Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-01] British Columbia. Supreme Court Jun 1, 1992

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 1293  Submission by Mr. Williams  1 Vancouver, B.C.  2 June 1, 1992  3  4  CORAM:  Taggart, Hutcheon, Macfarlane, Lambert, Wallace, JJA.  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Monday, June the 1st, 1992.  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lords.  10 THE COURT:  Yes, Mr. Williams.  11 MR. WILLIAMS:  My lord, thank you.  My lords, the first thing  12 I'm going to do is to deal with the questions that I  13 was asked on Friday, and I hope and think that it  14 won't take too long.  I also have a couple of hand-ups  15 that I've given to my friends which I think may  16 respond or help to respond to those questions.  And  17 the first question I was asked was that from the  18 factum in tab 2, paragraph 3, I said:  19  20 "The Appellants governed themselves and the  21 territory that they occupied in accordance with  22 their own laws, customs and institutions, and  23 they continued do so.  Their society was  24 organized around feasts, houses, clans, crests  25 and in other ways."  26  27 I said at the time that may be a slight overstatement  28 of the evidence.  My lord Justice Hutcheon asked if we  29 dispute the learned trial judge's findings when we  30 state that position in paragraph 3 of the statement of  31 facts, and my answer is no.  If we correctly  32 understand the findings of the learned trial judge on  33 reading the whole of the judgment, putting his  34 comments into context, then, my lords, I say that we  35 believe he does find that the Appellants met the  36 minimum standards of an organized society for the  37 purpose of that limited self-government, and I don't  38 want that to be confused with sovereignty, which he  39 made a finding against.  40 Now, when I say that, I've passed up to you a  41 three-page document -- four-page document which has  42 the page references to what his lordship said, and, if  43 I may, I will just read read through those, and it is  44 from this that I say that -- and let me start by  45 saying, my lord Justice Hutcheon, that I believe that  46 the learned trial judge's comments, when he talks  47 about the vacuum and when he talks about other things, 1294  Submission by Mr. Williams  1 are really put into context with respect to the issue  2 of ownership.  I know he mentions legal vacuum and so  3 on, but I believe that he is really concerned about  4 the ownership issue.  I have already said that we  5 completely accept the trial judge's findings that they  6 didn't prove a right to ownership.  7 Now, here's what he has to say throughout the  8 judgment, which has caused me to say that in my  9 respectful submission that he did find the minimum  10 standards were met, and therefore could justify  11 perhaps and tone it down to number 3, in my statement  12 of facts.  On page 111 he said:  13  14 "Further, these early ancestors also used some  15 other parts --  16  17 I've tried not to take these out of context, but  18 they're not all of the quotes of course:  19  20 "These early ancestors also used some other  21 parts of the territory surrounding and between  22 their villages and rivers, and further away as  23 circumstances required, for hunting and  24 gathering the products of the lands and waters  25 of the territory for subsistence and ceremonial  26 purposes . "  27  28 "The aboriginal interests of the post-contact  29 ancestors of the plaintiffs at the date of  30 sovereignty were those exercised by their own  31 more remote ancestors for an uncertain long  32 time.  Basically these were rights to live in  33 their villages and to occupy adjacent lands for  34 the purpose of fathering the products of the  35 lands and waters for subsistence and ceremonial  36 purposes."  37  38 "All the Gitksan Houses are divided into four  39 clans which seem to originate, or at least  40 congregate, in different villages in the  41 territory.  The Wet'suwet'en Houses are also  42 divided into four clans.  There is no head  43 chief of a clan but there is an order of  44 precedence or seniority amongst the hereditary  45 chiefs of the Houses of each clan in each  46 village."  47 1295  Submission by Mr. Williams  1 "The picture painted by the Indian witnesses and  2 their anthropological experts suggested that  3 all aboriginal life revolves around the chief,  4 clan and House system, and around aboriginal  5 use of, and connection with, House  6 territories."  7  8 "I do not question the social importance of  9 these institutions but I regret to say that I  10 believe the plaintiffs' evidence in this  11 connection was overstated."  12  13 I say he's referring basically to the ownership in  14 that one.  15  16 "Because of the low threshold, however, it will  17 not be necessary for me to quantify the level  18 of aboriginal social organization in the  19 territory at any particular time.  I agree  20 'feasting', and the House and clan system are  21 important parts of the social organization of  22 the Gitksan and Wet'suwet'en people, and that  23 the chiefs play an important role in those  24 activities."  25  26 "The fundamental premises of each people are,  27 firstly, that persons must marry outside their  28 clan (exogamy) and, secondly, that all their  29 people are divided by matrilinear descent into  30 clans and Houses.  Thus, every person born of a  31 Gitksan or Wet'suwet'en woman is automatically  32 a member of his or her mother's House and  33 clan."  34  35 "The Gitksan recognize associations between  36 Houses which have long-standing relations or  37 common origins called 'wii'nat'ahl'."  38  39 "The evidence discloses that houses have the  40 capacity to merge or divide...."  41  42 "Each house has one or more 'hereditary chiefs'  43 as its titular head."  44  45 "...the head chief of a House is selected,  46 sometimes at a very young age, for future  47 chieftainship, and sometimes for purely 1296  Submission by Mr. Williams  1 practical or political reasons."  2 "There is no head chief for the clans, but there  3 is a ranking or order of precedence within  4 certain communities or villages where one House  5 or clan may be more prominent than others."  6  7 "In addition, some Houses are associated  8 together through family or other relationships  9 brought about by separations, mergers or  10 amalgamation of Houses."  11  12 "Each house has some physical and tangible  13 indicators of their association with their  14 territories.  For example, some Houses have  15 totem poles on which are carved the crests of  16 their Houses, while others have distinctive  17 regalia.  Most if not all Gitksan Houses have  18 oral histories and an 'adaawk', which is a  19 collection of sacred oral reminiscences about  20 their ancestors, their histories and their  21 territories."  22  23 "The spiritual connection of Houses with their  24 territory is most noticeably maintained in the  25 feast hall, where, by telling and re-telling  26 their stories, and by identifying their  27 territories, and by providing food or other  28 contributions to the feast from their  29 territories they remind themselves over and  30 over again of the sacred connection that they  31 have with their lands."  32  33 "...I have no difficulty finding that the  34 Gitksan and Wet'suwet'en people developed  35 tribal customs and practices relating to  36 chiefs, clans and marriage and things like  37 that, but I am not pursuaded their ancestors  38 practised universal or even uniform customs  39 relating to land outside the villages.  They  4 0 may well have developed" --  41  42 And that's the land reference again:  43  44 "They may well have developed a priority system  45 for their principal fishing sites at village  46 locations."  47 1297  Submission by Mr. Williams  1 "The plaintiffs have indeed maintained  2 institutions but I am not persuaded all their  3 present institutions were recognized by their  4 ancestors."  5  6 "I do not question the importance of the feast  7 system in the social organization of  8 present-day Gitksan and I have no doubt it  9 evolved from earlier practices but I have  10 considerable doubt about how important a role  11 it had in the management and allocation of  12 lands, particularly after the start of the fur  13 trade.  I think not much, for reasons which I  14 have discussed in other parts of this judgment.  15 Perhaps it will be sufficient to say that the  16 evidence about feasting is at least equivocal  17 about its role in the use or control of land  18 outside the villages."  19  2 0 That's what he's aiming at.  21  22 "I do not suggest the Indians have not always  23 participated in feasting practices, and I  24 accept that it has played, and still plays, a  25 crucial role in the social organization of  26 these people."  27  28 "I am satisfied that the date of British  29 sovereignty the plaintiffs' ancestors were  30 living in their villages on the great rivers in  31 a form of communal society, occupying or using  32 fishing sites and adjacent lands as their  33 ancestors had done for the purpose of hunting  34 and gathering whatever they required for  35 sustenance.  They governed themselves in their  36 villages and immediately surrounding areas to  37 the extent necessary for communal living, but  38 it cannot be said that they owned or governed  39 such vast and almost inaccessible tracts of  40 land in any sense that would be recognized by  41 the law."  42  43 "...I accept the opinion" --  44  45 And that's a legal conclusion in respect of the  46 government, which I may -- I'm permitted, I think, to  47 disagree with. 1298  Submission by Mr. Williams  1  2 "...I accept the opinion of Professor Ray that  3 the minimal social organization described by  4 trader Brown at Babine Lake in the 1820s could  5 not have been borrowed or developed just since  6 contact.  This and the further facts that there  7 were villages in the vicinity of Kisgegas and  8 reports of larger Skeena villages to the west,  9 and the probability I have already expressed  10 that some of the ancestors of the plaintiffs  11 have been present in the territory for a long  12 long time, persuade me this requirement  13 (aboriginals in an organized society) has been  14 satisfied."  15  16 My lords, that is really what I am relying upon when I  17 say that there were, in terms of the governance issue,  18 there was a minimal standard at least that was met,  19 and I don't have to challenge the learned trial  20 judge's findings, in my submission.  21 My lords, the second question was did Bear Island  22 replace Baker Lake test.  That's how I understood it.  23 My lord Justice Macfarlane and Hutcheon both commented  24 on this.  Did the Baker Lake test, as explained by Mr.  25 Hutchins replace -- sorry, the Bear Island test, did  26 it replace Baker Lake, or did it simply modify the  27 exclusivity requirements.  28 I gave a preliminary answer on Friday, and I stay  29 with that answer, and I say that it wouldn't make any  30 sense otherwise, and the reason I say that is this,  31 that, now, when I say organized society, I'm not for a  32 moment suggesting it has to be organized into a  33 parliament or into anything that is as structured as  34 what we have.  It simply needs to be organized  35 sufficiently that there is some order and not just a  36 kind of kingdom with everybody nomadically wandering  37 around, because if that were the case how could you  38 ever decide what the territory was?  There would be no  39 organization at all, you would never know what the  40 territory was.  So what I say is that the statement in  41 Bear Island at the Supreme Court of Canada modifies  42 the Baker Lake statement to say that it's not  43 necessary through exclusive occupation, but it's  44 sufficient that you prove sufficient occupation.  45 And I say that if you look at Sparrow at page 398,  46 my lords, you will see that what the court says there  47 is that: 1299  Submission by Mr. Williams  1  2 "The evidence reveals that the Musqueam have  3 lived in the area as an organized society long  4 before the coming of European settlers and the  5 taking of salmon was an integral part of their  6 lives and remain so today."  7  8 I wouldn't think that the Chief Justice would bother  9 to make reference to that unless he felt that it was  10 important to be able to say that one of the things  11 they had to establish was that they had some form of  12 an organized society, point 1 in the Baker Lake test,  13 and point 2, that they had established that they  14 occupied that territory.  And I say that if you look  15 at the -- so I think that confirms the Baker Lake  16 test.  17 And then if you look at the Bear Island statement,  18 the only thing I could find in Bear Island that dealt  19 with this was one small paragraph at page 394, and  20 what it says is:  21  22 "It does not necessarily follow, however, that  23 we agree with all the legal findings based on  24 those facts.  In particular, we find that on  25 the facts found by the trial judge, the Indians  26 exercised sufficient occupation of the lands in  27 question throughout the relevant period to  28 establish an aboriginal right."  29  30 I don't think that that could be said to replace what  31 I consider to be a test that Justice Mahoney thought  32 out and put down.  They don't say there's only one  33 thing that is required to be proven.  But, you know,  34 having said that, we may be playing a semantics game  35 here, because, really, it seems to me that it stands  36 to reason that there has to be some kind of proof that  37 they were there and some kind of proof that they were  38 somehow organized, and after that you don't need  39 exclusivity, and you treat it up to the time of  40 sovereignty or some earlier date, if you wish, then  41 that's all it seems to me is required.  So that's my  42 conclusion on that point.  43 LAMBERT, J.A.:  My recollection is that Mr. Justice Steele, the  44 trial judge in Bear Island, adopted as the legal test  45 the tests from Baker Lake, and the Supreme Court of  46 Canada said that the findings of law of the trial  47 judge were not adopted by the Supreme Court. 1300  Submission by Mr. Williams  1 MR. WILLIAMS:  Not all adopted.  2 LAMBERT, J.A.:  Not all adopted, something like that.  I don't  3 have it in front of me.  It's because of that  4 statement, that seems to be a criticism of the  5 findings of law of what constitutes in the foundation  6 on which aboriginal rights rest, that has thrown the  7 Baker Lake tests into a little bit of further  8 confusion than they were beforehand, though they've  9 never been adopted by the Supreme Court of Canada, and  10 this looks as if it's a suggestion that the Supreme  11 Court of Canada regards itself as still open-minded  12 about it.  13 MR. WILLIAMS:  They were adopted by this court I believe in  14 Pasco.  15 LAMBERT, J.A.:  Yes, they were, after a good deal of thought, I  16 understand.  17 MR. WILLIAMS:  I'm not going to comment on that, my lord.  I  18 think the truth of it is --  19 MACFARLANE, J.A.: I told that to Justice Lambert the other day  20 as we were leaving the courtroom:  "I wouldn't have  21 said what I did in Pasco if I had not thought about  22 it."  23 MR. WILLIAMS:  If I could, I would like to agree with both your  24 lordships.  The thing I think that's important is that  25 whether the Supreme Court of Canada could be said to  26 have substituted a new test, which I've already said I  27 don't believe they did, or not, it seems to me that  28 either the Baker Lake test, if -- as long as one  29 treats organized society as not being something that  30 you have to be able to show a record under seal for  31 the establishment thereof, as long as it's not  32 treated -- to me organized society, the most minimal  33 form will do.  That probably makes some sense to have  34 that somewhere in the test, that's all I say, and to  35 say that the -- in the Bear Island case that it was  36 sufficient doesn't give us much of a test.  That's why  37 I'm treating this the way I am, and I'm trying to --  38 trying to establish that the exclusivity from the  39 Bear -- from the Baker Lake test seems to have gone,  40 and if our position is adopted it would not just be  41 sovereignty, it would be an integral part of their  42 cultural -- the distinctive culture at sovereignty,  43 instead of the long long time test.  44 One of the things that the organized society is  45 that the right that's advanced and the manner in which  46 they lived was a communal one, and, again, if you're  47 going to advance a right that's communal in nature 1301  Submission by Mr. Williams  1 there has to be at least some organization, and so,  2 anyway, I leave it at that.  3 My lords, the next question was whether the  4 aboriginal rights compete with proprietary rights, as  5 I understood my lord Justice Hutcheon's question on  6 that.  We talked about a non-proprietary sui generis  7 interest in respect of land, I think the question was,  8 well, does it compete with proprietary rights, if I  9 understood that question correctly.  I said I was  10 afraid to answer for fear I might be swallowing a hand  11 grenade.  And I have this to say about that, that I  12 believe the answer is yes, in the sense that an  13 aboriginal nation or band of people may well decide,  14 as they have in the past, to advance a claim in  15 respect of land predicated on aboriginal title.  So  16 they're saying "We have aboriginal title to this  17 particular parcel of land".  And they're advancing  18 that because someone else appears to be advancing an  19 interest, and maybe a registered interest, maybe a  20 deed or a pulp mill or a tract of forest land, Meares  21 Island, an area where somebody else is advancing an  22 interest against that particular territory.  So that  23 in a sense they're competing, because the native band  24 in the area is saying "We say that there's aboriginal  25 title there", but I believe that the truth of it is  26 that they don't have a registerable interest as the  27 deed holder would have or the leaseholder would have  28 or the free miner might have or the T.F.L. holder  29 might have.  They don't have that kind of an interest,  30 because, as I argued earlier, they have a kind of a  31 horizontal right to claim as a burden on the Crown,  32 it's not a burden on MacMillan Bloedel directly, it's  33 a burden on the Crown, who is the allodial owner of  34 the property, and that's where the burden is born.  35 And I would say then, in response to this question,  36 yes, there could be a competition, but the competition  37 in reality is between the Crown, who bears this duty  38 to the native people in that particular area, and the  39 fee holder, the leaseholder, the T.F.L. holder, or  40 whatever.  So to that extent they compete, but they  41 compete, in my respectful submission, through the  42 Crown.  43 Now, my lords, the next question was the question  44 with reference to Miss Mandell's changed position, and  45 I have passed up to you a copy of the transcript,  46 because I wasn't here, and I wanted to find out what  47 had been said.  And the transcript seems to say this: 1302  Submission by Mr. Williams  1 It starts with -- do you all have it in front of you  2 there, my lords?  The transcript starts at the bottom  3 of page 953, Justice Macfarlane saying:  4  5 "JUSTICE MACFARLANE: But certainly those are the  6 outer limits."  7 MS. MANDELL:  Those are the basics, my lord."  8  9 Now, that's discussing what she had in her -- in her  10 factum, which said:  11  12 "The Appellants' existing aboriginal rights  13 include a proprietary interest in the territory  14 which is sui generis and right to harvest,  15 manage, conserve the territory and its natural  16 resources."  17  18 It doesn't mention anything about exclusive.  Now,  19 that's what she says in her factum, and then in the  20 transcript --  21 TAGGART, J.A.:  Where is that in the factum?  22 HUTCHEON, J.A.:  It's in the hand-up that we got, page 5 of the  23 hand-up.  It's not the factum, it's --  24 MR. WILLIAMS:  Yes.  There's the hand-up, the speaking notes,  25 I'm sorry.  26 HUTCHEON, J.A.:  Sorry, the speaking notes, yes.  27 MR. WILLIAMS:  And that was 15(2)(ii), or little 2.  28 HUTCHEON, J.A.:  Under the heading of "Immediate Declaration".  29 MR. WILLIAMS:  Yes.  That I think is where it's started.  And  30 then from there it goes to -- it goes to Mr. Justice  31 Macfarlane's question, and the answer is:  32  33 "MS. MANDELL: Those are the basics, my lord.  34 The outer limits would be the right of  35 ownership, which has in that sense much  36 more encompassing--."  37 MACFARLANE, J.A.:  You're right about that.  38 That would the only thing about a greater  39 right, would be a full right of ownership.  40 LAMBERT, J.A.:  You don't have the word  41 'exclusive' there.  If the word 'exclusive'  42 is to be implied, then the difference  43 between this and full ownership is only  44 terminological.  If you are asserting a  45 right that is not asserted as an exclusive  46 right, then I can certainly see that  47 there's a difference between those two. 1303  Submission by Mr. Williams  1 MS. MANDELL:  Thank you, my lord, thank you for  2 that assistance.  The position of our  3 clients, the position of the Appellants, is  4 that their right is exclusive, but for the  5 purposes of the interim declaration they  6 are asking the court to declare it's  7 fundaments.  They're not asking this court  8 to declare whether the right is exclusive,  9 they're simply asking the court to declare  10 that it interest in their land and a right  11 of self-government, and it's included in  12 Section 35.  13 LAMBERT, J.A.:  So we can annotate opposite  14 your 15(2)(ii) that the question of whether  15 it's exclusive or non-exclusive is not  16 being decided by this order if it were to  17 be made.  18 MS. MANDELL:  In the interim."  19  2 0 And then she goes on to explain what she wants.  And  21 then Justice Hutcheon says:  22  23 HUTCHEON, J.A. :  Could we achieve it by using  24 the indefinite article, 'a right'.  25 MS. MANDELL:  'A', yes.  26 HUTCHEON, J.A.:  And 'a right to hunt'.  27 MS. MANDELL:  Yes.  It doesn't have to be —  28 HUTCHEON, J.A.:  You have 'the right'.  29 MS. MANDELL:  It could be "A".  30  31 Now, my lords, what I was saying when this came up  32 was that I understood the history of whether or not  33 they were even claiming for aboriginal rights to be  34 somewhat confusing, but my reading of it was that they  35 weren't, it was all or nothing, then it was changed in  36 February of '88, I believe, then there's a finding by  37 the judge that he thought it was included.  And so  38 therefore we can say, well aboriginal rights was dealt  39 with properly, it was in the pleadings, et cetera, et  40 cetera.  But now they seem to have changed their  41 position in the sense they're asking for an interim  42 order, not giving up the claim for ownership, but  43 they're asking for an interim order, and what I am  44 saying, and my position is, that this court should  45 decide that very crucial point, whether or not they  46 have ownership.  That's a matter that ought to be  47 decided by the court, that's what most of the evidence 1304  Submission by Mr. Williams  1 that's gone in has been about.  And I believe that to  2 say, well, we don't need to decide that issue, when  3 all the evidence is here, would be unhelpful in the  4 long run.  5 Now, my lords, the last question that I have note  6 of, I hope it's the only one, is that question about  7 the antiquity of the crests, and that can be done very  8 shortly, my lords.  Justice Hutcheon asked why we say  9 that there's doubt as to the antiquity, and this is  10 from the findings of the trial judge at page 373.  I  11 did not, my lord, go into the exhibits.  There was no  12 reference to them, and I simply didn't have time this  13 weekend, maybe if it had rained I would have had a  14 little more time, but I did spend the weekend working,  15 but I didn't have time to go into the exhibits.  But  16 on page 373 under "I", now he's listing aboriginal  17 jurisdiction and ownership before the British  18 sovereignty.  