Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-26] British Columbia. Supreme Court Jun 26, 1992

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 2358  Proceedings  1  Coram:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  2  3 Vancouver, B.C.  4 June 26, 1992  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Friday, June the 26th, 1992.  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lords.  10 TAGGART, J.A.:  Mr. Plant, just before you rise, there are two  11 matters that the court had had an opportunity to  12 discuss, and I'm going to ensure that counsel are  13 aware of our approach to these matters.  We thought we  14 should give you an opportunity to hear them and, if  15 necessary, give us some comments on them at an  16 appropriate time.  17 First of all with respect to the Mabo case, some  18 parties have had an opportunity through counsel to  19 deal with the Mabo case, some parties will have such  20 an opportunity, perhaps, in a shortened and  21 abbreviated form, some will not have had an  22 opportunity to deal with it at all.  In order that all  23 may have an opportunity to deal as adequately with the  24 Mabo case as they wish, we have decided that all  25 parties will have the right to file written  26 submissions with respect to the Mabo decision, those  27 written decisions to be filed in the Registry not  28 later than the close of business on July the 15th.  29 Copies are to go to all other parties.  Now, I'm using  30 the word "parties" in its broadest sense.  It includes  31 intervenors as well as parties to the action.  32 And may I say that you cannot rely on the Registry  33 to make copies for you.  You make your own copies and  34 you see that the other parties get those copies.  The  35 Registry's got enough on its hands without serving as  36 a secretariat.  37 If there are comments on those initial filings,  38 they must be filed by the close of business on July  39 the 29th.  Thereafter there will be no further written  40 material or responses, initial written material or  41 responses on Mabo without leave of the judge of this  42 division.  43 The second outstanding matter is the application  44 by Alcan to be added as a party.  The court has  45 decided to defer that decision.  46 Mr. Lowes raised the question of submissions on  47 the test to be applied -- I'm sorry, maybe it was Mr. 2359  Proceedings  1 Gouge.  Yes, I'm sorry, it was Mr. Gouge who raised  2 the question of the test to be applied as to findings  3 of fact, that is to say what legal principles govern  4 this court in its approach to questions of fact  5 decided at the trial level.  We feel that this is a  6 matter of consequence and all parties, and I'm using  7 that again in the broadest sense, should have an  8 opportunity to make written submissions with respect  9 to this matter.  The same rules with respect to  10 written submissions on this subject as apply to the  11 Mabo case will apply to the question of the test to be  12 applied to the findings of fact, including the time  13 limits.  14 The next matter is the question of admissibility  15 of documents.  Now, I am dealing now only with the  16 Delgamuukw appeal.  Our collective recollection is  17 that there was some question about documents to which  18 Mr. Lowes wished to refer, there was some question  19 about documents to which Mr. Hutchin wished to refer.  20 We would like counsel to agree on a single list of  21 documents to which objection is taken so that we are  22 sure that we know with precision what those documents  23 are, what the objections are, and what the responses  24 are to those objections.  If counsel are unable to  25 agree, the matter can come before me for resolution.  26 The next matter is post-oral hearing procedures  27 generally.  A memorandum is being prepared by the  28 Registrar to govern filings of submissions, cases,  29 letters.  The list goes on and on and is dependent  30 only on the ingenuity of counsel.  As soon as that  31 memorandum has been prepared, and I hope it will be  32 available on Monday, it will be submitted to counsel  33 for all parties for their comments.  It will have to  34 be resolved before we part company on Friday, the 3rd  35 of July.  36 Finally, those are the matters that have occurred  37 to the court that are outstanding.  We may well have  38 overlooked something, either with respect to  39 Delgamuukw or with respect to other appeals.  Since  40 some of the matters to which I have referred, for  41 instance, the post-hearing procedures, will affect  42 parties to the earlier appeals, I will ask Madam  43 Registrar if she will ensure that all parties in all  44 appeals get a copy of the transcript of what I have so  45 far said.  If any party believes there are matters  46 which we have not dealt with in that list of things,  47 we would like to hear of it at the earliest 2360  Submissions by Mr. Plant  1 opportunity.  I would expect that you would want to  2 think about this over the weekend, at least, but it  3 would be preferable if we can get your list or  4 additions to our list by, say, noon of Tuesday next.  5 Now, Mr. Plant.  6 MR. WILLMS:  Before Mr. Plant arises, my lord, in respect of the  7 written submissions on Mabo and on the test to be  8 applied, you said parties in the widest sense and  9 included intervenor.  Did you mean to include the  10 Amicus or not?  11 TAGGART, J.A.:  Yes.  You are so embroiled in this thing, Mr.  12 Willms, that I treat you as a party.  13 Yes, Mr. Plant.  14 MR. PLANT:  Before I turn to answer the question which Justice  15 Taggart asked of me at the close of proceedings  16 yesterday, I wish to make a correction to an exhibit  17 reference which I gave you late yesterday.  I'm not  18 sure where your lordships made the note of the exhibit  19 reference, but I was making a submission about Calder  20 II, which would be the 11th tab in the R & D 5  21 reference binder containing the Calder ordinances.  22 And that is the land pre-emption ordinance which  23 restricted the right of aboriginees, that's the term  24 they use, of aboriginal persons to pre-empt lands, and  25 require this special permission of the governor.  I  26 said to your lordships that an explanation of the  27 mischief behind that statute could be found in the  28 Attorney General's report of the 21st of April, 1866.  29 I may not have actually given you the date.  I then  30 said that the exhibit reference was Exhibit 1186-19.  31 I should have said 1186-69.  32 TAGGART, J.A.:  What was the date of that, Mr. Plant?  33 MR. PLANT:  The 21st of April.  34 TAGGART, J.A.: I beg your pardon?  35 MR. PLANT:  The 21st of April, 1866.  36 TAGGART, J.A.:  Thank you.  37 MR. PLANT:  The question which Justice Taggart raised at the end  38 of proceedings yesterday had to do with the use of the  39 term waste lands and also Crown lands in the judgment  40 or judgments of the judges in the Mabo case.  And if I  41 could ask your lordships to turn to page 138 of the  42 judgment.  And this is during -- this is part of the  43 reasons of His Honour Justice Dawson, who was the  44 dissenting judge.  Page 138.  At the bottom of the  45 page, about halfway through the paragraph at the  46 bottom of the page, having begun a discussion of Crown  47 lands legislation in what was then, so far as I 2361  Submissions by Mr. Plant  1 recall, the colony of New South Wales, about -- I  2 think it's the third sentence in the paragraph Justice  3 Dawson says:  4  5 "Upon settlement ..."  6  7 This should be about five lines up from the bottom  8 of the page or the bottom of the text of the page.  9  10 "Upon settlement all the land in the Colony of  11 New South Wales, which then comprised the whole  12 of eastern Australia, became in law vested in  13 the Crown.  The early Governors had express  14 powers under their Commissions to make grants  15 of land, referred to in the preamble to the  16 Statute 6 William the IV, number 16 of 1836, as  17 authority 'to grant and dispose of the waste  18 lands'.  The term 'waste lands' was, apart from  19 legislative definition, understood long before  20 the colonization of New South Wales in 1788 to  21 designate colonial lands not appropriated under  22 any title from the Crown."  23  24 Moving ahead to the next full paragraph on that  25 page.  It begins:  26  27 "As I have said, the sale of the waste lands of  28 the Crown came to be regulated by the sale of  29 Waste Land Act 1842.  'Waste lands of the  30 Crown' was defined to mean 'any lands situate  31 (in New South Wales), and which now are or  32 shall hereafter be vested in Her Majesty, Her  33 Heirs and Successors, and which have not been  34 already granted or lawfully contracted to be  35 granted to any Person or Persons in Fee Simple,  36 or for an Estate of Freehold, or for a term of  37 years, and which have not been dedicated and  38 set apart for some public use."  39  40 That is the, I suppose, the shortest exposition of  41 what waste lands meant so far as Australia was  42 concerned in the middle of the 19th century.  And as I  43 read the judgments of your honors, in due course the  44 term "Crown lands" is applied to these lands and in  45 fact in the judgment of Judge Brennan there is, I just  46 have to find the page, a quotation from the Crown  47 Lands Act which has a definition of Crown lands. 2362  Submissions by Mr. Plant  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, J.A.:  Page 54.  MR. PLANT:  And that's at page 54 of the judgment of Judge  Brennan.  So I hope that is of some assistance in  answering your lordship's question.  I had left off yesterday before coming to the  judgment -- that part of the judgment of Judge Brennan  which deals with the extinguishment issue, and I  wanted to make reference to some passages from that  judge's decision on this issue.  And I wish to start  at page 52 under the headings "The Extinguishing of  Native Title".  This discussion goes on for some  pages, and I am going to try and extract a few of the  most pertinent statements.  His Honour says:  "Sovereignty carries the power to create and to  extinguish private rights and interest in lands  within the sovereign's territory."  LAMBERT, J.A.:  I wonder if you could tell us which page.  MR. PLANT:  Page 52, which will put you in Justice Brennan's --  LAMBERT, J.A.:  Yes.  MR. PLANT:  In case your lordships' wish, I can tell you that  for those of you who may not have already put yellow  stickies in the right place, the judgment of Justice  Brennan goes all the way to page 65.  The judgment of  Justice Deane and Gaudron begins at page 66.  The  judgment of Mr. Justice Dawson begins at page 112.  Justice Dawson was the dissenting judge.  And then the  judgment of Justice Toohey begins at page 172.  Now, I was on page 52 where Justice Brennan says:  "The sovereignty carries the power to create and  to extinguish private rights and interests in  land within the sovereign's territory.  It  follows that, on a change of sovereignty,  rights and interests in land that may have been  indefeasible under the old regime become liable  to extinction by exercise of the new sovereign  power.  The sovereign power may or may not be  exercised with solicitude for the welfare of  indigenous inhabitants but, in the case of  common law countries, the courts cannot review  the merits, as distinct from the legality, of  the exercise of sovereign power."  Pausing there.  Your lordships will note that the  footnote references are to the Sante Fe and the 2363  Submissions by Mr. Plant  1  2  3  4  5  6  7  Tee-Hit-Ton cases of the United States Supreme Court.  Turning over the page to the top of page 53.  Justice Brennan says:  "When validly made, a grant of an interest in  land binds the Crown and the Sovereign's  successors ..."  9 And I pause there to say that I -- yesterday I  10 said at least a couple of times that the Province  11 could no doubt take some comfort from this judgment in  12 relation to its theory that a grant in fee simple will  13 extinguish aboriginal title.  I wish to at least muddy  14 the waters of that statement somewhat by pointing out  15 that in Australia there appears to be no  16 constitutional impediments on the state.  There is no  17 division of powers problem with a 91(24) in the  18 federal government and land held in the state  19 government, so that --  20 HUTCHEON, J.A.:  It was argued that it was international and it  21 was dismissed.  It was argued that to extinguish would  22 be an international act and that only the commonwealth  23 could do it and that submission was dismissed.  24 MR. PLANT:  Yes.  That's my understanding.  I left out of my  25 discussion yesterday the lengthy discussion of the  26 actus state doctrine and terra nullius and other  27 aspects of his judgment which I -- well, they  28 certainly don't bear on my brief which relates to the  29 question of extinguishment by unilateral act of the  30 sovereign after sovereignty.  31 At the top of page 53:  32  33 "When validly made, a grant of an interest in  34 land binds the Crown and the Sovereign's  35 successors.  The courts cannot refuse to give  36 effect to a Crown grant 'except perhaps in a  37 proceeding by scire facias or otherwise, on the  38 prosecution of the Crown itself.  Therefore an  39 interest validly granted by the Crown, or a  40 right or interest dependent on an interest  41 validly granted by the Crown cannot be  42 extinguished by the Crown without statutory  43 authority.  As the Crown is not competent to  44 derogate from a grant once made, a statute  45 which confers a power on the Crown will be  46 presumed (so far as consistent with the purpose  47 for which the power is conferred) to stop short 2364  Submissions by Mr. Plant  1 of authorizing any impairment of an interest in  2 land granted by the Crown or dependent on a  3 Crown grant.  But, as native title is not  4 granted by the Crown, there is no comparable  5 presumption affecting the conferring of any  6 executive power on the Crown the exercise of  7 which is apt to extinguish native title."  8  9 Pausing there.  I read that to be a statement that  10 the -- among other things, that those principles of  11 the common law which affect the ability of the Crown  12 to derogate from grants of land do not apply in  13 relation to the extinguishment of native title,  14 because native title is not granted by the Crown.  In  15 a sense I would say that one can take from that the  16 view that the Australian court is not dissimilar to  17 the judgment in Sparrow which imposes a stand alone  18 test for the extinguishment of aboriginal rights.  It  19 doesn't for its juridical origin go to common law  20 cases like the Windsor County's Railway case which I  21 made reference to yesterday.  22 Carrying on in the judgment of Justice Brennan:  23  24 "However, the exercise of a power to extinguish  25 native title must reveal a clear and plain  26 intention to do so, whether the action be taken  27 by the Legislature or by the Executive."  28  29 Well, that's not a startling proposition.  30 If I could turn over to page 54, the judge, his  31 honour elaborates on that.  The first full paragraph  32 on the page:  33  34 "A clear and plain intention to extinguish  35 native title is not revealed by a law which  36 merely regulates the enjoyment of native title  37 ..."  38  39 Pausing to look at the footnote.  The footnote is  40 a reference to Sparrow.  41  42 "... or which creates a regime of control that  43 is consistent with the continued enjoyment of  44 native title."  45  46 Pausing again to look at the reference.  That's a  47 reference to the Sante Fe case. 2365  Submissions by Mr. Plant  1  2 "... a fortiori, a law which reserves or  3 authorizes the reservation of land from sale  4 for the purpose of permitting indigenous  5 inhabitants and their descendants to enjoy  6 their native title works no extinguishment."  7  8 And that also is certainly not a proposition which  9 assists us much one way or the other because we know  10 from Guerin and other cases --  11 HUTCHEON, J.A.:  Isn't that contrary to your proposition about  12 the ordinance you just told us about?  It just strikes  13 me that -- didn't you make the submission yesterday  14 that because there was an ordinance allowing the  15 Indian people to make settlements, therefore that was  16 somehow an extinguishment?  17 MR. PLANT:  I made that argument in historical context which is  18 vastly different from that of Australia.  And I say  19 that none of these statements of general principle can  20 be applied to British Columbia without regard to the  21 historical context of British Columbia.  22 HUTCHEON, J.A.:  That statement of Judge Brennan, you say,  23 doesn't apply to British Columbia?  24 MR. PLANT:  It doesn't apply in the sense which I understood  25 your lordship to be taking from it.  Let me reread it  26 to myself and just be sure that I am not missing  27 something here.  28 The argument in this case, of course, was that the  29 law which reserved land extinguished the title.  And I  30 am not making that suggestion in this case.  In fact  31 the converse is true, in my submission, in having  32 regard to the executive acts of government and the  33 policy of government in the colonial period, the law  34 which reserved or authorized reservation of land did  35 not -- far from extinguishing land -- didn't  36 extinguish land on the reserve.  That's the point that  37 Justice Brennan is working on here.  What he is saying  38 is that a law which reserves or authorizes the  39 reservation of land from sale does not work in  40 extinguishment in respect of that land.  That's the  41 point that he is making.  42 And then there is one other reference which, I  43 think, rather than read it all I will leave your  44 lordships with.  At page 57 to 58.  Although I'm  45 skipping over this discussion, all of it must be read,  46 but the paragraph that begins at page 57 with "a Crown  47 grant ..." carrying on over the page up to the summary 2366  Submissions by Mr. Plant  1 at the bottom of the next page, those two paragraphs  2 are all of interest.  3 You will see that in the third line down of that  4 paragraph on page 57 the judge says that:  5  6 "The extinguishing of native title does not  7 depend on the actual intention of the Governor  8 in Council who may not have adverted to the  9 rights and interests of the indigenous  10 inhabitants or their descendants but on the  11 effect which the grant has on the right to  12 enjoy the native title."  13  14 And that's very similar to the point that Mr.  15 Taylor made about the necessary inconsistency between  16 a grant in fee simple and the enjoyment of aboriginal  17 title.  I say that is one means by which title may be  18 extinguished.  19 HUTCHEON, J.A.:  At the bottom of that page is the point that I  20 was dealing with yesterday, and which seems to be  21 contrary to the trial judge's finding, legal finding.  22 The part about the --  23 MR. PLANT:  I take it as being -- it begins around about --  24 HUTCHEON, J.A.: "A reservation of land for future use".  25 MR. PLANT: Yes.  That's right.  I was going to start a little  26 bit further up.  First of all about halfway down there  27 is a sentence, about midway through it says:  28  29 "The question whether the Crown has revealed a  30 clear and plain intention to extinguish native  31 title will sometimes be a question of fact,  32 sometimes a question of law and sometimes a  33 mixed question of fact and law."  34  35 And your lordships know that in the case at bar  36 the question whether the Crown had an intention is  37 certainly treated by the trial judge in large measure  38 as a question of fact.  39 And then the judge goes on --  40 LAMBERT, J.A.:  To the extent that it depends on the examination  41 of legislation, I would have thought that its entirely  42 a question of law; that is, does this legislation  43 indicate a clear and plain intention to extinguish?  I  44 think that has to be exclusively a question of law on  45 our usual classification.  But when you get into your  46 argument that specific administrative acts or indeed  47 in the end the weight of history can affect an 2367  Submissions by Mr. Plant  1 extinguishment, then I see the aspects of fact.  So  2 Mr. Justice Brennan's statements seems very apt as far  3 as I am concerned.  4 MR. PLANT:  I agree entirely with your lordship.  5 I remind your lordship, of course, that even in  6 the cannons of ordinary statutory instruction include  7 the rule, the mischief rule which would allow your  8 lordship to look at the context of a statute and the  9 purpose for which it was enacted as an aid to  10 interpreting the statute.  I don't think that works  11 much of a refinement on the point your lordship is  12 making, but nonetheless it is part of the legal  13 analysis.  14 LAMBERT, J.A.:  Yes.  15 MR. PLANT:  Justice Brennan continues.  This is after the  16 sentence that I have just read a minute ago:  17  18 "Thus, if a reservation is made for a public  19 purpose other than for the benefit of the  20 indigenous inhabitants, a right to continued  21 enjoyment and native title may be consistent  22 with the specified purpose - at least for a  23 time - and native title will not be  24 extinguished.  But if the land is used and  25 occupied for the public purpose and the manner  26 of occupation is inconsistent with the  27 continued enjoyment of native title, native  28 title will be extinguished.  A reservation of  29 land for future use as a school, a courthouse  30 or a public office will not by itself  31 extinguish native title:  Construction of the  32 building, however, would be inconsistent with  33 the continued enjoyment of native title which  34 would thereby be extinguished."  35  36 Now, in a sense this has echoes of the Sioui case.  37 The question, I suppose, which my lord Mr. Justice  38 Hutcheon has is hasn't the Crown in the colonial  39 legislation of British Columbia reserved the lands of  40 British Columbia for future use, for settlement.  I  41 would say that's not the proper construction of the  42 colonial ordinances.  Again what Justice Brennan is  43 talking about is a reservation of land.  And the  44 reservation of land that you see in the Calder  45 ordinances are these kinds of reservations,  46 reservations for Indian reserves and settlement,  47 reservations for highway purposes and road purposes, 236E  Submissions by Mr. Plant  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. PLANT  HUTCHEON,  MR. PLANT  HUTCHEON,  government reserves that eventually become naval  establishments and so on.  