Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-07-03] British Columbia. Supreme Court Jul 3, 1992

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 2737  Submissions by Mr. Williams  1 Vancouver, B.C.  2 July 3, 1992.  3  4 Coram:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Friday, July the 3rd, 1992.  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lords.  10 TAGGART, J.A.:  Yes, Mr. Jackson.  11 MR. JACKSON:  My lord, before my friend Mr. Williams starts, I  12 just wanted to make a correction to a reference I gave  13 your lordships yesterday which may save you some time  14 when you come back to the documents.  When I was  15 referring to the Newcombe memorandum of 1910, I  16 referred your lordships to our factum, Volume 2,  17 Appendix K.  The references should be to Appendix J.  18 Thank you.  19 TAGGART, J.A.:  Factum volume?  20 MR. JACKSON:  That's Volume 2 of the Appellants' factum.  21 TAGGART, J.A.:  And Appendix J?  22 MR. JACKSON:  Appendix J.  23 TAGGART, J.A.: Mr. Williams, just before you begin, Mr. Justice  24 Hutcheon has a gift for you.  25 HUTCHEON, J.A.:  For those parties who are submitting memoranda  26 on the question of the review power of the Court of  27 Appeal, I wanted to give them the latest decision of  28 the Supreme Court of Canada of June the 25th, 1992.  29 It's Banque de Montreal v. Commission Hydroelectrique  30 du Quebec, and Madam Registrar has a copy of the front  31 page plus pages 13 and 14 of Justice Gonthier's  32 reasons for judgment where he, as I see it, puts out  33 two tests.  One is if it's credibility, then the error  34 has to be culpable and overriding.  If it's other kind  35 of evidence, the reviewing court must state a good  36 reason for differing from the trial judge.  37 And perhaps, Madam Registrar, during the morning  38 you could provide copies.  39 THE REGISTRAR:  Yes, my lord.  40 TAGGART, J.A.:  Mr. Williams.  41 MR. WILLIAMS:  Thank you, my lord.  I thank my lord Justice  42 Hutcheon for that.  It will save us some research time  43 next week, which is a welcome thing, believe me.  44 HUTCHEON, J.A.:  Send your donations to your favorite charity.  45 TAGGART, J.A.:  And make him look on just how long that's going  46 to last.  47 MR. WILLIAMS: My lords, late last night we finally got 2738  Submissions by Mr. Williams  1 instructions in respect of the Dick and Alphonse  2 appeals, and I have something to pass up to you.  3 There is an extra copy here if anybody needs one.  4 My lords, perhaps I can say this briefly, because  5 I want to get on with our submissions this morning.  6 And firstly I will just deal with the instructions  7 which are that the Province no longer advances the  8 conclusions set out in paragraph 260 of its factum in  9 both appeals filed September 30th, '91.  10 LAMBERT, J.A.:  Can I just stop you for a second, Mr. Williams.  11 MR. WILLIAMS:  Yes.  12 TAGGART, J.A.:  Mr. Williams, it does seem to me that if there  13 is a substantial change in the position of the  14 Province with respect to the Dick and Alphonse  15 appeals, there is nothing we can do about that in the  16 absence of all the parties to those appeals.  17 MR. WILLIAMS: I suggest at the bottom of my memo, my lords, that  18 you did mention, my lord Justice Taggart, that it may  19 be that the case will have to be either reargued or it  20 may be that submissions will have to be permitted to  21 come in.  I was simply bringing to your attention as  22 soon as I had the instructions, and it wasn't until  23 last night, the fact that we do have these  24 instructions.  I am prepared to deal with them  25 whatever way your lordship wishes.  26 TAGGART, J.A.:  Well, can we not leave it at this, that you have  27 received your instructions to alter your position on  28 Alphonse and Dick so that it conforms in general terms  29 at any rate with the position advanced by the Province  30 in Delgamuukw.  31 MR. WILLIAMS: Yes.  And it may not make much difference.  If you  32 prefer I didn't deal with them now --  33 TAGGART, J.A.:  I feel uneasy about hearing you in the absence  34 of counsel in the Alphonse and Dick case, and I think  35 it would be preferable for you to advise counsel in  36 Alphonse and Dick, including intervenors in that case,  37 your change of position and give them this position  38 taken.  