We're not saying how broad and how fully  35 expanding that may be, we're simply saying that that's  36 what it is, and that the parties --  37 MACFARLANE, J.A.:  But certainly those are the outer limits.  38 MS. MANDELL:  Those are the basics, my lord.  The outer limits  39 would be the right of ownership, which has in that  40 sense much more encompassing --  41 MACFARLANE, J.A.:  You're right about that.  That would the only  42 thing about a greater right, would be a full right of  43 ownership.  44 LAMBERT, J.A.:  You don't have the word "exclusive" there.  If  45 the word "exclusive" is to be implied, then the  46 difference between this and full ownership is only  47 terminological.  If you are asserting a right that is 954  Submission by Ms. Mandell  1 not asserted as an exclusive right, then I can  2 certainly see that there's a difference between those  3 two.  4 MS. MANDELL:  Thank you, my lord, thank you for that assistance.  5 The position of our clients, the position of the  6 Appellants, is that their right is exclusive, but for  7 the purposes of the interim declaration they are  8 asking the court to declare it's fundaments.  They're  9 not asking this court to declare whether the right is  10 exclusive, they're simply asking the court to declare  11 that it interest in their land and a right of  12 self-government, and it's included in Section 35.  13 LAMBERT, J.A.:  So we can annotate opposite your 15(2)(ii) that  14 the question of whether it's exclusive or  15 non-exclusive is not being decided by this order if it  16 were to be made.  17 MS. MANDELL:  In the interim.  The Appellants though don't —  18 don't ask that that issue be decided by this court at  19 this time, they're asking that that issue be part of  20 the retained jurisdiction of the court.  As your  21 lordships will see, they're asking that the appeal be  22 adjourned for a period of two years from the date of  23 the judgment, for the court to retain jurisdiction  24 over these following matters:  The first is the  25 geographic scope of the claimed territory; the second  2 6 is entitlement to and quantum of damages; and the  27 third is the co-existence of the Appellants' rights  28 with the Provincial Crown's underlying title.  And  29 it's in that area of co-existence, my lord, that this  30 issue of exclusivity or the degree to which the rights  31 will co-exist with the Provincial Crown rights will be  32 at that point addressed.  33 HUTCHEON, J.A.:  Could we achieve it by using the indefinite  34 article, "a right".  35 MS. MANDELL:  "A", yes.  36 HUTCHEON, J.A.:  And "a right to hunt".  37 MS. MANDELL:  Yes.  It doesn't have to be —  38 HUTCHEON, J.A.:  You have "the right".  39 MS. MANDELL:  It could be "A".  40 HUTCHEON, J.A.:  I'm just looking at this in a temporary way,  41 but it seems to me that that would carry the sense  42 that -- think about it anyway.  43 LAMBERT, J.A.:  I don't want to be hurried off at this point,  44 and I know you feel pressed for time, but this is  45 extremely important and I don't think we should allow  46 ourselves to be swept away by time limits.  In your  47 next little (iii) you are asking for a declaration 955  Submission by Ms. Mandell  1 about an inherent right to self-government over the  2 territory.  3 MS. MANDELL:  Yes.  4 LAMBERT, J.A.:  2 presents problems.  In a land context that I  5 can understand -- I believe I can understand them,  6 because you concede the sovereignty of the Crown, and  7 I understand that to mean the radical title to the  8 land and also the right to govern both the land and  9 the people and the institutions within the boundaries  10 of British Columbia.  The relationship between what  11 you call self-government and the sovereign, the  12 sovereignty of the Crown, is just completely confused,  13 as far as I'm concerned, and until my confusion is  14 alleviated, I could never think about making a  15 declaration that there's an inherent right to  16 self-government.  It has to be clarified to a very  17 great extent before I would think it's appropriate for  18 a declaration of this court, speaking for myself.  I  19 can understand the right of someone who has a  20 proprietary interest in land to manage the land and to  21 manage the institutions which regulate the land, and  22 it's quite possible that I could conceive of myself  23 making declarations like that, but I couldn't ever  24 say, as I see it at the moment, that there's an  25 aboriginal inherent right of self-government from that  26 definition.  