He says:  19  20 "It will be useful to infer what the plaintiffs  21 have alleged."  22  23 And he goes on and says:  24  25 "The statements of claim are that the plaintiffs  26 and their ancestors have" --  27  28 And then he goes A, B, C, D, E.  And he gets down to  29 (i), he says:  30  31 "Confirm their ownership of territory through  32 their crests and totem poles."  33  34 That's page 373 under little (i).  And his comment is  35 that:  36  37 "There is considerable doubt about the antiquity  38 of crests and totem poles upon which I find it  39 unnecessary to express any opinion."  40  41 I don't know why he -- from the evidence, whether  42 that's an accurate or a correct finding of fact or  43 not, but I'm prepared for the moment to accept that  44 and say that really the -- as I understood that, and I  45 may have misunderstood it, but as I understood that,  46 he may not be saying that there's doubt about the  47 antiquity of the crests, so much as there is doubt 1305  Submission by Mr. Williams  1 about whether the antiquity of the crests and totem  2 poles can establish the ownership, but I guess that's  3 just the way I interpreted it.  It may well be that  4 he's saying there is doubt about their antiquity at  5 all, meaning I guess they might have happened a day  6 before contact or something like that.  That's where  7 my statement came from, my lord.  8 Now, that deals with the questions.  And I'll now  9 move back into my factum, if I may.  10 My lords, I have completed what I would call the  11 aboriginal rights in general and the ownership, the  12 whole of the ownership issue from the Province's point  13 of view, and I'm now about to embark on the  14 self-government issue and will then move back briefly  15 to specific aboriginal rights in this case, and then  16 onto the final part of my address, which is tab 6, the  17 extinguishment by the Calder XIII.  18 TAGGART, J.A.:  Are we in the speaking notes or the factum?  19 MR. WILLIAMS:  In the speaking notes I'm on page 16, in the  20 factum I'm on page -- when I get back to it, the  21 factum, I will be on page 21.  22 Now, my lords, I say in my speaking notes that  23 the -- again, this is the same format, the Appellants'  24 position, the Respondent's position and what the  25 learned trial judge found, so we can get started with  26 that basic knowledge.  27 The Appellants pray for a declaration that they  28 have the right to jurisdiction.  The inherent right to  29 continue to govern as they did pre-sovereignty has  30 not, in their argument, ever been taken away or  31 displaced.  And if you look at their Statement of  32 Claim, and that's in -- under tab K, it's the first --  33 only page in tab K.  And here's what they say, they  34 want:  35  36 "A declaration that the Defendant Province's  37 jurisdiction over the territory, the Plaintiffs  38 and members of the Houses represented by the  39 Plaintiffs is subject to the Plaintiffs' right  40 to ownership and jurisdiction."  41  42 So it's pretty clear.  43 LAMBERT, J.A.:  I just didn't follow you to tab K.  44 MR. WILLIAMS:  I'm sorry.  45 LAMBERT, J.A.:  That's all right, I — what happened is I turned  46 to tab L.  47 MR. WILLIAMS:  All right.  Thanks, my lord.  All right.  What 1306  Submission by Mr. Williams  1 they're saying, it's pretty clear, is that the  2 Plaintiffs have what might be described as sovereignty  3 or jurisdiction or full self-government, irrespective  4 of what the Province might wish to do.  So that I  5 guess what they're saying is provincial laws simply  6 don't apply.  7 Now, the position of the Respondent, the Province  8 of British Columbia, on jurisdiction, is this:  That  9 we say that their jurisdiction -- first of all, to  10 avoid the confusion, perhaps we should deal with what  11 I'm going to be talking about is self-government.  You  12 will see from page 369, might as well turn to that  13 now, under tab L, while you're there, that the trial  14 judge said, about two-thirds of the way down in a  15 paragraph that starts "It will be convenient", this is  16 tab L.  What he says is:  17  18 "In this context I equate jurisdiction to  19 aboriginal sovereignty."  20  21 "It will be convenient to deal with these two  22 classes of claims together in the first  23 instance."  24  25 That's ownership and jurisdiction:  26  27 "Although I shall later discuss them in greater  28 detail separately. In this context I equate  29 jurisdiction to aboriginal sovereignty.  In  30 their argument, plaintiffs' counsel tended to  31 refer to it as 'jurisdiction'."  32  33 And, please, if I may, to avoid the confusion that  34 will otherwise result, I have chosen to use the word  35 "self-government", and the reason that I chose to use  36 that is I think "jurisdiction" is a word that gets  37 tangled up with jurisdiction of the court and other  38 jurisdictional points.  "Sovereignty" is a red flag to  39 some, because some say there can only be one  40 sovereignty, period, that's it.  I, with the greatest  41 of deference, don't agree with that statement.  I  42 believe you can interpret sovereignty to mean that  43 there is a greater sovereignty in one than another,  44 and I say that, and I will be coming to that partly  45 because of what we have in Canada anyway.  We have a  46 divided sovereignty here between the Federal  47 Government and the Provincial Government, and it is 1307  Submission by Mr. Williams  1 quite conceivable that you could have a divided  2 sovereignty between the nations of the native people.  3 But to avoid problems with the word "sovereignty" and  4 "jurisdiction" we propose to use the word  5 "self-government", which, in my respectful submission,  6 for these purposes would mean the same thing.  7 LAMBERT, J.A.:  Since we're into terminology, the concept of  8 jurisdiction I understand was taken from American  9 authorities that have used it.  I'm -- I have been  10 thinking of this question of jurisdiction as if it  11 were the power to manage and control the institutions  12 which regulate the core aboriginal rights.  Once  13 you've decided that there are aboriginal rights and  14 what they are, then the Indians themselves regulated  15 those rights in the way they were exercised.  And if  16 you don't go any further than that and call it the  17 right to manage the institutions that regulate the  18 aboriginal rights, then it's misleading to even think  19 of it as sovereignty or as self-government.  Those are  20 raising bigger issues than seems to me to be  21 encompassed by the concept.  Now, it may be that I  22 have put too narrow a view on the claim that's being  23 made, but I am not persuaded yet that I have, that I  24 am or that something is being sought that's wider than  25 what I have described as a power and a right to manage  26 the institutions.  So I know that this will be  27 clarified later, but I find that the use of the  28 terminology "sovereignty" has all the flaws that you  29 suggest, but I feel that the word "self-government"  30 have the same kind of flaws, particularly since it's  31 the very word that's being used in the constitutional  32 debate, where it's not being well defined.  So --  33 MR. WILLIAMS:  Well — sorry.  34 LAMBERT, J.A.:  That's really all that I have to say, but I  35 would like to be thinking of your argument as I go  36 through it as to how it relates to that -- the concept  37 that I've suggested of the close association between  38 the aboriginal rights and the institutions that  39 control it.  40 MR. WILLIAMS:  Well, my lord, when I saw and understood the  41 argument that was being advanced and looked at the  42 pleadings and saw that the Appellants are saying that  43 whatever their governing or jurisdictional or  44 sovereignty rights are, they're supreme in reference  45 to the Province.  Of course, we don't agree with that.  46 That's a position that we dispute very much.  But what  47 we do say is that when Her Majesty asserted 1308  Submission by Mr. Williams  1 sovereignty in 1846, obviously from that the Federal  2 government -- first of all the colony, and then the  3 Federal government, Provincial governments eventually  4 emerged, and those -- that sovereignty has to be  5 supreme, in our respectful submission, that is  6 supreme.  So that any self-government or jurisdiction  7 or sovereignty, treating those words for a moment as  8 meaning virtually the same thing, they do seem to  9 be -- get used interchangeably, and anything that is  10 left is that which permits them to govern the core  11 interests of their own society.  And they do have  12 that, and I think that's -- that would be -- it would  13 be ignoring the facts and it would be ignoring the  14 law, in my respectful submission, to suggest that they  15 don't have some measure of "control" over their own  16 institutions and lives subject to the overriding  17 sovereignty of the Crown.  18 LAMBERT, J.A.:  Well, if you give the limited meaning to the  19 concept of self-government and jurisdiction that you  20 and I have both been discussing, that is to manage the  21 institutions of aboriginal rights and their exercise,  22 then paragraph 8 in your Appendix K ceases to be  23 objectionable.  That is in that limited area the right  24 has been constitutionalized in Section 35 in 1982 and  25 the -- it's a right that cannot be infringed upon by  26 the Province in that limited -- if that's the right.  27 MR. WILLIAMS:  Yeah.  I guess I can't go so far as to say — I  28 suppose simply because I simply don't know the answer  29 to the question -- I can't go so far as to say that my  30 submission is all of those residual aboriginal  31 self-government rights have been constitutionalized.  32 I think it's fair to say that to the extent that they  33 are necessarily attached to the right of occupancy,  34 necessarily attached to the right of occupancy and so  35 on, one would have to say they are, it doesn't make  36 any sense to say anything else, but does it go beyond  37 that?  Do they have a constitutional right to marry  38 people and do -- they have a right to marry people  39 according to the cases, and I will come to them  40 shortly, but is that a constitutional right?  I don't  41 know.  If it is, I wonder why we're going through this  42 tortuous debate about aboriginal inherent  43 self-government now.  44 LAMBERT, J.A.:  Well, it may be that what's being discussed  45 politically may be an even broader range.  46 MR. WILLIAMS:  Yes.  47 LAMBERT, J.A.:  But it may not.  It may be that the very things 1309  Submission by Mr. Williams  1 we're talking about have not become imbedded in the  2 law, and if they are imbedded in the law then there  3 would be no need to make this -- the claim that's  4 being made in the constitutional round.  5 MR. WILLIAMS:  My lord, this is totally irrelevant to say this,  6 but in listening to Ovid Mercredi answer questions on  7 this very subject, he does not, from what I can  8 gather, appear to say that the sovereignty is the  9 inherent self-government he's seeking, but put them  10 above the sovereignty that's exercised in the country.  11 I think it's obviously want to negotiate the areas  12 that they can control.  I don't think he's saying  13 that, and I submit that it makes sense to say that  14 there is something residual that has gone on.  As a  15 matter of fact, in the Gitksan-Wet'suwet'en and the  16 Nass Valley and on the west coast and other places,  17 where they continue to have potlatches and they  18 continue to determine who's going to get this piece of  19 land or that piece of land, they continue to govern  20 themselves.  As a matter of fact -- and I say that  21 also it can be said as a matter of law they have a  22 residual right, and I have, sorry, chosen to call it  23 self-government, but I may mean jurisdiction in your  24 lordship's terms.  It's a limited form of  25 self-government.  26 TAGGART, J.A.:  There are two things that have to be recognized  27 in connection with that discussion, it seems to me  28 anyway.  First of all, within British Columbia one  29 term, "sovereignty", "jurisdiction",  30 "self-government", one of those terms or something  31 analogous to it, may be very apt to describe what is  32 done on the reserves set aside for the use of the  33 Indians.  It may not be -- the same term may not be  34 apt to describe the kind of claims that are being made  35 in these proceedings with respect to the surrounding  36 territory.  37 MR. WILLIAMS:  Yes.  38 TAGGART, J.A.:  Secondly, on the national scene, what is said  39 about the amendment of the Constitution and  40 self-government may bear a connotation in Ontario to a  41 nation of aboriginal peoples with whom treaties have  42 long since been the basis upon which negotiations and  43 discussions take place.  What does the treaty mean  44 within the Constitution of Canada?  That's quite a  45 different situation than we have, at least in this  46 instance, and for the most part elsewhere in British  47 Columbia, where there are no treaties.  So these terms 1310  Submission by Mr. Williams  1 used nationally one cannot apply I don't think, at  2 this stage of the game at any rate, until some  3 definition is given to them, one cannot imply in  4 British Columbia, without looking at the context  5 elsewhere in the country, to see what it is our  6 constitutional debaters are really talking about.  7 MR. WILLIAMS:  Yes, my lord.  And it seems to me that the same  8 wise observation applies with respect to all of the  9 other aspects of aboriginal rights.  They must be  10 context specific.  They have to be looked at in terms  11 of a set of facts.  And I suppose what -- where I may  12 differ in law or in the conclusions drawn by the  13 learned trial judge in reference to your lordship's  14 first observation, is this:  That if in a particular  15 area, let us say in the Gitksan-Wet'suwet'en area,  16 upon a reserve there is a village, and the village has  17 decided which -- who shall be the chief and so on and  18 so forth in terms of their own internal government, I  19 can't see how you can simply say that that doesn't  20 apply to the surrounding territories of their claim.  21 If you say their claim is there and the village is in  22 one corner, just to give an example, there's the  23 claim, and the village is in one corner, the hunting  24 and the fishing that goes on within the claim  25 territory, if we were to accept the fact that there  26 are -- that there is evidence of hunting and fishing  27 and berry picking going on within that territory  28 beyond the village, and if, as we know from one of the  29 cases I will come to, that the chief can decide or the  30 village, in its own way, can decide who fishes where  31 and who hunts where, they are governing that  32 territory.  And it's my submission that it ought to be  33 looked at in a broader perspective, the conclusion  34 ought to be that if they do have, as I submit, a  35 limited form of self-government or jurisdiction, that  36 that jurisdiction would not only apply to the reserve  37 area in this particular case, or any case I would  38 think, but it would apply to the area that they were  39 able to establish a claim to.  40 My lords, I say that -- then that the British  41 sovereignty did not extinguish the right or perhaps  42 the freedom -- I guess we can come back to that.  I  43 read the Bata decision over the weekend and got lost  44 and then found myself again, but, you know, he seems  45 to say what we all I believe have thought, but he says  46 it very very well, about the rights being a specific  47 and enforceable thing, whereas the freedom is what 1311  Submission by Mr. Williams  1 you -- no one said you can't do it, so you do it.  The  2 right is something you're told you can do, and you can  3 enforce that.  I'm not sure as I stand here whether  4 the residual right to jurisdiction, which I have  5 advanced, is a right or a freedom, but whatever it is  6 I submit it's there, it hasn't been extinguished, but  7 it's been diminished.  That's my position in respect  8 of the jurisdiction or self-government.  It has been  9 diminished, because Her Majesty has created a  10 sovereign state which has developed laws, and those  11 laws are superior to the customs, the practices, the  12 rights, the freedoms of the native people.  So that  13 whatever they are, they have been diminished, in my  14 respectful submission, but not extinguished.  15 LAMBERT, J.A.:  You mean some of them have been extinguished.  16 MR. WILLIAMS:  Pardon?  17 LAMBERT, J.A.:  Some of them have been extinguished.  18 MR. WILLIAMS:  Well, if you look at it as a right to govern, if  19 you look at it as just one right --  20 LAMBERT, J.A.:  If you looked at it as one right it would be  21 diminished.  22 MR. WILLIAMS:  Then it's diminished.  23 LAMBERT, J.A.:  Yes.  24 MR. WILLIAMS:  And within that right a number of things have  25 been extinguished by the laws of general application  26 and by the federal laws, I agree.  It depends on how  27 you characterize the right, I guess, the greater  28 right.  29 LAMBERT, J.A.:  Thank you.  30 MR. WILLIAMS:  That's really what I'm saying on 17.  And so I go  31 now to my factum, which is at page 21.  And I think I  32 can skim through some of this and say that --  33 TAGGART, J.A.:  Tab 5?  34 MR. WILLIAMS:  It's tab 5, page 21.  I say that the Supreme  35 Court of Canada in Sparrow held that on the assertion  36 of sovereignty there was from the outset never any  37 doubt that sovereignty and legislative power, and  38 indeed the underlying title vested in the Crown.  We  39 all know that, it's been read many times.  In the case  40 at bar, the trial judge interpreted the above passage  41 to mean:  42  43 "The aboriginal system, to the extent it  44 constituted aboriginal jurisdiction" --  45  46 That should say "or sovereignty", I think there's an  47 error there, "of(sic)" means "or": 1312  Submission by Mr. Williams  1  2 "The aboriginal system to the extent it  3 constituted aboriginal jurisdiction or  4 sovereignty, or ownership apart from occupation  5 for residence or use, gave way to a new  6 colonial form of government."  7  8 And then he says down at 52:  9  10 "After much consideration I am driven to find  11 that jurisdiction and sovereignty are such  12 absolute concepts that there is no half-way  13 house.  No Court has authority to make grants  14 of constitutional jurisdiction in the face of  15 such clear and comprehensive statutory and  16 constitutional provisions.  The very fact that  17 the plaintiffs recognize the underlying title  18 of the Crown precludes them from denying the  19 sovereignty that created such title."  20  21 Now, let me just give you, if I may, if you would  22 make a note there, there are some other -- I'm not  23 going to turn them up -- but there are some other  24 references that deal with this, and they're to be  25 found at these pages in the judgment:  At 128, at 156,  26 163 and 372.  So that's basically the position and the  27 conclusions that were reached by the learned trial  28 judge.  So he says that any rights that they had are  29 gone at the moment in government, at the moment of the  30 assertion of sovereignty.  But the Province submits  31 that such an extreme position is not justified, nor  32 does it flow from the authorities.  A better approach  33 more consistent with the historical record and in  34 accordance with the modern approach of shared  35 jurisdiction is to recognize an inherent right to some  36 degree of self-government limited by the laws of  37 Canada and the Province but not extinguished by them.  38 I say that prior to the arrival of the European  39 settlers, aboriginal people had distinctive forms of  40 economics, social and political legal organization,  41 but the aboriginal peoples were not recognized as  42 sovereign nations by European powers.  International  43 and colonial law treated aboriginal sovereignty and  44 forms of government as subject to British sovereignty.  45 And that appears from the decisions that are there,  46 the Calder decision.  47 And in paragraph 55 I say generally speaking, in 1313  Submission by Mr. Williams  1 the case of conquests local laws addressing  2 leaseholding and property entitlements continued to  3 govern the rights of the inhabitants of the conquered  4 colony unless such laws were immoral or inconsistent  5 with the transfer of sovereignty, or were subsequently  6 modified by competent authority.  The Crown was  7 permitted to exercise prerogative legislative  8 authority to modify pre-existing property rights of  9 the inhabitants, at least until it summoned a  10 representative legislature to assume this function.  11 That's referred to in Mr. Slattery's article.  And  12 then over the page we deal with the Campbell and Hall  13 and the Calvin's case:  14  15 "The laws of a conquered country continue in  16 force, until they are altered by the  17 conqueror... It is left by the constitution to  18 the King's authority to grant or refuse a  19 capitulation:  if he refuses, and puts the  20 inhabitants to the sword or exterminates them,  21 all the lands belong to him.  If he receives  22 the inhabitants under his protection and grants  23 them their property, he has the power to fix  24 such terms and conditions as he thinks proper.  25 These powers no man ever disputed, neither has  26 it hitherto been controverted that the King  27 might change part or the whole of the law or  28 political form of government of a conquered  2 9 dominion."  30  31 "Where the King" —  32  33 And this is now the Calvin's case:  34  35 "Where the king of England conquers a country,  36 it is a difficult consideration; for there the  37 conqueror, by saving the lives of the people  38 conquered, gains a right and property in such  39 people, in consequence of which he may impose  40 upon them what law he pleaes . "  41  42 Et cetera.  And that's pretty well the same thing.  43 Now, under 56 I say that as a result before -- British  44 colonial law also provided that in the case of  45 acquisition of sovereignty by settlement, English law  46 prevailed in the settlement from the moment of  47 sovereignty.  As a result, the Crown had limited 1314  Submission by Mr. Williams  1 legislative authority over the settlers, as British  2 law provided that in England, the Crown could not  3 legislate except through Parliament.  And the cases  4 are there, and Sir William Blackstone's comment:  5  6 "If there be a new and uninhabited country  7 country" --  8  9 And I say "uninhabited country":  10  11 "found out by English subjects, as the law is  12 the birthright of every subject, so wherever  13 they go, they carry their law with them, and  14 therefore such new found country is to be  15 governed by the laws of England."  16  17 And in Calvin's case:  18  19 "The Crown, by virtue of the royal  20 prerogative... is prima facie entitled to  21 legislate for possessions acquired by conquest  22 or cession, but it is not so entitled in the  23 case of settlements ... English settlers,  24 wherever they went, carried with them the  25 principles of English law, and...English common  26 law necessarily applied, insofar as such laws  27 were applicable to the conditions of the new  28 colony."  29  30 And that may be an important point to note:  31  32 "The Crown clearly had not prerogative right to  33 legislate in such a case."  34  35 That's to be found in the Sammut and Strickland case  36 and again it's referred to in Mr. Slatter's article.  37 Now, if I may, I will take you back to the  38 speaking notes.  And, my lords, the speaking notes on  39 page 17, under N, I say that there appears to be some  40 confusion as to what actually happened in British  41 Columbia in terms of the ancient principles of  42 colonial law.  It is said that British Columbia is a  43 settled rather than a conquered colony.  I don't think  44 that's disputed, I think everyone has accepted that,  45 indeed the Appellants have accepted it in this case,  46 and I'm not about to say that it's not, but I make  47 these observations because I think they become very 1315  Submission by Mr. Williams  1 confused if we don't try to understand what happened.  2 MR. JACKSON:  Excuse me, Mr. Williams.  