39 MR. WILLIAMS:  Very well, my lord.  I will do that today.  40 TAGGART, J.A.:  Then, it seems to me, it's a question for  41 counsel to decide how best to approach the matter.  42 And it sounds to me -- I thought I had done those  43 pre-hearing conferences, but it would seem to me that  44 once counsel had discussed it amongst themselves,  45 there should be a pre-hearing conference to assess how  46 best to deal with the alteration in position.  47 The division is going to be gone pretty well for 2739  Submissions by Mr. Williams  1 the summer.  It's going to be very difficult to get  2 all five together again until the end of August.  But  3 in the meantime -- well, the end of September really.  4 MR. WILLIAMS:  It's not long and complicated, but I might  5 suggest that we will try to get ahold of counsel this  6 afternoon, explain to them that we had these  7 instructions, we've given a memo to the court, and  8 I'll fax one to them, and if they have anything to say  9 they can let us know.  10 TAGGART, J.A.:  Well, at the end of the day this division will  11 not be sitting together again, will not be meeting  12 together.  We'll be talking on the telephone, but  13 that's the best we can do over the summer months.  And  14 we will not be in a position where we will all be  15 available to hear any submissions until, I would  16 think, at least the beginning of October, if then.  17 So, we can leave it to counsel.  I will be here  18 through the summer.  I'll be away at the end of this  19 month at a seminar, but that aside I'll be here  20 through the summer.  If you want a pre-hearing  21 conference, I leave that to counsel to arrange.  22 MR. WILLIAMS:  We'll take it up with counsel, my lord.  23 TAGGART, J.A.:  All right.  24 MR. WILLIAMS:  In any event, my lord, I'll undertake to give a  25 post-hearing fax to the other parties.  26 MACFARLANE, J.A.: We only hear Alphonse and Dick appeals in  27 November.  28 MR. WILLIAMS: It's out of season, my lord.  29 MACFARLANE, J.A.:  That's right.  30 MR. WILLIAMS:  My lords, if I could, I have prepared some  31 speaking notes which should be before you.  I'll  32 explain them.  I would suggest that they travel with  33 the Mabo reasons because they are referable to them in  34 every way.  35 TAGGART, J.A.: Travel with?  36 MR. WILLIAMS: The Mabo reasons themselves.  I don't think you  37 will need them today.  You may wish to refer to them,  38 but I have only got an hour.  I should say now that I  39 propose to take until the break or earlier on Mabo,  40 and my colleague, Mr. Taylor, will address the adverse  41 dominion aspects and constitutional aspects until noon  42 or just after lunch, and then my colleague Mr. Arvay  43 will deal with remedies for the balance.  That's how  44 we pose to break it up.  45 So, if I may, do you all have page 1 of my  46 speaking notes?  47 TAGGART, J.A.:  Yes. 2740  Submissions by Mr. Williams  1 MR. WILLIAMS: I say, first of all, that this, of course, as you  2 know, is a very recent decision of the High Court of  3 Australia and it deals with many of the issues that  4 are before this court at the present time.  The  5 majority judgment, my lords, and in particular the  6 judgment of Mr. Justice Brennan, which is three  7 judges, supports the position of the Province in most  8 measures.  The Province, in summary, has argued in the  9 case at bar that the Appellants have not established  10 ownership in fact or in law; the Appellants, subject  11 to the general law, did have and do have some limited  12 jurisdiction or self-government; that the Appellants  13 do have aboriginal rights, being a sui generis  14 interest in respect of land; that the aboriginal  15 rights have not been extinguished blanket, that is to  16 say across the Province by legislative act; and that  17 the extinguishment of some aboriginal rights have  18 taken place, we say, by adverse dominion, they say by  19 the issuance of inconsistent grants.  Same thing.  20 My lords, the majority in Mabo reached a  21 conclusion which, in my respectful submission, is  22 virtually the same as the Province's submission in the  23 case at bar.  24 It's true, of course, that in Mabo they had a  25 rather simpler situation fact-wise, because it's  26 little islands where they were living with exclusive  27 occupation, and it was not subject to settlement by  28 non-native settlers.  