Those are the reservations  which Justice Brennan is talking about.  The question is what is to be done with the  balance, what is the significance of this legislation  for the balance of the Crown lands.  And my point is  that when you look at all of that legislation in its  historical context, having regard to Douglas's reserve  policy and the promise that he made and so on, that a  necessary inference is that the -- the Calder  ordinances and the other legislation in this binder  are -- work an extinguishment in respect of the lands  not reserved.  J.A.:  What he is talking -- if you go back to page  54, it's B under the definition.  It's land reserved  or dedicated to public purpose.  That's what he is  talking about in here.  :  Yes.  J.A.:  But the point is what he is saying, contrary to  what the trial judge said, the expression of an  intention is not enough that this land is going to be  used for a court house.  He says that doesn't do it.  You've got to actually build the land.  And it seems  to me he would be saying, in relation to the trial  judge, it's not enough to say we are going to settle  the colony by pre-emption, et cetera, et cetera.  It's  only when it's done that it extinguishes.  That's what  I take out of Mr. Justice Brennan's approach.  Now, I haven't finished reading it, you know, but  that's what I mentioned yesterday, that it seems to  me -- I didn't say yesterday, but I say today that  that's contrary to what the trial judge found here,  that intention to do something the trial judge said  was enough and the plaintiffs say here that's not  enough.  It's got to be done.  And that's what Justice  Brennan is saying.  :  I would have two answers to that, if I may.  First of all I think read in the context of his  judgment as a whole, the judgment does not go as far  as that.  Secondly, even accepting your lordship's  suggestion that that is the proper construction, I say  that that doesn't necessarily determine the outcome of  the construction of the land legislation and the  policy in British Columbia, remembering that the test  is the intention of the sovereign, not simply --  J.A.:  But he's working on intention too, Mr. Justice 2369  Submissions by Mr. Plant  1 Brennan.  He says the intention that you find isn't  2 complete until the act is done.  3 MR. PLANT:  I say nothing emerges from the historical record of  4 the colony of British Columbia more clearly than the  5 fact that the intention was complete, and that's my  6 submission.  7 HUTCHEON, J.A.:  No one was up at -- this was 1860 you are  8 talking about, and no one was up at Hazelton until  9 1870.  10 MR. PLANT:  Without quibbling with you on five years here or  11 there, the point is, to take the language from Sante  12 Fe, the exercise of dominion is not adverse to the  13 fact of occupancy but to the right of occupancy.  What  14 the sovereign has done has been to -- has been to  15 create a regime adverse to the right of occupancy,  16 recognizing that within that regime aboriginal  17 persons, both as a matter of fact continue to occupy  18 lands and, pursuant to the promise of the Crown which  19 binds the Crown, are entitled to do so after -- from  20 and after the colonial period.  21 HUTCHEON, J.A.:  All right.  22 LAMBERT, J.A.:  At this stage your argument is only going to  23 occupancy rights or ownership rights, because hunting  24 rights, of course, would be an entirely different  25 basis.  There is not necessarily an inconsistency  26 between the grant of a fee simple title to someone and  27 the hunting rights remaining in the aboriginal  28 peoples.  29 MR. PLANT:  The first point I make, my lord, is to distinguish  30 between occupancy rights and ownership rights, and I  31 do that simply for my own analytical purposes.  I say  32 that when you use the ownership term, you are talking  33 about the Appellants' claim, and I think I tried to,  34 at least, provide your lordship with a reason why that  35 claim ends at Calder II.  36 Now, your lordship talks about occupancy rights,  37 user rights, hunting rights.  I am talking about  38 rights to land, rights to occupy, use, hunt, fish,  39 pick berries, chop down trees, all those rights, all  40 rights to land as rights are extinguished by the  41 regime of land use which becomes pervasive and all  42 encompassing throughout the colonial period.  So the  43 short answer to your question is I am saying hunting  44 rights are extinguished also as being land based  45 aboriginal rights.  46 LAMBERT, J.A.:  As I understood Ms. Koenigsberg's argument three  47 days ago or so, it was that the grant of fee simple 2370  Submissions by Mr. Plant  1 title might extinguish, it might in some cases act as  2 a complete extinguishment, and other cases it might  3 act as a partial extinguishment or modification, and  4 in some cases it might have no effect on the  5 aboriginal rights, which means that you must look at  6 each case.  And of course the right to hunt over  7 unoccupied land was how it was expressed in the  8 treaties, and surely how it must have been expected to  9 be carried out in fact, so the test, the  10 contemporaneous historical test was were the lands  11 occupied or not, not were they held in fee simple or  12 not in relation to the exercise of hunting rights.  13 So I understand from what you have just said what  14 you think is the scope of your extinguishment  15 submission, but let me say that I see its force more  16 clearly in relation to ownership or exclusive  17 occupancy than I do in relation to hunting and  18 gathering.  19 MR. PLANT:  That is because, if I may say, my lord, your  20 lordship is still looking at what's happening on the  21 ground and is wrestling with the obvious difficulty,  22 which I think arises naturally when one relies and  23 looks closely at the test which both Canada and the  24 Province have urged on your lordships.  25 A more impractical test, it would be difficult to  26 devise, because if I make a grant in fee simple to  27 someone, that grant may be unexercised in the sense  28 that all that has happened is that there is a  29 certificate of indefeasible title in the Land Title  30 Office, it may be for 25,000 acres, land never  31 occupied in the factual sense.  There was no fence  32 built.  How would anyone know that the land was owned.  33 The aboriginal people who have been accustomed to  34 using that land may continue to use it.  If the test  35 is adverse to the fact of occupancy, I say that while  36 I as a lawyer certainly look forward to generations of  37 litigation, that's a most unworkable test.  That is  38 why the test is adverse to the right of occupancy.  39 And when the right claim is the right of occupancy and  40 use in accordance with traditional law of an all  41 encompassing, all embracing nature, particularly when  42 that right is asserted in relation to traditional  43 lands, not unoccupied lands, it's not a definition  44 which springs from the Crown's definition of land as  45 being unoccupied or occupied, but rather from the  46 aboriginal persons' perspective of is this my  47 traditional territory.  These are all claimed as 2371  Submissions by Mr. Plant  1 rights.  We look at them as rights, not as activities.  2 And when you look at them as rights and you put that  3 against the legal regime which denies those rights as  4 rights, that's when you have extinguishment.  5 That's why I say I can make the all embracing  6 submission that your lordship has correctly  7 characterized.  8 LAMBERT, J.A.:  Well, I understand your submission on the point,  9 but in my view it works back from what one would have  10 expected to happen on the ground to what constitutes  11 clear and plain intention in the circumstances.  So I  12 believe I understand your submission on that which I  13 didn't before you responded.  14 MR. PLANT:  That therefore largely completes what I have to say  15 with two exceptions.  First requires that I ask your  16 lordships to note that commencing in page 41 of my  17 speaking notes I make reference to the question of  18 fiduciary duty.  And over the course of the next two  19 or three pages I make two points really.  My goal is  20 to make two points.  The first is to understand that  21 if the -- first of all to understand that fiduciary  22 duties, as Justice Sopinka said for the majority in  23 the Lac Minerals case, have one indispensable feature,  24 and that is the feature of dependence or  25 vulnerability.  Those words are at the top of page 42.  26 Now, if the Appellants' conception of their rights  27 is correct, then, as I say in paragraph 66, the  28 Province is constitutionally incapable of derogating  29 from those rights.  So that if your lordships reverse  30 the finding of extinguishment and accept the  31 Appellants' characterization of the constitutional  32 position, then the features of dependency and  33 vulnerability are not present.  And I would submit the  34 Crown in Right of the Province cannot owe a fiduciary  35 obligation.  You can't owe a fiduciary obligation to  36 someone you have no power over or no ability to -- no  37 constitutional capacity to effect.  38 Then the question arises, and this is paragraph  39 68, if your lordships hold that aboriginal rights were  40 not extinguished but that the Province has persuaded  41 you that it is constitutionally competent to  42 extinguish or impair the exercise of aboriginal  43 rights, then the question may arise whether the  44 fiduciary duty can go in hand in hand with those  45 rights.  And I say that question does not arise in  46 this case, and it may arise in future litigation.  47 Whether in the exercise of its public powers in 2372  Submissions by Mr. Plant  1 relation to aboriginal rights the Province is  2 constrained by the private law of obligations of a  3 fiduciary, but since there is no list joined on this  4 question, I would urge your lordships to be cautious  5 in attempting to answer that question.  6 The last point is to remind your lordships --  7 firstly to remind your lordships of what I told you at  8 the beginning.  I have extracted from portions of the  9 factum and the appendices to the factum.  Mr. Willms  10 spent some time doing that also on Wednesday.  But we  11 have not covered the whole of the factum or the  12 appendices, and regrettably because of the time we  13 will not be able to.  And I want to leave with your  14 lordships all the factum and its appendices, some of  15 which contain material relating to the Appellants'  16 evidence that may or may not have already been brought  17 to your lordships' attention.  18 I had hoped to make specific reference to two  19 parts, and now I am looking at paragraph 69, two parts  2 0 of what is Appendix 7 of the Amicus factum, and the  21 goal here would be to provide your Lordships with the  22 necessary historical context for submissions that you  23 have heard about statements made during the  24 administration of Alexander Mackenzie, which includes  25 the era when Lord Dufferin was governor general, and  26 he came to British Columbia and made some speeches  27 here or made a speech here which gave rise to  28 considerable agitation, and also the submissions that  29 you have heard about Treaty 8.  30 What I have done here is that I have prepared  31 reference binders for all of the material referred to  32 in those sections of the factum that deal with those  33 two issues, those two questions.  And those binders  34 are probably behind your lordships.  You don't need to  35 get them out, but they are R & D 6 and R & D 7.  And  36 so to the extent that your lordships wish to examine  37 further the interesting question of what Lord Dufferin  38 said when he came to British Columbia and what he said  39 on other occasions when he was changing the text of  40 messages he sent from one place to another, and the  41 historical context of Treaty 8, the documents for  42 those will be found in R & D 6 and R & D 7.  43 Those are all the submissions I have.  44 TAGGART, J.A.:  We should really take R & D 5, 6 and 7 into  45 account when we are dealing with the material that  46 you've put before us.  47 MR. PLANT:  Four, 5, 6 and 7.  Four was the first — the long 2373  Submissions by Mr. Willms  1 binder or the thick binder that I started with  2 yesterday.  3 TAGGART, J.A.:  That's right.  Thank you, Mr. Plant.  We look  4 forward to some light reading.  5 MR. JACKSON:  Perhaps before Mr. Willms starts, if I could get  6 some clarification from Mr. Plant apropos a point  7 which was raised early in my submissions some weeks or  8 months ago.  The point is the original factum of the  9 Province had a long section in which much reliance was  10 placed upon the settled colony theory, and the point  11 was advanced that under the settled colony theory, the  12 rights of aboriginal peoples were limited to those  13 lands they occupied by reference to the common law  14 definition of occupation.  And am I to assume, as I  15 have assumed, that that part of the R&D factum is  16 not being pursued in light of Mabo?  17 MR. PLANT:  We are not advancing that argument any more.  We are  18 not advancing the argument that common law aboriginal  19 title is confined to lands actually occupied in the  20 sense of villages.  Does that assist?  21 MR. JACKSON:  Yes.  Thank you, my lord.  22 TAGGART, J.A.:  Mr. Willms.  23 MR. WILLMS:  My lords, I will be making submissions from Tab 14  24 of the factum.  I hope that this section was put into  25 Tab 14.  But the Tab 14 which in the old factum was  26 entitled "Nature of the Order Sought" should now  27 contain a section that says "Availability of the  28 Remedies Sought".  29 TAGGART, J.A.:  That is the —  30 MR. WILLMS:  The factum, Volume 1, Tab 14.  31 TAGGART, J.A.:  Do we need reference books in relation to this?  32 MR. WILLMS:  No, my lord.  33 Now, I hesitate to ask, but does anybody not have  34 a written submission entitled "Availability of the  35 Remedies Sought" at their Tab 14?  All right.  36 The place that I would like to start is on page 2,  37 because it sets out the submissions that I will be  38 advancing starting at paragraph 4.  And the  39 submissions that I will be advancing -- and when I say  40 declarations now sought by the Appellants and the  41 Province, I am referring to the so-called immediate  42 declarations that the Province and the Appellants are  43 seeking.  You will recall that the Appellants have got  44 their ultimate or final declarations that they are  45 seeking.  I am going to be referring to the immediate  46 declarations.  And as far as the Province is  47 concerned, the Province has two sets of submissions, 2374  Submissions by Mr. Willms  1 declarations in the first paragraph in their remedy,  2 in their orders sought and in the second paragraph.  3 I wonder, Madam Registrar, what I have done is I  4 have photocopied the remedies that I am going to be  5 addressing from the Province's corrected, revised  6 factum and from the submissions that the Appellants  7 filed in court earlier this month, filed on June 12th.  8 So that the remedies that I will be addressing are the  9 ones that in effect ask this court to impose a  10 transition period or an adjournment or some hiatus  11 period during which the Appellants and the Province  12 suggest negotiations will take place.  I have handed  13 those up to your lordships because when I get into my  14 submissions it will be easier to follow some of them  15 if you have them beside you.  The submissions that I  16 will be advancing are set out on page 2.  17 First, I am going to be suggesting that to the  18 extent that the Province and the Appellants agree on  19 any particular part of the relief sought, the law is  20 that such agreement is a reason for not granting the  21 relief, that the court should be slow to act where  22 there is no dispute or no true contradictor before it.  23 And I'll develop that later.  24 Second, that the declarations that are sought will  25 neither determine the rights of the parties, nor  26 settle the issues between them.  And I will develop  27 the submission that rather than create certainty they  28 will foster uncertainty.  29 Third, the Province's claim for declaration that  30 there was not a blanket of extinguishment of the  31 Appellants' aboriginal rights is otiose.  The  32 Appellants sought no such declaration at trial, nor  33 did the trial judge make any such finding.  And my  34 colleague Mr. Plant referred that to you yesterday,  35 and I'll refer to it again.  There is no finding of  36 blanket extinguishment.  37 Next, the declarations sought would affect the  38 rights of persons who are not parties to the case, and  39 the court should not make orders without giving those  40 affected an opportunity to be heard.  41 Next, the question whether the Appellants have  42 aboriginal rights which are protected by Section 35 of  43 the Constitution Act cannot be answered until the  44 court has engaged in the justificatory analysis  45 required by Sparrow.  And I will be submitting that  46 declaration of existing aboriginal rights has no  47 practical or legal effect.  Certainly it has no legal 2375  Submissions by Mr. Willms  1 effect.  I will be primarily arguing or submitting  2 that it has no practical effect in the circumstances.  3 Last, aboriginal rights under Section 35 are not  4 defined through negotiation.  I will be advancing a  5 submission that it's treaty rights that are defined  6 through negotiation, not aboriginal rights.  7 Aboriginal rights are defined by the court.  8 Therefore, an adjournment to allow the Appellants and  9 the Province to negotiate the precise location, scope,  10 content or consequences of the Appellants' aboriginal  11 rights would have no practical or legal effect.  12 Finally, I say in paragraph 5 that if this court  13 makes declarations respecting the Appellants' Section  14 35 rights, and by that I mean when the court makes the  15 Section 35 declaration it necessarily involves  16 inconsistent legislation.  And I'll deal with that in  17 some detail.  The Sparrow test involves looking at  18 either inconsistent legislation or governmental action  19 in finding an inconsistency, some invalidity.  And I  20 will be suggesting that if this court should make such  21 a declaration, a doctrine adopted by the Supreme Court  22 of Canada called the de facto doctrine protects all  23 third party interests no matter what they are in land  24 acquired prior to the date of this court's order, and  25 they will continue to have force and effect in  26 accordance with their terms.  And I will also be  27 suggesting that if such declarations are made that  28 this court has the power to order a transition period  29 during which time the validity of provincial  30 legislation would continue.  31 Now, I set out in paragraphs 6 and 7 the -- what  32 the Appellants and the Province have asked for, and I  33 think I would rather go through those in some detail  34 when I get into my submissions to relate the  35 particular paragraphs to the submissions.  I only wish  36 to point out is what I have done is I have combined  37 paragraphs 2 and 3 of the Appellants' submissions in  38 paragraph 6, so that the only difference between the  39 declaration in paragraph 2 from the declaration in  40 paragraph 3 is wherever you see something underlined,  41 you take that out and replace it by what is in the  42 square brackets.  So that declaration 2, for example,  43 2(a), is that the Appellants have existing aboriginal  44 rights which include a right of ownership which  45 extends to the enjoyment and possession of lands and  46 resources within the claimed territory.  The only  47 change the Appellants have made in declaration 3 is 2376  Submissions by Mr. Willms  1 they take out the words that have been underlined and  2 put in the words that are in the square bracket.  So  3 that the declaration 3(a) includes a proprietary  4 interest in lands and resources within the claimed  5 territory.  6 I have just done that to combine them to show you  7 where the differences are.  And there aren't very many  8 differences between the declarations sought in 2 and  9 3.  10 LAMBERT, J.A.:  Everywhere that's underlined goes out and  11 everywhere in square brackets goes in instead?  12 MR. WILLMS:  Goes in instead.  That's right.  13 I make the point in paragraph 10 that at the  14 opening of the appeal the Appellants and the Province  15 made a submission which it appeared that they had  16 agreed to on what they wanted the court to do, and  17 they -- first of all I don't think Canada ever agreed  18 to that, but I don't think that that particular  19 agreement is any longer extant.  I don't think that's  20 an issue any more before the court based on the  21 submissions made by Mr. Williams.  And I think that  22 the only issues before the court right now on remedies  23 are not those ones in that document filed with the  24 court on the 29th which sets out a purported agreement  25 for arguing certain issues and deferring others, but I  26 think it is what remedies to grant as between the  27 interim remedies or the final remedies that the  28 parties have submitted.  29 I set out, my lords, in paragraphs 11 through 12  30 Canada's position on remedies.  And since I am not  31 going to refer to them in detail, I think I will read  32 that.  That Canada seeks an order that the portion of  33 the judgment of the learned trial judge in which he  34 held that pre-confederation colonial enactments had  35 the effect of extinguishing the Appellants' aboriginal  36 rights or interests in land be varied.  Canada submits  37 that detailed analysis of aboriginal use and  38 legislated use is required to determine whether the  39 Appellants' rights have been extinguished or  40 diminished.  Canada submits that it is inappropriate  41 for this court to embark on this analysis, and that  42 the issues should be referred to a registrar or  43 similar tribunal.  44 And then Canada argues that as a general  45 proposition it cannot be said that all limited forms  46 of dedication, resource tenures and other legislated  47 uses can be taken to extinguish aboriginal rights.  In 2377  Submissions by Mr. Willms  1 its appendices Canada submits that some legislated  2 uses extinguish the Appellants' rights.  In other  3 cases Canada says there is insufficient evidence to  4 determine whether such a use is irreconcilable with an  5 aboriginal right.  