I wouldn't want the  3 silence here to be acquiescence of the fact that we  4 accept that British Columbia is a settled colony with  5 all the legal implications which that entails.  6 MR. WILLIAMS:  I'm sorry.  I understood that Miss Mandell did  7 say that, that it was conceded.  If I am wrong, I am  8 sorry, but that was what I understood to be the case.  9 In any event, that -- I say that the law with respect  10 to settled colonies was directed at unoccupied or  11 vacant land, which is not the case in B.C.  Indigenous  12 people lived on and occupied land which in some  13 instances they were dispossessed of and forced to live  14 upon reserves without their consent.  They were, on  15 the other hand, allowed to operate under their own  16 forms of law or customs until and unless these laws or  17 customs contravened the laws of the settlers.  18 Treaties were entered into (the Hudson Bay Treaties on  19 Vancouver Island; and the Treaty 8 in Northern British  20 Columbia) and other activities occurred which seemed  21 inconsistent with the settlement theory.  It does  22 appear that at the time of the colonization rights of  23 the native people and their societies were not taken  24 as seriously as they might have been by the British  25 government.  And I say that perhaps because there  26 weren't two constitutional lawyers standing on the  27 shores debating whether it's settlement or conquest,  28 we really don't -- we really don't see that they  29 follow the rules.  30 And what I am saying is that British Columbia was  31 not colonized by the exercise of force of arms, it was  32 not the conquest doctrine which applied, and we agree  33 with the trial judge in that -- in this regard, that  34 it was not the conquest document of the doctrine.  35 There is no doubt though that many of the native  36 communites in the Province of British Columbia were  37 overwhelmed by the potential for physical force, and  38 it may well be that, as Professor Slattery said,  39 peaceful assertion of authority backed by overwhelming  40 might.  And Professor Hogg had this to say:  41  42 "In British North America, the two rules of  43 reception (settlement or conquest) were not as  44 useful as they might appear.  In the first  45 place, they were often applied in this regard  46 of the existence of the Native people...it  47 seems clear that all native customary law did 1316  Submission by Mr. Williams  1 not disappear at the time of European  2 settlement - as the rule of reception or  3 settled British colony might imply."  4  5 And then he says:  6  7 "The reality of Crown ownership... and actual  8 dominion for such a long period is far more  9 pervasive than the outcome of a battle or a  10 war.  11  12 Now, that's what the learned trial judge said at page  13 208.  And I'm not quite sure in what context he was  14 saying that, but he seems to be saying that the actual  15 dominion and the manner in which it happened in this  16 province was probably more effective than the sword  17 could have been.  18 And then I want to refer to Mr. Starke's article,  19 which appears in -- under tab N.  It ought to be --  20 it's right at the last -- yes, it is, the last tab.  21 You can see just before that the learned trial judge's  22 remark, he says on page 208, which is the second one  23 in from the blue tab there, he says that:  24  25 "The events of the last 200 years" —  26  27 This is about half-way down, the middle of the  28 paragraph starting "Aboriginal persons":  29  30 "The events of the last 200 years are far more  31 significant than any military conquest or  32 treaties would have been.  The reality of Crown  33 ownership of the soil of all the lands of the  34 province is not open to question and actual  35 dominion for such a long period is far more  36 pervasive than the outcome of a battle or a war  37 could ever be."  38  39 What Mr. Starke says is this, if you follow me it's on  40 page 100, the last page in the tab.  And he says this:  41  42 "Normally a state is deemed to possess  43 independence and sovereignty over its subjects  44 and its affairs, and within its territorial  45 limits.  'Sovereignty' has a much more  46 restricted meaning today than in the eighteenth  47 and nineteenth centuries when, with the 1317  Submission by Mr. Williams  1 emergence of powerful highly nationalized  2 states, few limits on state autonomy were  3 acknowledged.  At the present time there is  4 hardly a state which, in the interests of the  5 international community has not accepted  6 restrictions on its liberty of action."  7  8 And then skipping down to the next paragraph:  9  10 "In a practical sense, sovereignty is also  11 largely a matter of degree.  Some states enjoy  12 more power and independence than other states.  13 This leads to the familiar distinction between  14 independent or sovereign states, and  15 non-independent or non-sovereign states or  16 entities, for example, protectorates and  17 dependent territories.  Even here it is  18 difficult to draw the line, for although a  19 state may have accepted important restrictions  20 on its liberty of action, in other respects it  21 may enjoy the widest possible freedom.  22 'Sovereignty' is therefore a term of art rather  23 than a legal expression capable of precise  24 definition."  25  26 And what I am saying here is that, in my last  27 paragraph on my speaking notes on page 18, if I can  28 take you back to that.  I am saying that, on page 18,  29 perhaps we are here dealing with a modified discovery  30 or settlement doctrine.  If we have to get into poking  31 things into pigeon holes, like conquests, or discovery  32 or settlement, which I don't think we really need to  33 because it seems to me that as someone, Peter Hogg,  34 observed, it seems to have lost a lot of its  35 importance, but if we do have to, then what I say is  36 this:  That perhaps we're dealing with a modified  37 discovery or settlement doctrine, if the legitimacy of  38 the doctrine or discovery is assumed on this appeal,  39 then either the colonists didn't understand the rules  40 or they modified the principles of settlement making  41 British law applicable to the settlers, aboriginal law  42 in many situations applicable to aboriginal people and  43 allowing the common law of aboriginal rights to remain  44 as a part of the overall structure and the  45 relationship between the two.  46 So I'm really saying that we have to accept the  47 concept of settlement or discovery, but we say that 1318  Submission by Mr. Williams  1 there were some liberties perhaps taken with that as a  2 legal doctrine, and indeed, this was not an unoccupied  3 territory when they arrived, although I read enough to  4 know that there are some theories that talk about  5 occupied and unoccupied areas where settlement -- the  6 settlement doctrine can be applied, and in the  7 occupied areas it supposedly deals with wild savages  8 who absolutely had no form of governance whatever.  9 And, therefore, it's as though they weren't there by  10 the European standards, they just weren't there, they  11 were running around in circles and so on, according to  12 that theory.  13 What I say is that we know what was here when the  14 Europeans arrived, we know that it was an organized  15 society to some extent, and we know that they have  16 been allowed to continue to govern.  So I say that  17 nothing fits the -- trying to put a square peg in a  18 round hole, except that I don't want to disturb the  19 whole of history and say that it wasn't the settlement  20 doctrine that was applied, and it appears as though it  21 was, generally speaking.  22 Now, you want to go to my factum at paragraph 57.  23 That finishes the speaking notes on this subject.  And  24 at paragraph 57 I have one repair I want to make to  25 the text.  I say that the distinction between conquest  26 and sovereignty was not useful in the context of the  27 settlement of lands occupied by indigenous people.  28 English law applied to settlers from the moment of  29 settlement but -- and I would like to put in here "to  30 some extent", you can inject in there -- to some  31 extent indigenous law applied to indigenous people  32 unless immoral, inconsistent with the transfer of  33 sovereignty, or subsequently modified by competent  34 colonial authority.  35 Now, the cases that I'm citing are not many,  36 and -- but the first is the Queen v. Nan-e-quis-a Ka.  37 And in that case what happened was that a woman who  38 was married under Indian law was not allowed to  39 testify against her husband in criminal proceedings  40 because the court found as a matter of law that she  41 was his wife.  And if I can turn up that one, it's  42 under tab 57.  43 WALLACE, J.A.:  What book?  44 MR. WILLIAMS:  Tab 57.  Yes, tab 57 in my book.  This is a  45 Northwest Territories Supreme Court case, I thought I  46 had it marked on here, but I didn't.  I'm looking at  47 page 25.  The quote I want is on page 25, it's the 1319  Submission by Mr. Williams  1 second page in.  "The Indians" -- and I'm reading down  2 about ten lines, and it says:  3  4 "The Indians are for the most part  5 unchristianized, they yet adhere to their own  6 peculiar marriage customs and usages.  It would  7 be monstrous to hold that the law of England  8 respecting the solemnization of marriage is  9 applicable to them.  I know of no act of the  10 Parliament of the United Kingdom or of Canada,  11 except as hereinafter stated which affects in  12 any way these customs or usages."  13  14 The Indian marriage law was applied, notwithstanding  15 the fact that supposedly the laws of British Columbia  16 and Canada should be applied, if they were  17 all-encompassing.  18 The second case is the Connolly and Woolrich case,  19 and in Connolly and Woolrich what happened was that  20 there was an Indian marriage of an Indian woman to a  21 European settler, and the child claimed a share of the  22 estate, and the marriage then became a question as --  23 the validity of the marriage became a question.  And  24 in that case, if I can turn it up, it's the next green  25 sheet, and this is the Superior Court of Quebec, and  26 this case, incidentally, as I will show you, although  27 the case isn't here, was mentioned in the B.C. Court  28 of Appeal decision, later on, the Yew case.  But in  29 any event, in this case what I would like to refer to  30 is the page 214, which is the first page in, right at  31 the top, four lines down -- three lines down:  32  33 "It is easy to conceive, in the case of joint  34 occupation, of extensive countries by Europeans  35 and native nations or tribes, that two  36 different systems of civil and even criminal  37 law may prevail.  History is full of such  38 instances, and the dominions of the British  39 Crown exhibit cases of that kind.  The Charter  40 did introduce the English law, but did not, at  41 the same time, make it applicable generally or  42 indiscriminately - it did not abrogate the  43 Indian laws and usages.  The Crown has not done  44 so.  Their laws of marriage existed and exist  45 under the sanctive and protection of the Crown  46 of England, and Mr. Connolly might bind himself  47 as well by the law, as by the Common Law of 1320  Submission by Mr. Williams  1 England."  2 And then on the next page, 256, at the top:  3  4 "Connolly says he married her according to the  5 usages of her tribe or nation.  She passed for  6 his lawful wife during twenty-eight years in  7 the North West country, and he introduced her  8 into civilization and among his Christian  9 acquaintances and friends in Lower Canada, as  10 his wife."  11  12 And then skipping down about six or seven lines:  13  14 "The evidence shows conclusively that her status  15 was that of a lawful wife, and not that of" --  16  17 I guess that's "a harlot", unless there's a word  18 "barlot":  19  20 "-- 'til Connolly repudiated her.  If there  21 were any presumption to be invoked, it is on  22 her behalf."  23  24 And then three lines down from there:  25  26 "Upon facts proved in this case, I must presume  27 this connection to have been legal and  28 regular."  29  30 Now, it goes on, and the next page, which is 257,  31 half-way down:  32  33 This case might be disposed of upon a well  34 known principle of law and of morality, and it  35 is this, that where a doubt exists as to the  36 legality of a marriage, Courts of justice are  37 bound to decide in favour of the alleged  38 marriage.  All law, all morality, require and  39 sanction."  40  41 Et cetera.  And then further on down he says:  42  43 "There was a valid marriage existing between the  44 late Mr. Connolly and the Indian woman."  45  46 Now, that case -- the next case isn't in my factum,  47 I'm sorry, it's referred to though.  And the next case 1321  Submission by Mr. Williams  1 is called Re Noah, and it's a decision of the  2 Northwest Territories by Judge Sissons, November the  3 24th, 1961.  And in that case what he says on page  4 200, which is the first page in, and incidentally,  5 Noah -- well, you see that the first page is there, he  6 poses this question:  7  8 "Is a marriage according to Eskimo custom a  9 valid marriage?  10 There appears to be no cases relating to  11 marriage in accordance with Eskimo custom.  12 There are cases relating to marriages in  13 accordance with Indian custom."  14  15 He cites The Queen and Nan-E-Quis-A-Ka and Mr. Justice  16 Wetmore, delivering the judgment of the court,  17 referred to the judgment of Mr. Justice Monk in the  18 case of Connolly and Woolrich.  And then he cites, and  19 I'm not going to read it all to you, but I would ask  20 your lordships to read that, because I think it's  21 important in the sense that that gives at least  22 Justice Wetmore's view of the importance of allowing  23 Indian law to prevail in terms of marriage in that  24 situation.  And then over on page 201, the next page  25 over, is the case -- there's Noah, refers to the case  26 of Yew v. The Attorney General of British Columbia,  27 which is a decision of the Chief Justice Macdonald and  28 Justice Martin.  And Justice Martin refers to  29 Connolly and Woolrich, and he says this:  30  31 "Speaking as a whole the Judge came, I think, to  32 the right conclusion, and a judgment given  33 nearly 60 years" --  34  35 This was a man, incidentally, a Chinese Canadian, who  36 had married in a polygamous country, China, where  37 polygamy was allowed, and the question was what about  38 the state and so on, and what about the fact that he  39 was married in a polygamous marriage, but the point is  40 the same, irrespective of the nationality:  41  42 "Speaking as a whole the judge came, I think, to  43 the right conclusion, and a judgment given  44 nearly 60 years ago which is peculiarly adapted  45 to the social requirements of the development  46 of our great country, vast portions of which  47 are still in a wild state, should not be 1322  Submission by Mr. Williams  1 lightly disturbed and I would not be a party to  2 its disturbance particularly and justly bearing  3 in mind how many families of pioneers are  4 affected by the marital principles it lays down  5 as appropriate to the country based upon sound  6 sense, law and morality, and being consistent  7 in general with the decisions of the Courts of  8 the United States which have had to deal with  9 the same special question of Indian marriages."  10  11 Now, the case is here, I don't propose to go into it,  12 but the Yew case is here, and I put it all in here, I  13 think.  No, I haven't.  I've got the first page and  14 then over to 1182 and 1183, which is the Martin  15 decision.  But you can see that -- you can see who the  16 bench was.  So those cases, in my -- and then I should  17 refer to the -- what author Slattery has to say that  18 as well, but I don't think I need to turn that one up.  19 Paragraph 58, I guess I'm some distance from the end.  20 Did you want to take the morning break now, my lord?  21 TAGGART, J.A.:  If it's appropriate.  22 THE REGISTRAR:  Order in court.  Court stands adjourned for a  23 short recess.  24  25 MORNING RECESS  26  27 THE REGISTRAR:  Order in court.  28 TAGGART, J.A.:  Yes, Mr. Williams.  29 MR. WILLIAMS:  My lord.  I was at paragraph 58, page 24, and I  30 say that the aboriginal sovereignty was diminished by  31 the assertion of British sovereignty.  I've made that  32 point.  And I go on to say at the bottom of that  33 paragraph, aboriginal sovereignty did not take the  34 form of a right in Canadian law that could be asserted  35 against legislative or executive action, but the laws  36 of the customs and the practices and the way of life  37 was not immoral or inconsistent with the transfer of  38 sovereignty, or subsequently modified by competent  39 colonial authority was recognized as a legitimate  40 aboriginal form of governance.  41 And I want to refer to the Slattery article at  42 page 378, I think it is, and that's in -- under tab  43 58, the bottom of 377.  I'll start reading the last  44 sentence on tab 58, second page:  45  46 "However, from an early stage, most legal  47 authorities employed the concept of a settled 1323  Submission by Mr. Williams  1 colony in a flexible manner" --  2 And that's really what I'm saying here.  And then skip  3 down four or five lines, please:  4  5 "The concept was also extended to settlements of  6 British subjects in territories with a native  7 population" --  8  9 And you will recall that the idea of a settled colony  10 was to be where there's an unoccupied territory:  11  12 "The concept was also extended to settlements of  13 British subjects in territories with a native  14 population, where the local laws and customs  15 were deemed 'barbarous', or 'unchristian', or  16 at any rate inappropriate for the needs of the  17 settler communities.  This was the general  18 approach taken in the North American colonies  19 (with the exception of Quebec)."  20  21 And then the next paragraph:  22  23 "If this was a satisfactory solution for the  24 settlers, it posed problems as regards native  25 Americans.  Strictly interpreted, the doctrine  26 would hold that Indians and Inuit were stripped  27 of their ancient laws and customs at the  28 instant of settlement, and subjected to the  29 laws of an alien people sojourning on their  30 shores.  Although some judges have spoken as if  31 this happened, a view more consonant with  32 history and common sense has been adopted in  33 American and some Canadian courts.  Under this  34 view, English law applied initially only in the  35 settler communities, so that the indigenous  36 peoples were not at first disturbed in their  37 customs.  Over time, this position was modified  38 by legislation, but not necessarily to the  39 complete exclusion of native laws."  40  41 And that's the position that I'm advancing:  42  43 "The American colonies had a 'mixed' aspect,  44 with settlers benefiting from principles  45 applying in settled colonies, and native  46 peoples initially enjoying the principle of  47 continuity associated with conquests. 1324  Submission by Mr. Williams  1  2 And Sir Kenneth Robert Ray, in Commonwealth and  3 Colonial Law, at the next tab, and I'm only going to  4 refer to the 534 to 537 series.  Actually, it's 533 is  5 where it starts.  And he says on the first page, about  6 two-thirds of the way down, the heading "Other  7 Countries - summary review".  He says:  8  9 "At the inception of British administration  10 elsewhere, if there were indigenous  11 inhabitants, they must have had some general  12 body of laws, even if no more than rudimentary  13 custom."  14  15 And over on page 535, two pages over, he says, under  16 "Fusion with other law":  17  18 "In general, it is recognized that there must  19 eventually be reconciliation of different  20 systems forming the basic law of any country -  21 usually English law and native or customary  22 law - so that there should be one law for  23 everyone.  But complete fusion is neither  24 desirable nor necessary.  No doubt there are  25 serious disadvantages in maintaining different  26 laws for the regulation of rights in real  27 property, notably where indigenous law  28 recognizes only tribal ownership with no more  29 than usufructuary rights conceded to the  30 individual; but it may take a long time to  31 secure general acceptance of the English law.  32 In matters of personal law, however, such as  33 marriage, divorce, guardianship and succession,  34 there is no apparent reason why those  35 accustomed to African or other indigenous  36 custom should be obliged to accept European  37 conceptions, at any rate in their entirety,  38 provided conflict is obviated so far as  39 possible."  40  41 And then he deals with gaps in the indigenous law, and  42 I don't need to read all of that, but I leave it for  43 your lordships to refer to.  It says -- it makes the  44 same point.  45 So, and I say, my lords, that in this regard you  4 6 should have mind to the exogamy -- the exogamy of  47 prohibitive inter-marriage.  The -- there is a law 1325  Submission by Mr. Williams  1 that native people, in respect of these clans, the  2 Eagles and the Ravens, do not inter-marry, and they're  3 allowed to keep that law.  There is nothing in our law  4 that conflicts with that, and they can do what they  5 want, it seems to me, to have that system of laws, and  6 they can have ways to enforce those laws, provided  7 there isn't any conflict with the laws of the Province  8 of British Columbia or the laws of Canada.  9 So self-government within a proper sphere is not  10 such a shocking thought, it seems to me, and you can  11 look at the split sovereignty of Federal government  12 and Provincial government to see that, while it  13 doesn't work very well sometimes, particularly right  14 now, it nonetheless is something that we were -- we've  15 had since the beginning, and there's no reason why it  16 cannot prevail, and there's no reason why it cannot  17 prevail with respect to native people within their own  18 sphere as well.  So I say that prior to '82 Canadian  19 law continued colonial tradition by in effect  20 permitting aboriginal form of government to continue  21 to exist, they didn't interfere with it, that  22 aboriginal people in Canada continue to be free to  23 govern themselves internally, and the validity of  24 their laws, customs and practices didn't depend upon a  25 grant of legal authority from the Crown.  It came from  26 their origins, just like the land law did.  It wasn't  27 something that was granted by anybody, it's something  28 that wasn't extinguished and continued.  And I again  29 quote the Queen and Nan-equis-a Ka case and the  30 Connolly and Woolrich case, but this is a different  31 quote, and I just wanted to bring your attention to  32 the last part of the quote.  "The Hudson Bay  33 Charter" -- and I'm reading about half-way down, just  34 beyond the half-way part of that quote:  35  36 "The Hudson Bay Charter did introduce the  37 English law, but it did not, at the same time  38 make it applicable generally or  39 indiscriminately - it did not abrogate the  40 Indian laws and usages.  The Crown has not done  41 so.  Their aboriginal laws of marriage existed  42 and exist under the sanction and protection of  43 the Crown of England."  44  45 I would point out that in keeping with this, and  46 it may not be overly relevant to the facts of this  47 case, but the self-government as a concept is one 1326  Submission by Mr. Williams  1 that's been negotiated by the Sechelt Band and is  2 negotiated in the Northwest Territories as well,  3 meaning of course different things to different  4 people.  The Sechelt models a municipal model, the  5 Northwest Territories one is much closer to what might  6 be described as sovereignty in another sense.  7 That takes me over the page to -- and I will come  8 down to paragraph 62.  When the British sovereignty  9 vested sovereignty in the Crown -- sorry -- when  10 British sovereignty vested sovereignty in the Crown,  11 it doesn't support the proposition that the assertion  12 of the sovereignty necessarily stripped the aboriginal  13 people.  And I refer to the Sparrow case for general  14 authority for that.  