And those facts are  29 distinguishing features.  But I say that  30 notwithstanding those distinguishing features, the  31 underlying principles that are dealt with in Mabo in  32 respect of aboriginal rights, the effect of the  33 assertion of Crown sovereignty and what constitutes  34 extinguishment remain the same throughout the world.  35 And I say that they are of great significance to your  36 lordships.  If ever there was an Australian case  37 that's an important one from the standpoint of the  38 reasoning and the standpoint of its application, I  39 submit it's this case and in particular the Brennan  4 0 judgment.  41 So, in order to better understand the court's  42 disposition of the various issues, I have broken it  43 down into what amounts to ten issues, because I  44 believe that those are issues that your lordships will  45 want to deal with.  And although the subject headings  46 may -- the headlines may not be exactly what someone  47 else might characterize them as, if you will bear with 2741  Submissions by Mr. Williams  1 me I think they will be useful.  And I believe that by  2 virtue of the way I have done this, I hope that it  3 will be a useful adjunct to the judgment itself.  4 I start out, my lords, by dealing with the issue  5 of ownership.  I say that the disposition by the court  6 is that the aboriginal people of Murray Island do not  7 have ownership in their lands.  In particular Justice  8 Brennan says that they do have effective title against  9 all of the world, but he says ownership is a confusing  10 expression, because it becomes confused with what we  11 continue to think of as ownership and the indicia of  12 ownership.  So he says it doesn't amount to ownership  13 in that sense, but he gives it a very high rating, if  14 I can put it that way.  And when I come to my next  15 heading I will deal with that.  16 Justices Deanne and Gaudron say that they do have  17 rights, the native people, with respect to the land,  18 but the rights do not constitute an estate or an  19 interest in land.  That's their way of dealing with  20 it.  21 Thirdly, Justice Dawson says they don't have  22 anything.  They don't have any ownership, rights or  23 anything else.  24 Justice Toohey says that title is misleading.  25 Now, you recall, my lords, that's the position I took  26 and was criticized by the Appellants for doing so.  27 But we called this aboriginal rights rather than  28 aboriginal title to avoid that confusion.  And that's  29 the point that Justice Toohey is making.  30 He says it is misleading and what they do have does  31 not correspond to ownership.  32 So the application to Delgamuukw, which I have at  33 the bottom of page 2, is that we have argued that the  34 Appellants do have these rights, but they have failed  35 to establish, both in fact and in law, that they have  36 ownership or anything equivalent to it.  37 Now, the second point on page 3 is the right to  38 jurisdiction or self-government.  And I say at the  39 outset -- and the disposition of that, that this is  40 not an issue that was directly before the court.  It  41 doesn't appear anywhere to me that the actual issue  42 was there to be determined, and yet there are a number  43 of passages in the judgment that bear on this issue,  44 and the aboriginal customs and limited jurisdiction  45 are recognized by all judges with the exception of  46 Justice Dawson.  47 Here is what the Brennan group had to say.  They 2742  Submissions by Mr. Williams  1 say that -- I am just summing this up now.  2  3 "So long as the people remain an identifiable  4 community, the members of whom are identified  5 by one another as members of that community  6 living under its laws and customs, the communal  7 native title survives to be enjoyed by the  8 members according to the rights and interests  9 to which they are respectively entitled under  10 the traditionally based laws and customs as  11 currently acknowledged and observed."  12  13 So what he is saying is that the natives are  14 connected to the land, that they do have jurisdiction  15 or the right to make decisions and so on according to  16 their own laws and customs.  And Justices Deanne and  17 Gaudron say that the colonial laws went only so far  18 and left room for the local laws.  