6 Canada's submissions are focused on a -- if I can  7 put it this way, the traditional role of the court on  8 this appeal.  If your lordships overrule aspects of  9 the judgment, the proper course is to send it back for  10 a new trial or send it to the registrar, but that this  11 court shouldn't deal with it after making whatever  12 findings this court makes in respect of the appeal.  13 And for that reason I am not going to be dealing with  14 Canada's submissions because they are, as I said,  15 traditional -- the traditional relief that can be  16 granted by an appeal court.  17 Now, I set out from paragraphs 13 through 22 the  18 position of the intervenors, and I am not going to  19 read from that, my lords, because, of course, the  20 intervenors can't determine what the order of the  21 court should be.  It's for the parties.  But I set it  22 out there so that you can see what each of the  23 intervenors have said they think this court should do  24 on this appeal.  25 I would like to then start my submissions on  26 remedies generally at page 12, paragraph 23.  In that  27 paragraph, although the content of the declarations  28 that the Appellants and the Province seek are somewhat  29 different, there is one consistent thread through the  30 declarations that the Appellants, the immediate  31 declarations that the Appellants and the Province see.  32 That is they seek that the appeal be allowed in part,  33 that certain declarations be made respecting the  34 Appellants' aboriginal rights, a period ordered for  35 the purposes of negotiation, and that this court  36 retain jurisdiction over the appeal in the event  37 negotiations fail.  38 Before I proceed to discuss Solosky, Mr. Macaulay  39 made a submission on the Court of Appeal Act and  40 handed up speaking notes, and I believe the speaking  41 notes were handed up on June 23rd, 1992.  And in  42 respect of Mr. Macaulay's submissions on the Act  43 itself, I have nothing further to add.  I mean, the  44 Act sets out the appropriate provisions in respect of  45 the statute, the fact that it's clear that in two  46 years from now or whatever period of time it won't be  47 the same bench.  If the matter comes back before the 2378  Submissions by Mr. Willms  1 court, it will come back before the court.  So I am  2 not going to add anything to what Mr. Macaulay has  3 said about the statute itself.  What I am going to  4 advance my submissions on is the cases that my friends  5 have referred to that would, in their submission,  6 suggest that this court can make some sort of  7 declaratory order now, and then in two years from now  8 the parties could come back and get some more  9 declaratory orders in respect of this appeal.  10 Now, I am not going to read the quote from  11 Solosky and The Queen at paragraph 24, because I  12 summarize at paragraph 25 what the Supreme Court has  13 said about declaratory relief in Solosky.  I say there  14 that two principles emerge.  That first declarations  15 will not be granted where there is no proper  16 contradictor, that is, someone presently existing who  17 has a true interest to oppose the declarations sought.  18 Second, the declaratory relief must be immediately  19 available so that it determines the rights of the  20 parties at the time of the decision, together with the  21 necessary implications and consequences of the right.  22 And I say those -- and I'll expand on that in the next  23 paragraphs.  24 I refer in paragraph 26 to the judgment of the  25 Supreme Court of Canada in Operation Dismantle.  And  26 this is really on the first point; that is, you need a  27 proper contradictory.  You will see at the top of page  28 15 of the factum.  29  30 "Conjectural or speculative issues, or feigned  31 disputes or one-sided contentions are not the  32 proper subjects for declaratory relief."  33  34 And I say in paragraph 27 that in the absence of a  35 proper contradictor, to the extent that the Appellants  36 and the Province concur in the declaratory relief  37 sought.  And they do both concur in this.  They do  38 both say this court can declare that the Appellants  39 have had existing aboriginal rights.  They say don't  40 define them but declare that they do have existing  41 aboriginal rights.  The Province's version is, of  42 course, much narrower than the Appellants' version,  43 but they both ask this court to declare that they have  44 existing aboriginal rights.  And I point out in  45 paragraph 27 that although the intervenors in Amicus  46 will assist the court in identifying opposing points  47 of view on some of the questions, they are not 2379  Submissions by Mr. Willms  1 parties; the intervenors' rights and interests are  2 not, and cannot be, directly at issue in this appeal,  3 unless they are parties.  The absence of a dispute  4 between the Appellants and the Province reinforces the  5 need for caution in granting some of the declarations  6 sought.  7 Turning to the second principle that emerges from  8 Solosky.  The declarations in their present form will  9 not determine the parties rights or settle issues  10 between them.  Both the Province and the Appellants  11 suggest that this court should declare that certain  12 undefined rights exist but then adjourn so that  13 negotiations may take place, and I am using the words  14 of the Province here, to allow the parties to resolve  15 the consequences of the Appellants' rights.  But  16 Solosky specifically calls that kind of a declaration,  17 a declaration of a hypothetical right, because  18 declarations that are immediately available, and I am  19 quoting here from Solosky, "To determine the rights of  20 the parties at the time of the decision together with  21 the necessary implications and consequences" of the  22 rights.  Now, that's what makes a declaration real and  23 not hypothetical.  But to make a declaration where the  24 court is being specifically asked to stay away from  25 the consequences of the declaration is under Solosky a  26 hypothetical declaration.  And I say that the  27 declarations in that respect, in that regard sought by  28 the Appellants and the Province, are declarations of  29 hypothetical rights.  30 Now, I don't need to deal in detail with paragraph  31 29.  Paragraph 29 was put in the factum in case the  32 agreement between the Province and the Appellants was  33 still extant, and it's to point out something that I  34 think is well accepted in the law, and I have quoted  35 at line 38 that:  36  37 "A declaration is a judicial act and will not be  38 made merely on admissions of counsel or by  39 consent."  40  41 So the fact that the Appellants and the Province  42 agree does not in and of itself advance their  43 submissions at all in that respect.  44 Turning the page, the next section is entitled  45 "Relief Sought in Relation to the Judgment under  46 Appeal".  And I have quoted from a decision of this  47 court in Morrison and Coulter, it's a judgment of 2380  Submissions by Mr. Willms  1 Madam Justice Southin.  But I say it's worthwhile  2 recalling what the Appellants and the Province are  3 asking this court to do, to remember that as a matter  4 of law it's from the judgment that appeals are  5 properly taken, not from the reasons for judgment.  6 And that is why, for example, if the court finds that  7 an error of law took place in the judgment below, the  8 court wouldn't make a declaration that an error of law  9 took place in the judgment below.  The court would  10 allow the appeal and direct a new trial or, if the  11 court had all of the evidence before it upon which it  12 could decide the case, applying the correct law, then  13 the court would do that.  But there wouldn't be a  14 declaration that the judge got the law wrong.  That  15 wouldn't be a declaration.  16 And that leads me to paragraph 31, which is again  17 the finding of extinguishment of the trial judge.  He  18 did not find a blanket extinguishment.  What he found  19 was that outside of reserves aboriginal rights to land  20 were extinguished.  He said nothing about other  21 aboriginal rights.  And, of course, as your lordships  22 may have appreciated from two days ago and the  23 historical evidence, the fishing right, fishing being  24 so critical to these people, at least at the time of  25 contact, is an important right that the Chief Justice  26 specifically says nothing in his judgment affects that  27 and is to be taken to affect fishing rights.  And, of  28 course, there was no claim made against the Federal  2 9 Crown.  30 Now, that is why, my lords, I say in paragraph 32,  31 and this would be an appropriate time to look at --  32 I'll maybe make this point and then we can break.  But  33 if you open up -- I gave you a copy from the  34 corrected, revised factum of the Province.  If you  35 turn to page 2, you will see that the first  36 declaration that the Province seeks is a declaration  37 that there was not a blanket extinguishment of the  38 Appellants' aboriginal rights.  And I say in paragraph  39 32 that no party on this appeal has challenged the  40 trial judge's exclusion of aboriginal rights which are  41 not rights to land or reserve rights and fishing  42 rights from the purview of his extinguishment  43 decision.  44 I say that since the Chief Justice did not find  45 that there was a blanket extinguishment, and since no  46 one is arguing that he should have so found, the  47 declaration sought by the Province in paragraph 1(a) 2381  Submissions by Mr. Willms  1 is simply beside the point.  If this Court disagrees  2 with the Chief Justice on either the legal test for  3 extinguishment or on his application of the test, did  4 he apply the right test, the proper course is to allow  5 the appeal in that respect.  But just as I said  6 earlier, you don't make a declaration that the trial  7 judge applied the wrong test, or you don't make a  8 declaration that he, in applying the facts to the  9 test, came to the wrong conclusion.  You go further.  10 It certainly doesn't lead the court to make a  11 declaration like 1(a).  12 LAMBERT, J.A.:  You referred to, of course, the proposition that  13 that appeal is taken from the formal judgment.  14 MR. WILLMS: Yes.  15 THE COURT:  Do you have a good reference to give us to get the  16 formal judgment into our hands to understand this?  17 MR. WILLMS:  Oh, yes.  I can get that for you right after the  18 break.  19 LAMBERT, J.A.:  That would be wonderful.  So that we can have it  2 0 as you make this argument.  21 TAGGART, J.A.:  I think you can find it in the appeal book.  22 MR. WILLMS:  It is at Tab VI of the appeal book index.  23 MACFARLANE, J.A.:  Can you make a copy for us at the break?  24 MR. WILLMS:  Yes.  25 LAMBERT, J.A.: If it's not too much trouble.  26 MR. WILLMS:  It's not too much trouble.  I'll do that, my lords.  27 I'll find it, my lords, and I'll make a copy of it.  28 TAGGART, J.A.:  I think that's the Notice of Appeal, Mr. Willms,  29 however, I'm sure it must be --  30 MR. WILLMS: I'll find it, my lords, and I'll make a copy of it.  31 TAGGART, J.A.:  Maybe you've never settled it.  32 MR. WILLMS:  We did settle it.  33 TAGGART, J.A.:  All right.  We'll take a break.  34 THE REGISTRAR:  Order in court.  Court stands adjourned for a  35 short recess.  36  37 MORNING RECESS  38  39 THE REGISTRAR:  Order in court.  40 TAGGART, J.A.:  Yes, Mr. Willms.  41 MR. WILLMS:  My lords, I have copies of the Order.  And if you  42 turn to page 6 of the Order, you will see at the  43 bottom of the page that the action against the  44 Attorney General is dismissed without costs.  The  45 declaration at the bottom:  46  47 "Subject to the general law of the Province, the 2382  Submissions by Mr. Willms  1 defendant Province shall permit the plaintiffs  2 to use unoccupied or vacant Provincial Crown  3 lands within the territory coloured brown on  4 the map to enable them to obtain aboriginal  5 sustenance from and to engage in cultural  6 activities upon such lands until such lands or  7 portions thereof are required for or dedicated  8 to an adverse purpose by or with leave of the  9 Provincial defendants, and that the Defendant  10 Province shall not arbitrarily limit this use."  11  12 And that finally that in all other respects the  13 plaintiffs' action is dismissed without costs.  On the  14 next page the counter-claim of the Province is  15 dismissed without costs.  So that you will see that  16 there is no reference in the formal Order at all to  17 extinguishment, blanket or otherwise.  18 And the Order did not make it into the appeal  19 book, so that would be a good copy to keep.  20 LAMBERT, J.A.:  I'm glad I asked.  21 MR. WILLMS: I'm glad you did too, my lord.  22 TAGGART, J.A.:  In that case I'll put my name on it.  23 MR. WILLMS:  Returning to the factum.  At paragraph 33, and I  24 think that it would be helpful at this point to look  25 at the relief sought by the Province and also the  26 Appellants' revised position.  There is two paragraphs  27 I would like to direct the Court's attention to before  28 proceeding on the next paragraphs of the submission.  29 And starting with the Province, the declaration  30 1(b) of the Province is a declaration that the  31 Appellants have existing aboriginal rights with  32 respect to an undefined portion of the territory in  33 question.  And the correlative declaration in the  34 Appellants is, and I'm just going to read 2(a),  35 because, as you might recall, the only difference  36 between (a) and (b) is that right of ownership is  37 removed and proprietary interest in is added.  So if  38 you go to the -- on the bottom of the first page of  39 the Appellants' revised position on remedies, you will  40 see that they seek an order that they have existing  41 aboriginal rights which include a right of ownership  42 which extends to the enjoyment and possession of lands  43 and resources within the claimed territory.  So that  44 the Appellants do suggest a definition of what their  45 right includes, and then they change that as well to  46 proprietary interest.  47 What I say in paragraph 33 is that the Province's 2383  Submissions by Mr. Willms  1 declaration 1(b) and the Appellants' declaration 2(a)  2 and 3(a) require overturning a significant body of  3 findings of fact and law made by the Chief Justice in  4 circumstances where neither the Province nor the  5 Appellants have identified any palpable or overriding  6 error.  The declarations also raise questions about  7 the desirability of granting declaratory relief where  8 the result will be to create uncertainty.  9 I'll deal with the uncertainty later, but the  10 Chief Justice made findings about the Appellants'  11 aboriginal rights.  At page 391, and I am at line 13  12 of page 19 of my factum, the Chief Justice said at 391  13 of the judgment:  14  15 "In my view, the aboriginal rights of the  16 plaintiffs' ancestors included all those  17 sustenance practices and the gathering of all  18 those products of the land and waters of the  19 territory I shall define which they practised  20 and used before exposure to European  21 civilization (or sovereignty) for subsistence  22 or survival, including wood, food and clothing,  23 and for their culture or ornamentation - in  24 short, what their ancestors obtained from the  25 land and waters for their aboriginal life."  26 Page 392:  27  28 "In my view the purpose of aboriginal rights was  29 to sustain existence in an aboriginal society,  30 that is, to hunt and fish and collect the  31 products of the land and waters for the  32 survival of the communal group.  There would  33 undoubtedly be some bartering but that would be  34 in sustenance products likewise obtained by  35 aboriginal practises."  36  37 And at page 393:  38  39 "Notwithstanding the complexity of mixed land  40 use in the province, I think aboriginal rights,  41 to the extent recognized by law, have always  42 been sustenance user rights practiced for a  43 very long time in a specific territory.  These  44 rights do not include commercial activities,  45 even those related to land or water resource  46 gathering, except in compliance with the  47 general law of the province." 2384  Submissions by Mr. Willms  1  2 And then at the top of page 20 of my factum:  3  4 "... the plaintiffs have established, as of the  5 date of British sovereignty, the requirements  6 for continued residence in their villages, and  7 for non-exclusive aboriginal sustenance rights  8 within those portions of the territory I shall  9 later define.  These aboriginal rights do not  10 include commercial practices."  11  12 And I didn't put the extracts in here, my lord,  13 but he found that the right was non-proprietary as  14 well.  15 So that dealing first of all with the Appellants'  16 interim declaration, that interim declaration could  17 only be granted if findings of fact of the Chief  18 Justice were overruled; whether it be for the  19 proprietary declaration, which is in 3, or the  20 ownership declaration in 2.  21 With respect to what the Province is suggesting,  22 they are suggesting that the court make a declaration  23 that there are rights, but then stop there.  Now,  24 whether that's a suggestion that the Chief Justice be  25 overruled or not, it is a suggestion that a finding of  26 fact in the court below be ignored, and the question  27 arises from that:  What results in the interim?  What  28 rights do the Appellants have in the interim?  Do they  29 have the rights that the Chief Justice said that they  30 did as a matter of law or do they have general  31 aboriginal rights undefined?  And I'll get to the  32 definition aspect later and point out that the court  33 should not grant declarations to create uncertainty.  34 I am suggesting here that in effect the Province  35 is asking this court to overrule the trial judge's  36 findings of fact on what aboriginal rights are and the  37 territory within which the rights are exercised,  38 because the Province is suggesting that those issues  39 be sent away for negotiation, to negotiate the scope  40 and content of rights that the Chief Justice has  41 already defined.  And the only basis in law for doing  42 that, in my submission, would require overturning the  43 Chief Justice before the court could do something like  44 that.  45 TAGGART, J.A.:  Something that has puzzled me somewhat about the  46 nature of the relief now sought, that is to say the  47 declarations and so on, is that with respect to them 2385  Submissions by Mr. Willms  1 it may require the concurrence of Canada to some  2 extent, but it would seem to me if the parties, that  3 is to say the Province and the plaintiffs, were to sit  4 down and agree on the content of their aboriginal  5 rights and the territory, I am now talking geography  6 within which the rights may be exercised, one does not  7 need to reverse the order of the Chief Justice in  8 order to accomplish that.  There is nothing whatever  9 that I can see in the law, unless I am completely  10 wrong, that precludes the parties, notwithstanding a  11 judgment of the court.  They do what they wish to do.  12 MR. WILLMS:  Except for this point, and I am going to develop it  13 a little later on.  The parties cannot agree on what  14 the Appellants' aboriginal rights are under Section  15 35.  They can agree on treaty rights.  They can enter  16 into a land claim agreement and agree on what the  17 treaty rights are, but if that treaty doesn't provide  18 that the aboriginal rights of the Appellants are  19 extinguished, they still exist.  20 TAGGART, J.A.:  They can't limit the scope of Section 35.  21 MR. WILLMS:  They can't limit the scope of Section 35, the  22 aboriginal rights portion by agreement.  Treaty  23 rights, of course they can.  Treaty rights can be  24 determined by negotiation and amended by negotiation,  25 but an aboriginal right under Section 35 is subject to  26 this court's determination or a court's determination  27 or a constitutional amendment.  But just like the  28 right to life, liberty and security of the person  29 can't be negotiated.  It just exists.  The aboriginal  30 rights under Section 35, in my submission, can't be  31 negotiated, and I deal with that a little later on in  32 these submissions.  33 Now, I point out, my lord, and I am not going  34 to -- well, I think I will, because there have been  35 extracts from the next passage that have been quoted  36 in the factums, but there have been a lot of three  37 dots in some of the quotes and the factums, leaving  38 out some pretty essential portions of this -- the  39 finding that I quote at the bottom of page 20.  40 The Chief Justice said that:  41  42 "I am satisfied that at the date of British  43 sovereignty the plaintiffs' ancestors were  44 living in their villages on the great rivers in  45 a form of communal society, occupying or using  46 fishing sites and adjacent lands as their  47 ancestors had done for the purpose of hunting 2386  Submissions by Mr. Willms  1 and gathering whatever they required for  2 sustenance.  They governed themselves in their  3 villages and immediately surrounding areas to  4 the extent necessary for communal living, but  5 it cannot be said that they owned or governed  6 such vast and almost inaccessible tracts of  7 land in any sense that would be recognized by  8 the law.  9 In no sense could it be said that Gitksan or  10 Wet'suwet'en law or title followed (or  11 governed) these people except possibly in a  12 social sense to the far reaches of the  13 territory.  14 To put it differently, I have no doubt that  15 another people, such as the Nishga or Tahltan,  16 if they wished, could have settled at some  17 location away from the Gitksan or Wet'suwet'en  18 villages and no law known to me would have  19 required them to depart.  20 While these are my findings ..."  21  22 Those are the findings up above.  23  24 "... I am prepared to assume for the purposes of  25 this part of my judgment that, in the legal and  26 jurisdictional vacuum which existed prior to  27 British sovereignty, the organization of these  28 people was the only form of ownership and  29 jurisdiction which existed in the areas of the  30 villages.  I would not make the same finding  31 with respect to the rest of the territory, even  32 to the areas over which I believe the ancestors  33 of the plaintiffs roamed for sustenance  34 purposes."  35  36 Now, I say in paragraph 38 that it doesn't mean,  37 this finding does not mean that at the time of contact  38 the Appellants' ancestors did not govern themselves in  39 some way and may not have respected some rights inter  40 se.  