And I say that to conclude  15 otherwise is to rely on a singular notion of  16 sovereignty, one which refuses to admit that there can  17 be multiple layers of -- and I've substituted the word  18 "governance" for "sovereignty" there, because I  19 recognize, as your lordship, Mr. Justice Lambert does,  20 the problems with the word "sovereignty", so I said  21 "governance" authority.  Since writing the factum, as  22 I say, I have preferred to refer -- wherever these  23 words appear, I prefer to refer to "governance" or  24 "self-government" rather than "sovereignty", but it  25 could mean the same thing -- as is the case with the  26 federal system of government.  And the Constitution of  27 Canada recognizes sovereignty can be divisible.  And  28 I've already made that point.  29 And that takes me over to page 27, paragraph 64.  30 Because certain aboriginal rights of governance  31 existed at common law prior to '82 and at least some  32 incidents of those rights necessarily relate to land  33 and were not extinguished as of '82, these rights are  34 recognized and affirmed in Section 35(1) .  And that's  35 the point I made earlier, which is that we can guess  36 whether or not the remaining aboriginal rights to  37 self-government or jurisdiction in general terms are  38 included within 35, but we must, I think, accept the  39 fact that at least some are, a modicum of them must  40 be, in reference to the management -- or that are  41 necessarily tied to land, the other rights.  And lower  42 courts appear to have interpreted 35(1) as recognizing  43 and affirming some elements of aboriginal governance  44 directly related to the use of land.  And I'm  45 referring to the Jack case, which is to be -- we'll  46 pull that up, which is under tab 65.  And a statement  47 there -- now, this is a decision of, I think it's 1327  Submission by Mr. Williams  1 Judge Sarich, a Provincial Court judge, and it's the  2 first page in on tab 65, and it's the end of the first  3 complete paragraph.  And all that it said, and I'm  4 relying on this in the Jack case's authority:  5  6 "The chief had an absolute discretion to permit  7 any person not a member of his house to fish  8 his waters or take from his land."  9  10 And there of course was evidence in this case, I  11 think, that would be similar to that, but this is in a  12 judgment where he's considering the importance of  13 that.  And in the next paragraph -- in the next case,  14 which is the Nikal case, the -- Justice Peter  15 Millward's decision, October 24th, 1990, he says in  16 reference to -- and this is the -- after reasons for  17 judgment, October 24th, first -- the second paragraph,  18 about half-way down, he's talking about:  19  20 "The Moricetown band under the authority of the  21 Indian Act passed a by-law giving the band  22 total control of the fisheries on the reserve.  23 This by-law was never rejected by the  24 Department of Indian Affairs, however, the DFO  25 maintains that the by-law does not apply to the  26 Bulkley River.  The Wet'suwet'en have a long  27 history of fishery management and conservation  28 in the area, including controlling through the  29 hereditary chiefs, who can fish where and  3 0 when."  31  32 And so I say that there has been at least some  33 judicial recognition of the -- of that fact.  And I  34 say that -- my lords, that while the right or the  35 freedom with respect to this residual self-government  36 pre '82 may not have been a right in the same sense as  37 the aboriginal right with respect to land, and I'm not  38 saying that it isn't, I'm saying that it may be, in  39 the discussion we had about rights and freedoms, may  40 have that different colour, it may have that different  41 colour, but whatever it is, it seems that if it was  42 not entrenched in '82 along with the other aboriginal  43 rights, then you can say that such a right or freedom  44 may be worth very little, because, after all, if it's  45 a right to govern themselves subject to the laws of  46 general application of the Province and subject to the  47 specific laws of the Federal government that deal with 1328  Submission by Mr. Williams  1 Indianness and Indian lands, then really what have  2 they got?  An argument can be made that if it's a  3 freedom or a right it isn't very much.  And I say that  4 that is so, but its importance, in my submission, is  5 that there is a part of it that relates to the other  6 rights, as I've already talked about, and that if this  7 current round of negotiations should result in  8 entrenchment of inherent self-government, which the  9 native people are pressing for, then it will be of  10 importance to them, and it's important for this court,  11 in my respectful submission, to recognize that, that  12 this will then become an entrenched right.  And if it  13 becomes an entrenched right, they have got something.  14 If it's all been extinguished, they've got nothing.  15 If the same wording is used for the right of  16 self-government as was used for the other rights, we  17 know that extinguished rights aren't caught by 35,  18 only unextinguished rights are, and the same thing  19 would be true here.  And, therefore, it is of some  20 importance to recognize that and say that while it may  21 be of little value at the moment, it may become of  22 greater value later, and it's an important right to  23 consider.  24 HUTCHEON, J.A.:  What can we do about the request we have for  25 this immediate declaration, Miss Mandell's page 5  26 again?  And what do you say we do with number 3?  27 MR. WILLIAMS:  Can I deal with that — I haven't had a chance to  28 consider it.  29 HUTCHEON, J.A.:  Yes, certainly.  30 MR. WILLIAMS:  I will deal with that after lunch, yes.  I will  31 deal with it, if I may, after lunch.  32 Well, that is my -- the -- I say that on the facts  33 before the learned trial judge with respect to social  34 organization, land evolution, community administration  35 and customs or laws, the system of governance which  36 preceded sovereignty, and to a diminished extent has  37 continued since, requires in our view an  38 ackowledgement that the Appellants have always had and  39 continue to have at this time a right or a freedom of  40 self-government, albeit in a diminished form since the  41 Crown asserted sovereignty in B.C.  That's my final  42 submission on this issue.  43 LAMBERT, J.A.:  I wonder if I can stop on that and say that when  44 Miss Mandell was arguing the question of remedies,  45 there was set out in speaking notes that Mr. Justice  46 Hutcheon was holding up specific orders that were  47 being requested, and my recollection is that the court 1329  Submission by Mr. Williams  1 had a good deal of trouble with what was being  2 requested as set out in those speaking notes.  And  3 that discussion took place from three-thirty to four  4 o'clock one afternoon, and Miss Mandell didn't get  5 through the rest of her speaking notes on that  6 subject.  And the following morning, as I recollect,  7 Miss Mandell said that the Appellants were going to  8 think further about the form of order and were going  9 to come back to it in reply.  10 TAGGART, J.A.:  I think it was Mr. Rush.  11 LAMBERT, J.A.:  Yes, sorry, Mr. Rush said that.  It occurs to me  12 that Mr. Justice Hutcheon is asking you specific  13 questions about your position on that form of order,  14 and that if the form of order that's being requested  15 by the Appellants should turn out in the end to be  16 significantly different than this one, you will be  17 making comments on something that proves in the end to  18 be not truly relevant in the appeal.  So what I'm  19 saying is perhaps that if Mr. Rush, Miss Mandell, Mr.  20 Jackson are able to come up -- are going to come up  21 with something different, then it seems to me it ought  22 to be in your hands in time for you to say something  23 about it before reply.  24 MR. WILLIAMS:  Well, I would hope so.  Obviously we don't want  25 to get into -- we may be finished a little bit early,  26 as I indicated, I hope we will, and it may mean  27 there's another day, and we may have to ask the court  28 for a right to a rejoiner, because the fact that we  29 were required to go on first on the bulk of the  30 constitutional aspect of this, the adverse dominion.  31 I suppose it could be dealt with then, but yes, I  32 agree, my lord, if it can be dealt with in advance --  33 I should say also that my colleague, Mr. Arvay, will  34 be dealing -- we've divided this up in such a way, and  35 I'm trying to make sure I don't impinge on the other  36 areas.  And Mr. Arvay will be dealing with remedies,  37 and it may be that I should pass the puck to him on  38 that one, although I'll take a look at this question  39 over the lunch-hour.  40 LAMBERT, J.A.:  I'm only expressing a concern, I'm not asking  41 for anything, I'm expressing it both to the Appellants  42 and yourselves, and I hope that together you will be  43 be able to make sure that the arguments are truly  44 going to the points that they're going in the end to  45 be separating the parties on this area.  46 TAGGART, J.A.:  Should we leave it at sometime prior to Mr.  47 Arvay rising on the issue of remedies, there should be 1330  Submission by Mr. Williams  1 something in writing from the Appellants as to what  2 position they are taking on the issue of remedies.  3 That would apply, of course, not only to the Province,  4 but as well to the other Respondents, as to Amicus,  5 who is anxiously waiting to be heard on the very  6 subject.  7 MR. WILLIAMS:  Yes.  8 TAGGART, J.A.:  And he is being heard in advance of replies, so  9 he also wants to have an opportunity to see this  10 material that is going to come in reply.  It's the  11 wrong place for it, it isn't reply, it's a part of the  12 opening of the Appellants and should have come there.  13 Obviously in the time available to them they didn't  14 have a chance to adequately deal with it.  If they're  15 going to adequately deal with it, they will have to  16 adequately deal with it prior to the time when -- at  17 least prior to the time when Mr. Arvay has to rise,  18 and they will have to deal with it in some form of  19 written material that can be provided to the Province,  20 Canada and the Amicus.  21 MR. WILLIAMS:  Well, thank you, my lord.  I should point out  22 also that the Federal government have a very different  23 view of the -- I believe anyway -- of the  24 self-government issue than what we do, so -- and I  25 don't know what their view is on remedies, but  26 certainly our position may be sui generis, unique  27 anyway, but it -- unless the Appellants are prepared  28 to agree, there's still an issue, and there may be and  29 even then, I guess, the Federal government wouldn't  30 agree, from how I read their factum anyway.  My lords,  31 I will come --  32 MR. WILLMS:  My lords, can I just rise, because this is  33 obviously a matter of some concern.  We had planned to  34 file a supplementary argument respecting remedies,  35 which was one of the issues we've been asked to  36 address, and we were hoping that we would complete  37 that by the end of the next week's break, which is  38 next week, and have it ready for filing and  39 distribution before the Respondents were finished  4 0 their argument.  And we have been approaching that  41 based on what the Appellants sought when they closed  42 their argument, because I had had an exchange of  43 correspondence with Mr. Rush about the position of the  44 Amicus and indicated to Mr. Rush that we were waiting  45 to see what the Appellants' position was on remedies  46 before we could take a position and set out what the  47 argument might be.  I don't know whether Mr. Arvay -- 1331  Submission by Mr. Williams  1 I recognize my lord spoke in terms of when Mr. Arvay  2 would be dealing with self-government, and so long as  3 that is this week, then presumably the Appellants have  4 heard your lordship's concerns and we will be able to  5 meet what we were hoping to meet, but it would be very  6 difficult for us to file an argument by the date that  7 we were hoping to do it by without knowing whether the  8 Appellants were sticking with their position or  9 changing it.  10 MR. WILLIAMS:  I take it my friend didn't mean  11 "self-government", he must have meant "remedies".  12 MR. WILLMS:  I'm sorry remedies, I meant remedies, yes.  13 TAGGART, J.A.:  All right.  Well, you have the problems that the  14 other parties are faced with with respect to this  15 matter, and I'm not sure when Mr. Arvay is slated to  16 begin, he was the last in the batting order, as I  17 recall it.  18 MR. WILLIAMS:  He's — yes.  And I think that will probably be  19 my guess is Thursday.  I think that I should complete  20 tomorrow, and the Proclamation will follow that,  21 that's Tuesday, and Mr. Taylor will certainly be  22 Wednesday and possibly into Thursday.  We will -- I  23 believe we will finish this week, and I was rather  24 hoping we would finish Thursday night, but that may be  25 optimistic.  26 TAGGART, J.A.:  All right.  Well, that gives you some idea of  27 the time limits that are -- that will have to be met  28 if this is going to be sensibly dealt with.  29 MR. WILLIAMS:  Thank you, my lord.  Now, that moves me to the  30 last part of tab 1 -- tab 5, issue 1, which is the  31 aboriginal rights of the Appellants.  And this won't  32 take too long.  The Province, I say, accepts that at  33 the time of contact and at the time when sovereignty  34 was asserted, the Appellants' ancestors constituted an  35 organized society and used and occupied lands within  36 the territory claimed as stated by the trial judge.  37 And here's what the trial judge had to say.  Now,  38 we're not dealing with ownership, of course, where the  39 trial judge was very specific about what they didn't  40 prove, but here's what he has to say about this:  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 1332  Submission by Mr. Williams  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....  5 The organization of these people was the only  6 form of ownership and jurisdiction which  7 existed in the areas of the villages."  8  9 That was his finding.  I say that the Attorney General  10 concedes that the Gitksan and Wet'suwet'en people  11 enjoyed aboriginal rights in relation to at least some  12 of the territory that they claimed.  And at the time  13 of contact and the assertion of Crown sovereignty, the  14 nature and extent of the occupation and the use of the  15 claimed territory by the Appellants, and therefore the  16 nature and scope of the Appellants' aboriginal rights  17 would have varied.  I consider this an important  18 paragraph in my submission, my lord.  In some parts of  19 the territory the Appellants may be able to claim a  20 relatively extensive set of rights.  And I say this  21 would apply also to -- would apply also to the other  22 issues, such as governance, really.  They would be  23 able to claim a relatively extensive set of rights  24 with respect to a particular area.  In other parts of  25 the territory the Appellants may only be able to  26 assert a highly use-specific, location specific,  27 non-exclusive, temporarily sporadic right to engage in  28 a particular activity.  So, for example, as we said  29 earlier when we discussed the ownership issue, I say  30 here that their rights, if you were to treat the  31 territory, colour it in on a map, wherever it may be,  32 it is a territory, it's not little spots throughout  33 British Columbia or some part of it, it's a territory,  34 and within that territory there would be varying  35 degrees of intensity, such that in the village rights,  36 where they would presumably have exclusive rights to  37 where they live in their houses, and perhaps exclusive  38 rights to their cultivated fields, that's one thing.  39 But when they're hunting they may have an exclusive  40 right to hunt in a certain area, or they may not.  But  41 they're still using it, and it's still part of the  42 claim and it's still part of something they are able  43 to -- they are able to claim an aboriginal right for,  44 even though they could never claim ownership of it.  45 The trial judge found correctly -- this is  46 paragraph 75.  The trial judge found correctly that  47 they had demonstrated exclusive occupation over 1333  Submission by Mr. Williams  1 village sites and land immediately surrounding them  2 and that almost all of those were protected by  3 reserves.  But the trial judge found, and he found  4 correctly, the Appellants had not demonstrated  5 exclusive use of the other parts of the claimed  6 territory.  And that's at page 395.  I don't think I  7 need to turn it up.  8 So what the trial judge really said is that it  9 appears that the whole territory -- I say that the  10 whole territory must be included for aboriginal rights  11 purposes, but it's unclear to me exactly what he's  12 saying.  I guess I better go back to that one, it's  13 395 -- page 395, and that's tab -- that would be 76.  14 It says:  15  16 "Subject to what follows, the plaintiffs have  17 established, as of the date of British  18 sovereignty, the requirements for continued  19 residence in their villages, and for  20 non-exclusive aboriginal sustenance rights  21 within those portions of the territory I shall  22 later define."  23  24 Now, I'm not clear whether he's saying what I'm  25 saying or whether he's saying something different,  26 but, in any event, what I am submitting to the court  27 is that you would colour the area of the map all with  28 the same colour, but it might be a darker colour in  29 one part than another, if you follow what I'm saying.  30 And I'm saying that in the villages, certainly there  31 would be a strong -- there would be very strong  32 evidence of a right that needs to be protected.  Where  33 they hunted goat every two or three years on the top  34 of a mountain would be nowhere near as well protected,  35 but it may well be within the same territory that  36 constitutes a part of their claim.  And I submit that  37 that's what ought to be, and it may well be, what the  38 learned trial judge is saying, because later on he did  39 draw a map, and we will come to that in just a moment.  40 So -- well, there's another reference to it, but I  41 don't think it adds anything on the page.  If you just  42 want to make a note of the page number, it's 384 in  43 this -- in my paragraph 76, you may be interested to  44 turn up page 384.  45 And I will move on to 77.  As the Respondent  46 Province admits, the Appellants have unspecified  47 non-exclusive aboriginal rights in the claimed 1334  Submission by Mr. Williams  1 territory yet to be located.  It is submitted that the  2 distinction between rights in village sites and  3 cultivated fields is no longer in issue.  It's my  4 submission that you don't draw a line between the  5 rights, you say that the rights are there, but you  6 draw a line in reference to the need for protection or  7 the scope of the rights and the content of the rights.  8 And that, as I've earlier said, and will say again, is  9 something which should be left to the parties to  10 negotiate.  For this court to try to say how strong on  11 the scale of 1 to 10 is a right in the village and how  12 strong is it on the top of Goat Hill would be  13 impossible.  And yet at some point that may have to be  14 determined, and the way in which, in my submission, it  15 would be determined is to say that this is the area,  16 or even that there is an area of aboriginal rights,  17 geographical limits of which should be determined by  18 the parties at negotiation, and the scope and content  19 should be determined by the parties.  It's an  20 impossible task to ask a court to do.  21 Now, the learned trial judge, as you know  22 established -- I'm at 79 -- the external boundaries of  23 the area, that if he was wrong on extinguishment, that  24 he would allocate.  And he says at page 452, tab 79,  25 under "General Aboriginal Rights", he says:  26  27 "The external boundary is now artificial."  28  29 Well, we know it has to be artificial.  He had to draw  30 a line.  Regrettably in this kind of case, this court  31 and other courts have to draw lines which don't  32 necessarily have as much precision or logic as we  33 would like, but he did.  And he says:  34  35 "The question is where to draw the line."  36  37 He says:  38  39 "In this respect it will be necessary to be  40 arbitrary.  The most helpful evidence is  41 geographical, particularly the great rivers and  42 the location of the villages" --  43  44 And so on.  And then he does draw the line.  45 Now, I say that if the court -- I would prefer in  46 this case, with the greatest of deference to the  47 learned trial judge, I would prefer that the court 1335  Submission by Mr. Williams  1 left the area to the negotiation by the parties, which  2 may be larger than or smaller than or the same as the  3 one that the Chief Justice has picked, but if the  4 court should decide -- if this court should decide  5 that they must make a decision and not refer to the  6 parties, then I would not contest what the learned  7 trial judge has found as the -- is the appropriate  8 area.  I mean anyone could pick an area that is larger  9 or smaller than, but it seems to me that there's at  10 least as much thought gone into that as any other  11 particular specific area.  12 And in paragraph 81 I say that beyond declaring in  13 general form the ancestors of the Appellants had  14 aboriginal rights within the territory claimed, the  15 court should not take on the task of attempting to  16 delineate.  Questions of this kind involve a complex  17 mix of policy factors and competing interests of other  18 interested parties, as well as political  19 determinations of the public interests of the  20 province.  These determinations ought to be initially  21 left to the parties themselves through the form of  22 supervised negotiation.  And when I say "supervised  23 negotiation", I don't want to leave an impression the  24 courts would be hovering over the parties.  By that  25 what is meant is that the parties would negotiate, and  26 if they fail it comes back to court, because the court  27 retains jurisdiction, not that the court supervises  28 the negotiations themselves.  29 I think that's all I need to say on the subject of  30 specific rights, and that finishes issue number 1, my  31 lords.  32 We'll turn to tab 6.  I'll just get my books  33 organized here.  My lords, I hope that the system of  34 my tying my notes in with the factum, which I pretty  35 well had to do, because of how much -- I haven't  36 learned a great deal, but I've learned something  37 between doing the factum and getting up on my feet,  38 and that's why the speaking notes became necessary.  39 But -- and I think it worked reasonably well.  So I  40 had one more complicating factor to add to your burden  41 this time.  It's the same system, exactly the same  42 system, except that you will notice two sets of  43 numbers.  The letters C, E, F, all the way up to H and  44 then I, are the same letters that appear on my  45 speaking notes, and the numbers, which start at 90 --  46 no, where is it -- 84, that is the numbers in the  47 back, the dark numbers, are the numbers in the factum. 1336  Submission by Mr. Williams  1 So if you see where 84 starts, and it goes right  2 through to 113, these are the factum references.  The  3 letters, in the same way as the last book, and the  4 letters are the speaking note references, the only  5 additional thing is you will see some numbers from 1  6 to 13 in the front under one of the letters, and those  7 letters are the Calder documents, from Calder I to  8 XIII.  So that's all there is to that.  9 Now, my lords, in the same way as I did before, I  10 will be setting forth in the first three paragraphs  11 the position of the Appellant, position of the  12 Respondent and the learned trial judge.  And I say,  13 first of all, that the Appellants maintain that there  14 has been no extinguishment of any kind at any time of  15 any of their rights.  And, therefore, at the time of  16 Section 35 in 1982, all of their aboriginal rights  17 become entrenched.  They say that no such  18 extinguishment could have occurred without the consent  19 of the Appellants.  