That's the position  19 that we have argued, that, subject to the laws of  20 Canada and the laws of the Province, there are other  21 matters, marriage, for example, there are other  22 matters where they don't interfere, and to that extent  23 they do have jurisdiction.  And they have to have, of  24 necessity, some jurisdiction with respect to the  25 governing of their own lands, the rights in respect of  26 those lands.  27 Justice Dawson said that after annexation the  28 Queenland's law was it.  It took control and there was  29 nothing else.  30 Justice Toohey said that they did have their own  31 way of life, their own customs, and to say that they  32 had lost their title since they no longer exercised  33 traditional rights is a failing argument.  34 I say that the application in respect of  35 Delgamuukw is that we say also that they lived then  36 and they lived now to a limited extent by their own  37 laws, subject, of course, to the laws of Canada and  38 the laws of British Columbia.  39 The third is the existence of aboriginal rights.  40 I can dispose of this one fairly quickly.  All six  41 judges, the majority, say that the natives have native  42 title in accordance with their laws only -- and even  43 Mr. Justice Dawson assumes, he just makes an  44 assumption that they did have some form of native  45 title pre-annexation.  46 WALLACE, J.A.:  What do you mean by subject to the laws of  47 Canada?  You spoke of marriage, for example. 2743  Submissions by Mr. Williams  1 MR. WILLIAMS:  Where there is no conflict would be a better way  2 of putting it.  And that's what the marriage law, the  3 cases that we read in about the marriage law seem to  4 say.  Where the native group, be it a House or a Clan,  5 decides who is going to fish where in the river and  6 when, when they decide about their religious  7 ceremonies, they decide about their funerals, they  8 decide about their marriges, and even, I believe,  9 adoption.  But, in any event, leaving aside any  10 controversial issues, I am simply saying that they  11 don't have sovereignty, in the sense that they can  12 sur-plant the Crown's sovereignty, but it is not true  13 to say that they have no jurisdiction or  14 self-government at all.  15 WALLACE, J.A.:  You're saying in those instances you have cited  16 that you then look to the laws of Canada and the  17 Province to see if there is any conflict?  18 MR. WILLIAMS:  I believe —  19 WALLACE, J.A.:  And if there is any conflict, then the  20 provincial and federal laws apply.  Is that what  21 you're saying?  22 MR. WILLIAMS:  Yes.  I think that may be, if I had to spell it  23 out, an oversimplification.  But yes, that is  24 essentially true.  25 The position of the Province is consistent with  26 the majority of Mabo on aboriginal rights.  27 I turn now to personal and proprietary, this  28 age-old dispute.  This is an odd one.  Three of the  29 judges, I call it the Brennan group, said, as far as I  30 can understand the judgment, that the rights are  31 proprietary.  Three of the judges, as I read it, and  32 certainly that's true of Justices Deanne and Gaudron  33 and Dawson, they are non-proprietary.  They are  34 personal.  Now, there is one little wrinkle where in  35 the Deanne and Gaudron judgment they say something  36 about pending on the purpose, but essentially they say  37 they are personal.  38 And one judge, Justice Toohey, says that it's  39 fruitless to pursue this argument.  He says that this  40 doesn't get us anywhere.  It doesn't determine  41 extinguishment or anything else.  And I believe, then,  42 that what we really have is -- all that can be said is  43 it's a Calder.  It's a three three one on that issue,  44 and they will have to live with that.  As I  45 understand, that judgment breaks down on personal and  46 proprietary.  47 What Justice Brennan says is both the community 2744  Submissions by Mr. Williams  1 and the individuals may have proprietary title or  2 rights.  And I believe what he is saying, my lords, is  3 that on the island they can demonstrate they had this  4 exclusive possession, they can demonstrate as a  5 community they operated, they can demonstrate that  6 they had something that had to be tied to the land,  7 and he calls it proprietary.  