It does mean that the case that the Appellants  41 put forward at trial as it related to governance of  42 land and resources failed on the evidence.  That's  43 important in respect of the jurisdictional finding and  44 the self-government orders that the Appellants  45 suggest, because in paragraphs 2(c) and 3(c) the  46 Appellants seek declarations of rights to govern the  47 lands of the resources of the territory. 2387  Submissions by Mr. Willms  1 I am not going to read the section on  2 extinguishment of aboriginal rights and jurisdiction,  3 my lords.  I have set it out at pages 22 and 23.  I  4 would like to point out at line 12 a finding of the  5 Chief Justice which I submit is absolutely correct  6 where he says:  7  8 "This is not to say that some form of  9 self-government for aboriginal persons cannot  10 be arranged.  That, however, is possible only  11 with the agreement of both levels of government  12 under appropriate, lawful legislation.  It  13 cannot be achieved by litigation.  14 In view of the foregoing ..."  15  16 And the foregoing being his rejection not only on  17 the law but on the evidence of the Appellants' claim  18 for jurisdiction.  That's what he means by "In view of  19 the foregoing".  20  21 "... it is not necessary for me to say anything  22 about the absence of representation by Gitksan  23 or Wet'suwet'en persons (or children or persons  24 under legal disability) who may not wish to  25 have aboriginal jurisdiction and authority  26 imposed upon them."  27  28 So that I summarize in paragraph 40 that the Chief  29 Justice found that as a matter of law there could be  30 no aboriginal jurisdiction cognizable as a right under  31 Section 35 after 1846, that is, British sovereignty  32 completely ousted as a finding of law any other  33 sovereignty.  Secondly, even if there could be, the  34 jurisdiction was extinguished in 1871 in the colony;  35 and third, and perhaps even more importantly for the  36 purposes of the orders that are being sought here,  37 even if the jurisdiction was not extinguished, the  38 Appellants' case on jurisdiction, insofar as it  39 related to land, failed on the evidence before the  40 Chief Justice.  41 So that I suggest in paragraph 41 that if the  42 findings of fact and law concerning jurisdiction are  43 overruled, this court would still need to consider  44 whether it could make an order respecting jurisdiction  45 in favour of the Appellants.  And when I say  46 jurisdiction, I include within that self-government  47 under Section 35, because although there is a separate 2388  Submissions by Mr. Willms  1 paragraph where the Appellants deal with inherent  2 right of self-government, it's a sub-paragraph D, in  3 sub-paragraph C of both 2 and 3 of the Order that they  4 are seeking they talk about institutions for the  5 regulation of the ownership, management and  6 conservation of lands and resources or institution for  7 the regulation of their proprietary interest.  Now,  8 those are self-government over resources.  I don't  9 know how else that could be categorized other than a  10 right to somehow govern the resources and the use of  11 the resources.  But the Chief Justice found as a fact  12 on the evidence that they hadn't shown that they had  13 institutions related to governing those resources.  So  14 I say that in order to make those declarations, the  15 court would have to overrule the Chief Justice.  16 Now, paragraph 41 picks up the point that the  17 Chief Justice made when he said:  18  19 "In view of the foregoing it's not necessary for  20 me to say anything about the absence of  21 representation by Gitksan and Wet'suwet'en  22 persons."  23  24 Because I say in paragraph 41 at the top of page  25 24:  There appears to be no authority for making the  26 declarations sought by the Appellants in paragraph  27 2(c) or 3(c) to bind the Appellants and members of the  28 Houses as represented by the Appellants.  A  29 representative action does not determine rights inter  30 se in the representative class.  It determines rights  31 between the representative class and the defendant  32 that is being sued.  33 The next point that I make, and I just make it in  34 one sentence, and I would like to amplify it a little  35 bit.  I refer to Section 25 of the Charter, and  36 Section 25 will have some importance later in my  37 submissions.  Section 25 of the Charter, in my view,  38 makes it clear that if you have a Section 35 right,  39 there is at least a strong argument, if not an  40 absolute argument, that Charter rights do not affect  41 aboriginal rights.  The purpose of Section 25 of the  42 Charter was to ensure that aboriginal rights under  43 Section 25 would not be dilluted or affected by the  44 Charter.  45 The point I make here with respect to  46 self-government is that it appears that  47 self-government of the Appellants or jurisdiction of 2389  Submissions by Mr. Willms  1 the Appellants would be unaffected by the Charter by  2 virtue of Section 25, so that while the Charter is a  3 limit on provincial and federal jurisdiction or  4 government, arguably it is not a limit on aboriginal  5 jurisdiction, if that jurisdiction is a right under  6 Section 35.  The interplay between Section 35 in  7 respect of self-government and Section 25 is, in my  8 submission, a matter of very great importance in  9 determining whether to make an order or a declaration  10 that the Appellants have some rights of  11 self-government.  And as far as I am aware, no party,  12 no person has addressed that issue before this court,  13 and it wasn't addressed at trial, so that -- not to my  14 recollection anyway.  So that what the Appellants  15 would have the court do, and I don't just include the  16 Appellants, although the Province doesn't set out a  17 declaration of self-government for the Appellants, you  18 may recall that the Province in its revised factum  19 says that the Appellants have inherent rights of  20 self-government under Section 35.  Once again, they  21 say this court doesn't need to define them, we will  22 negotiate them, but they say that the Appellants have  23 inherent rights of self-government.  24 The point that I am making here, and I'll refer to  25 the part of the corrected factum if I can find it  26 later on.  I heard some dissent from the corner, and I  27 don't want to misstate what the Province has said in  28 its factum, so I'll get it out later after lunch.  But  29 just focusing on the Appellants.  Before this court  30 could make any order along the lines that the  31 Appellants are suggesting in respect of  32 self-government under Section 35, I would suggest that  33 it would need a great deal of argument and  34 consideration of Section 25, especially in a case like  35 this where the Chief Justice noted he had Appellants  36 before him who represented Gitksan and Wet'suwet'en  37 persons vis-a-vis their claim against the Province,  38 but as deciding rights between themselves there was no  39 list between the Appellants as to what the rights  4 0 were.  And who knows how many Gitksan people or  41 Wet'suwet'en people agree with the declarations and  42 would want to be bound by the declarations that the  43 Appellants are seeking in this case, since they are  44 not parties to the case.  45 LAMBERT, J.A.:  Just to clarify that.  The first named plaintiff  46 is a Delgamuukw, also known as Earl Muldoe suing on  47 his own behalf and on behalf of all the members of the 2390  Submissions by Mr. Willms  1 Houses of Delgamuukw and Haakw.  I do understand that  2 there are one or two but not many Gitksan who are not  3 included as a plaintiff if you take into account all  4 the Houses, but if you do take into account all the  5 Houses and the membership of Houses, then it  6 encompasses, as I have understood it up 'til now, all  7 the Gitksan, subject to just one or two exceptions of  8 house leaders who didn't join in.  Aren't we regarding  9 this as representing them all?  10 MR. WILLMS:  Yes.  The Appellants represent, except for the  11 Kitwancool Gitksan, all the Gitksan.  The Chief  12 Justice found that.  And the Wet'suwet'en, except for  13 the Babine-Wet'suwet'en, they represent all the  14 Wet'suwet'en.  15 LAMBERT, J.A.:  I'm not quite sure that I'm understanding what  16 you're saying here then.  17 MR. WILLMS:  What I am saying, my lord, is that a finding of  18 aboriginal self-government under Section 35 does not  19 just affect the Appellants vis-a-vis the Province in  20 respect of self-government.  What I am saying is that  21 if your lordships make that order, it binds all of the  22 Gitksan and all of the Wet'suwet'en as well.  That's  2 3 my submission.  24 LAMBERT, J.A.:  You mean all the ones who are plaintiffs, are  25 represented by the plaintiffs?  26 MR. WILLMS:  Yes.  27 LAMBERT, J.A.:  But if they are truly represented, then they  28 want to be bound.  How deeply they thought about it,  29 of course, is another question, but if they are truly  30 represented as plaintiffs, then an order of  31 self-government binds them all, and one must take it  32 that they want it if this is a proper representative  33 action.  34 MR. WILLMS:  My lord, I think that you have to look at what the  35 Chief Justice said.  He said very succinctly a problem  36 that was developed in the evidence before him, and  37 that is the evidence before the Chief Justice, was  38 from the chiefs, from what are called in Gitksan  39 society the Simgiget.  The evidence was not from the  40 commoners who are called in Gitksan society the  41 Lixgiget.  And Mr. Sterritt had -- there was a  42 document filed at the Penner Commission in Ottawa  43 where Mr. Sterritt gave evidence about what aboriginal  44 self-government looked like for the Gitksan.  And so  45 what the Chief Justice had before him was a claim  46 which he accepted as a claim for rights against the  47 Province, but in respect of how those rights were 2391  Submissions by Mr. Willms  1 regulated inter se, that the comment that he makes  2 reflects the problem that all he heard from was  3 chiefs.  He didn't hear from the commoners.  He didn't  4 hear whether the commoners wanted what the chiefs said  5 about how this was going to be regulated, who would  6 have the right to decide.  7 The point that I am making here goes beyond  8 whatever they may have contemplated in terms of who  9 has the right to decide.  It goes to the Charter.  10 Because it may well be that rights of self-government  11 as exercised by the Appellants violate the Charter.  I  12 don't know.  No one knows.  It wasn't addressed.  But  13 whether or not Gitksan or Wet'suwet'en persons,  14 especially the commoners who did not give evidence at  15 trial, would be particularly interested in aboriginal  16 self-government being exercised to violate their  17 Charter rights is an issue that wasn't canvassed at  18 all at trial.  And it's an issue that I say, if you're  19 going to create a third level of government through  20 Section 35, is fundamental.  21 And I know that reference has been made to  22 negotiations, et cetera, but discussions that are  23 taking place today in Ottawa are taking place in the  24 context of whatever agreed self-government will be,  25 will be subject to the Charter.  But if you make a  26 declaration of self-government under Section 35, I say  27 when you read the constitution there is a very large  28 question when you read Section 25 of the constitution  29 as to whether or not the Charter would limit in any  30 way whatsoever the self-government rights being  31 exercised under Section 35.  That's the point that I  32 am advancing here.  33 LAMBERT, J.A.:  If we were to say anything in relation to  34 self-government rights, at the very least you say we  35 should say that questions such as this one were not  36 argued and addressed at trial, the evidence about them  37 is not -- was not put in, and anything we may say  38 about self-government is subject to the fact that we  39 cannot be taken as dealing with those questions.  40 MR. WILLMS:  I would think that you would need to, my lord.  I  41 would think that if this court thought that the Chief  42 Justice was wrong on his findings of fact, that they  43 did not exercise the jurisdiction over the lands and  44 resources, then the appropriate thing would be to send  45 it back, because the legal points that the Chief  46 Justice made will have to be dealt with by this court.  47 The court will have to determine whether or not 2392  Submissions by Mr. Willms  1 sovereignty in 1846 pushes out aboriginal sovereignty,  2 and that once sovereignty takes place there is no  3 longer any aboriginal sovereignty.  4 LAMBERT, J.A.:  Could you remind me where the Chief Justice's  5 judgment stands on the question of a right of  6 self-government in village sites.  7 MR. WILLMS:  It's at page 21 of my factum, and I read this —  8 the reason why I read this is in a number of factums  9 the fact that the Chief Justice said that he was  10 prepared to assume -- at line 16 is left out and all  11 you see is three dots, but what -- before line 15 the  12 Chief Justice finds as a fact no self-government in  13 effect in relation to the lands and resources.  But  14 then he says --  15 LAMBERT, J.A.:  On page 21 or paragraph 21?  16 MR. WILLMS:  On page 21 at line 15 he says:  17  18 "While these are my findings, I am prepared to  19 assume for the purposes of this part of my  20 judgment that, in the legal and jurisdictional  21 vacuum which existed prior to British  22 sovereignty, the organization of these people  23 was the only form of ownership and jurisdiction  24 which existed in the areas of villages."  25  26 LAMBERT, J.A.:  But that never finds its way into the formal  27 order.  There is never any formal order that says  28 jurisdiction over the villages is declared to be in  29 the plaintiffs.  30 MR. WILLMS:  No.  He assumes that and then he goes to  31 extinguishment.  You see, this is all around 1846.  32 This is the sovereignty --  33 LAMBERT, J.A.:  My recollection of what he says on  34 extinguishment is that it doesn't -- there is no  35 extinguishment of interests, land interests in village  36 sites.  37 MR. WILLMS:  Maybe I should have read it.  It's set out in full  38 at pages 22 to 23.  But at pages 22 to 23 he finds  39 that -- he repeats in the first two paragraphs that I  40 have -- maybe I should read it.  41  42 "I discussed this claim, the claim to aboriginal  43 jurisdiction in Part 14 of the judgment and I  44 concluded that aboriginal sovereignty did not  45 survive the assertion of British sovereignty.  46 I do not find it necessary to consider or  47 decide whether the establishment of the colony 2393  Submissions by Mr. Willms  1 of British Columbia, for example, should be  2 classified as a displacement of one sovereignty  3 by a different one which the law recognizes, or  4 whether the legal arrangements which were put  5 in place during the colonial period amounted to  6 an extinguishment of the earlier sovereignty.  7 I tend to think the former more correctly  8 describes the historical reality, but if I am  9 wrong in that regard, then it would be my  10 judgment that the Crown clearly and plainly  11 intended, in the sense I have mentioned, to  12 extinguish any aboriginal jurisdiction or  13 sovereignty which survived the assertion of  14 British sovereignty."  15  16 Just pausing there.  What I read to you the page  17 before is his discussion on sovereignty.  18  19 "This, of course, was accomplished by the  2 0 governmental arrangements that the Crown put in  21 place during the colonial period, which were  22 clearly intended to apply throughout the colony  23 and to bind everyone who lived there.  It is  24 inconceivable, in my view, that another form of  25 government could exist in the colony after the  26 Crown imposed English law, appointed a governor  27 with powers to legislate, took title to all the  28 lands of the colony and set up procedures to  29 govern it by a governor and legislative council  30 under authority of the Crown."  31 In addition, in my view, the enactment of  32 the British North America Act, 1867, and  33 adherence to it by the colony of British  34 Columbia in 1871, which was accomplished by  35 Imperial, Canadian and colonial legislation,  36 confirmed the establishment of a federal nation  37 with all legislative powers divided only  38 between Canada and the Province.  This also  39 clearly and plainly extinguished any residual  40 aboriginal legislative or other jurisdiction,,  41 if any, which might have existed in the  42 colonial period."  43  44 If I can summarize, what the Chief Justice did is  45 he discussed sovereignty first and he said, 'As far as  46 I am concerned sovereignty alone ousted all aboriginal  47 jurisdiction and government', but then he went on to 2394  Submissions by Mr. Willms  1 say -- that's when he goes on to make an assumption,  2 and he assumes -- 'I assume that there was some  3 aboriginal jurisdiction or sovereignty beforehand.  I  4 say that it would have been related only to the  5 villages.'  But that's in his discussion of  6 sovereignty.  Then later in his judgment he deals with  7 extinguishment and finds that whatever self-government  8 or jurisdiction may have existed, assuming he was  9 wrong in his earlier conclusions, was completely  10 extinguished during the colonial period and at the  11 very latest by 1871.  12 LAMBERT, J.A.:  So even if a derivative kind of or subordinate  13 kind of self-government comparable to the municipal  14 government, for example, doesn't exist in village  15 sites according to the Chief Justice, there is no  16 power to manage their own institutions, there is no  17 power to manage their own villages.  That's all gone.  18 MR. WILLMS:  Lands, my lord, you have to remember, if I may be  19 so bold, the case relates primarily to land and the  20 fruits of the land.  So that the Chief Justice did  21 not, and I'm going to deal with this a little bit  22 later on in respect of self-government, but there was  23 no claim of any provincial interference with, for  24 example, the institutions of the Gitksan as it  25 regulated rights inter se among the Gitksan.  There  26 wasn't any collision.  There was no lis.  27 The other problem that the Chief Justice was faced  28 with, and of course this is based on his finding of  29 fact, there was no legislative body, and my friends  30 have taken some pains to say that the feast is not a  31 legislative body.  Well, there wasn't one anywhere in  32 the evidence.  So that there was no -- and there is a  33 long discussion in the judgment where the Chief  34 Justice discusses the evidence of Neil Sterritt, for  35 example, on how this self-government might work, and I  36 think it ends up with -- in the evidence the Chief  37 Justice asking Neil Sterritt questions and him  38 suggesting, and I think Mr. Sterritt agreeing, that  39 they are still being developed.  I can't remember the  40 word.  At page 376 the Chief Justice asked Mr.  41 Sterritt:  42  43 "THE COURT:  I take it that there is no such mechanism in  44 place at the moment, no secretariat or  45 equivalent?  46 THE WITNESS:  Well, no.  47 THE COURT:  Other than the Tribal Council? 2395  Submissions by Mr. Willms  1 THE WITNESS:  The closest we come to it is the staff of  2 the Tribal Council."  3  4 So that on the evidence before the Chief Justice  5 on that aspect of it, my lord, whether or not there is  6 some different right of self-government among the  7 Gitksan and Wet'suwet'en, different from the one that  8 they advanced on the evidence, I don't know.  But the  9 one that they advanced on the evidence was rejected on  10 the evidence by the Chief Justice.  And that's why I  11 said earlier in this factum that doesn't mean that the  12 Appellants didn't regulate themselves somehow inter  13 se.  What it means is the case they put forward before  14 the Chief Justice was rejected on the facts in  15 addition to the law.  16 Now, I carry on, my lord, at paragraph 42 of my  17 factum at page 24, because I want to point out that  18 the remedies sought by the Appellants in paragraphs  19 2(d) or 3(d), which is an inherent right of  20 self-government exercisable through their own  21 institutions to preserve and enhance their social,  22 political, cultural, linguistic and spiritual identity  23 is a new remedy that was not sought at trial.  I say  24 that to the extent that the Appellants seek that the  25 order bind all Gitksan and Wet'suwet'en persons, such  26 an order is inappropriate in a representative action.  27 I say that even if the Appellants do not intend that  28 the orders apply to the Gitksan and Wet'suwet'en inter  29 se, the fact is that these declarations were not  30 sought at trial and they encompass issues which were  31 not litigated at trial, and that for these reasons  32 alone the declaration should not be made by this  33 court.  34 And then I make a point in paragraph 43 that  35 without further definition even the declarations that  36 the Appellants seek here will create confusion, not  37 only among the Gitksan and Wet'suwet'en, but also  38 between the Gitksan and the Wet'suwet'en and their  39 aboriginal neighbours.  I presume that the cultural,  40 linguistic and spiritual identity of those who are  41 Gitksan should be preserved and enhanced both by the  42 Gitksan who are parties to this action and the  43 Kitwancool-Gitksan who are not.  They are all Gitksan.  44 Equally the cultural, linguistic and spiritual  45 identity of those who are Babine-Wet'suwet'en should  46 be preserved and enhanced by both Wet'suwet'en who are  47 parties to this case and the Babine-Wet'suwet'en who 2396  Submissions by Mr. Willms  1 are not.  And your lordship has had a flavor of the  2 relationship between the Babine and the Wet'suwet'en,  3 and that relationship was very clear at trial in terms  4 of cultural, linguistic and spiritual identity.  5 I say that if the court made the order, the  6 Appellants would obtain court orders giving some of  7 them, that is the people who participated in this  8 lawsuit, and not others the power to preserve and  9 enhance Gitksan cultural, linguistic and spiritual  10 identity, and similarly giving some  11 Babine-Wet'suwet'en and not others the right to  12 preserve it.  13 Now, I repeat what I said before.  There was no  14 lis on this issue in the court below.  15 HUTCHEON, J.A.:  I don't know what you mean by that.  