Now, it's the position of the  20 Respondents that consent is not required for  21 extinguishment, provided, of course, it meets the  22 Sparrow test, that there is clear and plain intention  23 on the part of the sovereign to extinguish.  If the  24 sovereign is prepared to do that, consent is not  25 necessary.  26 And, also, it's the position of the Respondent  27 that there has not been a blanket or general  28 extinguishment of aboriginal rights, and in particular  29 the colonial Proclamations and the ordinances,  30 including all the land legislation and so on that the  31 Calder XIII, which is actually XV, and I will come to  32 that in a moment, we say that it did not, as a matter  33 of law, have the effect of extinguishing the  34 Appellants' aboriginal rights.  I say it should be  35 noted that the documents referred to in the Calder  36 XIII include legislation which was not considered in  37 the Calder case.  And I don't think it's very  38 relevant, but it's the legislation that followed the  39 Calder XIII documents, and I will come to that in a  4 0 few moments.  41 The Province will argue, and I would like to put  42 in here so that your lordships are reminded of this,  43 if you will, this is my -- the second paragraph under  44 B.  The Province will argue later and in the  45 alternative, and I've explained that earlier, that --  46 but I would like to put that in just so that we keep  47 it in mind, it's an alternative argument.  The 1337  Submission by Mr. Williams  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  Province will argue in the alternative that some  extinguishment of aboriginal rights have taken place,  but only as a result of specific land grants from the  Crown which meet the test of adverse dominion, where  the intention of the Crown to extinguish must be clear  and plain by necessary implication.  And the trial judge held that the Crown did  clearly and plainly intend to extinguish and did  extinguish aboriginal rights with respect to the land  throughout the Province of British Columbia by the  Calder XIII legislation.  And he refers to  extinguishment, and I have listed here and I have put  in the book all of the pages where he deals with this,  and I'm only going to turn up some of them.  I want to  start at 406.  I've black lined in this volume --  we've black lined the parts that I am going to be  referring to for this purpose, and it's -- he talks  about the -- at the very top of the page I mention  these two other measures, even though they have not  been accorded Calder status because they complement  the 1870 Land Ordinances, and because of the  description given to them -- the other documents will  be coming.  The part that I black lined there:  "Thus, in my judgment, intention sufficient to  establish extinguishment must be examined  broadly and need not be confined to a specific  act or decision at a particular moment in  colonial history.  Instead, intention may more  properly be discerned from a course of conduct  over the whole of the colonial period."  HUTCHEON, J.A.  MR. WILLIAMS:  HUTCHEON, J.A.  MR. WILLIAMS:  Sorry, what page are you at?  Sorry, 406.  Yes, thank you.  I will start that again:  "Thus, in my judgment, intention sufficient to  establish extinguishment must be examined  broadly and need not be confined to a specific  act or decision at a particular moment in  colonial history.  Instead, intention may more  properly be discerned from a course of conduct  over the whole of the colonial period.  I conclude that an intention to extinguish  aboriginal rights can be clear and plain  without being stated in express statutory 1338  Submission by Mr. Williams  1 language or even without mentioning aboriginal  2 rights if such a clear and plain intention can  3 be identified by necessary implication.  An  4 obvious example would be the grant of a fee  5 simple interest in land to a third party."  6  7 Now I will turn to argument.  We don't of course  8 quarrel with his example:  "or the grant of a lease,  9 licence, permit or other tenure inconsistent with  10 continued aboriginal use".  Again, I'm not going to  11 get into this, because my colleague Mr. Taylor will  12 be, but we're talking about something other than a  13 grant in fee simple, it would have to be something  14 that couldn't be shared, something totally  15 inconsistent with it.  So I don't disagree with what  16 the learned trial judge said here, if he's talking  17 about something that amounts to an adverse dominion  18 and therefore a necessary implication.  And the next  19 page is 407, and he says:  20  21 "The unanimous judicial decision of all judges  22 in Sparrow" --  23  24 Et cetera, et cetera, and:  25  26 "-- law and understanding as the governing  27 factor in extinguishment persuades me that  28 intention in this context must relate not to a  29 specific or precise state of mind on the part  30 of historical actors, but rather to the  31 consequences they intended for their actions.  32 In other words, the question is not did the  33 Crown through its officers specifically address  34 the question of aboriginal rights, but rather  35 did they clearly and plainly intend to create a  36 legal regime from which is necessary to infer  37 that aboriginal interests were in fact  38 extinguished."  39  40 With the greatest of deference, I would have to  41 disagree with the trial judge on that point, because  42 what it says to me is that if they intended to do  43 something else and they happened, whoops, to  44 extinguish a bunch of rights, and that's what you  45 imply, then too bad.  I think that rights don't get  46 that easily extinguished, and that you either have to  47 in the clear and plain intention doctrine demonstrate 1339  Submission by Mr. Williams  1 it by specific language in the statute or show in some  2 other manner that that is exactly what was intended,  3 or, by necessary implication, meaning that there could  4 be no other possible conclusion, and I submit that  5 that's not what happened here.  6 Now, the next page is 410 and 11.  In 410, I'm not  7 going to read the paragraph at the top, I commend it  8 to your reading, the fine print.  But then at the  9 bottom:  10  11 "There are, in addition, innumerable other  12 references to the clear and plain intention of  13 the Crown, represented by its ministers and  14 other officials, to settle the colony."  15  16 And settle the colony, there's not much doubt they  17 intended to settle the Colony.  That's not the issue.  18  19 "Immediately upon his appointment, Governor  20 Douglas proclaimed the laws of England to be in  21 force in the colony.  He also issued a  22 proclamation (which is the way he legislated) ,  23 authorizing the Governor of the colony from  24 time to time to grant to any person any land  25 belonging to the Crown."  26  27 No dispute on that.  Then he says:  28  29 "The Crown also proceeded to have surveys  30 completed and land sales were undertaken.  The  31 Crown also embarked upon the development of the  32 province in many other ways."  33  34 And then:  35  36 "The process leading to the enactment of Calder  37 III is particularly instructive.  It will be  38 recalled that a quesion had been raised by  39 Captain Clark about 'aboriginal title' and  40 Begbie J. had expressed an opinion that it had  41 not been extinguished.  I am satisfied he was  42 referring to treaty extinguishment, and he was  43 not addressing himself to the question I am  44 considering."  45  46 And I don't see how his lordship arrives at that  47 conclusion, but that is the conclusion he arrived at. 1340  Submission by Mr. Williams  1 Then over on page 411:  2 "There is, as described in Point 11, a great  3 deal of evidence demonstrating that the Crown  4 with full knowledge of local situation fully  5 intended to settle the colony and to grant  6 titles and tenures unburdened by any aboriginal  7 interests."  8  9 I know of no evidence where it says "unburdened by  10 aboriginal interests".  It may be that that certainly  11 is his lordship's implication, but if you accept the  12 proposition that the aboriginal title or aboriginal  13 right to land, sui generis interest in land, was a  14 burden upon the Crown and that that continued, then  15 how can it be said that the mere passing of the  16 documents in the colony to aid the settlers could be  17 said to have fully intended to settle the colony and  18 to grant titles and tenures unburdened by any  19 aboriginal interests?  How can it be said that there  20 is -- that it was intended to be unburdened by any  21 aboriginal interests.  22  23 "The Crown must be taken to have known that it  24 could not free the land from this burden  25 without extinguishing these aboriginal  26 interests.  This probably did not trouble the  27 Crown, because it also intended to allot  28 generous reserves, and to allow the Indians to  29 use vacant lands.  The primary intention,  30 however, was obviously to settle the colony by  31 granting unburdened interests to settlers."  32  33 And that seems to be what he's drawn from the facts  34 that he mentions there.  35  36 "I find the constitutional and legal  37 arrangements put in place in the colony were  38 totally inconsistent with the aboriginal rights  39 the continuation of which would have prevented  4 0 the Crown from the settlement and development  41 of the Colony."  42  43 I don't quite know where that comes from, I don't see  44 how it would have been prevented, but in any event:  45  46 "As the intention of the Crown must be  47 ascertained objectively from a consideration of 1341  Submission by Mr. Williams  1 all the circumstances in their historical  2 setting, I find the Crown clearly and plainly  3 intended to, and did, extinguish aboriginal  4 rights in the colony, by the arrangements it  5 made for the development of the colony  6 including provision for conveying titles and  7 tenure unencumbered by any aboriginal rights  8 and by the other arrangements it made for  9 Indians."  10  11 And then over on the next page, the final page, "I  12 test this conclusion by reference to a hypothetical  13 parcel of" -- I don't think I need read that.  The  14 next one, the second paragraph:  15  16 "On the authorities I have mentioned, I see no  17 answer to the conclusion that the Crown in  18 colonial times clearly and plainly intended not  19 to recognize, and to extinguish, aboriginal  20 rights which might otherwise have prevented it  21 from transferring title to its settlers.  This,  22 of course, is completely consistent with the  23 reality already mentioned that (except for  24 village sites) aboriginal rights existed only  25 at the pleasure of the Crown.  I have no doubt  26 the Crown's grantees during colonial times  27 obtained title to or interests in land obtained  2 8 from or through the Crown unburdened by  29 aboriginal rights.  30 I have also considered whether the intention of  31 the Crown to extinguish aboriginal rights could  32 be limited just to the lands it actually  33 transferred to the third parties, but I reject  34 that, as did all of the seven judges who  35 reached the same conclusion in Calder.  I find  36 that was not the intention of the Crown."  37  38 So those are the more important aspects of the reasons  39 for judgment which caused the trial judge to find as  4 0 he did.  And that takes me to my factum, and it's page  41 33.  42 The first point in paragraph 84 is that point that  43 is made by Section 35 only recognizes and affirms  44 'existing' aboriginal rights, that's in 1982.  45 Aboriginal rights that have been extinguished prior to  46 1982 aren't revived by Section 35(1).  So we're  47 dealing with existing aboriginal rights at that time. 1342  Submission by Mr. Williams  1 And then we have of course Chief Justice Dickson's  2 comments:  3  4 "The sovereign's intention must be clear and  5 plain if it is to extinguish aboriginal right."  6  7 86, the court was evenly divided in the Calder  8 case.  And 88, the Province submits that the trial  9 judge erred in law in concluding that there had been a  10 blanket extinguishment of aboriginal rights.  And then  11 over the page, we say that the Appellants continue to  12 enjoy certain aboriginal rights to some portion of the  13 claim area.  14 Under Section 89 I make the point -- I'm sorry to  15 make it again, but it's important for the  16 extinguishment issue.  The allodial title of the Crown  17 includes all estates and interests.  When the colonial  18 proclamations including Calder II were enacted,  19 (Calder II in particular says that all of the lands in  20 British Columbia and all the mines and minerals  21 therein belong to the Crown in fee).  And it's that  22 "in fee" that has caused some, perhaps, disagreement  23 in judicial circles and legal circles.  The colonial  24 government was simply declaring that it held that  25 estate as a device -- this is my submission -- the  26 colonial government was simply declaring that it held  27 that estate as a device which established the  28 machinery for future conveyances.  The Calder II  29 itself clearly was not a conveyance of the fee simple,  30 since the Crown already owned the estate within which  31 that fee existed, that is within the allodial title,  32 and any suggestion that this amounted to a conveyance  33 wouldn't make any sense.  So I want to turn first in  34 tab 89 to the definition of allodial title.  And it  35 says -- this is from Jowitt's Dictionary of English  3 6 Law.  37 LAMBERT, J.A.:  These are not these authorities at paragraph 89,  38 you've got other authorities.  Sorry, I'm trying to  39 keep track.  40 MR. WILLIAMS:  Isn't that in your 89?  41 LAMBERT, J.A.:  Not Jowitt, no.  42 MR. WILLIAMS:  Sorry, it's not listed, but it's in the book.  43 Sorry, you're right.  It's not listed in 89, but it is  44 in the book.  45 LAMBERT, J.A.:  Yes, thank you.  46 MR. WILLIAMS:  It's in tab 89 of the book.  47 LAMBERT, J.A.:  I see, thank you. 1343  Submission by Mr. Williams  1 MR. WILLIAMS:  So allodial title or allodial lands or allodium,  2 et cetera:  3  4 "A patrimonial estate, lands not held of any  5 lord or superior, in which, therefore, the  6 owner has an absolute property and not a mere  7 estate.  No subject in England can hold lands  8 allodially; and the highest estate known to the  9 law is an estate in fee simple, which, however,  10 is for all practical purposes equivalent to  11 absolute ownership.  It is possible that, prior  12 to the Conquest, the lands known as bocklands  13 or book-lands were allodial lands."  14  15 And as we get into the cases, I submit that what  16 that means is that the allodial title, the radical  17 title, whatever it may be, is the everything title.  18 It's not an estate in land, it's the total ownership  19 which rests with the Crown, and that for a person who  20 owns the land, such as Her Majesty, to create through  21 a proclamation a fee, an estate in fee, is not a  22 conveyance, it is simply a device that was made in  23 order to permit the granting of lands to settlers from  24 that legislation.  And so what I'm saying in the -- if  25 you look at Megarry, for example, that there are the  26 three cases there that deal with it, but they're  27 somewhat lengthy and I didn't want to take you through  28 them, but Megarry, which is the second last of the  29 tabs in -- second last of the green sheets in tab 89,  30 says that:  31  32 "Crown ownership.  Although in practice land is  33 commonly, and correctly, described as owned by  34 its various proprietors, english land law still  35 retains its original basis, that all land in  36 England is owned by the Crown.  A small part is  37 in the Crown's own occupation; the rest is  38 occupied by tenants holding either directly or  39 indirectly from the Crown."  40  41 And then it has a few structures, and then it goes  42 back to William the Conqueror, who conquered the land:  43  44 "William I regarded the whole of England as his  45 by conquest. To reward his followers and those  4 6 of England who submitted to him, he granted and  47 confirmed certain lands to be held of him as 1344  Submission by Mr. Williams  1 overlord.  These lands were granted not by way  2 of an out-and-out transfer, but to be held from  3 the Crown upon certain conditions."  4  5 And it goes on.  Then on the next text I'm referring  6 to is Anger and Honsberger, and that's the next page.  7 And it simply says this, "Tenure In The Canadian  8 Provinces":  9  10 "It stands to reason, since most of the other  11 forms of tenure had been abolished in England  12 prior to the settlement and conquest of Canada,  13 that socage was the only freehold tenure  14 introduced into the Canadian provinces pursuant  15 to the rules for reception of English law.  16 This is, indeed, the case, although the mode in  17 which it was introduced varied from province to  18 province.  The effect is that today all land in  19 Canada, except that owned by the Crown in right  20 of the Dominion or of the several provinces, is  21 held, not allodially or outright, but of the  22 Crown in right of the Dominion or of a  23 province."  24  25 Now, he says that:  26  27 "The doctrine no longer has much effect" --  28  29 Et cetera, because the practicalities of the  30 situation.  And that seems to be the basis for the  31 holding.  32 And I say in 90:  Another important purpose of the  33 colonial proclamations was to notify all settlers that  34 the land must be purchased from the Crown and not from  35 the aboriginal people.  And I'll just turn that up and  36 then we'll break for lunch, if I may, and that's at  37 tab 90, which is a document that was prepared, I  38 think, within days of the Calder II document, which is  39 the one that the -- provides for the fee coming from  4 0 the Crown to the Crown.  And paragraph number 3 I  41 would refer to:  42  43 "Attempts having been made by persons residing  44 at this place to secure those lands for their  45 own advantage by direct purchase from the  46 Indians, and it being desirable and necessary  47 to put a stop to such proceedings, I instruct 1345  Submission by Mr. Williams  1 the Crown Solicitor to insert a public notice  2 in the Victoria Gazette to the effect that the  3 land in question was the property of the Crown,  4 and for that reason the Indians themselves were  5 incapable of conveying a legal title to the  6 same, and that any person holding such land  7 would be summarily ejected."  8  9 And we know what the conflicts were at that time.  And  10 I think with that I will break -- suggest we break for  11 lunch.  12 THE COURT:  Two o'clock.  13 THE REGISTRAR:  Order in court.  Court stands adjourned.  14  15 LUNCHEON RECESS  16  17 I hereby certify the foregoing to be  18 a true and accurate transcript of the  19 proceedings herein transcribed to the  20 best of my skill and ability  21  22  23  24  25 Graham D. Parker  26 Official Reporter  27 United Reporting Service Ltd.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1346  Submissions by Mr. Williams  Submission by Mr. Williams  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 TAGGART, J.A.:  Yes, Mr. Williams.  4 MR. WILLIAMS:  My lord, first let me say that my comment this  5 morning on the discovery doctrine having been accepted  6 by the appellants, I wasn't in court when the address  7 was given and didn't remember seeing it in the  8 speaking notes, but it's been checked out and I think  9 that the person who reported to me was mistaken, and I  10 want to apologize to my friends.  While many things  11 can be argued I don't think it's fair to say that they  12 have conceded that.  I withdraw that.  13 Secondly, in reference to my lord Justice  14 Hutcheon's question about number three, the appellants  15 existing aboriginal rights include an inherent  16 right -- this is from the speaking notes of Ms.  17 Mandell.  It's 15(3).  What I understand the question  18 was do we agree with that the appellants' existing  19 aboriginal rights include an inherent right to  20 self-government over the territory themselves --  21 territories themselves I guess that should be -- and  22 the members of the houses represented by the  23 appellants in accordance with the Gitksan and  24 Wet'suwet'en political, legal and social institutions.  25 Our position, my lord, is that we agree that the  26 appellants' existing aboriginal rights include an  27 inherent right to some self-government, as I've  28 explained it, but when it says "over the territory" my  29 position would be over the people within the -- their  30 people within the territory, because if they have  31 exclusive rights then of course all the people in the  32 territory and the territory might be said to be the  33 same thing.  But if they have non-exclusive rights I  34 certainly wouldn't go so far as to say that merely  35 because there's a presence of the Gitksan-Wet'suwet'en  36 people they would have governance over the territory.  37 So what I'm trying to say is that the appellants'  38 existing aboriginal rights include an inherent right  39 to some self-government over their people within the  40 territory -- territories themselves, and I don't wish  41 to include the rest of that paragraph at all with  42 respect to the houses and so on.  There was some  43 findings of the learned trial judge in there and I  44 don't need to get into that.  45 My lord, moving to my speaking notes on the first  46 page I come to E, and I say that there were 13  47 proclamations or ordinances being -- the ordinances 1347  Submissions by Mr. Williams  Submission by Mr. Williams  1 being after the formation of the legislature which  2 were considered by the Supreme Court of Canada in  3 Calder, and of course by the learned trial judge, and  4 they formed the basis for this whole extinguishment  5 argument.  I don't want to take too long doing this,  6 but I feel that in support of the position I've put  7 forth in my argument I have to take you through those  8 documents.  And I have them all set forth in the book  9 one to 13.  10 If I may then I'll turn to numerical tab 1 under  11 E.  And if you'll notice the wording of the  12 proclamation it starts by saying in the very first  13 paragraph:  14  15 "Whereas by virtue of an Act of Parliament --"  16  17 And I'll come to that in a few moments.  That  18 James Douglas may:  19  20 "-- make laws, institutions and ordinances for  21 the peace, order and good governments of the  22 same."  23  2 4 And then:  25  26 "Now, therefore, I, James Douglas --"  27  28 And it goes on and it says this:  29  30 "-- date of proclamation, it shall be lawful  31 for the Governor, for the time being of the  32 said Colony, by any instrument in print or in  33 writing, or partly in print and partly in  34 writing, under his hand and seal to grant to  35 any person or persons any land belonging to the  36 Crown in the said Colony; and every such  37 Instrument shall be valid as against Her  38 Majesty — "  39  40 Et cetera, et cetera.  Now, that's Calder I.  And  41 then we can flip over to Calder II, which is tab 2.  42 And in Calder II, as you'll see, it says at the top:  43  44 "Whereas, it is expedient to publish for  45 general information --"  46  47  LAMBERT, J.A.:  These tabs — 1348  Submissions by Mr. Williams  Submission by Mr. Williams  1 MR. WILLIAMS:  These are numerical tabs under E.  2 LAMBERT, J.A.:  And they're one to 13?  3 MR. WILLIAMS:  Yes, they are.  And two is Calder II.  4 LAMBERT, J.A.:  Right.  5 MR. WILLIAMS:  Now, under Calder II it's important to read this.  6 This is probably the most important, this and 13 I  7 think are the most important of the Calder documents.  8  9 "Whereas, it is expedient to publish for  10 general information, the method to be pursued  11 with respect to the alienation and possession  12 of agricultural lands, and of lands proposed  13 for the sites of towns in British Columbia, and  14 with reference also to the places for levying  15 shipping and customs duties --"  16  17 Et cetera.  18  19 "Now, therefore, I, James Douglas, Governor of  20 the said Colony, do proclaim and declare --"  21  22 And I ask you to take note of those words.  