I thought I would say that at this time,  27 because I believe it's going to have to be addressed  28 further.  29 MS. MANDELL:  All right.  My lord, I appreciate your question,  30 and I think part of the answer is in respect to  31 division of powers analysis, which perhaps the  32 Appellants can consider their position as to how best  33 to address you on it, but there is, in our submission,  34 what you're asking is really what are the  35 constitutional relationships, how does the exercise of  36 aboriginal rights fit within the division of powers  37 system.  38 LAMBERT, J.A.:  Yes.  I understand that you want to negotiate  39 about this kind of thing, both in the political  40 context and constitutional generally, in relation to  41 your request for negotiation in this particular  42 appeal, but we can't, in my view, do anything about  43 that division of powers just by saying both sides have  44 full plenary powers of self-government, go to it and  45 work out something in the middle, because to start off  46 by saying both sides have full plenary powers of  47 government is an inconsistency in itself, in my view. 956  Submission by Ms. Mandell  1 MS. MANDELL:  My lord, I think that at this stage — I  2 understand your question, and I think at this stage I  3 would like to address you more fully on what you're  4 saying.  I do though want to leave this point by  5 saying that the right of self-government is not  6 intended, by way of this court's declaration, to sort  7 out the manner in which it inter-relates with the  8 Province and with the Federal power.  I will address  9 you as to how in our submission it fits  10 constitutionally, but the point at this stage is to  11 include the right of self-government into the matrix  12 of Confederation.  That's what we're submitting to you  13 at this stage is part of the rights of the Appellants.  14 It's an order to recognize and include that right as  15 part of the matrix in Confederation.  I will, as I've  16 said, submit to you as to how in our submission it  17 fits.  We say that it does, and your lordships may be  18 able at that point to feel more comfortable about its  19 relationship or its place to existing Federal plenary  20 power and the powers under Section 92.  21 MACFARLANE, J.A.:  Why do you want the court to make such a  22 declaration?  As I understand, the Province has  23 already agreed that there's an inherent right to  24 self-government, whatever that may mean, and if I  25 understand correctly, at the federal level there's the  26 same general recognition.  27 MS. MANDELL:  Well, my lords —  28 MACFARLANE, J.A.:  You know, with the matter to be worked out by  29 negotiation.  30 MS. MANDELL:  Well, my lords, first of all, there is a very long  31 distance still between what political statements are  32 being made and there being any agreement.  33 MACFARLANE, J.A.:  I'm not suggesting any agreement at the  34 federal level.  I understand that from what's been put  35 before this court that the Provincial government, as  36 part of the negotiating agreement here, have agreed to  37 proceed on the assumption that there's an inherent  38 right to self-government and to work out the details.  39 Why should we be saying anything about a right to  40 self-government?  I'm sorry, I keep interrupting,  41 because I'm concerned about this, and like my Brother  42 Lambert, I can't conceive that I could make that  43 declaration in those broad terms.  I would want to  44 write a lot and say it a lot before I made any order  45 about it at all, but, you know, the evidence that  46 we've heard so far referred to by Appellants' counsel  47 would indicate, as I guess ought to be plain common 957  Submission by Ms. Mandell  1 sense, that these people had a form of government,  2 there was an organized society and there was a form of  3 government, and we've been told how far that extended  4 and to what areas it extended.  Well, that's fine, but  5 where does that take you in relation to today, to the  6 present, to the existing situation?  It seems to me  7 that the real problem is in working out the basis upon  8 which there can be co-existence, not from negotiation,  9 and so be it.  That's the way it should be.  I've  10 always been in favour of negotiation, and I couldn't  11 be more in favour of it in this respect than in any  12 other respect.  13 MS. MANDELL:  My lord, your first question —  14 MACFARLANE, J.A.:  I would like to quote you something I said on  15 Meares Island.  16 MS. MANDELL:  I'm very glad for that perspective, we also want  17 negotiations, but, my lord, it has to, from our  18 perspective, begin on fundamental and first  19 principles.  