I don't  16 know what the flaw would be if that is so.  17 MR. WILLMS: If the?  18 HUTCHEON, J.A.:  The flaw.  What if you gave group A the right  19 to preserve and enhance their own culture and said  20 nothing about group B?  What's wrong with that?  21 MR. WILLMS:  Well, my lord, what's wrong with it in this case is  22 that the evidence before the court was not that there  23 were a number of individual bands who wanted to  24 preserve their own band or village identity so that  25 you could have differing preservation, differing  26 self-government from band to band, village to village.  27 This case is based on a theory that the Gitksan, that  28 there is some pan nationalism to them, just that the  29 Kitwancool Gitksan didn't want to take part in a  30 lawsuit, that the Wet'suwet'en --  31 HUTCHEON, J.A.:  Left out of it.  32 MR. WILLMS:  Well, they didn't want to join the case.  33 HUTCHEON, J.A.:  I understand you to say this wasn't argued at  34 trial or wasn't made part of it.  I can understand  35 that.  But I don't understand this last part that you  36 say you would have one group, group A, with the power  37 to preserve and enhance their culture, and nothing for  38 group B.  Group B hasn't asked for anything.  What's  39 wrong --  40 MR. WILLMS:  The culture is the same, my lord.  The evidence is  41 that it's the same group.  The evidence in the court  42 below is that the group is the same.  43 HUTCHEON, J.A.:  I don't think so.  Some of them want to enhance  44 the culture and some don't.  I don't see anything  45 legally wrong with that.  46 MR. WILLMS:  My lord, I'm not saying that the court should order  47 that they can't do that.  The court's order in that 2397  Submissions by Mr. Willms  1 regard is unnecessary to start with, but secondly -- I  2 guess the point is this.  What right do the Gitksan,  3 who are Appellants in this case, have to determine  4 Gitksan used broadly cultural, spiritual and  5 linguistic identity.  They can determine their own --  6 HUTCHEON, J.A.:  They have asked for that as against the  7 Province.  That's what they have done.  They are not  8 saying anything about group B at all.  9 MR. WILLMS: My lord, they have asked for it as a right of  10 self-government under Section 35.  11 HUTCHEON, J.A.:  For themselves, yes.  12 MR. WILLMS:  I take as a right of self-government under Section  13 35 to be more than merely just as against the  14 Province.  15 HUTCHEON, J.A.:  Not on this — well, I just don't agree with  16 the criticism in that way.  At least I don't  17 understand the criticism.  Put it that way.  I can  18 understand that this wasn't a matter before the trial  19 judge, I can understand that there is uncertainty  20 about it, but I don't understand your group A and  21 group B saying you shouldn't make it because group B  22 is not here.  23 MR. WILLMS:  My Lord, you would have to emerse yourself in the  24 evidence that the Chief Justice had before him on this  25 one point.  There is no group A and group B.  There  26 are Gitksan and Babine-Wet'suwet'en.  This isn't like  27 a bunch of Firenza owners bringing a class action for  28 damages to their Firenzas where you can make neat  29 little packages like that, my lord.  But without  30 taking a great deal of time to go through the evidence  31 to point out that the only difference between the  32 Kitwancool Gitksan and all the Gitksan in this case is  33 that the Kitwancool Gitksan didn't take part in the  34 case, however, Kitwancool Gitksan people lived in  35 Kitwanga, some of the Kitwanga people on the reserve  36 are Kitwancool people who are not part of this case.  37 HUTCHEON, J.A.:  I understand all of that, but I don't see that  38 a declaration that group A is entitled to enhance  39 their linguistic and cultural identity cannot be made  40 even though group B is not here.  I just don't  41 understand any legal problem to that.  42 MR. WILLMS: I guess I could — if I can put it this way —  43 HUTCHEON, J.A.:  We are talking about legal problems.  44 MR. WILLMS:  Well, my lord, as I said, I would have to go  45 through the evidence, and I just don't have time to  4 6 show you why.  47 HUTCHEON, J.A.:  I can accept your statement about the evidence, 2398  Submissions by Mr. Willms  1 but they are the same culture.  I can accept all of  2 that, but I don't understand why the order couldn't be  3 made even though group B is not here.  4 MR. WILLMS:  Now, carrying on, my lord, to paragraph 44.  And I  5 have already made -- I've just summarized the  6 submissions that I have already made and I'm not going  7 to reread paragraph 44.  8 The next point that I deal with in paragraph C,  9 starting at paragraph 45 and on, is that the remedies  10 sought by the Appellants and the Province contemplate  11 that the precise location, scope, content and  12 consequence of aboriginal rights will be determined by  13 negotiation.  14 And what I say in paragraph 46 is that the  15 Appellants and the Province misconstrue the effect of  16 Section 35.  Because you will see that in Section 35  17 subsection 3 treaty rights includes rights that now  18 exist by way of land claims agreements or may be so  19 acquired.  So that if the Province and Appellants come  20 to an agreement, that will become a land claim  21 agreement under Section 3 and will become a treaty  22 right.  And I say in paragraph 47, as I have already  23 indicated, that the Province and the Appellants can't  24 negotiate consequences, scope, et cetera of aboriginal  25 rights, that only the court can do that or  2 6 constitutional amendment.  27 In paragraph 48 the Appellants and the Province  28 can agree to extinguish the aboriginal rights of the  29 Appellants and replace those rights by treaty rights.  30 But absent extinguishment, the Appellants will  31 continue to have whatever aboriginal rights they have  32 at law today and two years from now, absent  33 extinguishment.  In addition, they may have treaty  34 rights, but those rights -- agreed rights, but they  35 will be treaty rights and not aboriginal rights.  And  36 I point out that there appears to be confusion between  37 aboriginal rights and treaty rights in the Province's  38 revised, corrected factum.  39 And I point out a general principle in paragraph  40 49 that if you're claiming conflict of a right, you  41 have to point to where the violation of the right  42 takes place from the Operation Dismantle case.  43 But in paragraph 50 the fact that the Appellants  44 have existing aboriginal rights, and I pause here to  45 say that they do, the Appellants do have existing  46 aboriginal rights, the fact that they have existing  47 aboriginal rights does not necessarily lead to any 2399  Submissions by Mr. Willms  1 declaratory relief under Section 35 in their favour.  2 Sparrow makes it clear that it is only those existing  3 aboriginal rights which are recognized and affirmed  4 which are entitled to constitutional protection, and  5 only when existing aboriginal rights are recognized  6 and affirmed can the court make a declaration under  7 Section 35.  8 I've quoted again from a part of Sparrow which,  9 I'm sure, your lordships are very familiar with,  10 having heard it 10 or 11 or 12 times, but once you  11 have an existing aboriginal right, the Appellants'  12 case or the Plaintiffs' case doesn't stop there.  The  13 Appellant must go one step further and show a prima  14 facie infringement, and the onus is on the Appellant  15 to do that, even if they show an existing, that is an  16 unextinguished aboriginal right.  And the onus is on  17 the Plaintiffs.  18 Now, in paragraph 52.  In this case --  19 LAMBERT, J.A.:  I'm not following that.  There has to be a prima  20 facie infringement in a case like Sparrow where there  21 is a criminal prosecution for doing something contrary  22 to federal laws.  So I do understand what was said  23 there in the context of Sparrow.  I just don't  24 understand the relevance that you are attaching to  25 this passage in this case.  26 MR. WILLMS:  What I am suggesting, and I deal with in paragraph  27 52, that no party addressed the issue of prima facie  28 infringement of Section 35 rights at trial.  In other  29 words, the trial focused on whether -- what the  30 aboriginal rights of the Appellants were and whether  31 they were existing or extinguished.  But what I am  32 saying from Sparrow is that when you are seeking a  33 declaration that you have a Section 35 right, you must  34 go further, or, in order to invoke a Section 35 right  35 as in Sparrow as a shield, you must go further and  36 show --  37 LAMBERT, J.A.:  That's right, but it's the implication of the  38 right as a shield that requires you to do that, to  39 discharge that prima facie burden.  40 MR. WILLMS: I don't read Sparrow that way, my lord.  I read  41 Sparrow to say that whether you are invoking it as a  42 sword or a shield, prima facie infringement, the onus  43 is still on the Plaintiffs, still on the party  44 claiming the rights.  45 LAMBERT, J.A.:  You are not doing either in this case, though.  46 You are just saying back in my armoury I have both  47 swords and shields, and I can pick them up, whichever 2400  Submissions by Mr. Willms  1 is appropriate, when required.  2 MR. WILLMS:  No.  The Appellants filed a constitutional question  3 notice, which is at Tab 11 of the R&D factum,  4 listing all of the provincial statutes which are  5 allegedly inconsistent with their Section 35 rights.  6 So it was being advanced as a sword.  It wasn't being  7 kept in the background.  It was up there waving around  8 at the forefront of the action.  And I am saying  9 that —  10 LAMBERT, J.A.:  When that is done there has to be an  11 infringement.  12 MR. WILLMS:  Yes.  That's the next step that Sparrow tells us  13 that a Plaintiff has to go in order to strike down or  14 try to strike down provincial legislation, which was  15 part of the claim here.  16 And so I say in paragraph 52 that the declarations  17 that the Appellants and the Province seek, the interim  18 declarations of aboriginal rights, are declarations  19 that part only of the Sparrow test has been met.  That  20 is, it's a declaration that they have existing  21 aboriginal rights.  And neither the Appellants nor the  22 Province have cited any authority for the proposition  23 that you can get declarations in respect of components  24 of a constitutional right, because that's what this  25 is.  This would be a component of a Section 35 right.  26 I see it's 12:30, my lords.  27 TAGGART, J.A.:  How are we faring for time, Mr. Willms?  We have  2 8 to bear in mind that we have given Mr. Braker time  29 this afternoon.  30 MR. WILLMS:  No matter what, I'll be finished at three.  31 TAGGART, J.A.:  I wonder if we might start a little early.  All  32 right.  33 MR. WILLIAMS:  Might I just ask a point of clarification from my  34 learned friend.  I heard him say the Appellants of  35 this case do have aboriginal rights.  I think there  36 must have been -- either I didn't hear it right or  37 there must be a qualification or is that a change of  38 position?  39 MR. WILLMS:  I said that the Appellants clearly have existing  40 aboriginal rights.  Section 35 says that, that the  41 Appellants have aboriginal rights, and no one has  42 advanced any argument that all of the Appellants'  43 aboriginal rights have been extinguished.  No one  44 asserts it.  So they have them.  What they are is a  45 matter for further litigation, perhaps, in respect of  46 fishing rights, but I don't think there is any doubt  47 that the Appellants, along with all other aboriginal 2401  Submissions by Mr. Willms  1 people of British Columbia, have existing aboriginal  2 rights.  It's what the scope, content, location and  3 consequences of the right are that's in issue.  That  4 feeds back to the point I made.  There is no finding  5 of blanket extinguishment by the trial judge.  It's  6 only interests in land that the trial judge finds are  7 extinguished outside reserves.  8 MR. WILLIAMS:  I'm sorry, my lord, if I could just add one  9 supplementary question.  It is that when my lord Mr.  10 Justice Lambert asked the question earlier of Mr.  11 Willms, his answer was hunting, hunting was given as  12 the example, and all of these rights were  13 extinguished.  They were all extinguished as land  14 based rights.  And that's why I was surprised to  15 hear -- I still don't quite understand his position.  16 MR. WILLMS: I'll try to help my friend out over the break.  17 TAGGART, J.A.:  All right.  2 o'clock.  18 THE REGISTRAR: Order in court.  Court stands adjourned.  19  2 0 NOON RECESS  21  22 I HEREBY CERTIFY THE FOREGOING TO  23 BE A TRUE AND ACCURATE TRANSCRIPT  24 OF THE PROCEEDINGS TRANSCRIBED TO  25 THE BEST OF MY SKILL AND ABILITY.  26  27  2 8    2 9 LORI OXLEY  30 OFFICIAL REPORTER  31 UNITED REPORTING SERVICE LTD.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 2402  Submissions by Mr. Willms  1 PROCEEDINGS RECONVENED  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Yes, Mr. Willms.  5 MR. WILLMS:  My lord, this morning I mentioned that the province  6 had taken the position in its factum that there were  7 inherent rights to self-government under section 35,  8 and the reference is at page 28 of their factum,  9 paragraph 69, where the province submitted that  10 section 35(1) recognizes and affirms aboriginal rights  11 of governance intimately connected to the aboriginal  12 use of land.  That's at paragraph 69 of the corrected  13 factum at page 28.  14 Now, if I can return to my factum at paragraph 57  15 on page 32.  Now, I will be skipping over parts of the  16 factum, my lords, not because I hope that you don't  17 read it at some point, but I have an hour left and I  18 am going to try to hit the highlights.  In paragraph  19 57 I point out -- before lunch I pointed out prima  20 facie infringement.  Fifty-seven points out that the  21 issue of justification, which is a part -- an aspect  22 of section 35, was not addressed in the evidence at  23 trial or in the argument, and if this court were to  24 find that the Chief Justice erred in fact or in law in  25 concluding that the colonial instruments extinguished  26 the aboriginal rights to land in the territory outside  27 reserves, this court could allow the appeal and order  28 a new trial on all the issues as it did in Sparrow.  29 But I suggest that the declaratory relief sought  30 couldn't be made if it was being made under section 35  31 because there's quite a bit of work yet to be done  32 under section 35 in respect of the appellants' claimed  33 rights.  34 I say in paragraph 58 that a declaration should  35 not be granted where it will serve little or no  36 purpose, and I say in the case at bar the declaration  37 sought by the appellants will not dispose of the  38 issues between the parties because the nature and  39 content of aboriginal rights will remain undefined.  40 And paragraph 59, a declaration that the  41 appellants have undefined interests in the territory  42 will give rise to more questions than it answers.  It  43 is submitted that there's no utility in such a  44 declaration, and more importantly, it provides no real  45 guidance to the parties or to the public which really  46 impacts on the two year period or whatever period it  47 is that the parties say that they want to negotiate. 2403  Submissions by Mr. Willms  1 During that period there is a legal hiatus in respect  2 of this issue.  3 Now, I am not going to read paragraph 60 because  4 what I summarize in paragraph 60 is what I advanced in  5 paragraph 4 at the beginning.  But I -- turning to  6 page 34, in paragraph 61 through to 64 I make the  7 point that normally when a constitutional right is  8 violated by legislation, section 52 of the  9 Constitution Act is applied and the legislation is  10 declared to be invalid and of no force and effect,  11 inconsistent with the Constitution.  There was an  12 argument, that I will get to in a moment, that the  13 province advanced, mostly based on section 24 Charter  14 cases, that it was open to the court to provide a  15 remedy in respect of a constitutional violation  16 without then going directly to section 52 of the  17 Constitution Act to strike down legislation.  The  18 first point that I make though at paragraph 64 of the  19 factum is that there is no authority for this  20 proposition applying to section 35 because, as I have  21 tried to point out earlier this morning, section 25 of  22 the Constitution Act makes it clear that the Charter  23 doesn't apply in respect of aboriginal rights, and, in  24 fact, the Charter ends at section 34 and then section  25 35 of the Constitution Act, 1982 is the next section  26 so that applying normal principles of statutory  27 interpretation wholly apart from section 25 of the  28 Charter, you wouldn't use section 24 in respect of a  29 section 35 right.  30 Now, in paragraph 65 through 67, the province read  31 to your lordship from the judgment of Mr. Justice  32 Sopinka in Public Service and Osborne, and I have  33 quoted that in paragraph 65.  That is where the court  34 suggested that you could find a constitutional  35 violation and yet fashion a remedy under section 24 of  36 the Charter which would not necessarily involve the  37 invocation of section 52 to strike legislation down.  38 Now, the point that I am making in paragraphs 66 and  39 67 is that three judges, Mr. Justice Sopinka spoke for  40 himself and Madam Justice McLachlin and Mr. Justice  41 Cory, but Madam Justice Wilson disagreed, and I have  42 set out her extract, the extract from her judgment, at  43 paragraph 66 where she was of the view that if you  44 found a Charter violation by a statute that you had to  45 go to section 52 and invoke section 52 and strike down  46 the legislative provision.  And Madam Justice  47 L'Heureux-Dube concurred with Madam Justice Wilson. 2404  Submissions by Mr. Willms  1 And on page 6 -- sorry, paragraph 67 Mr. Justice La  2 Forest said that he didn't need to deal with the point  3 but he did say at line 13 on the page:  4  5 "I suspect my colleague, Justice Wilson, may  6 well be right on this issue."  7  8 So I think the best that can be made of that point is  9 that the issue is still open with respect to section  10 24.  The point that I make in paragraph 68 is there's  11 no such debate in respect of section 35 of the  12 Constitution Act because section 24 doesn't apply.  So  13 if you find -- I suggest that if you find a section 35  14 violation, the provisions of section 52 appear to be  15 mandatory, they do not appear to be discretionary.  16 Now, in any event the discussion in the Osborne  17 case was a discussion of exemption and I have set out  18 what Madam Justice Wilson said in Osborne, and I think  19 this is a handy reference for the difference between  20 creating exemptions from legislation and "reading  21 down" and what the real test is for "reading down."  22 And she says that:  23  24 "...A distinction has to be made between  25 creating exemptions from the legislation under  26 s.24(l) which pre-supposes its  27 constitutionality and 'reading down' the  28 legislation which is a process of  29 interpretation so as to restrict the scope of  30 its application.  In the latter case the  31 legislation is held as a matter of  32 interpretation not to apply to X and no  33 intervention by the court under s.24(l) is  34 required.  In the former case the legislation  35 is found on its proper interpretation to apply  36 to X but the Court intervenes to give him or  37 her relief under s.24(l)."  38  39 The point I make in paragraph 70, no party has  40 suggested that the legislation of the Province of  41 British Columbia, as a matter of interpretation, does  42 not apply to the appellants, and I say as a matter of  43 interpretation it does apply so that this court is  44 faced with the exemption doctrine, not the reading  45 down doctrine, in considering section 35 rights.  And  46 as I pointed out, exemptions have been considered in  47 the context of section 24, and they are not resolved 2405  Submissions by Mr. Willms  1 by the Supreme Court of Canada.  But there's been no  2 suggestion that in respect of other constitutional  3 rights that you can use the flexibility in section 24  4 to create an exemption from the legislation instead of  5 doing what the Constitution says which is strike it  6 down to the extent of its inconsistency, section 52  7 that is.  8 Now, the next point, and this is the case I  9 suggest that is probably the closest case to what the  10 province and the appellants are seeking, and it's the  11 Mahe case which I refer to in paragraph 72, and I  12 think -- I would ask your lordships to -- I hope you  13 have A-5, authority A-5.  14 WALLACE, J.A.:  Tab, tab number?  15 MR. WILLMS:  A-5, tab 91.  And at tab 91, this was the case of  16 French language instruction from Edmonton, and I would  17 ask you to turn to page 103 where the court begins  18 dealing with the issue of remedies.  The court says:  19  20 "The appellants' statement of claim, as I have  21 indicated, includes requests for a number of  22 declarations.  These declarations fall into two  23 general groups:  (1) in respect of the alleged  24 invalidity of certain provisions of the School  25 Act of Alberta; and (2) in respect of the  26 rights which must be accorded to s.23 parents  2 7 in Edmonton.  28  29 The appellants did not specify in their  30 statement of claim which provisions of the  31 Alberta legislation they desired to have struck  32 down, but it appears from their arguments that  33 their main concern was with provisions 13, 158,  34 159 of the School Act, and the...Alta. Reg. 490  35 82..."  36  37 The court then sets out some of the statutory  38 material, and I would like you to skip over that and  39 turn to page 105, just beside letter F in the  40 left-hand margin where the court carried on:  41  42 "As was noted by both of the Alberta courts,  43 ss.13, 158 and 159 of the School Act are  44 'permissive' provisions, that is they do not  45 prevent authorities from acting in accordance  46 with the Charter, but neither do they guarantee  47 that such compliance will occur.  There are 2406  Submissions by Mr. Willms  1 several factors to consider when deciding  2 whether this situation should lead to a  3 declaration of invalidity.  4  5 First, the effect of a declaration of  6 invalidity should be considered.  In this case,  7 as it is impossible for the court to rewrite  8 the impugned legislation, the result of a  9 declaration of invalidity would be to create a  10 legislative vacuum.  