It  23 doesn't say I convey or that Her Majesty conveys, it  24 says:  25  26 "I declare that all the lands in British  27 Columbia, and all the mines and minerals  28 herein, belong to the Crown in fee."  29  30 Now, my lords, I pause to say that's a simple  31 declaration from the governor of the colony which is  32 doing nothing more than declaring for the purposes of  33 ultimately being able to transfer the fee, not each  34 time there's a fee come from the allodial title down  35 to the ground and do a fee, but to declare that in  36 effect the allodial title includes the fee.  So to  37 declare that Her Majesty, that they belong to the  38 Crown in fee the definition of allodial tells you  39 that, but this declaration is simply pointing that  4 0 out.  41 Then it says:  42  43 "The price of the land shall be —"  44  45 Et cetera, et cetera.  And then number three it  46 says:  47 1349  Submissions by Mr. Williams  Submission by Mr. Williams  1 "It shall also be competent to the Executive at  2 any time to reserve such portions of the  3 unoccupied Crown lands, and for such purposes  4 as the executive shall deem advisable."  5  6 And then:  7  8 "Except as aforesaid, all the lands in British  9 Columbia will be exposed in lots for sale, by  10 public competition, at the upset price above  11 mentioned as soon as the same shall have been  12 surveyed and made ready for sale."  13  14 So this is the document that makes sure that it's  15 sitting there in the form of a fee that can be  16 transferred because the intention is to sell by public  17 competition and so on.  18 Now, also in this tab -- and that date of that I  19 think was February of 1959.  20 HUTCHEON, J.A.:  1859.  21 MR. WILLIAMS:  Beg pardon, your lord?  22 HUTCHEON, J.A.:  1859.  23 MR. WILLIAMS:  Yeah.  I was only out by a hundred years, my  24 lord.  25 And so sometime prior to that, it's the 14th of  26 February, 1859, just before that, which appears to be  27 December of 1958, is a copy of a note from Mathew  28 Begbie.  It's a sub-closure.  And the sub-closure says  29 this:  30  31 "It appears to me that the title of the Crown  32 can only be conveyed by Letters Patent under  33 the Great Seal, or under the authority of an  34 Act of Parliament.  35  36 I should, therefore, recommend a Proclamation  37 having the force of law to be immediately  38 issued, empowering some person or persons to  39 convey the legal estate in Crown Lands which  40 have been contracted to be sold.  41  42 This merely provides machinery --"  43  44 And that will be my point.  Calder II is part of  45 the machinery to make available this property  46 transfer.  47 1350  Submissions by Mr. Williams  Submission by Mr. Williams  1 "This merely provides the machinery for  2 carrying into full legal effect the sales which  3 have already been made equitably at the  4 auction, and subsequently thereto in the  5 surveyor's office."  6  7 So I move to Calder III which is tab 3, and there  8 say that the only passage that matters is at the  9 bottom of the first column and the top of the second,  10 and it says:  11  12 "That from and after the date hereof, British  13 subjects and aliens who shall take the oath of  14 allegiance to Her Majesty and Her successors,  15 may acquire unoccupied and unreserved, and  16 unsurveyed Crown land in British Columbia (not  17 being the site of an existent or proposed town,  18 or auriferous lands available for mining  19 purposes, or an Indian Reserve or settlement,)  20 in fee-simple, under the following conditions."  21  22 So that's Calder III.  Now, I think -- and you can  23 see that that was done in the year 1860, the 4th of  24 January, 1860.  25 So I think we can flip through on the next page,  26 the next green sheet under three is the famous Begbie  27 statement.  And this, remember, is after the passage  28 of II, and he says after commenting on Mr. Clark's  29 memorandum or proposals he says under S.l. about  3 0 half-way down:  31  32 "From this view I differ, in the case of  33 ordinary agricultural lands, as already  34 mentioned.  I may also observe that the Indian  35 title is by no means extinguished.  Separate  36 provision must be made for it, and soon:  37 though how this is to be done will require some  38 consideration.  From the friendly intercourse  39 with the natives however, no serious  40 difficulties is to be apprehended."  41  42 Now, I don't know how and I don't know where the  43 learned Chief Justice got the view that that only  44 applied to treaties, but that was what he said.  And I  45 have not been able to find out why that would be, but  46 in any event that's what Mathew Begbie said at that  4 7 time. 1351  Submissions by Mr. Williams  Submission by Mr. Williams  1 I don't think we need to go through Calder IV.  2 Just flip the tabs, if your lordships don't mind, over  3 to Calder VIII.  And Calder VIII is not all that  4 important, but there are a couple of things to point  5 out to you.  On the second page of Calder VIII under  6 three:  7  8 "That from and after the date hereof, British  9 subjects and aliens who shall take the oath of  10 allegiance to Her Majesty and Her successors,  11 may acquire the right to hold and purchase in  12 fee, simple unoccupied, and unsurveyed, and  13 unreserved Crown Lands in British Columbia, not  14 being the site of an existent or proposed town,  15 or auiferous land available for mining  16 purposes, or an Indian Reserve --"  17  18 Et cetera.  So I'm just mentioning that because  19 the word Indian is mentioned.  It doesn't have  20 anything to do with Indian title.  It doesn't -- in my  21 submission it has nothing to do with any of the  22 intent, nor does anybody say that it does.  But just  23 so that you know it is mentioned here.  24 And also under Calder VIII at the tab at the back,  25 the one green sheet that's within it, in 1961, which  26 is some time down the line from the early Calder  27 documents, of course, here is what happened when there  28 was an answer back to Governor Douglas from the clerk  29 Newcastle.  And he says this:  30  31 "I have had under my consideration --"  32  33 Your lordships have this in front of you now?  34 LAMBERT, J.A.:  No.  35 MR. WILLIAMS:  Oh.  It's just after the green sheet in tab 8.  36 LAMBERT, J.A.:  Thank you.  37 TAGGART, J.A.:  And who was this, Newcastle?  38 MR. WILLIAMS:  Yes.  And the original is right behind it there.  39 The exhibit -- does it have an exhibit number?  40 1039-49?  1039-48 is the exhibit number.  And this is  41 the secretary of state for the colonies is the proper  42 title.  And he says:  43  44 "I have had under my consideration your  45 despatch No. 24 of the 25 of March last,  46 transmitting an address from the House of  47 Assembly of Vancouver Island in which they pray 1352  Submissions by Mr. Williams  Submission by Mr. Williams  1 for assistance of H.M. Government in  2 extinguishing the aboriginal title to the  3 Public Lands in the Colony and set forth the  4 evils that may result from a neglect of this  5 precaution.  I am fully sensible of this great  6 importance of purchasing without loss of time  7 the native title to the soil of Vancouver  8 Island but the acquisition of the title is a  9 purely Colonial Interest and the Legislature  10 must not entertain any expectation that the  11 British Taxpayer will be burdened to supply the  12 funds or the British Credit pledged for the  13 purpose."  14  15 It sounds like a federal provincial finance  16 ministers' conference.  But it seems to me in my  17 submission then that at this point in time the flow  18 back and forth was directed at the extinguishment of  19 the native title on Vancouver Island, which according  20 to the trial judge was already extinguished by the  21 Calder documents.  I presume the Calder documents up  22 to that time.  But, in any event, there's nothing that  23 happened between here and Calder XIII to change this  24 attitude.  They were still pressing both before and  25 after Calder XIII for money to extinguish native  26 title, or speeches were being given in respect of the  27 need to do so.  Nothing happened really under nine.  28 LAMBERT, J.A.:  Sorry.  Just before we leave eight.  The  29 despatch No. 24 isn't what you've given us as the  30 proclamation number 21.  31 MR. WILLIAMS:  No.  32 LAMBERT, J.A.:  We don't have —  33 MR. WILLIAMS:  You don't have despatch No. 24.  We'll supply  34 that, my lord.  I don't have it here.  35 LAMBERT, J.A.:  All right.  36 MR. WILLIAMS:  What it is is it's a request for money.  37 LAMBERT, J.A.:  Yes, for a particular purpose.  For the purpose  38 of extinguishing title.  39 MR. WILLIAMS:  To the Cowichan, yeah.  I think that was the  40 request for extinguishing the Indian lands in the  41 Cowichan area.  I think that's the one.  42 LAMBERT, J.A.:  Yes.  Though Newcastle's reply says to the  43 public lands of the colony, and he says that the  44 charge would be trifling, but it would be helpful to  45 know the context of the questions.  46 MR. WILLIAMS:  Yes.  We'll supply you with despatch No. 24, and  47 we'll get that for you tomorrow morning. 1353  Submissions by Mr. Williams  Submission by Mr. Williams  1 LAMBERT, J.A.:  Thank you.  2 HUTCHEON, J.A.:  It was a petition for funds according to the  3 trial judge.  It was a petition for funds.  4 MR. WILLIAMS:  Yes.  5 HUTCHEON, J.A.:  The trial judge says —  6 MR. WILLIAMS:  He calls it a despatch, but it was -- I suppose  7 it was both.  8 Calder IX was not too exciting, and Calder X and  9 XI and XII.  So that turns us to Calder XIII, and  10 that's tab 13.  And in that document we see that the  11 previous Calders were repealed.  They were all  12 repealed and it was kind of a consolidation.  And I'll  13 show you in a moment that there are two statutes that  14 travel with it.  One called -- there's a land  15 ordinance -- there's the land registry ordinance and  16 the Crown grant ordinance, and they all seem to travel  17 together.  18 This document, Calder XIII, says at the beginning:  19  20 "Whereas it is expedient to amend and  21 consolidate the Laws affecting Crown Lands in  22 British Columbia --"  23  24 And then you'll notice on the first page towards  25 the bottom:  26  27 "'Crown Lands' shall mean all Lands of the  28 Colony held by the Crown in fee-simple."  29  30 And then under III on page two:  31  32 "From and after the date of the proclamation in  33 this Colony of Her Majesty's assent to this  34 Ordinance, any Male person being a British  35 Subject, of the age of eighteen years or over,  36 may acquire the right to pre-empt any tract of  37 unoccupied, unsurveyed and unreserved Crown  38 Lands (not being an Indian Settlement) not  39 exceeding --"  40  41 Blah, blah, blah.  And then further down:  42  43 "-- Cascade or Coast Range of Mountains, and  44 One Hundred and Sixty Acres in extent in the  45 rest of the Colony.  Provided that such right  46 of pre-emption shall not be held to extend to  47 any of the Aborigines of this Continent, except 1354  Submissions by Mr. Williams  Submission by Mr. Williams  1 to such as shall have obtained the Governor's  2 special permission in writing to that effect."  3  4 And then you can see that we've put the ordinance  5 in.  We put the ordinance in in total.  And the next  6 one is the ordinance to facilitate the issue of Crown  7 grants.  That's the next green page.  If you'll just  8 turn to that.  I don't need to read it.  I just  9 thought we could flip through these and your lordships  10 will know that they exist.  These documents -- these  11 were not before the Calder court, but they were before  12 the trial judge in this case.  13 And the next one is the ordinance to assimilate  14 the law relating to the transfer of real estate and  15 provide for the registration.  This looks like a Land  16 Titles Act, an early Land Registry Act.  It's there  17 again not of great importance to us except that it  18 completes that kind of period where they were setting  19 forth a system for the transfer of Her Majesty's Crown  20 lands by grant to others who wanted to acquire them.  21 Now, my lord, what I say as a result of going  22 through those documents before we come to the  23 authority for them, which I'll deal with next, is that  24 they provided for a system of Crown grants, land  25 registry, and an ability through a system for this  26 province to insure that land could be made available  27 to the settlers.  28 None of the proclamations or ordinances refer to  29 the extinguishment of aboriginal interests at all.  30 There is no reference anywhere in any of the documents  31 that we've been able to find, and there is certainly  32 no reference in these documents that say the purpose  33 and intent of the Crown is to extinguish aboriginal  34 title or aboriginal rights.  And yet it is these  35 documents, the concept of these ordinances and  36 proclamations in its historical setting that caused  37 the learned trial judge to say that there had been  38 province-wide extinguishment of all aboriginal title,  39 and that what they evidenced was a plain and clear  40 intention to extinguish.  With that finding we must,  41 with great deference, disagree.  42 Now, under F in my notes I say that the authority  43 for these proclamations and ordinances and the regime  44 for their effectiveness began with the -- first of all  45 with the statute and the order in council and the  46 letters patent appointing James Douglas as governor.  47 And I'll take you through those fairly quickly, if I 1355  Submissions by Mr. Williams  Submission by Mr. Williams  1 may.  And you'll find them in tab F.  2 In tab F, my lords, you'll see the first document  3 which is an act to provide for the governor of British  4 Columbia the 2nd of August, 1858.  And if you will go  5 two-thirds of the way down the page you'll see this  6 statement -- I want to start a little above where the  7 black lining is.  8  9 "To authorize and empower such officer as She  10 may from time to time appoint as Governor of  11 British Columbia to make provision for the  12 administration of justice therein, and  13 generally to make, ordain, and establish all  14 such laws, institutions, and ordinances, as may  15 be necessary for the peace, order, and good  16 government of Her Majesty's subjects and others  17 therein; provided that all such Orders in  18 Council, and all laws and ordinances so to be  19 made as aforesaid, shall be laid before both  20 Houses of Parliament as soon as conveniently  21 may be after the making and enactment thereof  22 respectively."  23  24 And I'll come back to that in a few moments, my  25 lords, but the next tab, or the next sheet, green  26 sheet you'll see that this is the order in council  27 which follows upon statute, and about three-quarters  28 of the way down I've marked the passage.  29  30 "Her Majesty's subjects and others herein:  31 Provided that all Orders in Council, and all  32 laws and ordinances so to be made as aforesaid,  33 shall be laid before both Houses of Parliament  34 as soon as conveniently may be after the making  35 and enactment thereof respectively --"  36  37 Et cetera, et cetera.  38 The next green sheet you'll find is the letters  39 patent pursuant to that order.  And this is an  40 important document because it is the detailed  41 instructions to Governor Douglas at the outset of the  42 colony.  And here's what it says on page three about  43 two-thirds of the way down, the first one under number  44 three:  45  4 6 "We may appoint to administer the Government of  47 Our said Colony, to make provision for the 1356  Submissions by Mr. Williams  Submission by Mr. Williams  1 administration of justice therein, and  2 generally to make, ordain, and establish all  3 such laws, institutions, and ordinances as may  4 be necessary for the peace, order, and good  5 government of Our subjects and others residing  6 therein."  7  8 And then about six or seven lines down:  9  10 "The Governor is to conform to and exercise the  11 directions, powers, and authorities given and  12 granted to him by Our Commission, subject to  13 all such rules and regulations as shall be  14 prescribed in and by Our Instructions under Our  15 Signet and Sign --"  16  17 Et cetera.  And the next page at the top:  18  19 "All such laws, institutions, and ordinances as  20 may be necessary for the peace, order, and good  21 government --"  22  23 Et cetera.  And then going down.  24  25 "But as near as may be agreeable to the Laws  26 and Statutes of Our United Kingdom of Great  27 Britain and Ireland:  Provided also, that all  28 such laws, institutions, and ordinances of what  29 nature or duration soever, be transmitted under  30 the Public Seal of Our said Colony for Our  31 approbation or disallowance --"  32  33 Now, that apparently is for the approbation or  34 disallowance of the Queen.  35  36 "-- as in Our said Order provided:  And We do  37 by these presents require and enjoin you that  38 in making all such laws, institutions, and  39 ordinances you do strictly conform to and  40 observe the rules, regulations, and  41 restrictions which are or shall be in that  42 respect prescribed to you by Our Instructions  43 under Our Royal Sign Manual and Signet  44 accompanying this Our Commission, or by any  45 future Instructions as aforesaid."  46  47 Now, page five at the bottom. 1357  Submissions by Mr. Williams  Submission by Mr. Williams  1 "And wheras We have by Our said Commission --"  2  3 Et cetera, et cetera, et cetera.  4  5 "-- the Public Seal of Our said Colony, to make  6 all such laws, institutions, and ordinances as  7 may be necessary for the peace, order, and good  8 government --"  9  10 And over the page, on page six under number VII:  11  12 "You are, as much as possible, to observe, in  13 the passing of all laws, that each different  14 matter be provided for by a different law --"  15  16 I pause there to say that one would have thought  17 then that if each different matter is to be provided  18 for by a different law that the establishment of a  19 land system for the settling of the colony would be  20 one matter and the extinguishment of native title  21 would be another.  And that one could not be therefore  22 simply loosely implied to include the other.  23 And under number item VIII:  24  25 "You are not to make any law whereby any person  26 may be impeded in establishing the worship of  27 the Almighty God — "  28  29 And so on.  And then number XIII:  30  31 "Nor any private law whereby the property of  32 any individual may be affected in which there  33 is not a saving of the rights of Us, Our heirs  34 and successors, and of all the bodies  35 politic --"  36  37 Et cetera.  And then number XV:  38  39 "Nor any law the provisions of which shall  40 appear inconsistent with obligations imposed on  41 us by treaty."  42  43 And then number XVIII:  44  45 "Nor any law, of an extraordinary nature and  46 importance, whereby Our Prerogative, or the  47 rights and property of Our subjects residing in 1358  Submissions by Mr. Williams  Submission by Mr. Williams  1 Our said Colony, or the trade and shipping of  2 Our United Kingdom and its Dependencies, may be  3 prejudiced."  4  5 And I submit that in reference to these letters --  6 these instructions that it would be -- how could it be  7 said that a mere intent to set up a system for  8 settlers to be able to buy land could be also said to  9 extinguish the rights of some of the people in the  10 colony, namely, the aboriginal native people with  11 their aboriginal title claims.  12 And the next -- what you'll see in the next  13 Exhibit 12 -- the next green page, which is 1200-1-12,  14 these are the instructions to Governor Seymour, and  15 they're almost the same but you should know the  16 differences.  It says under number XVII:  17  18 "And We do further direct that when any  19 Ordinances shall have been passed by you with  20 the advice of the said Council, the same shall  21 forthwith be laid before Us for Our final  22 assent, disallowance, or other decision --"  23  24 And then we have the Musgrave instructions which  25 say under -- it's number XVII:  26  27 "And We do further Direct and Appoint that upon  28 any Ordinance having been passed by you with  29 the advice of Our said Legislative Council you  30 shall with all convenient speed transmit to Us  31 through one of Our Principal Secretaries of  32 State for our final Assent, Disallowance or  33 other Direction thereupon to be signified  34 through you a transcript in Duplicate of the  35 Same duly Authenticated under the Public  36 Seal --"  37  38 Et cetera.  39 Now, those are the documents that provide for the  40 authority to effectively create the -- to effectively  41 create and have the proper approval for these  42 proclamations and declarations and ordinances.  And  43 running through the balance of these documents you'll  44 see what happened here.  The first one, the first  45 green sheet simply says "presented to the" -- I'm not  46 going to go through all of these, just to give you an  47 example.  They're all in here.  This says: 1359  Submissions by Mr. Williams  Submission by Mr. Williams  1 "Presented to both Houses of Parliament."  2  3 That's Calder I, Calder II and it says on page two  4 of Calder I, that's the next green sheet after the one  5 I just read from.  You see it starts out Exhibit  6 1185-9 109 British Columbia, in rather nice  7 handwriting, "Presented to both Houses".  The next  8 page says:  9  10 "To enable the Governor to convey Crown Lands  11 sold within the Colony."  12  13 And then the next one is Calder II, and it says:  14  15 "Presented to both Houses of Parliament."  16  17 And the date is there, the 12th of August, 1859.  18 And the second page says:  19  20 "No.10.  Relative to Land Sales."  21  22 It doesn't say in Calder II for the purpose of  23 creating, it doesn't say for the purpose of conveying  24 property which will relieve the burden or which will  25 extinguish aboriginal title, it just says relative to  26 land sales.  27 And then at Calder III -- I'm sorry despatch No. 3  28 at the bottom it says -- this is a different one.  29 You'll see there it says December 6, 1860.  30  31 "It remains therefore for me to convey to you  32 Her Majesty's sanction, which had been withheld  33 pending the receipt of your report, of the  34 'Pre-emption Act of I860'."  35  36 That had something to do with the price of the  37 land.  38 And Calder IV says, next green sheet:  39  40 "I have laid this Proclamation before the Queen  41 and I am commanded to convey to you H.M.'s  42 approval thereof."  43  44 Now, these documents go on, and I'm not going to  45 take you through all of them.  We'll go up to Calder  46 XIII, the last green sheet in the book -- in the tab.  47 And you'll see here that they're dealing with Calder 1360  Submissions by Mr. Williams  Submission by Mr. Williams  1 XIII and the two other documents.  The act -- the  2 ordinance to facilitate the issue of Crown grants, the  3 ordinance to amend, and the ordinance to assimilate  4 the law relating to the transfer of real estate and so  5 on.  It simply says after identifying what it is:  6  7 "Together with the Reports of the Attorney  8 General upon these laws and a letter addressed  9 to you —"  10  11 Et cetera.  12  13 "-- and I have now to convey to you Her  14 Majesty's gracious confirmation and Allowance  15 of these Ordinances."  16  17 So Her Majesty approved those.  18 Now, if I may go back to my notes.  From our  19 research, my lords, what we have discovered is that --  20 and if there is any dispute about this we can worry  21 about it later.  What we've been able to ascertain is  22 that there is documentation to show that Calder I up  23 to VIII were laid before both houses of parliament.  24 That is to say, the documents establish that I to VIII  25 were laid before both houses of parliament.  All of  26 these except Calders I and II did receive a form of  27 royal approval.  We can't find any royal approval for  28 I and II, assuming you needed both.  Anyway, not that  29 much of this matters, but I felt it was important that  30 you know this because it has come up in the  31 appellants' case.  32 Calders X, XI, XII and XIII, plus the Crown grants  33 that I mentioned earlier did receive a form of royal  34 approval.  And that's the one I read to you.  We know  35 of no documentation with respect to approval or  36 otherwise for Calder IX.  