And he says that if the  8 community should decide to give individuals plots of  9 land, then why can't the individuals also have  10 proprietary interest in their plots of land.  That's  11 how I understand the Brennan analysis.  And, of  12 course, it rests largely on the fact they have that  13 little island with exclusive occupation.  14 Now, Deanne and Gaudron say that the rights are  15 personal only, and they do not constitute an estate or  16 an interest in land.  They go back to whatever it is  17 they have.  It certainly isn't proprietary.  It's  18 personal, and anything they can do, they can do by the  19 exercise of a personal right.  The twist here is that  20 the ones that filed for proprietary interest said  21 there is no compensation, and the ones that filed for  22 personal interest said that there is.  23 Justice Dawson says that -- yes, Justice Dawson  24 says -- he quotes the St. Catherine's Milling case.  25 And he says it's less than proprietary, but it may be  26 neither because it's sui generis, which is the escape  27 that we've all taken.  When we don't know what it is,  28 we tend to call it sui generis, it seems to me.  29 That's what happened.  He then goes on to say,  30 however, that the weight of authority would indicate  31 that it's personal.  And that's on page 6.  32 Justice Toohey says these are rights in respect of  33 land, but inquiry into whether they are personal or  34 proprietary is fruitless.  He says that it doesn't  35 determine anything to do with extinguishment.  36 I say the application in respect of Delgamuukw is  37 this, my lords:  We have argued and we continue to say  38 that if it is essential that the -- to say that these  39 are non-proprietary rights, that is our position that  40 the sui generis interests in respect of land is  41 non-proprietary in how we understand the phrase  42 proprietary in the common law, but we don't dispute  43 what Chief Justice Dixon had to say, that there may be  44 proprietary aspects.  And this becomes even more  45 confusing, I must admit.  And indeed it may be at the  46 end of the day that Mr. Justice Toohey is right, that  47 the distinction really doesn't matter, that it really 2745  Submissions by Mr. Williams  1 doesn't matter.  2 Use and occupancy rights.  The disposition  3 there -- I know it may sound like, 'What do you mean  4 use and occupancy, you have talked about about  5 aboriginal rights', but this is really a slightly  6 different tone on it.  And the decision here is that  7 the native title is viewed as one of occupancy.  The  8 people are entitled as against the whole world to  9 possession, occupation, use and enjoyment of the lands  10 of the Murray Islands.  11 And the Brennan group says that the natives have  12 the right, and that their right is to use and occupy  13 the land and it's determined by their traditional  14 customs.  15 I won't bother with the Deanne and Gaudron,  16 because I believe that essentially they say the same  17 thing.  18 Justice Dawson says there may be some foundation  19 for saying that some interests are recognized by the  20 Crown.  He doesn't go on to deal very -- in detail  21 with that, but he does sort of acknowledge some  22 possible foundation for occupancy.  23 And on page 8 Justice Toohey says this.  I am  24 reading from the second paragraph on page 8.  25  2 6 "At common law the conduct required to prove  27 occupation or possession will vary according to  28 the circumstances including, for example,  29 whether the claimant enters as a trespasser or  30 as a right.  And the nature of the land will to  31 a large extent dictate the use that might be  32 made of it.  For example, conduct amounting to  33 possession will be different in relation to a  34 dwelling and to uncultivated land.  Some land  35 is barren and unproductive so that it cannot  36 sustain people all the year round.  It may be  37 necessary for occupiers to seek water and  38 sustenance elsewhere for part of the year,  39 returning to their land as soon as possible."  40  41 He goes on, and I'll just ask you to make a note  42 of this.  If you'll make a note of page 187 in the  43 judgment, which I don't have in my notes, where he  44 says:  45  46 "A nomadic lifestyle is not inconsistent with  47 occupancy." 