This result would not help  11 the position of the appellants.  Indeed, the  12 appellants might be worse off, because if the  13 above legislation is invalidated the public  14 authorities in Alberta would presumably be  15 temporarily precluded from exercising their  16 powers so as to change the existing system in  17 order to comply with s.23."  18  19 And over the page.  20  21 "The second factor is that the right which the  22 appellants possess under s.23 is not a right to  23 any particular legislative scheme, it is a  24 right to a certain type of educational system.  25 What is significant under s.23 is that the  26 appellants receive the appropriate services and  27 powers; how they receive these services and  28 powers is not directly at issue in determining  29 if the appellants have been accorded their s.23  30 rights.  It is true that if the existing  31 legislation has the effect, either directly or  32 indirectly, of preventing the realization of a  33 Charter right then, as this court has stated on  34 numerous occasions, the legislation should be  35 invalidated.  However, it is not clear that the  36 existing legislation in Alberta is a bar to the  37 realization of the appellants' rights.  The  38 real obstacle is the inaction of the public  39 authorities.  The government could implement a  40 scheme within the existing legislation to  41 ensure that these s.23 parents and other s.23  42 parents in the province receive what is due to  43 them.  The problem is that they have not done  44 so.  45  46 For these reasons I think it best if the court  47 restricts itself in this appeal to making a 2407  Submissions by Mr. Willms  1 declaration in respect of the --"  2  3 -- and I will come back to this in a moment --  4  5 "-- the concrete rights which are due to the  6 minority language parents in Edmonton under  7 s.23."  8  9 The two points that I draw from the Mahe case is  10 that, first of all, it wasn't clear that there was a  11 clash between the constitutional rights and the  12 legislation.  The court said that it was really the  13 administrative action under the legislation that might  14 create the violation of the constitutional right, and  15 in that case because they couldn't say clearly that  16 the statute violated the constitutional right they  17 declined to strike the statute down.  The second  18 important point is that they didn't declare ephemeral  19 rights.  They didn't say you have language rights  20 because the appellants in that case knew they had  21 language rights.  The Charter told them that they had  22 language rights.  The court went on to make  23 declarations of concrete rights, and I won't take you  24 through the balance of the case but you will see that  25 in the court's declaration it sets out with some  26 precision what the concrete rights of the appellants  27 were.  28 So if I can return to my factum, the point I am  29 making in paragraph 71 and 72 of the factum is that  30 where you have a section 35 violation, and especially  31 where you have the appellants who have provided a  32 detailed constitutional notice of the statutes of the  33 province that they say are inconsistent with their  34 aboriginal rights, there is -- what flows from a  35 finding of a section 35 right in these circumstances  36 is striking down inconsistent legislation because if  37 there wasn't any inconsistent legislation the issue  38 wouldn't arise.  The whole reason for the analysis in  39 section 35 of justificatory analysis and prima facie  40 infringement is that there is a collision between  41 rights and legislation and because of that collision  42 the analysis in Sparrow takes place, and at the end of  43 the day if the collision cannot be justified then I  44 say, just as in Sparrow where the question was sent  45 back to the trial court, is the net length restriction  46 inconsistent with the Constitution, section 52?  The  47 same question arises here and not what arose in Mahe. 2408  Submissions by Mr. Willms  1 There are no constructions I say of the provincial  2 legislation where you could construe the legislation  3 to be administered in such a way so as to protect and  4 preserve and observe the appellants' alleged section  5 35 rights.  6 Now, the other point that I make out of Mahe is at  7 paragraph 73 on page 39, and that is even if an order  8 can be made like was made in Mahe, the order must be  9 of concrete rights as the court suggested in Mahe.  In  10 other words, in the Mahe case they didn't say, "You  11 have French language rights."  Everybody knew that.  12 That's what the Constitution said.  The appellants  13 have existing aboriginal rights.  That's what the  14 Constitution says in section 35.  15 LAMBERT, J.A.:  You said that several times, and I am surprised  16 that it says that every native person has aboriginal  17 rights.  I just thought it said that if you have them  18 they are constitutionalized.  The existing aboriginal  19 rights are --  20 MR. WILLMS:  Yes.  21 LAMBERT, J.A.:  -- confirmed.  I didn't think it was a statement  22 that everyone has them, has existing rights.  23 MR. WILLMS:  Well, let me put it this way, my lord.  It would be  24 difficult for me to conceive of a situation,  25 especially in British Columbia, of an aboriginal group  26 that didn't have some existing aboriginal rights.  But  27 that -- you are quite right.  That doesn't answer your  28 question.  29 LAMBERT, J.A.:  Yes.  30 MR. WILLMS:  It begs the question.  31 LAMBERT, J.A.:  Yes.  32 MR. WILLMS:  But — but if I can put it this way, my lords,  33 whether the appellants have existing aboriginal rights  34 to land in this case so as to form a component of the  35 section 35 analysis is something that has been decided  36 by the trial judge in the absence of the further  37 analysis under section 35.  Now, if this court does  38 the further analysis under section 35 and decides that  39 those existing aboriginal rights are section 35 rights  40 then that has the effect that the appellants suggest.  41 It will have the effect of invalidating provincial  42 legislation because provincial legislation will be  43 inconsistent with the aboriginal rights to land that  44 the appellants are alleging.  Provincial legislation  45 will be inconsistent with the aboriginal rights that  46 the Chief Justice found, those rights to land.  There  47 will be a collision with provincial legislation, and 2409  Submissions by Mr. Willms  1 provincial legislation will be inconsistent with that.  2 So the point that I am making here, my lord, is that  3 in Mahe they went on, the court went on to give some  4 form beyond repeating what the Constitution said to  5 the declaration that they made.  But both the  6 province -- the appellants do ask some meat to be put  7 on the declaration so the province -- the appellants  8 do go some way to provide concreteness for the  9 declaration, if it's a section 35 declaration that's  10 being sought, but the province doesn't.  The province  11 just wants a declaration of an existing aboriginal  12 right, and I say even under Mahe that -- that's not a  13 concrete right as the Supreme Court of Canada used  14 that term in that case.  So I think -- I accept what  15 your lordship -- the observations of your lordship but  16 the fact that I may have overstated that before in my  17 submission doesn't affect the point that I am making  18 here in respect of concrete rights.  19 LAMBERT, J.A.:  Yes.  20 MR. WILLMS:  Now, the next section of the factum, which starts  21 at page 40 and is entitled "The De Facto Doctrine and  22 the Transition Period," really deals with a provision  23 that the appellants have set out in their revised  24 position on remedies, and I quote it in paragraph 75  25 because the appellants say that:  26  27 "With respect to those third party rights which  28 were created before the commencement of  29 litigation and which cannot coexist with the  30 appellants' aboriginal title, the exercise of  31 such rights pursuant to a provincial grant  32 prior to the extinguishment of aboriginal title  33 is unlawful.  The remedy may involve the  34 recovery of land,...Recovery of land will be  35 available when and to the extent that the  36 particular alienation in question is  37 irreconcilably in conflict with the exercise of  38 aboriginal rights within the territory."  39  40 And I say that even if the appellants have existing  41 section 35 rights to land in the territory, that this  42 submission is wrong in law.  The reason why I say the  43 submission is wrong in law is because in the Manitoba  44 Language Reference, which is dealt with in some detail  45 in the paragraphs that follow, the court was faced  46 with what would happen in Manitoba after they held  47 that the Manitoba legislation was unconstitutional 2410  Submissions by Mr. Willms  1 because it was published only in English, and the  2 court there did find in that case that all of the  3 legislation of Manitoba was unconstitutional.  So two  4 questions arose, and I am going to deal with both of  5 them here.  6 The first question that arose was what about the  7 rights that were granted under the invalid legislation  8 because the declaration of invalidity that would be  9 made by the Supreme Court of Canada affected all  10 Manitoba legislation.  So they had to consider what  11 happened in respect of all grants of interests up  12 until the date that the court made the declaration of  13 invalidity, and I have quoted at paragraph 80 of the  14 factum on page 43 from the Supreme Court of Canada  15 which sets out the result of the application of what  16 they call the de facto doctrine and I will explain it  17 briefly in a moment.  But the court said, and I am  18 reading from line 15:  19  20 "Thus, the de facto doctrine will save those  21 rights, obligations and other effects which  22 have arisen out of actions performed pursuant  23 to invalid Acts of the Manitoba Legislature by  24 public and private bodies corporate, Courts,  25 judges, persons exercising statutory powers and  26 public officials.  Such rights, obligations and  27 other effects are, and will always be,  28 enforceable and unassailable."  29  30 And so at the very highest the appellants' case may be  31 that all provincial legislation that is inconsistent  32 with their section 35 rights is invalid.  So that if  33 there is provincial legislation that authorizes a  34 Crown grant and it's inconsistent with the appellants'  35 aboriginal rights, it is to the extent of the  36 inconsistency unconstitutional, and that's why the  37 appellants submit in the portion that I read earlier  38 that they may be entitled to get the land back, to  39 recover the land.  40 The de facto doctrine is a doctrine that was  41 developed usually in the case of insurrections.  In  42 fact, it was used in the United States to validate  43 Acts that took place in the Confederacy during the  44 Civil War.  After the Civil War everything that was  45 done in the Confederacy during that period was  46 unconstitutional because all of the government of the  47 Confederacy was held to be unconstitutional.  But the 2411  Submissions by Mr. Willms  1 de facto doctrine says that you are entitled -- third  2 parties are entitled to rely on public authority, on  3 the cloak of public authority, and that is why -- and  4 I -- I can't do justice in a short period of time to  5 the lengthy assessment, not only in my factum here but  6 also in the Manitoba Language Reference itself, that  7 describes the basis and the rationale for the de facto  8 doctrine.  But the de facto doctrine would apply here,  9 and to the extent that any provincial legislation was  10 invalid, as the Supreme Court of Canada said in the  11 Manitoba Language Reference, any rights and  12 obligations created out of that unconstitutional  13 legislation will always be enforceable and  14 unassailable.  Now, that, my lords -- and one of the  15 difficulties with that is that that would only extend  16 to the date of the declaration of this court.  17 And if I can just ask your lordships to turn to  18 page 48 where I have quoted again from the judgment of  19 the Supreme Court of Canada where the court said that  20 the de facto doctrine saved rights and obligations  21 arising out of actions performed under invalid  22 legislation and then said this:  23  24 "...Rights, obligations and any other effects  25 which have arisen under these current laws by  26 virtue of the reliance on acts of public  27 officials, or on the assumed legal validity of  28 public or private bodies corporate, are  29 enforceable and forever beyond challenge under  30 the de facto doctrine."  31  32 Now, the effect of that is whether or not the  33 appellants have section 35 rights today, and even if  34 this court declares as part of its judgment that the  35 appellants have section 35 rights which are  36 inconsistent with legislation which must be struck  37 down, even under that invalid legislation anyone who  38 has acquired a third party right or interest got what  39 they acquired in law under the de facto doctrine.  And  40 it's called de facto as opposed to de jure because de  41 jure the court's declaration shows that there never  42 was any legal power to do it but de facto the people  43 have what they got.  So this section goes to the  44 submission of my friends that any interests that have  45 been granted prior to the date of this court's  46 declaration could be challenged in any way, in any  47 court.  They are, as the Supreme Court of Canada said, 2412  Submissions by Mr. Willms  1 "enforceable and forever beyond challenge under the de  2 facto doctrine."  3 Now, I would like to turn to the doctrine as it  4 relates to the transition period, and this is also  5 something that is dealt with in the Manitoba Language  6 Reference.  In paragraph 91 I quote again from what  7 the appellants say in their revised position on  8 remedies.  They say:  9  10 "The Province may not authorize --"  11  12 -- and this is during the transition period that they  13 are suggesting this --  14  15 "The Province may not authorize third party  16 uses of lands determined to be subject to the  17 exclusive rights of the appellants, nor may it  18 authorize third party uses in conflict with  19 aboriginal rights on other lands.  20  21 During the period following this judgment,  22 while the parties are negotiating the precise  23 scope and content of their respective interests  24 in the territory, any grant of land, interests  25 in lands or rights to use of lands or resources  26 may and should be presumed to interfere with  27 unextinguished aboriginal rights.  Accordingly,  28 no such grants should be made without consent  29 of the Appellants or further Court Order."  30  31 Now, I say at the top of page 49 that these  32 paragraphs of the appellants' submission provide  33 detail to paragraph 6 of the order that they have  34 sought which is what they say should happen pending  35 the determination of the scope of the rights of the  36 appellants.  So they have gone a little further in  37 their written argument to clothe the order that they  38 are seeking with what they say the result of that will  39 be.  But it is my submission that this order would  40 create chaos and uncertainty in this territory, and I  41 suggest that even if immediate declarations of  42 invalidity are available to the appellants in respect  43 of provincial legislation, this court should order a  44 transition period in order to preserve the rule of law  45 pending legislative amendment or a negotiated  46 extinguishment of the appellants' aboriginal rights.  47 And that -- in the Manitoba Language case the court 2413  Submissions by Mr. Willms  1 did order such a transition period, a period during  2 which all of Manitoba's laws would continue to have  3 force and effect in accordance with their terms in  4 order to give Manitoba a period of time to translate  5 those statutes and come within the Constitution.  6 Now, there are two options to the province in this  7 case.  There was only one option to Manitoba.  8 Manitoba had to translate.  That was it.  The two  9 options open to the province during a transition  10 period are to amend all of its legislation so that  11 it's not inconsistent with whatever rights this court  12 declares.  So that's one alternative, and that would  13 be the alternative that would be -- that would fit  14 within what happened in Manitoba.  And, of course, the  15 other alternative is to negotiate an extinguishment of  16 the rights that this court declares and replace it  17 with treaty rights.  18 TAGGART, J.A.:  Let me have that one again.  19 MR. WILLMS:  The other alternative would be in their  20 negotiations, as part of the negotiations, to  21 negotiate an extinguishment of the appellants' rights  22 because if they negotiate an extinguishment of the  23 appellants' aboriginal rights then the section 35  24 conflict that will have been declared, found and  25 declared by this court, will disappear.  The  26 inconsistency will be gone.  27 Now, in paragraphs 93 through 97, and I won't -- I  28 won't read them, but the factum points out that the de  29 facto doctrine and other doctrines that the court has  30 developed in order to support past rights, like res  31 judicata, those saving doctrines will end as of the  32 date of this court's order so that in the absence of a  33 transition period, as of the date of the order of this  34 court the appellants would be quite right.  A grant  35 made the next day in violation of their constitutional  36 right would be invalid to the extent that it was  37 inconsistent with their right.  And that is why,  38 turning to paragraph 97, I start dealing with the  39 interaction of the de facto doctrine and another  40 doctrine which is the doctrine of state necessity.  41 It was the doctrine of state necessity that  42 justified the transition period in the Manitoba  43 Language Reference case, and it's a minor version of  44 that that justifies the transition periods that have  45 been ordered in the criminal cases that the province  46 referred this court to, the cases where the police of  47 the country were given a month to get their little 2414  Submissions by Mr. Willms  1 cards in order to read rights to people who are  2 arrested during that period of time.  The reason why a  3 month was given because it was seen to be a sufficient  4 period of time to allow everybody to get their cards  5 in order and avoid the chaos that would follow if,  6 during that period of time, every person who had their  7 rights read to them under the wrong card was, as a  8 result of that, acquitted.  And the criminal cases  9 have got varying lengths of time, cases that were  10 cited to your lordships, depending on the period that  11 the Supreme Court thought, the police authorities  12 usually or even the legislation, legislature in some  13 circumstances, the mental health -- the criminal  14 responsibility case, I think that was six months.  But  15 it's to make sure that there isn't chaos in the period  16 following the judgment while the government gets its  17 constitutional act in order.  That all flows really  18 from the doctrine of state necessity which is  19 discussed in some detail in the Manitoba Language  20 Rights case.  21 And I refer in paragraph 99 to what I have already  22 averted to which is that the de facto doctrine did not  23 save all rights in issue in Manitoba, and as the court  24 said:  25  26 "...Some of these rights, obligations and other  27 effects did not arise as a consequence of  28 reliance by the public on the acts of officials  29 acting under colour of authority or on the  30 assumed validity of public and private bodies  31 corporate.  Furthermore, the de facto authority  32 of officials and entities acting under the  33 invalid laws of the Manitoba Legislature will  34 cease on the date of this judgment."  35  36 So that what the court did, and I have it set out at  37 the top of page 53 in paragraph 100, the court  38 realized that a declaration of invalidity, an  39 immediate declaration of invalidity, could lead to  40 chaos and anarchy, and in order to preserve order the  41 court fashioned the following relief at page 29:  42  43 "The only appropriate solution for preserving  44 the rights, obligations and other effects which  45 have arisen under invalid Acts of the  46 Legislature of Manitoba and which are not saved  47 by the de facto or other doctrines is to 2415  Submissions by Mr. Willms  1 declare that, in order to uphold the rule of  2 law, these rights, obligations and other  3 effects have, and will continue to have, the  4 same force and effect they would have had if  5 they had arisen under valid enactments, for  6 that period of time during which it would be  7 impossible for Manitoba to comply with its  8 constitutional duty under s.23..."  9  10 Now, the transition period is important for two  11 reasons here.  First of all, it is something that this  12 court has the power to do to avoid, as the Supreme  13 Court described it, chaos and anarchy that would flow  14 from, for example, the ultimate declaration that the  15 appellants seek in respect of all of the legislation  16 of the province.  But coming from the other way, the  17 cases that my friends rely on for a period of time, a  18 period of negotiation, are these transition cases?  So  19 the cases that my friends rely on to suggest this  20 court has the power are based on state necessity.  Yet  21 the relief they are seeking wouldn't create any such  22 state necessity.  See the relief that is being sought  23 is a partial declaration of part of a section 35  24 right.  That's the province's declaration, existing  25 aboriginal rights.  Even the appellants' is a partial  26 declaration of existing aboriginal rights so that  27 neither one of those two declarations, although those  28 declarations would create uncertainty, but they don't  29 create the uncertainty that is being spoken of in the  30 Manitoba Language Reference case, and the chaos that  31 is created, it's the legal chaos that's created in the  32 Manitoba Language Rights case that allowed the  33 doctrine of state necessity to create the transition  34 period.  35 In effect, in Manitoba there was a legislative  36 vacuum that would have been created.  What the  37 appellants' and the province's declarations will  38 create, it won't create a legislative vacuum.  