So that's the state of it.  37 For what it matters that's what we've been able to  38 ascertain.  39 Now, I'll go back to my factum.  And where I am is  40 at paragraph 91.  And what I want to explain to your  41 lordships is that paragraphs 91 through 96 and  42 paragraphs 101 through 103 are going to be dealt with  43 by my colleague Mr. Taylor, because all that we'd be  44 doing is butting into it twice and I thought the best  45 thing for me is to strip it out of my area, if you  46 don't mind.  So I will not be dealing with 91 to 96,  47 and I will not be dealing with 101 to 103.  And that, 1361  Submissions by Mr. Williams  Submission by Mr. Williams  1 of course, takes me to 97.  2 And in paragraph 97 I again cite the obvious, that  3 the learned trial judge held the appropriate test was  4 the plain and clear test, and I've read you the  5 passages from his judgment where he says that in his  6 view it was.  But really all that it says, in my  7 respectful submission, is that it plainly and clearly  8 intended to and demonstrated an intention to create a  9 legal regime.  And he then went the further step and  10 referred the aboriginal interest to be extinguished.  11 So the province agrees with the appellants,  12 paragraph 98, that the trial judge's formulation  13 confuses laws that provide for the machinery necessary  14 for the establishment of a settlement of the colony  15 with the aboriginal title itself.  And I want to refer  16 there to the appellants' factum, and the next point is  17 the Hamar Foster articles "It goes without saying".  18 And that's, of course, at 98.  19 I'm at tab 98 in my book.  And it's there 997:  20  21 "Both the trial judge and Judson J. erred in  22 equating laws directed at providing the  23 machinery necessary for settlement and the  24 establishment of governmental authority, with  25 the extinguishment of title.  To conclude that  26 the Crown affected an implied extinguishment of  27 aboriginal title mistakenly merges the two  28 separate processes:  29  30 (a) The process of creating a colony and  31 selling it.  Public land legislation is  32 necessary to provide for the orderly  33 development of any colony.  Such laws can be  34 found in every jurisdiction whether First  35 Nations are there or not.  36  37 (b) The distinct process of extinguishing  38 aboriginal title.  If the drafters intend these  39 land laws to bear the additional and heavy  40 weight of extinguishing aboriginal title, the  41 law must say so."  42  43 Now, may I just read you one portion of this  44 article then by Hamar Foster, who is a law professor  45 at the University of Victoria, and a practising  46 lawyer, and specializing I believe in legal history of  47 my former Professor Ray Herbert.  He says about a 1362  Submissions by Mr. Williams  Submission by Mr. Williams  1 third of the way down, he's quoting:  2  3 "The unanimous decision of all the judges (in  4 Sparrow) so long after these historic events to  5 regard intention at a time of uncertain law and  6 understanding --"  7  8 He's quoting from the trial judge.  9  10 "-- as the governing factor in extinguishment  11 persuades me that intention in this context  12 must relate not to specific isolated intention  13 on the part of the historical actors, but  14 rather to the consequences they intended."  15  16 I read this to you before.  And his comment on  17 that, he says:  18  19 "While this passage may not be an outright  20 rejection of the test in Sparrow, it comes  21 remarkably close.  The suggestion that  22 intention can relate to something other than  23 consequences is obscure, and the distinction  24 between specific and general intention is  25 unfortunate given its unhappy career in  26 criminal law.  The reference to 'a time of  27 uncertain law and understanding,' while  28 factually accurate insofar as the colonial  29 officials are concerned, is even more  30 perplexing.  According to Sparrow, the burden  31 is on the Crown to prove a clear and plain  32 intention to extinguish; but what kind of  33 burden is it that can be met by evidence of  34 uncertainty?  If the situation was uncertain,  35 the burden of proving that there was a clear  36 and plain intention to extinguish is not  37 satisfied; should not the benefit of this  38 uncertainty therefore go to the native  39 plaintiffs?  40  41 The only way a negative answer to the question  42 can be given has already been described:  by  43 equating laws passed to provide the legal  44 machinery necessary for settlement (and to  45 establish governmental authority) with the  46 extinguishment of title.  Justice Judson did  47 this in Calder, when he held that statutes 1363  Submissions by Mr. Williams  Submission by Mr. Williams  1 evincing an intention to exercise sovereignty  2 could somehow extinguish Indian title.  But  3 Sparrow has rendered this equation untenable.  4 It not only ignores the fact that sovereignty  5 is exercised over territory, and is therefore  6 quite consistent with private ownership of  7 lands within that territory; it also fails to  8 take into account that Indian title is a burden  9 on the fee, which means that it is, by  10 definition, compatible with the fee being in  11 the Crown."  12  13 So I say, my lords, in paragraphs 99 going on from  14 there that the colonial proclamations demonstrated an  15 intention to create a system, a legal regime.  And the  16 Calder XIII established a regulatory framework for  17 subsequent acts of extinguishment prior to 1982.  18 And I say in paragraph 100 that there was merely  19 an intention to create a legal regime which it is  20 necessary to infer that aboriginal interests were in  21 fact extinguished, that leaves too much room for  22 ambiguity and it unduly complicates the inquiry.  23 And again Hamar Foster's article at 347, that's  24 under tab 100, has this to say -- it's the only page  25 under tab 100.  He says that:  26  27 "None of them expressly declares that Indian  28 title in B.C. is extinguished and, as the chief  29 justice acknowledges settlement did not really  30 begin in Gitksan territory until about 1900,  31 long after the legal cutoff date of 1871.  In  32 other words, during the legally critical  33 colonial period, these lands were, in reality,  34 virtually unaffected by the Calder XIII.  35  36 To conclude that they nonetheless effected an  37 implicit extinguishment of Indian title in  38 Gitksan territory seems to merge two separate  39 processes.  No doubt it is true, as the chief  40 justice finds, that 'the purpose of sovereignty  41 and of creating of the Colony...in 1858 was to  42 settle' it.  But surely this is a distinct  43 process from that of extinguishing Indian  44 title.  The Calder XIII would have been enacted  45 even if there had been no aboriginal peoples in  46 B.C., because this sort of legislation is  47 necessary to provide for the orderly 1364  Submissions by Mr. Williams  Submission by Mr. Williams  1 development of any colony.  Indeed such laws  2 can be found in every jurisdiction, whether  3 there were Indians or not, and whether Indian  4 title was extinguished by treaty or not.  Thus  5 if the drafters of Calder XIII intended these  6 laws to bear the additional, and heavy, weight  7 of extinguishing aboriginal title, they should  8 have said so.  The question is why this simple  9 and effective step was ever taken.  There are a  10 couple of possiblities, and they are not  11 mutually exclusive."  12  13 And then he goes on to explain Trutch, and so on.  14 There's another, of course, point to be made in  15 whether or not the Calder XIII could have  16 extinguished, and that is really, really meant that  17 extinguishment had taken place and the Crown intention  18 and that's -- I'm not going to deal with it, just to  19 mention it, it's already been dealt with, and that's  20 Treaty 8.  The fact that Treaty 8 was done in British  21 Columbia.  22 And that turns me to 106, paragraph 106.  And  23 these are -- my lords, if I may go through them with  24 you.  These are additional reasons why in my  25 submission to you the Calder XIII did not extinguish.  26 And the basis of my proposition is simply this:  You  27 can because of the fact that Chief Justice Dickson had  28 the opportunity when he was considering the Calder  29 decision in Sparrow, he had the opportunity to say I  30 agree with Mr. Justice Hall it has to be express.  He  31 didn't say that.  What he said was it has to be a  32 clear and plain intention on the Crown.  And I  33 interpret that as being something either express or  34 something less than express, meaning something can be  35 implied.  But when you use the words clear and plain  36 intention it's something more than just a whim or  37 something more than just on balance maybe this is what  38 they intended.  And the proposition I put before your  39 lordships is simply this:  That the Calder XIII could  40 not have evidenced on the basis of everything before  41 you a clear and plain intention.  One could argue that  42 setting up a land registry scheme and leaving nothing  43 else and saying nothing else is by itself evidence of  44 intention.  It certainly isn't plain and clear.  And  45 if all of the officials of the colony and all of the  46 people in England had said at the same time:  Look, we  47 know what we're doing here.  We have thought about it. 1365  Submissions by Mr. Williams  Submission by Mr. Williams  1 It seems to me to have a plain and clear intention  2 the Crown through its officers has to address it, has  3 to think about it, has to consider it, or has to do  4 something which leads this court to say well, how  5 could they have possibly meant anything else.  6 Now, what I say is this:  That although there were  7 some people, Trutch and others, who apparently didn't  8 believe that there was any problem with Indian title,  9 there were others who did.  And there were far too  10 many of them on the evidence before the court for the  11 court to say it's a plain and clear intention.  And  12 that's what I want to turn to now.  13 So I say that here is some of the evidence that  14 supports the proposition that this was not -- these  15 documents did not clearly and plainly show a plain and  16 clear intention.  What they did show was that a number  17 of people thought that the title had not been  18 extinguished, even if some did.  And that doesn't  19 satisfy the plain and clear intention test.  20 The first is the Lytton to Douglas.  And these are  21 of course all in the book under tab 106.  And I don't  22 propose to take you tracking through them all, but  23 they're there.  And I've got the summaries in my  24 factum and I'd like to refer you to the summaries  25 because that's about the fastest way to do it without  26 making it too boring.  And in July of '58:  27  28 "Lytton directing Douglas to deal humanely with  29 Native Indians, stating 'it that should be an  30 invariable condition, in all bargains or  31 treaties with the Natives for the cession of  32 lands possessed by them, that subsistence  33 should be supplied to them in some other  34 shape'."  35  36 And then the next one is labelled Lytton to  37 Douglas, but it looks like it's actually signed by  38 Carnarvon.  I believe that to be an error.  And I  39 think what you should say under April 11th, 1859, if  40 you don't mind making the note there, that is  41 Carnarvon to Douglas, unless Lytton forged his  42 signature.  I think there's just a mistake in the  43 title of the document.  And what he said was:  44  45 "Lytton directing Douglas that 'measures of  46 liberality and justice be adopted for  47 compensating [Indians of Vancouver's Island and 1366  Submissions by Mr. Williams  Submission by Mr. Williams  1 British Columbia] for the surrender of the  2 territory which they have been taught to regard  3 as their own'."  4  5 And we then have Douglas' address to the house  6 where he states that:  7  8 "It is necessary to provide means for  9 extinguishing by purchase, Native title to the  10 lands."  11  12 We then have the Begbie report which I've already  13 referred you to.  That's over on page 39.  We then  14 have Douglas to Newcastle.  15  16 "Douglas exlaining his practise that he  17 purchased Native rights in the land until money  18 was no longer available to do so."  19  20 And that's 1961, March of 1961, well after Calder  21 II — 1861.  Well after Calder II.  The request for  22 money comes in here somewhere.  And then in -- in 1872  2 3 we have the:  24  25 "Langevin report including Judge Begbie's  26 Memorandum of September the 5, 1871 and letter  27 from His Lordship the Bishop of Miletopolis and  28 Vicar Apostolic of British Columbia of  29 September 29, 1871.  30  31 Langevin's report incorporates a Memorandum of  32 Judge Begbie who notes that the manner in which  33 Indians occupy land is not easily intelligible  34 to English notions of property in land.  Begbie  35 also notes a dispute between white pre-emptors  36 who attempted to take possession of Indian  37 lands.  He notes that the Indian lands were not  38 reserved as such but with de facto Indian  39 lands.  In the Bishop's letter, he notes that  40 treaties should be made with the Indians to  41 extinguish their title."  42  43 And then on October 1874 Douglas to the  44 Commissioners.  45  46 "Douglas expressed that Reserves were to be  47 laid out at the option of the Indians...with 1367  Submissions by Mr. Williams  Submission by Mr. Williams  1 the 'object of securing to each community their  2 natural or acquired rights'."  3  4 And over on page 40, my lords, November the 2 6th  5 of 1874 we have the first of the Dufferin to Carnarvon  6 dispatches.  7  8 "Dufferin noting that British Columbia treating  9 Indian subjects harshly by not recognizing the  10 obligation to extinguish the Indian title  11 before dealing with Crown lands."  12  13 And Dufferin to Carnarvon again.  14  15 "Dufferin stating that British Columbia  16 'certainly should be required to extinguish the  17 Indian title before assuming possession of the  18 lands'."  19  2 0 We have the Bernard report on the Land Act.  21  22 "Bernard notes the dissatisfaction of Indians  23 in British Columbia due to the absence of  24 adequate reservations.  He further asserts that  25 in his view, the Indians have a legal or  26 equitable claim [to land]."  27  28 And then we have, and I'll refer you to this one,  29 the Blake document.  This is October the 30th, 1875.  30 It's the tenth green sheet in.  It's got a tab out  31 there, I believe.  There's yellow stickies -- there  32 should be on your books, my lords.  I will try and  33 speed this up.  Yes, it's two greens after the second  34 sticky.  I'm going crazy trying to remember where I  35 put it.  Two greens after the second sticky if you --  36 while I'm at this one I'll deal with this because I've  37 given you the wrong one.  I wanted to deal -- turn  38 this one up anyway.  This is -- this is the Attorney  39 General's letter.  There's a series of two letters  40 here.  So while we're there we'll deal with it.  It's  41 September 24th, 1877.  Do you have that?  It's the  42 third yellow sticky, that's where it is.  43 HUTCHEON, J.A.:  William Duncan to the Attorney General?  44 MR. WILLIAMS:  That's right, yes.  Mr. William Duncan.  William  45 Duncan to the Attorney General.  So let's deal with  46 that one while we're here.  47 And what he says is on the last part of the last 1368  Submissions by Mr. Williams  Submission by Mr. Williams  1 paragraph.  2  3 "Whether, until the Dominion and Provincial  4 Governments have settled the Indian land  5 question, I am to continue to uphold the Indian  6 law in the Skeena River district which  7 regulates the tribal rights of Indians to  8 certain hunting grounds, or is indiscriminate  9 hunting by the Indians now to be permitted  10 there?"  11  12 That's what he's saying.  And that's in 1877,  13 September 24th, 1877.  And you'll see that the written  14 document of which this is a translation is there.  And  15 then the next green sheet is the response by the  16 Attorney General who later I believe became Premier  17 Elliot.  He says:  18  19 "In reply to your letter of the 24th ultimo I  20 may say that I agree with you that 'until the  21 Dominion and Provincial Governments have  22 settled the Indian land question' it would be  23 well 'to continue to uphold the Indian law in  24 the Skeena River District which regulates the  25 tribal rights of Indians to certain hunting  2 6 grounds.'"  27  28 Now, having done that let's go back, if I may, and  29 try and find the one I was looking for.  Where is it?  30 Well, we're at -- we can go to the second yellow  31 sticky.  It's the exhibit right before it.  So, in  32 other words, there's just a green sheet between the  33 Blake exhibit and the second yellow sticky.  34 TAGGART, J.A.:  Yes.  35 MACFARLANE, J.A.:  Yellow sticky minus one?  36 MR. WILLIAMS:  Yellow sticky number two and then go back one  37 green sheet.  Sorry, my lords.  This is the last of  38 the confusing ones.  I should have put numerical tabs  39 in here but I thought they would be confusing too.  4 0 Have we got it now?  41 MACFARLANE, J.A.:  Edward Blake?  42 MR. WILLIAMS:  Yes, my lord.  And if you look at the first page,  43 it's dated Ottawa, 30th of October, 1875, Department  44 of Justice.  At the bottom paragraph -- two  45 paragraphs:  46  47 "The grave questions arising in that report, 1369  Submissions by Mr. Williams  Submission by Mr. Williams  1 and those under discussion between the two  2 governments as to the mode of dealing with the  3 Indians, are still under settled; and it  4 appears to the undersigned that the alterations  5 made in this Act are not such as to meet the  6 difficulties which resulted in the disallowance  7 of the former Act.  8  9 It may perhaps be hope that before the time  10 within which the power of this allowance must  11 be exercised, this question will be settled;  12 but should that be otherwise it appears to the  13 undersigned that the policy and line of  14 agreement which led to the disallowance of the  15 former acts must lead to the disallowance of  16 this one also."  17  18 And then apparently whatever happened they must  19 have settled something or politically agreed to  20 something, because on page 1039, the last page of this  21 series, right just before the green sheet, it says --  22 Edward Blake, minister of justice says this:  23  24 "Although the undersigned cannot concur in the  25 view that the objections taken are entirely  26 removed by the action referred to; and, though  27 he's of the opinion that according to the  28 determinations of counsel upon the previous  29 Crown Lands Act, there remains serious  30 questions as to whether the act now under  31 consideration is within the competence of the  32 provincial legislature, yet since, according to  33 the information of the undersigned, the statute  34 under consideration has been acted upon, and is  35 being acted upon largely in B.C., and great  36 inconvenience and confusion might result from  37 its disallowance; and, considering that the  38 condition of the question at issue between the  39 two governments is very much improved since the  40 date of his report, the undersigned is of the  41 opinion it would be the better course to leave  42 the Act to its operation."  43  44 So it apparently didn't -- after all that they  45 didn't disallow.  46 And I think finally on this section from the ones  47 that are mentioned here -- my colleague tells me that 1370  Submissions by Mr. Williams  Submission by Mr. Williams  1 the petition that Newcastle, the one that your  2 lordship mentioned, we'll get a copy of it anyway, but  3 the petition is Exhibit 1039-45 and it's page 133 to  4 134.  That's the Newcastle petition.  5 Now, my lords, did you want to take the afternoon  6 break?  7 TAGGART, J.A.:  Yes.  All right.  Five minutes.  8 MR. WILLIAMS:  Yes.  9 THE REGISTRAR:  Order in court.  Court stands adjourned for a  10 five minute recess.  11  12 AFTERNOON RECESS  13  14 TAGGART, J.A.:  Yes, Mr. Williams.  15 MR. WILLIAMS:  Thank you, my lord.  Your book should be turned  16 to the second yellow sticky so I can just start to  17 read, I hope.  18 This is the Carnarvon or the September, 1876  19 Dufferin address which appears at page 41 of the  20 factum, and what he says at page 12, in the  21 highlighted area, just above where the black lines are  22 from:  23  24 "My first arrival in Canada I have been very  25 much preoccupied with the condition of the  26 Indian population in the Province.  You must  27 remember that the Indian population are not  28 represented in parliament and consequently that  29 the Governor-General is bound to watch over  30 their welfare with especial solicitude.  Now,  31 we must all admit that the condition of the  32 Indian question in British Columbia is not  33 satisfactory.  Most unfortunately, as I think,  34 there has been an initial error ever since Sir  35 James Douglas quitted office in the Government  36 of British Columbia neglecting to recognize  37 what is known as the Indian title.  In Canada  38 this has always been done; no Government,  39 whether provincial or central, has failed to  40 acknowledge that the original title to the land  41 existed in the Indian tribes and communities  42 that hunted or wandered over them."  43  44 And the Dufferin Carnarvon business continued,  45 and —  46 LAMBERT, J.A.:  That's just one page that you're reading from  47 there?  Who is it from and who is it to? 1371  Submissions by Mr. Williams  Submission by Mr. Williams  1 MR. WILLIAMS:  It's Dufferin's address.  While visiting British  2 Columbia he gave a speech and this is when he stated  3 what's -- what's there.  You know, I'm sorry, my lord,  4 there's so many of these I haven't got them all into  5 my mind, but I will get better details for you.  6 LAMBERT, J.A.:  Yes.  7 MR. WILLIAMS:  It's the Dufferin address at page 41.  8 LAMBERT, J.A.:  As Mr. Justice Macfarlane says it's the top of  9 page 41, September, 1876.  So that's enough for my  10 purposes.  11 MR. WILLIAMS:  Okay.  Thanks.  12 LAMBERT, J.A.:  Thank you.  13 MR. WILLIAMS:  And then in 1877 there's another Dufferin to  14 Carnarvon.  And again I'm not going to read from it  15 but it's in the book.  He acknowledges again that the  16 British Columbia Government has never dealt properly  17 with its Indians.  And I've already read to you the  18 Attorney General letters which followed after that,  19 and now I want to refer to Appendix J in the  20 appellants' factum.  And I have some pages that I've  21 put in my white book from Appendix J so you won't have  22 to go to that, but the ones that I want to refer to  23 I'll just flip through them with you.  It's the last  24 green sheet in this tab.  The one just before 107.  25 They're all there.  26 WALLACE, J.A.:  I'm sorry.  What is this?  27 MR. WILLIAMS:  It's the last tab.  It's Appendix J from the  28 appellants' factum.  It's some references, my lord --  29 some other references other than the ones I've read  30 you from in my factum.  I've come across them since.  31 I think they're important for my argument so I've  32 included them as well.  33 We start with the petition of the House of  34 Assembly.  This is -- again it's item number 93 from  35 Appendix J.  And I'd just like to read some of these  36 to you.  37  38 "In February 1861, the House of Assembly passed  39 a petition sent to the Duke of Newcastle,  40 seeking funds to extinguish aboriginal title.  41  42 ...That many Colonists have purchased land, at  43 the rate of One pound sterling per acre, in  44 districts to which the Indian title has not yet  45 been extinguished.  46 That in consequence of the non-extinction of  47 this title, these persons though most desirous 1372  Submissions by Mr. Williams  Submission by Mr. Williams  1 to occupy and improve, have been unable to take  2 possession of their lands purchased in most  3 cases, nearly three years ago and of this they  4 loudly and justly complained.  5 That the Indians, well aware of the  6 compensation heretofore given for lands,  7 appropriated for colonization, in the earlier  8 settled districts of Vancouver Island, as well  9 as in the neighbouring territory of Washington,  10 strenuously oppose the occupation of lands  11 still deemed to be their own.  