2746  Submissions by Mr. Williams  1  2 And I thought that was an important observation on  3 his part.  4 HUTCHEON, J.A.:  That was on page 7 at the bottom as well, Mr.  5 Williams.   It refers to nomadic lifestyle at the  6 bottom of page 7.  7 MR. WILLIAMS:  Thank you, my lord.  8 Now --  9 HUTCHEON, J.A.: Doesn't he quote Baker, cite Baker as his  10 example?  11 MR. WILLIAMS:  Yes.  Baker Lake?  12 HUTCHEON, J.A.:  I think so.  13 MR. WILLIAMS: I don't have a note.  I know that either he or the  14 Deanne and Gaudron group do quote Baker Lake fairly  15 extensively.  Yes.  16 My colleague tells me that pages 106 and 107 show  17 Deanne and Gaudron quoting Baker Lake, and Justice  18 Toohey appears to agree with him.  19 HUTCHEON, J.A.:  I meant in relation to the nomadic lifestyle.  20 We can get it later.  21 MR. WILLIAMS: I am not sure on that one.  22 Now, the application to Delgamuukw -- let me deal  23 with that last paragraph first.  The application to  24 Delgamuukw is that the use and occupancy is the  25 fundamental right or it is the all encompassing right  26 that they talk about in this case, and it's what we  27 argued here in Delgamuukw.  That they have a right to  28 use and occupancy of the property, that the idea that  29 village sites would be carved out or in cultivated  30 fields, with the greatest of respect and deference, is  31 wrong, because if they go out fishing 10 times a year  32 and they go hunting only twice a year, and they may  33 hunt goat only once a year on the top of the hill,  34 that is nonetheless a part of the use and occupancy of  35 the territory.  It doesn't mean the rights would be as  36 high where they hunt goat as where they live in the  37 villages, obviously, but it seems to me that the  38 analysis ought to be the intensity of the use, the  39 exclusivity of the use and the extensivity of the use  40 determining these -- determining the area rather than  41 simply saying that there are village sites that can be  42 carved out and the rest of it is not a part of the use  43 and occupancy of land.  44 So we have argued that it's a sui generis interest  45 in respect of the land, as I have just stated, and we  46 say that there are sub-rights.  We argue that there  47 are, in effect, sub-rights, if you like.  There is 2747  Submissions by Mr. Williams  1 hunting, there is fishing, there is berry picking,  2 there is religious activities that they wish to take  3 part in, there is trapping.  There is all of those  4 other things that are done which are really tied to  5 the land and they are part of the use and occupancy of  6 the land.  In fairness in Toohey, I don't suppose they  7 had a lot of berry picking and hunting going on, at  8 least there is no mention of it in the judgment, so we  9 aren't able to compare.  So, in fairness, Toohey is  10 not an authority, but I'm simply pointing out the use  11 and occupancy aspect is the important one and  12 particularly Justice Toohey comments.  13 I move now to the Crown title.  And I say this for  14 starters, my lord, that this issue is one of the most  15 confusing and perhaps historically important of all  16 the issues.  Mr. Justice Brennan spends by far the  17 majority of his reasons on it.  As it turns out,  18 however, it's not particularly relevant, in my  19 submission.  It's not particularly relevant to the  20 determination of the issues in Delgamuukw.  And had he  21 taken a different view, it would not have been as  22 relevant, it seems to me, in Australia, because he  23 took an approach, we have taken an approach in Canada,  24 and they come to the same conclusion.  25 They are predicated on the fictions of radical  26 title and conquest, the difference between conquest  27 settlement and cession.  It almost gets to the point,  28 my lords, when you are reading all of this, that you  29 sort of say -- you are waiting for the little boy to  30 get up and say "The Emperor has no clothes."  It seems  31 that some judges either through -- historically either  32 through a guilty social conscience or for whatever  33 other reason have twisted -- have interpreted a theory  34 or a principle of law in such a way as to fit the  35 facts, and it seems that others have tried to put a  36 square peg in a round hole.  And I believe that the  37 history is very, very difficult to follow.  