You asked that question, "Well, what  20 difference does what the court have to say if this  21 matter is being dealt with politically or even at a  22 Constitutional level?  I want to advise your lordships  23 that the discussion at the Constitutional level is  24 very much animated by what the courts have to say  25 about these things.  This was very true in 1981 and  26 '82, when existing aboriginal rights were included,  27 and it's still very much true today.  And so, the  28 first level, one of the debates which is present is  29 whether or not the right is an inherent right or a  30 derivative right, and what your lordships have been  31 listening to and we hope persuaded by is that there is  32 an inherent right.  These are parts of the rights as  33 people as peoples when the non-Indian people came into  34 their territory.  We say that the evidence supports  35 that.  We say we've argued to your lordships that it's  36 part of the common law, and, as such, we're arguing  37 that it's part of Section 35.  It's a right to be  38 governed by their own laws and by their own  39 institutions, as they had been when the non-Indian  4 0 people came.  41 Now, even if -- and our first point to you on the  42 question of what is the relevance of the court's  43 decision, our first point to you is that it animates  44 what is in fact being discussed and being looked to  45 politically as the rights which ought to be included  46 in the Constitution.  The courts are very much a part  47 of the process.  But I have to say that even then, 958  Submission by Ms. Mandell  1 even if the right of self-government were put into the  2 Constitution, it would still have to be established  3 for the First Nations that they have a right to take  4 benefit of it, which is exactly the exercise that we  5 have had to go through in respect of this 1982  6 Declaration of Rights in Section 35.  So, in our view,  7 it's not for this court to say "Well, don't worry,  8 there's some other political process which is taking  9 care of the right".  We say that --  10 MACFARLANE, J.A.:  All right.  You're carrying that further than  11 I intended you to carry it.  It was just a thought  12 that crossed my mind, a fairly obvious thought.  Why  13 don't you go away and negotiate this and then come  14 back and argue if you can't negotiate the right.  But  15 moving on to something more specific in relation to  16 the same subject, you say in accordance with Gitksan  17 and Wet'suwet'en political, legal and social  18 institutions --  19 MS. MANDELL:  Yes.  20 MACFARLANE, J.A.:  Well, surely if we're going to do that, we're  21 going to have to identify those areas of  22 self-government that are an inherent right.  So we  23 would have to start listing the areas of law, I  24 suppose, in which there's some right to govern.  25 MS. MANDELL:  My lord, I would say that would go too far.  I  26 would say that what if your lordship would declare is  27 they have a right to be governed by their own  28 institutions, that is acknowledging that there is  29 institutions, and a right --  30 MACFARLANE, J.A.:  With respect — with respect to what, with  31 respect to land tenure, or with respect to marriage,  32 with respect to divorce, with respect to adoption,  33 with respect to all those other things that you've  34 mentioned specifically during the course of your  35 argument?  36 MS. MANDELL:  Well, my lord, our position is that all of those  37 other very many incidents that you're speaking about  38 are really properly left to the negotiation table and  39 I can advise your lordships --  40 MACFARLANE, J.A.:  I'm sorry, but I can't — just can't conceive  41 that one could make a declaration that there is an  42 inherent right to self-government with respect to  43 certain institutions that without doubt in some  44 general sense identifying the areas of government that  45 we're talking about.  Otherwise, it's meaningless, and  46 nobody is going to take it seriously if you come away  47 with an amorphous statement that there's an inherent 959  Submission by Ms. Mandell  1 right to self-government because before the white man  2 came here these people lived in organized societies  3 and governed themselves.  They're going to say, all  4 the people you negotiate with are going to say so  5 what, they're going to have to start from scratch.  