The  39 legislation will be there.  It will just create a  40 great deal of uncertainty on the ground that -- so  41 that during the period of time that the appellants and  42 the province are negotiating their rights, no one in  43 that area will have any certainty whatsoever of what  44 their position is by virtue of this vague, as I called  45 it before, ephemeral declaration.  46 HUTCHEON, J.A. :  Might I ask if the transition period you are  47 talking about is the same as the prospective 2416  Submissions by Mr. Willms  1 overruling that the American courts use?  2 MR. WILLMS:  I am at a loss on that one, my lord.  I am not  3 aware of that.  4 Now, the last points that I want to make in  5 respect of this, in my factum, if I can ask your  6 lordships to turn to page 56, paragraph 106.  In the  7 case at bar, and when I am making the submission here  8 I have already assumed -- I am assuming in this  9 submission that the declarations are section 35 rights  10 in the fullest sense, not partial declarations but  11 section 35 declarations in the fullest sense, and I am  12 saying that if section 35 declarations in the fullest  13 sense sought by the appellants and the province are  14 made, the validity of various grants made under  15 legislative and administrative acts of the colony and  16 the province will come into question.  The  17 declarations sought by the appellants will create  18 uncertainty as to the effect of all instruments which  19 have granted interests in the territory.  20 And I say that this is precisely the type of  21 situation that the de facto doctrine addresses.  The  22 de facto doctrine protects those who have acquired  23 interests in the territory even if the legislative or  24 administrative regime under which they were granted is  25 determined to be invalid.  This is so whether the  26 invalidity stems from unconstitutionality or from an  27 application of the common-law of aboriginal rights  28 which, of course, by virtue of section 35 becomes a  29 constitutional right.  The doctrine extends to all  30 acts of public officers, whether performed under  31 regulation or statute.  32 So that if this court gets to the stage where it  33 makes a declaration or it feels the court is satisfied  34 that it has the evidence before it to make a section  35 35 declaration in favour of the appellants, it is the  36 submission of the amicus that, first of all, by virtue  37 of the de facto doctrine, what the appellants suggest  38 in their argument on remedies is wrong in law.  It  39 doesn't bring into challenge at all any third party  40 interests in the territory whatsoever to the date of  41 the order, and I further suggest that this court  42 should order a transition period during which time  43 provincial laws continue to be valid in accordance  44 with their terms pending whatever period it is that  45 the court fixes.  46 Now, the conclusion I set out at paragraph 108, my  47 lords.  We submit that as a matter of law the 2417  Submissions by Mr. Willms  Submissions by Mr. Braker  1 immediate relief sought by the appellants and by the  2 province is beyond the powers of the court or is  3 otherwise -- to grant or is otherwise inappropriate,  4 and by that I mean the court shouldn't make  5 declarations of partial -- parts of rights.  The court  6 should make declarations of rights or not make  7 declarations at all.  This court can reverse the trial  8 judge, if it decides to do so, allow the appeal, which  9 would be the normal order, and order a new trial if,  10 for example, this court should find that the test for  11 extinguishment applied by the Chief Justice was wrong  12 or if this court should find that the test was right  13 but the Chief Justice fell into palpable and  14 overriding error in his application of the evidence to  15 the test, but that the court should not take that next  16 step, which is suggested by both the appellants and  17 the province, to make a declaration of a partial right  18 or a partial declaration of a section 35 right.  19 Now, I go on to conclude that if this court  20 doesn't accept that submission, if the court concludes  21 that it has the power to make the orders proposed by  22 the province or the appellants and such orders are  23 appropriate, it is the submission of the amicus that  24 in order to preserve the rule of law and prevent chaos  25 in respect of the section 35 declaration, that the  26 court should order a transition period within which  27 time all legislative or administrative acts of the  28 province will continue to have force and effect in  29 accordance with their terms.  Those are my  30 submissions, my lords.  31 TAGGART, J.A.:  Thank you, Mr. Willms.  We'll take the afternoon  32 break in order to let you reorganize yourselves for  33 the submissions of Mr. Braker.  34 THE REGISTRAR:  Order in court.  Court stands adjourned for a  35 short recess.  36  37 AFTERNOON RECESS  38  39 THE REGISTRAR:  Order in court.  40 TAGGART, J.A.:  Yes, Mr. Braker.  41 MR. BRAKER:  Thank you, my lords.  I believe your lordships will  42 only need our factum.  I will be referring to other  43 facta that have been filed but I will not be asking  44 your lordships to turn to them.  I don't think that  45 will be necessary.  Nor will I be asking your  46 lordships to turn to any of the cases.  Your lordships  47 have our factum.  At this late stage of the game, my 2418  Submissions by Mr. Braker  1 lords, it's very difficult to huddle and to think of  2 a pass that's not already been thrown or a play that's  3 not already been made so it's not my intention to read  4 through our factum at any length at all.  And  5 specifically, your lordships have our factum.  You  6 have the argument that's been made.  I will not be  7 referring, I am happy to say, to the Royal  8 Proclamation.  I believe that's been argued at some  9 considerable length before this bench already.  Nor  10 will I be referring to section 88 except insofar as  11 the province raised it with respect to extinguishment,  12 and I will be referring to some of the comments made  13 by my friend, Mr. Taylor.  Nor will I be referring to  14 section 109 of the Constitution Act of 19 — or 1867.  15 As I say, your lordships have our written submissions  16 in those regards, and I cannot think of anything  17 further to add than what's been said already over the  18 past year.  Nor, my lords, will I be referring to  19 Mabo.  I have only had the opportunity to skim the  20 decision, and so I will be availing myself of the  21 direction given this morning and filing and serving  22 submissions by the close of July 15 insofar as the  23 Mabo case perhaps sheds some discussion on the issues  24 raised in the appeal of Harry Thomas Dick.  So I would  25 turn then, my lords, to our argument, and I will be  26 referring your lordships to the parts of our factum  27 that I do wish to specifically address.  28 With respect to the facts, the intervenor, Harry  29 Thomas Dick, of course, adopts the facts as set out by  30 the appellants.  I am going to refer later on to  31 the -- to those facts which bring Harry Thomas Dick  32 into this appeal as an intervenor only insofar as our  33 submissions are made with respect to costs.  34 In the first 18 pages -- or 18 paragraphs of our  35 factum, we say, and I am going to summarize those,  36 that the property and civil rights of Indians qua  37 Indians and the aboriginal rights of Indians are  38 within exclusive federal responsibility and that that  39 responsibility supercedes provincial jurisdiction  40 pursuant to the property and civil rights section of  41 the Constitution.  42 In his submissions for the province my friend, Mr.  43 Taylor, said that the intervenor Dick was espousing a  44 so-called discredited enclave theory and that that  45 theory was not open to us.  Well, we agree that it's  46 not open to us, my lord, and for that reason we did  47 not make the argument.  We did say at paragraph 18 of 2419  Submissions by Mr. Braker  1 our factum, which is on page 9 of the factum, that  2 provincial enactments which apply to Indians ex  3 proprio vigore, such as highway laws, are valid  4 because they don't touch Indianness.  Surely that's  5 not the so-called discredited enclave theory.  6 I would like to turn then to paragraph 19 of our  7 factum.  What I am going to do is set out what I  8 believe to be the province's revised position, go back  9 to what their position was in Dick, and then state  10 what our position now is.  The province's revised  11 position with respect to its legislative jurisdiction  12 to extinguish aboriginal rights is as follows.  This  13 is set out in their revised factum.  14  15 "In the province's submission, acts of  16 extinguishment of aboriginal rights with  17 respect to land will not be all ultra vires the  18 province unless the right or rights in question  19 are sterilized to such an extent that the  20 interests that those rights are designed to  21 protect are thwarted."  22  23 I don't think that that paragraph can be read without  24 also referring to the speaking notes which were handed  25 out by my friend for the province, Mr. Williams, on  26 June 1st, and I am not going to ask your lordships to  27 turn to them.  The one paragraph is a short one.  It  28 says:  29  30 "The province will argue later and in the  31 alternative that some extinguishment of  32 aboriginal rights has taken place, but only as  33 a result of specific land grants from the Crown  34 which meet the test of adverse dominion, where  35 the intention of the Crown --"  36  37 -- and then they amended it --  38  39 "-- the intention of the Crown to extinguish  40 must be clear and plain by necessary  41 implication."  42  43 In Dick, of course, the position of the Crown, the  44 earlier position of the Crown was different.  In Dick  45 they said if -- it was at paragraph 318 of the factum  46 that the Attorney General of B.C. filed in Dick.  In  47 the Dick factum they said: 2420  Submissions by Mr. Braker  1 "If all aboriginal land-based rights were not  2 extinguished before union, and the right to  3 pursue and kill game in a closed season was not  4 extinguished by the absolute prohibition  5 discussed above, -- "  6  7 -- I will come back to that --  8  9 "-- any existing aboriginal rights to hunt  10 other than in accordance with the Wildlife Act  11 was extinguished pursuant to s.2..."  12  13 Your lordships will recall that section 2 of the  14 Wildlife Act states that all wildlife was vested  15 within the Province of B.C.  16 The extinguishment referred to above by the  17 province was the review of the history of game  18 legislation in British Columbia.  The province had  19 said:  20  21 "A review of the history of game legislation in  22 British Columbia makes it clear -- "  23  24 -- at paragraph 316 --  25  26 "-- that the intent of that legislation, from  27 its inception in the colonial era to and  28 including the present day, has been to take  29 control of the wildlife resources of the  30 province out of the hands of the hereditary  31 chiefs and to manage and protect..."  32  33 They then go on in a couple of paragraphs to expand on  34 their theory that the intention of the legislation  35 since British Columbia became a province has been to  36 extinguish.  37 So that was their position in Dick contra their  38 position as we set out in our paragraph 19 of our  39 factum as I said in paragraph B of the handout notes  40 of my friend, Mr. Williams.  We say that to extinguish  41 a right is at least to thwart or to sterilize that  42 right as the province sets out in their paragraph.  We  43 also say, of course, as we have said in the Dick  44 appeal, that no provincial extinguishment of  45 aboriginal rights is possible in Canada.  46 We say that aboriginal hunting rights fall within  47 the jurisdiction of Parliament under both branches of 2421  Submissions by Mr. Braker  1 section 91(24), both under the branch of "Indians" and  2 under the branch of "Lands Reserved for the Indians."  3 Hunting rights are sui generis rights which involve  4 the use of land, and we said that in the Dick appeal,  5 even the management of land, but it may not depend on  6 the ownership of the land or the reserved status of  7 the land.  And then we give an example of how Canada  8 has exercised section 91(24) jurisdiction over the  9 hunting rights of Indians, and we have included it in  10 the appendix of our factum.  11 In 1940, 1941 Canada enacted legislation in which  12 people could be prohibited by regulation from buying  13 either wild animals or the skins or parts of such  14 animals from Indians and, in our submission, whether  15 or not such purchases were legal under provincial law.  16 So we only include that here, my lords, as an example  17 of how Canada has exercised jurisdiction under 91(24)  18 with respect at least to some part of Indian hunting  19 rights.  20 We say that it has always been within Canada's  21 exclusive legislative jurisdiction to pass general  22 legislation concerning Indian hunting.  On several  23 occasions Parliament has enacted legislation making  24 provincial wildlife laws applicable to Indians within  25 a province.  I don't set them out specifically here,  26 my lords, but they are referred to in Horseman, and  27 there is a paragraph there that sets out various  28 instances that give example to what -- the proposition  29 we have set out in paragraph 23.  30 The next part of our factum that I want to turn  31 to, my lords, I am not going to read the parts set out  32 between pages 10 and 16.  I believe as well that those  33 have already been touched on at some length.  I am  34 not, as I say, going to deal with the Royal  35 Proclamation which begins at page 14.  Instead I wish  36 to turn to paragraph 41.  In Harry Thomas Dick's  37 appeal and at trial, at the trial of Harry Thomas  38 Dick, the provincial Crown argued blanket  39 extinguishment of all aboriginal rights in the  40 province, relying on section 2 of the Wildlife Act.  41 Section 2 is set out in paragraph 43 of our factum.  42  43 "2(1)   Ownership in all wildlife within the Province  44 is vested in the Crown in Right of the  45 Province."  46  47 In paragraph 318 of the Crown's factum in Dick they 2422  Submissions by Mr. Braker  1 said:  2  3 "...Any existing aboriginal right to hunt other  4 than in accordance with the Wildlife Act was  5 extinguished pursuant to s.2 of the Wildlife  6 Act..."  7  8 Our reply was found at -- in part we say in paragraph  9 64 of our reply factum in Dick -- pardon me, that's  10 paragraph 65 of our reply factum in which we quoted  11 from the case of Kruger.  In Kruger the Supreme Court  12 of Canada said in considering whether the Wildlife Act  13 had extinguished Indian hunting rights, they said, and  14 it's quoted at our paragraph 65 in our reply factum in  15 Dick, they said:  16  17 "[The Wildlife Act] is aimed at wildlife  18 management and to that end it regulates the  19 time, place and manner of hunting game.  It is  20 not directed to the acquisition of property."  21  22 Kruger was decided in 1978 from facts which arose  23 giving rise to the offence in 1973.  Section 2 of the  24 Wildlife Act was enacted in 1971 so our reply then was  25 that already in Kruger the court had considered this  26 issue.  They had section 2 in front of them, and they  27 said it was not a -- that the Wildlife Act was aimed  28 at management and did not give property rights.  29 The province's position in the Dick appeal, and in  30 this appeal we think as well, is that there was  31 blanket extinguishment of the right to hunt based on  32 the vesting of all property in all wildlife in the  33 Crown.  That's similar to the province's former  34 position in Delgamuukw with respect to land rights.  35 In the decision under appeal and in the province's  36 former factum reliance is placed on the Proclamation  37 of 1859 for extinguishment of aboriginal land rights.  38 The Proclamation stated:  39  40 "1.  All the lands in British Columbia, and all the  41 mines and minerals therein, belong to the Crown  42 in fee."  43  44 Now, the province comes along and argues a  45 position in Delgamuukw which is quite different with  46 respect to blanket extinguishment of land rights.  47 They now say in our submission that the 2423  Submissions by Mr. Braker  1 pre-Confederation enactments were merely a "regulatory  2 framework for subsequent acts of extinguishment," and  3 they go on to say:  4  5 "It is absurd to suppose that an act which sets  6 up the mechanism for extinguishment, which  7 could be repealed before any extinguishment  8 occurs, amounts to extinguishment itself."  9  10 That's the new provincial position.  And I have  11 already referred to the speaking notes of my friend,  12 Mr. Willms -- Williams I should say, my friend, Mr.  13 Williams, for the province, which were handed out on  14 June 1st where he said that:  15  16 "The province will argue later and in the  17 alternative that some extinguishment of  18 aboriginal rights has taken place, but only as  19 a result of specific land grants from the Crown  20 which meet the test of adverse dominion, where  21 the intention of the Crown to extinguish must  22 be clear and plain by necessary implication."  23  24 In those same speaking notes he gives an example  25 at paragraph H where he said, referring to the  26 Proclamation of 1859 that I have just read to your  27 lordships:  28  29 "All the lands in British Columbia... belong to  30 the Crown in fee."  31  32 He says:  33  34 "As will be recalled, this Proclamation was  35 made in 1859; yet four years later, in 1863 and  36 1864 Appropriation Acts were passed to allocate  37 funds for the extinguishment of Indian titles  38 on Vancouver Island.  This suggests the  39 government could not have intended previously a  40 blanket extinguishment of aboriginal rights."  41  42 Well, we say by analogy the same argument can be  43 made to the rights to hunt under the Wildlife Act.  44 Even since 1971, when section 2 of the Wildlife Act  45 was brought in, there are still provisions in the  46 Wildlife Act which, for example, exempt Indians from  47 obtaining a licence to hunt.  We say that that is a 2424  Submissions by Mr. Braker  1 recognition of the continuing aboriginal right to hunt  2 and that the same analogy that the Crown uses with  3 respect to the Appropriation Acts can be used with  4 respect to the Wildlife Act.  5 The appellant, Harry Thomas Dick, submits that the  6 province's new reasoning with respect to blanket  7 extinguishment of land rights also applies to blanket  8 extinguishment of hunting rights.  Just as the  9 province now argues, an enactment which vests in the  10 Crown the fee simple to all Crown lands does not  11 extinguish aboriginal title, so an enactment which  12 vests in the Crown ownership in all wildlife in the  13 Province would not extinguish the aboriginal right to  14 hunt.  15 Now, I do admit, my lords, that the Appropriation  16 Acts are more -- are much clearer on their face  17 because they actually set aside funds for Indian land  18 settlement.  However, we say that's the analogy that  19 the Crown uses which can also be applied to the Indian  20 hunting right.  21 Turning to paragraph 47 of our factum, contrary to  22 paragraph 204 of the provincial Crown's revised  23 factum, a grant of land inconsistent with aboriginal  24 rights does not extinguish the aboriginal rights,  25 rather, the grant is subject to the Indian interest.  2 6 I want to turn now to some comments that were made  27 by my friend, Mr. Taylor, for the Crown, for the  28 provincial government, comments he made on June the  29 3rd.  These are my notes of his comments, my lords.  I  30 don't have the transcript.  My friend, Mr. Taylor, for  31 the province, stated one looks to the intention and if  32 it is inconsistent then the necessary implication is  33 that aboriginal title is extinguished and the  34 intention to be inferred is that the sovereign  35 intended to extinguish.  Mr. Taylor went on to say  36 that it's not necessary for the sovereign to turn her  37 mind to aboriginal rights provided there is no doubt  38 left and it is a necessary implication.  My friend  39 went on to say that it need not be expressed -- that  40 extinguishment need not be expressed, and therefore,  41 the inferential intention need not be expressed  42 either.  He said that we don't need evidence that the  43 sovereign ever turned her mind to the extinguishment.  44 In response to a question from Mr. Justice Lambert  45 as to whether or not he was saying that if the effect  46 of the legislation is clear then we don't have to look  47 for legislative purpose, my friend answered yes.  That 2425  Submissions by Mr. Braker  1 theme or that argument of the province continued  2 during Mr. Taylor's submissions on section 88 of the  3 Indian Act.  After a long exchange and discourse Mr.  4 Justice Lambert commented, "If you need section 88  5 then I would not have thought you had a clear and  6 plain expression."  My friend answered, "If aboriginal  7 rights is part of the core of Indianness we would need  8 section 88 to apply."  In answer to the question,  9 "Could it then extinguish," he said, "Yes," and  10 replied, "You don't need expression by the legislature  11 of clear and plain intention."  12 Well, the problem the appellant Dick, of course,  13 has with this is that how much farther can the  14 province ask us to go from clear and plain intention?  15 In my submission there is a reason why we were given  16 the test of clear and plain intention.  In my  17 submission there may be several reasons why.  But in  18 my submission it's not -- it's reasonable to say that  19 one of the reasons for the clear and plain intention  20 test is that there must be notice to the aboriginal  21 peoples themselves.  It seems to me that any time we  22 are taking a common-law right away from somebody that  23 we give them a notice of the intention to take that  24 common-law right away or we are asked to give them a  25 notice to take that common-law right away.  Imagine  26 the position of the aboriginal people in Telegraph  27 Creek or, as Mr. Dick lives, in Friendly Cove off of  28 the west coast of Nootka Island, off of the west coast  29 of Vancouver Island.  He is being told by the  30 province, "We don't need your consent to extinguish  31 your aboriginal right to hunt."  And now the province  32 goes further.  