38 But what Justice Brennan does is an outstanding  39 job of analyzing it, in any event.  He says that --  40 incidentally, the disposition, I should deal with  41 first of all on the Crown title.  Six to one found  42 that upon the assertion of sovereignty the Crown  43 acquired the radical title of the Murray Islands.  The  44 radical title is a fiction or a postulate that leaves  45 the aboriginal title or beneficial interest in the  46 lands to the native people unextinguished.  47 Unextinguished by sovereignty that is. 2748  Submissions by Mr. Williams  1 Although Australia and the Murray Islands were  2 acquired under the doctrine of settlement rather than  3 conquest or cession, settlement was predicated upon  4 the proposition that the lands were unoccupied.  If  5 unoccupied, the Crown acquires the whole title, but  6 where they are occupied, at least to that extent, the  7 beneficial interest will continue to exist until  8 extinguished by an act of the Crown.  9 Now, what Justice Brennan does, and I am over on  10 page 9, is that he outlines the defendants' position  11 saying that sovereignty takes place, the Crown takes  12 all, and everything is automatically extinguished,  13 including ownership and native title.  He says halfway  14 down page 9:  15  16 "Australian law is not the historical successor  17 of, but is an organic development from the law  18 of England.  Although our law is the prisoner  19 of its history, it is not now bound by  20 decisions of courts in the hierarchy of an  21 empire then concerned with the development of  22 its colonies."  23  24 It goes on to say:  25  26 "The court is free to depart from English  27 precedent but it cannot fracture the skeleton  28 of principle.  It can however modify to comply  29 with contemporary notions of justice.  30  31 And that is a very, very important passage in his  32 lordship's judgment, in his honour's judgment, because  33 he goes from there to disagree with the earlier  34 Australian decisions predicated upon the historical  35 concepts and comes up with a new concept.  And we  36 don't have to, as I say, agree or disagree with it,  37 because it arrives at the same conclusion as our  38 argument in this case.  39 The earlier cases were predicated on, as he points  40 out, these propositions:  There is no other  41 proprietorship; the feudal doctrine of tenure; the  42 patrimony of the nation; and the Royal prerogative.  43 And that's from page 17.  Those are the bases of what  44 it comes from.  45 He goes back in his analysis to William the  46 Conqueror showing that -- of course in 1066 things  47 were a little different.  They conquered, shot Harold 2749  Submissions by Mr. Williams  1 in the eye, conquered the nation, and the allodial  2 title rested with the King and all others held of the  3 King.  4 He says over on page 10, the second main paragraph  5 down:  6  7 "Acquisition of the radical title to land in an  8 unoccupied territory does not mean the Crown  9 acquired absolute beneficial ownership of that  10 land to the exclusion of indigenous  11 inhabitants."  12  13 This is a slightly different approach to the  14 provincial argument.  As I say, it arrives at the same  15 conclusion, and I'll come back to that.  16 He says that if land is empty, they gain full  17 title, but if it's occupied, then it's the radical  18 title only.  And there is no reason not to recognize  19 native title, he says, along with the Crown's radical  20 title until it's extinguished.  21 Further on down page 10 he says that:  22  23 "There is no reason why native title should not  24 be recognized as a burden on the Crown's  25 radical title."  26  27 Now, that's what we say.  Where we differ is  28 whether it's on top of the title or within it.  And  29 that's simply a difference in concept.  It's not a  30 difference in substance.  31 LAMBERT, J.A.:  And no result flows from that.  32 MR. WILLIAMS:  And no result flows from that in my respectful  33 submission.  None at all.  34 At the bottom of page 10, those antecedent rights  35 and interests continue a burden on the radical title  36 of the Crown.  37 Over the page.  Once traditional native title  38 expires, the Crown's radical title expands to a full  39 beneficial title, for then there is no other  40 proprietor than the Crown.  That's part of the Brennan  41 analysis.  