The.  12 That the House of Assembly respectively  13 considered that the extinction of aboriginal  14 title is obligatory --"  15  16 That was in 1861 after the Calder I and II and I  17 guess III documents.  And over on the next page item  18 number 111.  19  20 "On December 5, 1861, the Surveyor General of  21 the Colony, Mr. Pemberton, wrote to William  22 Young, the Colonial Secretary giving his  23 response to Cowichan settlers who were  24 complaining that they had been assured by the  25 government that it was going to extinguish  26 aboriginal title.  27  28 In replying to his Excellency's commands  29 relating to a statement alleged to have been  30 made by me in regard to extinguishing the  31 aboriginal title at Cowichan.  32  33 I have the honour to state, that although I  34 have no recollection of any conversation upon  35 the subject with any of the gentlement who have  36 signed --"  37  38 Whoops.  That one ends there.  I think we must  39 have missed a page.  I'll get the next page for that  40 and refer -- supply it to you tomorrow.  41 The one on 124 is simply something that appeared  42 from the Victoria Daily Chronicle.  I don't think I  43 need to read it to you.  It's sort of an admonition  44 that the title has been taken from the Indians and  45 they haven't been properly dealt with.  And that's --  46 that's 1863.  47 And then 147 is the Laird document. 1373  Submissions by Mr. Williams  Submission by Mr. Williams  1 "The Minister of the Interior, David Laird on  2 November 2, 1874, set out the history of these  3 differences in a memorandum which was highly  4 critical of the Indian land policy in British  5 Columbia.  He noted that the dispute between  6 the two governments had caused the Indian  7 Superintendent to arrest the survey of Indian  8 reserves in the province. While the dispute  9 centered on the size of Indian reserves --"  10  11 Et cetera.  And then under that he says:  12  13 "The undersigned is desirous of bringing under  14 the consideration of the Governor-General in  15 Council, the present unsatisfactory state of  16 the Indian Land question in the Province of  17 British Columbia.  18  19 To the Indian, the land question far transcends  20 in importance all others, and its satisfactory  21 adjustment in British Columbia will be the  22 first step towards allaying the wide-spread and  23 growing discontent now existing among the  24 native tribes.  25  26 When the framers of the Terms of Admission --"  27  28 Et cetera, et cetera.  I don't think I need to  29 read the balance of that.  30  31 "The undersigned would, therefore, respectfully  32 recommend, that the Government of the Dominion  33 should make an earnest appeal to the Government  34 of British Columbia, if they value the peace  35 and prosperity of their Province, -- if they  36 desire that Canada as a whole should retain the  37 high character she has earned for herself by  38 her just and honorable treatment of the red men  39 of the forest, to reconsider in a spirit of  40 wisdom and patriotism and land grievances of  41 which the Indians of the province complain,  42 apparently with good reason, and take such  43 measures as may be necessary properly and  44 efficiently to address them."  45  46 And then there's a court of -- on page 60, the  47 next page at the bottom: 1374  Submissions by Mr. Williams  Submission by Mr. Williams  1 "The act under consideration not only ignores  2 those rights but professly prohibits the  3 Indians from enjoying the rights of recording  4 or pre-empting land except by consent of the  5 Lieutenant-Governor.  The undersigned feels  6 that he cannot do otherwise but advise that the  7 act in question is objectionable as tending to  8 deal with lands that are assumed to be the  9 absolute property of the Province.  An  10 assumption which completely ignores as  11 applicable to the Indians of British Columbia  12 the honour and good faith with which the Crown  13 has in all other cases since its sovereignty of  14 the territories in North America dealt with  15 various Indian tribes."  16  17 Now -- yeah.  The balance of the second page which  18 is not before you on the Surveyor General, Mr.  19 Pemberton's letter to William Young, if I can simply  20 read the balance of it to you.  21  22 "I have the honour to state, that although I  23 have no recollection of any conversation upon  24 the subject with any of the gentlemen who have  25 signed a Petition - I believe that if in 1858  26 any purchaser of those lands had asked me  27 whether within a reasonable time the aboriginal  28 title would be extinguished as had been  29 previously the practice, I should have  30 expressed a strong opinion in the affirmative."  31  32 So those are the -- those are the documents that I  33 wanted to refer to.  There are other documents in  34 Appendix J which I think also support the proposition,  35 but those were the main ones.  There's in their  36 paragraph 5 the instructions to Captain Cook.  I think  37 those were read in to you, and so on.  I think these  38 are the most important ones for my purposes.  39 I want to go back to my speaking notes, if I may,  40 the speaking notes, and deal with what is referred to  41 there as item H.  You may recall the reference, and if  42 I can just -- if I can just put it up.  It's at tab H.  43 There's only a few documents in there, but it's the  44 first of them, page 408 of the judgment -- the  45 reasons, and it's what the learned trial judge had to  46 say.  He said --  47 TAGGART, J.A.:  You're back in your speaking notes now? 1375  Submissions by Mr. Williams  Submission by Mr. Williams  1 MR. WILLIAMS:  Yes, I am.  2 TAGGART, J.A.:  At page?  3 MR. WILLIAMS:  I'm back at my speaking notes at page six, item  4 H.  5 TAGGART, J.A.:  Page six?  6 MR. WILLIAMS:  Yes.  And, my lords, tab H also in the white  7 book.  8 TAGGART, J.A.:  Yes.  Okay.  9 MR. WILLIAMS:  And at tab H in the white book I say that what  10 the trial judge has said is that:  11  12 "I cannot imagine any clearer statement of  13 intention than the proclamation dated 14th  14 February 1959 —"  15  16 That's Calder II.  17  18 "-- in which it was declared,  19  20 All the lands in British Columbia and all  21 the Mines and Minerals therein, belong to  22 the Crown in fee.  23  24 After 1858 the Crown embarked upon numerous  25 legislative arrangements --"  26  27 Et cetera.  That's the -- that's the trial judge's  2 8 comment on how clear he felt that it was.  And I  29 simply say, my lords, that all of the evidence that I  30 have been reading to you is what surrounded either  31 before or after Calder II.  And in 1863 and 1864 the  32 Appropriation Acts were passed to allocate funds for  33 the extinguishment of Indian titles on Vancouver  34 Island.  This suggests that the government couldn't  35 have intended previously to blanket extinguish  36 aboriginal title in British Columbia, because they --  37 at least it seems to me, that it's completely  38 inconsistent with that.  And even if it's not  39 completely inconsistent with it it could hardly  40 support a clear and plain intention.  41 And those documents are the documents that appear  42 next under clause H.  And this shouldn't be a  43 confusing one at all.  I can just take you right  44 through one after another.  You'll see in the first  45 one that it simply identifies the Appropriation Acts.  46 Public general statutes.  47 The next one is an act to apply the sum of 25,000, 1376  Submissions by Mr. Williams  Submission by Mr. Williams  1 et cetera.  And what it does, if you'll just keep  2 turning the pages, is you'll see there's an  3 appropriation on page three of $9,700 towards Indian  4 land claims at Cowichan.  5 And then there's a green sheet right after that.  6 If your lordships are there there should be a green  7 sheet and then the next V.I. Despatches, 1863:  8 Douglas to Newcastle.  It says:  9  10 "The aggregate vote of the House, including the  11 sum of $180,600 granted for public works; the  12 extinction of Indian Titles to public land."  13  14 This is all after the Calder -- early Calder  15 documents that the Chief Justice said made it so  16 absolutely clear.  But I have to say that these  17 documents were not before him.  18 Then you'll see the next bunch if you'll just keep  19 flipping on the top right-hand corner where it says  20 Alphonse D-16, and then the second page is Indian land  21 claims.  22  23 "Indian Claims - payment for lands at  24 Chemainis, Cowichan &c. unexpended in 1863  25 $9,700."  26  27 And then if you'll keep going along the next one  28 is I think six pages -- six of the white pages brings  29 you to page six, and at the bottom it says:  30  31 "Indian Claims - payment for Lands at  32 Chemainis, Cowichan &c, unexpended from 1863."  33  34 Now, that's some of the evidence again along with  35 the evidence that I read to you from my paragraph 106  36 and from the appellants' Appendix J, and the fact of  37 the Treaty 8 that causes me to say, my lords, that it  38 could hardly be a clear and plain intention.  39 Now, your lordships, I set forth in my speaking  40 notes again from the reasons page 303 where the trial  41 judge says:  42  43 "The authorities make it clear that aboriginal  44 land claims must be considered in their  45 historical context.  I conclude it would not be  46 safe to assume that confident statements made  47 by Dominion officials about Indian title should 1377  Submissions by Mr. Williams  Submission by Mr. Williams  1 always are be accepted as correct statements of  2 law.  3  4 Similarly, the denial of the provincial  5 officials cannot be so construed.  These  6 gentlemen were defending positions to which  7 they were committed.  I find their statments  8 helpful because they create the historical  9 context, but none of them are binding  10                   pronouncements of law."  11  12 Then he says at page 147:  13  14 "I do not find it necessary to discuss various  15 policy statements made by Canada since Calder  16 reflecting a changed federal attitude to Indian  17 land claims, or indeed the recent statements  18 made by the province in that connection.  These  19 are political matters which do not bear upon  20 the resolution of the legal issue, which arise  21 in this case."  22  23 HUTCHEON, J.A.:  Can I just ask before you go on where the trial  24 judge at 303 talks about the denial of the provincial  25 officials, am I correct that their denial was that  26 there was any title at all?  Isn't that the position  27 Trutch was taking?  28 MR. WILLIAMS:  Yes.  That was Trutch's —  29 HUTCHEON, J.A.:  Am I right that he never talked about  30 extinguishing?  31 MR. WILLIAMS:  Yes.  My understanding of the Trutch position,  32 and I guess the position of a number of people in the  33 government from time to time has been that there just  34 wasn't any title.  35 HUTCHEON, J.A.:  There wasn't any title.  All right.  36 MR. WILLIAMS:  Yeah.  It's pointed out to me notwithstanding  37 that Trutch had to say that Elliot and others had  38 different things to say.  39 HUTCHEON, J.A.:  Oh, yes.  I was just trying to understand what  40 the trial judge was talking about.  The positions  41 weren't the same at all.  I mean, one wasn't saying --  42 the dominion people on their part were saying the  43 title has not been extinguished, but the provincial  44 people were not saying it's been extinguished.  They  45 never said that.  46 MR. WILLIAMS:  They're saying it never lived.  47 HUTCHEON, J.A.:  I understand. 1378  Submissions by Mr. Williams  Submission by Mr. Williams  1 MR. WILLIAMS:  I agree.  And I say, my lords, that when -- and  2 I'm not quite sure how -- how one should characterize  3 this, but if -- if the trial judge is saying you don't  4 look at anything else, and he's not saying this, but  5 if he were saying you don't look at anything else,  6 just the legislation, to see whether or not there's  7 been extinguishment it would be impossible to conclude  8 on the basis of the Calder XIII that they  9 extinguished.  You not only don't mention the fact  10 that they're extinguishing in plain and clear language  11 or expressly mention that they're doing it, they don't  12 even mention it.  They don't even refer to it.  So if  13 you're going to take into account, as the learned  14 trial judge said he was doing, the historical context,  15 then you must take into account those things that  16 happen on both sides.  And when you take into account  17 the historical context here, both before and after he  18 says well, I'm not -- I don't find it necessary to  19 discuss various policy statements made by Canada since  20 Calder.  Well, I mean, he is in 19 -- in the late  21 1980s, early 1990s there to determine what happened  22 back in the colonial period, back in 1870 and so on.  23 But he doesn't seem to want to take into account what  24 happened after.  But even if you take into account  25 what happened before you see all of this activity that  26 demonstrates that there simply wasn't a clear and  27 plain intention.  So even without taking into account  28 what happened later, it's my respectful submission  29 that it would be an error to find that the Calder  30 documents extinguished.  And if you do take into  31 account what happened after, and I would have thought  32 you should if you're going to look at everything in  33 the historical context, then it's pretty clear that  34 from all of those statements you could hardly say that  35 there was an extinguishment.  36 He concludes then on 411, and I don't need to read  37 that part to you, it's already been read, that the  38 Crown must be taken to have known that they couldn't  39 free the land.  Well, I submit that's not necessarily  40 so.  The Crown may well have realized that what they  41 were doing was making conveyances which bore the  42 burden.  No one can tell because nobody said it.  43 So I go back to the factum for the last time and  44 start with 107 and then I think we'll take you to the  45 end of my argument and probably the end of the day.  46 My lords, then at page 41, paragraph 107 I say  47 that apart from the trial judge's decision in the case 1379  Submissions by Mr. Williams  Submission by Mr. Williams  1 at bar, the issue of whether the Calder XIII  2 constituted a blanket extinguishment of aboriginal  3 rights in the province has not been resolved in law.  4 This court unanimously cast doubt on the view that  5 since the Supreme Court of Canada was divided on the  6 issue, the Court of Appeal's judgment in Calder, that  7 Calder XIII extinguished.  8  9 "The view that the decision of this court  10 remains binding is apparently based on a  11 misapplication of the rule that, where a court  12 composed of an even number of judges divides  13 equally on the question whether the appeal  14 should be allowed, judgment of the final court  15 is one dismissing the appeal.  So the result is  16 that the judgment of the lower court is upheld.  17 It does not follow that, where the judges in  18 the highest court divide equally in their  19 reasons for judgment, those reasons are to be  20 treated as if they didn't exist.  21  22 Whether [Aboriginal title of the Kamloops  23 Indian Band] has --"  24  25 And this is the next statement.  This comes from  26 the Harper Ranch case.  27  28 "Whether [Aboriginal title of the Kamloops  29 Indian Band] has been extinguished by general  30 land legislation before British Columbia  31 entered confederation is a question which still  32 remains very much at issue and is yet to be  33 decided by Canada's highest court.  Suffice it  34 to say that there is a fair question to be  35 tried in this regard."  36  37 And that's a decision of Judge Macdonald, but it's  38 confirmed by the -- by the Court of Appeal.  I better  39 turn that one up.  Both the trial judgment and the  4 0 appeal judgment are here.  And what your brother Judge  41 Wood says, and this is May the 31st, 1990.  42  43 "The learned chambers judge concluded that the  44 first test to consider with respect to each of  45 the claims advanced by the plaintiffs was  46 whether such claim raised a fair issue to be  47 tried.  After reviewing a number of authorities 1380  Submissions by Mr. Williams  Submission by Mr. Williams  1 including Baker Lake ... comments of Nemetz,  2 C.J.B.C. in Regina v. Sparrow, together with  3 the undisputed evidence before him as to the  4 historic occupation and use of the lands by the  5 Kamloops Indian Band, he decided that the  6 plaintiffs derived a claim to aboriginal title  7 to Scheidam Flats from that occupation and use,  8 and that whether or not that title has been  9 extinguished by 'general land legislation'  10 before British Columbia joined confederation  11 raised a legal issue on which no final decision  12 has yet been rendered by the Supreme Court of  13 Canada.  On that basis he found a fair issue to  14 be tried insofar as the plaintiffs' claim to  15 Scheidam Flats is based on aboriginal title  16 simpliciter.  17  18 I see no error of principle in the process by  19 which the learned chambers judge reached that  20 conclusion and there was evidence before him  21 capable of supporting the conclusion which he  22 reached."  23  24 So it's that kind of a judgment, that kind of an  25 order, but there it is.  I won't refer to the Peters  26 case, but it's also in the material.  27 108.  In the Sparrow case this court unanimously  28 held that the Calder XIII did not have the effect of  29 extinguishing all aboriginal rights in the province, a  30 view that was sustained on appeal in the Supreme Court  31 of Canada.  And then I just want to skip down towards  32 the bottom, The Calder XIII.  Although the case at bar  33 is a generalized claim for title to land Judson's  34 decision in Calder, accordingly to this Court in  35 Sparrow, does not preclude the possibility that the  36 appellants at least continue to enjoy unextinguished  37 particularized aboriginal rights in respect of some of  38 the territory at issue.  39  40 "The claim in Calder —"  41  42 This is from Sparrow.  43  44 "The claim in Calder was not particularized but  45 clearly the essence of it was broadly based  46 claim affecting title to land.  The right to  47 fish may have been an aspect of the claim but 1381  Submissions by Mr. Williams  Submission by Mr. Williams  1 was not so incidental an aspect to be given  2 virtually no attention in any of the judgments.  3 The whole emphasis was on the land and upon  4 title.  5  6 Even in dealing with a similar claim to  7 aboriginal title to land, reference must be had  8 to the facts of the particular case."  9  10 And that point we've made several times.  11 Then the MacMillan Bloedel v. Mullin case it has  12 been suggested that Calder XIII may have extinguished  13 aboriginal rights that amount to claims of ownership,  14 but may not have extinguished aboriginal rights that  15 do not amount to claims of ownership.  16 And that accurately sets forth the position of the  17 province in this case.  We say that whether it was the  18 Calder XIII or whether it was sovereignty, one of them  19 extinguished ownership.  One of them ended ownership  20 if there ever was ownership.  But neither of them  21 extinguished aboriginal rights.  And in that case your  22 brother Judge Seaton said:  23  24 "It is impossible to say that the question [as  25 to whether Clayoqt and Ahousaht Indian Bands  26 have Aboriginal Rights] is other than a very  27 difficult one.  The question is made even more  28 difficult in this case by the range of rights  29 that the Indians might have and the nature of  30 the logging that MacMillan Bloedel plans.  The  31 proposal is to clear-cut the area.  Almost  32 nothing will be left.  I cannot think of any  33 native right that could be exercised on lands  34 that have recently been logged.  It follows  35 that rights far short of outright ownership  36 might well warrant retaining the area until  37 after trial."  38  39 And then in the Simon case, which is a 1985  40 decision of the Supreme Court of Canada, as your  41 lordships note:  42  43 "It is impossible for this Court to consider  44 the doctrine of extinguishment 'in the air';  45 the respondent must anchor that argument in the  46 bedrock of specific lands.  That has not  47 happened in that case.  In the absence of 1382  Submissions by Mr. Williams  Submission by Mr. Williams  1 evidence as to where the hunting occurred or  2 what was intended to occur, and the use of  3 lands in question it would have been impossible  4 to determine whether the appellant's treaty  5 hunting rights had been extinguished."  6  7 What the learned trial judge did in this case was  8 to extinguish everybody's rights in the whole of  9 British Columbia without any land specific analysis on  10 the basis of those proclamations.  And I submit that  11 that's contrary to law.  In light of the Supreme Court  12 of Canada's endorsement in Sparrow of Hall's approach  13 in Calder to extinguishment; the several judgments of  14 this court in the Supreme Court of Canada; the fact  15 that nowhere in the colonial proclamations is there  16 any express indication the sovereign intended to  17 extinguish aboriginal rights; the fact that the Calder  18 XIII didn't constitute an exercise in complete  19 dominion, it was only -- it was only a registry, at  20 least a land system; the recognition by this court and  21 the Supreme Court of Canada that particularized  22 aboriginal rights continued to exist despite the  23 presence of the Calder XIII; the holding by this court  24 and the Supreme Court of Canada that questions of  25 extinguishment ought to be addressed in a contextual  26 and not a global manner, and I emphasize that as a  27 very important point; official recognition of  28 aboriginal rights in existence at the northeast corner  29 of the province prior to negotiations of Treaty 8 and  30 other acts and statements of the colony, which I've  31 gone through with you, the province submits that no  32 plain and clear intent to extinguish aboriginal rights  33 was established and, therefore, the colonial  34 proclamation known as The Calder XIII did not have the  35 effect of extinguishing aboriginal rights in this  36 province.  37 At best, The Calder XIII provided the colonial,  38 and subsequently provincial, Crown with executive  39 authority to extinguish aboriginal rights in more  40 specific ways and more specific factors.  41 My lords, that concludes my portion of the  42 province's address to the court.  And, my lords, I'm  43 in your hands as to whether at this time you want  44 to -- to have me bring forth the next, which is Glen  45 Bell, who is going to address you on the proclamation,  46 or whether we should start that in the morning.  It  47 will probably take a day. 1383  Submissions by Mr. Williams  Submission by Mr. Williams  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  There is one thing I just wanted to say before I  sit down, and that is that I had intended today to  deal with the final -- your -- Mr. Justice Lambert's  question because it was part of my area, but Mr. Arvay  would like to address that, and we'll do that -- if  you don't mind we'll deal with that question when he's  up on his feet.  And that will be --  LAMBERT, J.A  MR. WILLIAMS  LAMBERT, J.A  MR. WILLIAMS  LAMBERT, J.A  MR.  TAGGART,  MR. BELL  I'm not sure which question.  The question that took ten minutes to ask.  Yes.  Sorry.  I didn't mean it that way.  Well, I've been waiting for two weeks now for an  answer.  WILLIAMS:  So we'll deal with that, if we may, that way.  And  I'm in your lordship's hands as to --  J.A.:  All right.  Well, we might as well get Mr. Bell  on his feet.  My lord, we'll need five minutes to distribute the  materials.  point in that.  We'll begin in  Thank you.  TAGGART, J.A.:  There's not much  the morning, Mr. Bell.  MR. BELL:  Thank you.  THE REGISTRAR:  Order in court,  ten o'clock tomorrow.  Court stands adjourned until  (PROCEEDINGS ADJOURNED TO JUNE 2, 1992 AT 10:00 a.m.)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Peri McHale,  Official Reporter,  UNITED REPORTING SERVICE LTD.

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