6 MS. MANDELL:  What we're asking for your lordships to identify  7 is a sphere of self-government, a sphere of authority,  8 and the actual details will be negotiated, and, my  9 lord, this is no different than -- Section 35  10 recognizes aboriginal rights, this is a very very  11 broad term.  If you go down even the Section 91 and 92  12 powers, there's very broad areas, peace, order and  13 good government, it's very broad, it's a sphere of  14 authority and beyond that, how it's going to get  15 implemented is part of some other ongoing process.  I  16 wanted to say to your lordships, when Mr. Jackson was  17 cautioning about defining things too tightly at this  18 stage, I say it's all the more true for areas in  19 respect of aboriginal rights, because what we're  20 asking for in this sense is for a broad declaration in  21 respect of a sphere of self-government, and if we  22 don't believe, and, my lordships, we think it's  23 inappropriate at this stage for this court to engage  24 in a shopping list as to what areas not only does the  25 right of self-government extend to, but whether it can  26 be exercised at this time is certainly a matter  27 between the parties.  28 WALLACE, J.A.:  You want us to make a declaration to -- that  29 self-government exists, although we have no idea what  30 will be meant by that.  31 MS. MANDELL:  Well, my lord, you've been given principles.  32 WALLACE, J.A.:  Other than everything, other than what my  33 Brother Macfarlane said, all the manner in which the  34 band and the society exercise control over its  35 functions.  36 MS. MANDELL:  Well, my lord, it has to be animated by the  37 principles which Mr. Jackson has already submitted to  38 you, and that is that there is --  39 WALLACE, J.A.:  No.  But you're asking -- never mind -- but  40 you're asking for an order that these people be --  41 that the declaration of existing aboriginal rights  42 includes an inherent right to self-government over the  43 territory themselves in accordance with Gitksan and  44 Wet'suwet'en political, legal and social institutions.  45 MS. MANDELL:  That's right.  46 WALLACE, J.A.:  Now, unless we know exactly what that is, we're  47 making a declaration that may encompass anything. 960  Submission by Ms. Mandell  1 MS. MANDELL:  Well, my lord —  2 WALLACE, J.A.:  And, therefore, is either meaningless or far too  3 broad.  It has a meaning which is so broad that it  4 couldn't apply to anything.  5 MS. MANDELL:  My lord, we ask that the declarations be  6 prefaced -- deliberately prefaced by the words  7 "without declaring the full content of the right".  8 WALLACE, J.A.:  How can we know what the right is if we can't  9 characterize it and we can't identify it.  10 MS. MANDELL:  Well, my lord, you can identify — and this is  11 what we're asking your lordships to do -- that the  12 right includes the right of the Gitksan and  13 Wet'suwet'en people to be governed, to have a sphere  14 of authority in respect of themselves and in respect  15 of their own social institutions.  We're asking that  16 there be a sphere of authority recognized.  17 LAMBERT, J.A.:  If I may interrupt.  This is a — in this part,  18 and perhaps why we have responded so vigorously about  19 it is because essentially it's a quotation of what --  20 of the order that you would like us to make.  21 MS. MANDELL:  Yes.  22 LAMBERT, J.A.:  The message that you should get from the  23 discussion we've had over the last quarter of an hour  24 surely is that the court is going to be extremely  25 reluctant to make an order in the terms that you've  26 asked for, and you must run the risk, if you stick  27 with this, that we will make no order at all in  28 relation to governing the institutions because we will  29 not make one under these terms, or you should go back  30 to the drawing board and see whether you can help us  31 get over the problems that we've been mentioning in  32 the last quarter of an hour and make this specific.  33 So it's up to you to decide how you want to put it  34 forward, but a number of us have expressed our grave  35 difficulty about expressing it in these terms.  36 TAGGART, J.A.:  Would it not be preferable to leave the matter  37 without defining the form of relief that you seek in  38 any way and leave it open?  Do you want the appeal to  39 be allowed, shall we say?  When we get to a conclusion  40 on all the subjects that have been raised for our  41 consideration in this case, as well as in the other  42 appeals, and we define within the context of all the  43 cases what are the aboriginal rights, if any, and how  44 they may be exercised, if at all, and such ancillary  45 questions as extinguishment in whole or in part, when  46 we have answered those, then it may be appropriate to  47 consider what form of relief we should have, but until 961  Submission by Ms. Mandell  1 such time as we have, it seems to me this exercise is  2 an exercise in utter futility.  