They say now that the legislation does  33 not have to say on its face that it's extinguishing  34 the aboriginal right to hunt, nor, they say, must  35 there even be deliberation by Parliament, as disclosed  36 in Hansard, of the extinguishment of the aboriginal  37 right to hunt.  But indeed, now the province says that  38 there must not even be evidence necessarily that the  39 sovereign ever turned her mind to the issue of  40 aboriginal rights.  How much further from the clear  41 and plain test set out in Sparrow will the province  42 have us go?  43 In my submission we have gone about as far as we  44 could possibly go from the test, and it's not the test  45 of clear and plain at all.  In my submission there is  46 a reason why clear and plain intention was required  47 and it's a reasonable submission to make, and one of 2426  Submissions by Mr. Braker  1 the reasons was that the aboriginal people themselves  2 would have some notice of it.  The result, my lords,  3 of the province's submissions is that aboriginal  4 people such as Mr. Dick, who may at the time reside in  5 Friendly Cove, are left to guess whether or not there  6 has been a clear and plain intention and to guess  7 whether or not it is a necessary implication that the  8 legislation extinguishes their rights or that a court  9 might someday decide that it is a necessary  10 implication that the legislation extinguishes their  11 rights.  There was a reason for clear and plain  12 intention and that was so that Mr. Dick would know  13 that his right to hunt was being extinguished.  14 The third party interests at paragraph 48 of our  15 factum created by provincial legislation are burdened  16 by aboriginal rights.  We then give a quote from Mr.  17 Slattery.  18 I would like to turn to paragraph 50 of our  19 factum, at the bottom of page 18.  That aboriginal  20 rights can be consistent with fee simple during the  21 currency of the fee simple is demonstrated in the case  22 of Bartleman.  Your lordships will recall that this  23 case was discussed extensively during the Dick appeal.  24 It was a treaty case on Vancouver Island.  However, we  25 say that that decision makes it clear that the treaty  26 was a recording of pre-existing aboriginal hunting  27 rights.  It is the responsibility of Canada, pursuant  28 to the terms of union and pursuant to the  29 constitutional division of powers, to seek resolution  30 of such conflicts by means of treaties with Indians or  31 surrenders of the Indians' interest.  Indian consent  32 is required to extinguish aboriginal rights.  33 I want now, my lords, to turn to and to respond to  34 a few other comments that were made by my friend, Mr.  35 Taylor.  Again, these were made on June the 3rd during  36 his submissions.  My friend for the province said the  37 fact that something is an intimate part of culture,  38 their Indian culture, does not mean it is within the  39 central core, and I assume there the reference was to  40 Indianness.  He then made the comment we don't need  41 22,000 square miles to be an Indian.  Well, in my  42 submission, what my learned friend, Mr. Taylor, was  43 alluding to without developing any further than to say  44 that we don't need 22,000 square miles to be an  45 Indian, is one of the central issues in this appeal,  46 and it may I think, in my submission, be one of the  47 central issues in the Dick appeal.  Surely the 2427  Submissions by Mr. Braker  1 statement by the province that you don't need 22,000  2 square miles to be an Indian is retorted to by a  3 question:  What in the province's opinion is needed to  4 be an Indian?  5 There are a host of issues which my friend has  6 alluded to without developing.  A subsidiary issue for  7 me is who defines Indianness?  What will the court say  8 about the preservation of the rights necessary to be  9 an Indian?  The submission of Harry Thomas Dick, once  10 you start -- once you give up your right to define who  11 you are to somebody else then you cease to be who you  12 are.  If, in fact, it's not going to be the Indian  13 people themselves who define who they are according to  14 their own cultural concepts, then in my submission  15 they are going to cease to be who they are.  That was  16 illustrated in the case of Harry Thomas Dick.  In that  17 case there was evidence led that the hunting of the  18 Mowachaht people had been going on for years, and  19 there was anthropological evidence led about how the  20 hunting took place.  21 LAMBERT, J.A.:  Mr. Braker, can I ask you something to deal with  22 this point?  There's -- there are certain aspects of  23 Indianness that are called -- that are called in the  24 Dick case in the Supreme Court of Canada, the central  25 core of Indianness, and then there are the aboriginal  26 rights of the Indian people.  Is it your position that  27 if a matter is -- deals with the aboriginal rights of  28 Indians it therefore is in the central core of  29 Indianness, essentially that the two things are  30 coextensive?  31 MR. BRAKER:  Yes, my lord.  32 LAMBERT, J.A.:  They are.  33 MR. BRAKER:  That is our submission.  34 LAMBERT, J.A.:  All right.  Thank you.  35 MR. BRAKER:  So it seems to me that there's a question or I was  36 pointing out that this was exemplified in the Dick  37 case where they had hunted for a number of years.  38 There was evidence that Mr. Dick and his family  39 preferred the meat of wild animals, et cetera.  There  40 was also evidence that the very name Mowachaht, the  41 name of the tribe he belonged to, meant the people of  42 the deer.  43 Well, the issue then arises, and my friend alluded  44 to it in his comment, that you don't need 22,000  45 square miles to be an Indian.  The question then  46 arises, and it's a question which this court I think  47 is going to have to grapple with, is what happens when 2428  Submissions by Mr. Braker  1 you do reach that point where you have interfered with  2 the ability to be an Indian?  It may be that in the  3 case of Harry Thomas Dick that there is a park called  4 Strathcona Park which is near his reserve, and it was  5 brought out in the evidence.  It may be that in that  6 case we are going to have to accommodate his hunting  7 right with the establishment of the park.  It may be  8 that if you have a tribe such as the Musqueam tribe,  9 which is surrounded by city and which yet claims an  10 aboriginal right which is inconsistent with the rights  11 of third parties, that the court is going to have to  12 decide what the mechanism is when you reach that point  13 where the Indians can no longer practice their ability  14 to be an Indian.  May be that the court will find  15 examples where there are islands which have -- are a  16 special place which have had a long history for the  17 aboriginal people of being a place central to them or  18 a special place for them where the court is going to  19 have to say you have now crossed the line, you have  20 now infringed on the ability of those people to define  21 who they are and no logging may take place.  22 So in our submission my learned friend had alluded  23 to a question which was central to the very issue of  24 this appeal and to the issue of the appeal in Harry  25 Thomas Dick because in Harry Thomas Dick the hunting  26 rights which had been given to third parties by the  27 lottery system infringed on his right we say to the  28 extent that he was not able to practice his  29 Indianness.  Well, when those types of conflicts take  30 place then I think that the court is going to be  31 called upon to make some resolution.  So we say that  32 Mr. -- or my friend Mr. Taylor's comment is answered  33 by a question, and the question must be what in the  34 province's opinion, and I only say that because they  35 made the statement, I don't think that they set the  36 definition, what would the province say is needed to  37 be an Indian?  38 The province continues to argue extinguishment by  39 necessary implication.  At paragraph 53 of our factum,  40 even if the province could extinguish by legislation,  41 which is denied, the legislative intent to extinguish  42 would have to have been explicit on the face of the  43 legislation.  No such legislation exists.  Certainly  44 it doesn't exist with respect to hunting.  The  45 termination of aboriginal rights is a matter exclusive  46 for Canada, not the province.  In the case of federal  47 legislation extinguishment must be explicit.  It 2429  Submissions by Mr. Braker  1 cannot be the case that a province can do  2 surreptitiously what Canada must do openly.  3 I will not refer to section 88 of the Indian Act.  4 My lordship, Mr. Taggart, had raised the issue during  5 the Dick appeal with respect to the argument which  6 took place in Parliament during the legislative  7 debates on section 88.  I have given the registrar  8 copies of Hansard with respect to the enactment of  9 what is now section 88.  I am not going to refer to  10 them because they don't say anything.  There was no  11 reference made during the enactment of section 88 that  12 I could find in any of the legislative debates or the  13 debates of the committee which dealt with section 88  14 at all.  So I have handed them to the clerk but I am  15 not going to refer to them at all.  16 I wish to turn for a moment to coexistence.  I  17 think that I should be able to wrap up the submissions  18 in about ten minutes, my lord, a little bit earlier  19 than I had anticipated.  At page 20 of our factum, in  20 Bartleman, counsel for Mr. Bartleman argued that the  21 scope of the treaty in question was such that it is  22 extended to permit hunting by Mr. Bartleman on all  23 traditional lands unless the occupation of the land,  24 pursuant to provincial law, was inconsistent with the  25 land's use by Mr. Bartleman for hunting.  And again, I  26 would ask your lordships to compare that with the  27 examples that I have given already such as the  28 establishment of the park beside Mr. Dick's territory.  29 In Bartleman Lambert held that -- Mr. Justice  30 Lambert held that hunting by band members on all land  31 within the traditional hunting area of the band is  32 permitted by the Vancouver Island Treaty in question  33 unless the occupation of the land "is inconsistent  34 with the use of the land for hunting."  Occupation  35 here, of course, was occupation pursuant to the  36 provincial powers.  37 The test for inconsistency, given the words of the  38 treaty, is that the hunting not "interfere with the  39 actual use and enjoyment of the land by the owner."  40 Of course, in the Alphonse and Dick cases your  41 lordships had two very different sets of facts.  Mr.  42 Dick, although it perhaps was not made clear in the  43 evidence, the assumption I think from both the -- both  44 the trial judge and from the appellate judge at the  45 County Court level was that the elk was shot on land  46 which had not been alienated to a third party.  In the  47 Alphonse case, of course, there was third party 2430  Submissions by Mr. Braker  1 alienation of the land on which the game was shot.  2 While Bartleman is a treaty case, we say that  3 there is no reason in principle for treating the  4 aboriginal hunting rights less favourably than the  5 treaty rights, and, of course, the treaty rights were  6 an expression of the aboriginal rights held earlier by  7 the people.  8 In Sioui the court was considering the effect of  9 provincial legislation which interfered with the  10 exercise of rights guaranteed by certain Indians by  11 treaty.  The treaty contained the following provision.  12 It allowed for the free exercise of their religion and  13 their customs.  The court then went on to say, the  14 Supreme Court of Canada, I am only going to read the  15 underlined part:  16  17 "...The question is whether the type of  18 occupancy to which the park is subject is  19 incompatible with the exercise of the  20 activities with which the respondents were  21 charged..."  22  23 And again on the next page:  24  25 "...It has not —"  26  27 -- at the very top of the page, reading only the  28 underlined part --  29  30 "...It has not been established that occupancy  31 of the territory of Jacques-Cartier Park is  32 incompatible with the exercise of Huron rites  33 and customs."  34  35 So we say that Sioui illustrates a practical example  36 of the coexistence of rights of the Indians and of  37 third parties and by implication the co-management of  38 a resource, and we say that that's an example of how  39 it would work in practice.  I then set out the Sparrow  40 test which I think your lordships may very well have  41 memorized by now, and I am not going to read through  42 it.  43 I will go to section 25 of our factum.  The tests  44 in Bartleman, Sioui and Sparrow are not inconsistent  45 or incompatible.  They are examples of the courts  46 developing tests or mechanisms to determine the  47 resolution of conflicts between aboriginal or treaty 2431  Submissions by Mr. Braker  1 rights and the rights under other law.  The tests are  2 not exhaustive or exclusive.  I might say at this  3 point that your lordships, in my submission, have  4 been -- have had placed before you in the Dick appeal  5 and in this appeal two very different approaches to  6 the status and treatment of aboriginal rights in the  7 province.  8 The appellants in this case set out their position  9 in the revised position of remedies which was filed on  10 June 12 of this year, and in particular in paragraph 2  11 on the first page and continuing through on to the  12 second page.  The appellant, Harry Thomas Dick, on the  13 other hand, in the Dick appeal suggested to your  14 lordships that the Sparrow test, as used with respect  15 to fishing, could be used equally with respect to  16 hunting rights in the Province of British Columbia.  17 That continued to be his position.  The position was  18 also different, I suggest, in respect of other matters  19 with respect to aboriginal rights.  So we say that  20 given the Gitksan interpretation, the Gitksan position  21 on the definition of their Indianness, and Harry  22 Thomas Dick's interpretation on the definition of his  23 Indianness, that there is very good reason why the  24 tests were not exhaustive or exclusive.  For example,  25 we anticipate that negotiation itself between  26 aboriginal peoples and the government will provide  27 resolution of conflicts over matters such as resource  28 use, and that's been illustrated by this court already  29 in several cases.  30 The historic and accepted practice in Canada has  31 been to recognize through treaties the existence of  32 aboriginal rights.  In the Dick appeal the relevance  33 of treaties arose because of the example that was  34 given at trial by the province of what happened in the  35 Nanaimo area.  In that area there were treaties on  36 Vancouver Island with respect to hunting, and it was  37 the province who led evidence at trial that the  38 Indians had voluntarily curtailed their hunting in  39 order to effect conservation of the resource.  I might  40 say that at trial I objected to that evidence but on  41 reflection am quite delighted that it went in.  It was  42 the province who argued that the Indians should --  43 that the Indians had curtailed their hunting and so in  44 that respect we say that the treaty mechanism had  45 fulfilled its purpose on Vancouver Island.  46 In Dick the Vancouver Island treaties were  47 illustrative of the principles of coexistence of 2432  Submissions by Mr. Braker  1 treaty rights and the property and civil rights of  2 citizens within the province.  As I say substantial  3 evidence was led of how Indians living in the Nanaimo  4 area agreed to forgo their treaty hunting rights with  5 respect to elk, and actually they issued a declaration  6 to that effect after consultation with the wildlife  7 branch of the provincial government.  The agreement  8 included a provision that there be no elk hunting by  9 non-Indians either.  Obviously there was some  10 negotiation, in my submission, going on.  The Indians  11 enforced the agreement internally through  12 non-supportive tribal members who violated the  13 agreement.  The agreement was effective and the elk  14 herd increased.  15 We submit, therefore, that the Nanaimo example in  16 the Dick case transcript illustrates in practice, in  17 practical terms for your lordships, the coexistence of  18 jurisdiction and co-management, jurisdiction by the  19 Indians over their treaty rights and co-management by  20 both the province and the Indians of the elk resource  21 in the Nanaimo area.  22 We say that there will never be a single test to  23 determine whether there has been interference with an  24 aboriginal right or a single mechanism for resolving  25 interference with an aboriginal right.  The test in  26 Sparrow applies in the case of prima facie  27 interference with an aboriginal right to a transient  28 natural resource and may not be applicable to  29 aboriginal rights in other areas such as family law.  30 For example, the Indian Act today recognizes  31 adoption by custom.  Well, we say that the test for  32 interference of adoption by custom is going to be  33 quite different for your lordships, perhaps, than the  34 test for interference with a natural resource, the  35 right to use of a natural resource.  Marriage by  36 custom is an example where the test that the court may  37 set out for interference with the aboriginal right to  38 marriage by custom is going to be quite different from  39 the tests set out by the court for interference with  40 rights to natural resources.  41 The tests and mechanisms for resolving conflicts  42 between aboriginal rights and other rights should be  43 flexible and at the same time sensitive to aboriginal  44 culture and aboriginal views of dispute resolution.  45 And again I can't help but harken back to the comments  46 of my friend, Mr. Taylor, that you don't need 22,000  47 square miles to be an Indian.  That refers only to the 2433  Submissions by Mr. Braker  1 use of natural resources.  It may be that there are  2 other parameters which the courts consider in the  3 practice of other aboriginal rights.  For example, the  4 22,000 square mile comment makes no sense, in my  5 submission, when you are talking about the aboriginal  6 right to adoption by custom.  The question then of  7 when you infringe on the right and what the parameters  8 of that right are are going to be, in my submission,  9 vastly different, and the considerations for this  10 court are also going to be very different.  11 The very last submissions that I wanted to make,  12 my lords, were in respect of costs.  The intervenor,  13 Harry Thomas Dick, did not apply to intervene in the  14 Delgamuukw case last August, and, in fact, the  15 intervenor, Harry Thomas Dick, is a reluctant  16 intervenor in this appeal.  This intervention was  17 necessitated, your lordships will recall, by the  18 submissions of the province and Attorney General of  19 Canada.  20 In its factum in the Dick appeal the province  21 stated:  22  23 "It should be noted —"  24  25 -- and I am at page 27 of our factum, paragraph 79 --  26  27 "It should be noted that the argument advanced  28 in this factum --"  29  30 -- which is the Dick appeal factum --  31  32 "...is a summary version of the argument which  33 is anticipated will be made on behalf of the  34 respondent in the Delgamuukw appeal...The  35 record in Delgamuukw is more extensive, and  36 accordingly what is said here ought not to be  37 taken as a complete statement of the province's  38 position."  39  40 In her factum in the Dick appeal, the Attorney  41 General of Canada said at the end of that paragraph:  42  43 "However, the Attorney General of Canada would  44 refer the court to her factum in Delgamuukw for  45 a discussion of the general principles which in  46 her submission ought to apply to the facts as  47 found in the cases under appeal, --" 2434  Submissions by Mr. Braker  1 -- being the Dick and Alphonse facts --  2  3 "-- which will be filed in due course."  4  5 The factum then was not even yet filed.  In our  6 submission then the appeal of Harry Thomas Dick was  7 not complete until Canada and British Columbia had  8 finished their argument in Delgamuukw and we had been  9 given an opportunity to reply to those issues to which  10 we wished to reply.  11 As part of his right to a fair hearing at this  12 appeal, Harry Thomas Dick -- at his appeal I should  13 say -- Harry Thomas Dick was entitled to know the case  14 against him and to be given the opportunity to respond  15 to it.  He could not do so until the hearing of this  16 appeal.  Of course, we made a motion to have those  17 paragraphs struck from the facta but the decision is  18 still outstanding.  So, my lords, we do ask for our  19 costs in this appeal.  20 Those, my lords, are the submissions of the  21 intervenor.  22 TAGGART, J.A.:  Thank you, Mr. Braker.  23 LAMBERT, J.A.:  Mr. Pape suggested that the costs ought to be on  24 a solicitor and client scale in this case.  Do you  25 have any submissions as to the scale at which costs  26 should be awarded?  27 MR. BRAKER:  I remember the court's decision in Manitoba in the  28 case of Flett where they awarded I believe a lump sum  29 of either 20 or 25,000.  I would have to defer to one  30 of my friends for -- to refresh my memory, but I  31 believe the court there awarded a lump sum in their  32 judgment of either 20 or $25,000.  I had been  33 considering this issue, and I had actually anticipated  34 what my answer would be if the court had asked what  35 the sum was that we were applying for.  36 LAMBERT, J.A.:  Well, you might as well tell us.  How much?  37 MR. BRAKER:  I agree with my friend, Mr. Pape, solicitor and  38 client costs, my lord.  Thank you, my lords.  39 TAGGART, J.A.:  Thank you, Mr. Braker.  We'll adjourn now until  40 Monday next, 10:00 a.m.  41 THE REGISTRAR:  Order in court.  This court stands adjourned  42 until ten o'clock on Monday.  43  4 4 PROCEEDINGS ADJOURNED  45  46  47 2435  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16 I hereby certify the foregoing to  17 be a true and accurate transcript  18 of the proceedings transcribed to  19 the best of my skill and ability.  20  21  22  23  24  25 Brenda Dalawrak  26 Official Reporter  27 UNITED REPORTING SERVICE LTD.  28  29  30  31  32  33  34  35  36  37  38  39  40  41       THIS TRANSCRIPT IS BRIDGED FROM PAGE 2435 TO PAGE 245E  42  43  44  45  46  47

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