3 MS. MANDELL:  Well, my lord, we welcome the opportunity to think  4 about it, especially since we at this stage have also  5 heard more from the court as to what your present  6 views are.  I want, though -- I know that we've run  7 out of time, and I feel compelled to advise your  8 lordships that, leaving aside the problem of the  9 definition of the order, the other aspect which we are  10 pressing your lordships to do is to adjourn certain  11 issues from your decision and to retain jurisdiction  12 and permit the parties to negotiate.  And I've set out  13 those issues which we are seeking your lordships to  14 adjourn.  These are the subject of the memorandum of  15 understanding which ourselves and the Appellants and  16 the Province have agreed to, the Federal Government  17 still has not, and they are the geographic scope of  18 the claim area, entitlement to and quantum of damages,  19 and the co-existence of the Appellants, and in the  20 co-existence in the rights of Appellants in the  21 Province, and we have in the memorandum of  22 understanding as well stipulated that a period of two  23 years where the court would simply not be asked to  24 address any of these issues would be appropriate, and  25 the parties during that time would have the  26 opportunity, without the option of going back to court  27 during those two years, to address these issues, and  28 if either party at the end of it feels that an issue  29 is unresolved at that time, that the jurisdiction of  30 the court can be invoked.  And I've asked your  31 lordship to consider the wording, and I know that  32 we're now at this point not addressing specific  33 wordings of orders, but at page 6 I've included the  34 wording of an order which has been introduced in the  35 Manitoba Language case, and also the case of Regina  36 v. Swain, another decision of the Supreme Court of  37 Canada, where the court has inserted this kind of  38 language in orders where it has retained jurisdiction,  39 and it will then, in the case of the Manitoba Language  40 Act and also the case of the Insanity Provision,  41 preserve to itself the right upon such evidence as may  42 be required for parties to return to the court for  43 certain determinations.  And I've addressed your  44 lordships in the submission at pages 6 to 11 as to why  45 these three areas, in our submission, are appropriate.  46 And in answer, Mr. Justice Macfarlane, to the question  47 you raised this morning in respect of the territories, 962  Submission by Ms. Mandell  1 well, wouldn't some of this, for example, be better to  2 be referred back to the Supreme Court.  I wanted to  3 draw to your lordship's attention paragraph 28, and in  4 this paragraph on page 10 we're dealing with the  5 question in this sense of damages, both in entitlement  6 to and also the actual quantification, and we've  7 submitted that it would not be appropriate to pursue  8 the claim for damages on appeal as if there were a  9 trial de novo and suggested that the Province's  10 liability for an actual quantification of damages  11 ought to be remitted to the Supreme Court for  12 determination.  The Appellants are now of the opinion  13 that it is appropriate for this court to retain  14 jurisdiction and decide this issue, including the  15 issue to remit this issue to the Supreme Court, if the  16 court should so order.  17 And we say that the better route -- the parties  18 have to live with the result.  The better route if an  19 agreement can be reached, fine, and if they can't,  20 we're urging that this court retain jurisdiction to  21 make decisions, including if your lordship is of the  22 view to remit to the Supreme Court.  And we say that  23 that's appropriate too, in respect of the other issues  24 which we're asking, especially in respect of  25 territories that your lordships consider.  26 And finally, I've set out at pages 13 to the end  27 of the speaking notes the cases where in our  28 submission the jurisdiction to do what we're asking  29 you to do, which is to make certain fundamental  30 declarations, adjourn in respect of others and retain  31 jurisdiction, that that kind of relief is appropriate.  32 And I wanted just to draw to your lordship's attention  33 that in the Manitoba Language case at paragraphs 41 to  34 43, the -- sorry, 44 -- it isn't the same panel who  35 would hear the return questions.  And I just wanted to  36 give your lordships comfort that I wasn't asking that  37 you stay here for a few years, and that this matter  38 can be dealt with elsewhere.  And I also wanted to  39 draw to your lordships' attention at paragraph 46 in  40 the Lavoie case, a case which I urge your lordships to  41 read, because in some senses there are parallels to  42 how we're asking your lordships to go, where there the  43 parents who were looking for language rights  44 protection asked for a very detailed kind of  45 protection, which they were seeking from the court,  46 and the court instead made a very general order, and  47 then having declined to make the specific orders in 963  Submission by Ms. Mandell  1 detail as to how and where certain language  2 instruction provisions should be implemented, said  3 that that remains for the Province, but then the court  4 retained jurisdiction:  5  6 "If the Province fails to act or acts in a  7 manner which appears inadequate, the Appellants  8 may return to the court to determine the  9 adequacy of the action taken by the Province in  10 comlying with the declaration that should be  11 issued."  12  13 And we say that it's an approach which we're urging  14 upon your lordships, and I feel at this stage that  15 that's as best as we can do under the circumstances.  16 LAMBERT, J.A.:  You should think about the question, it's not  17 encompassed by your argument, perhaps you have already  18 thought about that, when you get five new faces in  19 here, if you were to get five new faces in two years  20 time, they may not fancy our decision on the first  21 matter, and they're just well constituted then to  22 overrule us on the first decided matters before going  23 on to the second decided matters.  24 MS. MANDELL:  Well, my lord, that was one of the reasons we  25 tried to cast the decided matters fairly certainly, so  26 that in that case there would be decisions which would  27 be threshold principles upon which these further  28 matters would be determined.  29 LAMBERT, J.A.:  As part of your argument on this question of our  30 jurisdiction to do that, you've got to address that  31 question of whether a new group of five faces have to  32 be bound to do the rest as if they themselves had made  33 the first part of the decision.  It doesn't seem to me  34 that that is necessarily so.  35 MACFARLANE, J.A.:  And if the declarations are as broad as you  36 ask us to make them, then it is open to them to fill  37 in the details.  38 MS. MANDELL:  It's open to them?  39 MACFARLANE, J.A.:  To fill in the details.  4 0 MS. MANDELL:  Yes.  41 MACFARLANE, J.A.:  And those details may not be the details we  42 would have found, so -- that's one of the problems.  43 MS. MANDELL:  Well, my lords, it's left in a fairly  44 unsatisfactory unclosed state, and I would like the  45 opportunity to consider your lordships' discussion  46 with me today, and before the Respondents begin  47 their -- before they begin we would like to have an 964  Submission by Ms. Mandell  1 opportunity of at least advising your lordships if  2 there's anything further which we have to add, and  3 certainly before the close of our case or the close of  4 the appeal we hope to have addressed you fully on all  5 the issues.  6 TAGGART, J.A.:  Well, we will be spending the next three days  7 hearing intervenors which supports the positions of  8 the Appellants.  I've forgotten what we're doing on  9 Friday.  10 MS. MANDELL:  Yes.  There's intervenors in support all week.  11 TAGGART, J.A.:  You're going to be hearing friendly voices, I  12 take it, at least for the next three days.  You might  13 give some thought to the form of the order that we've  14 been discussing and what the court has suggested with  15 respect to it.  And perhaps if you can prevail upon  16 your friends, the supporting intervenors, to give you  17 a little time, we might hear you further on that  18 aspect.  19 MS. MANDELL:  Thank you very much.  20 THE REGISTRAR:  Order in court.  Court stands adjourned until  21 ten o'clock tomorrow.  22  2 3 (PROCEEDINGS ADJOURNED)  24  25 I hereby certify the foregoing to be  26 a true and accurate transcript of the  27 proceedings herein transcribed to the  28 best of my skill and ability  29  30  31  32  33 Graham D. Parker  34 Official Reporter  35 United Reporting Service Ltd.  36  37  38  39  40  41  42  43  44  45  46  47


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