42 You see there page 57, just before Deanne and  43 Gaudron:  44  45 "When the Crown extinguishes native title by for  46 instance granting a lease, the Crown's title is  47 expanded from the mere radical title and on the 2750  Submissions by Mr. Williams  1 expiry of the term of the lease becomes a  2 plenum dominion."  3  4 That's different from our argument, and I don't  5 say it's wrong.  I simply say that it's different.  6 We have said that when there is a lease, generally  7 speaking the lease puts the aboriginal rights on the  8 back burner until the lease expires, and when the  9 lease expires they revive it.  What Justice Brennan is  10 saying is that the lease extinguishes those aboriginal  11 rights, and that when the lease expires it reverts to  12 the Crown, and the Crown then has the full title.  13 That's the difference between us on the lease.  And I  14 don't know that it would be useful to argue much  15 further.  We are talking, in our case -- in any event,  16 we are asking your lordships not to decide the  17 instruments, the specific instruments that do  18 extinguish.  We are asking you to allow the parties to  19 negotiate in that regard.  2 0 Now, we come to the Deanne and Gaudron judgment.  21 They seem to take the same approach as the Province.  22 I want to be cautious here and say that I am not  23 certain.  Your lordships will decide whether I am  24 right or wrong when you read the judgments.  25 I believe that in reading Deanne and Gaudron they  26 take more or less the same position we have here,  27 which is that the allodial title, which I've called  28 the everything title, rests with the Crown upon the  29 assertion of sovereignty.  And the notion, my lords,  30 is this.  On the one hand what Brennan is saying is  31 that the full title, the plenum dominion is this big  32 and it's only so big.  It's like the globe, and  33 everything has to be within it, nothing can be on top  34 of it, and that when you come into a place like  35 Australia you only have part of it, the radical title.  36 The other part of the globe is the beneficial interest  37 which belongs to the native people in this particular  38 case.  39 Our position, and the position that we submit has  40 been taken in Canada, is that the title, as far as we  41 know under our concepts of law, developed in England  42 by William the Conqueror are that the allodial title  43 rests with the Crown or the radical title, the  44 underlying title, the ultimate title.  All of those  45 expressions, we say, are synonymous, that that title  46 is what the Crown takes upon the assertion of  47 sovereignty, but horizontally there was another 2751  Submissions by Mr. Williams  1 culture here when we came.  That other culture also  2 had what it called a form of title.  It had certain  3 rights, aboriginal rights to the land.  They occupied  4 the land.  And we say that the title that we came in  5 with horizontally also has to consider yet another  6 claim, and that becomes a burden on our title.  7 My lords, whether you look at it one way or the  8 other, as I have submitted, I don't believe that it  9 makes any difference.  What happens is -- and I think  10 that Deanne and Gaudron are saying what we are saying,  11 but I am not certain.  They don't talk quite as  12 clearly about this idea of part of the title, that is  13 to say the beneficial part belonging to the native  14 people.  They say:  15  16 "The radical title of all land vested in the  17 Crown when the colony was established.  This  18 was merely to enable the English system of  19 private ownership of estates to be observed in  20 the colony.  The mere fact that the radical  21 title to all the lands of the colony was vested  22 in the British Crown did not preclude the  23 preservation and protection by the domestic law  24 of the new colony of any traditional native  25 interests."  26  27 That's the way I would -- we have been arguing it.  2 8 And the next one.  29  30 "Where there was a pre-existing native interest  31 ..."  32  33 And you see the "pre-existing" is important, I  34 think, in their judgment to tie in with what we are  35 saying.  36  37 "... the effect of an applicable assumption that  38 that interest was respected and protected under  39 the domestic law of the colony would not be to  40 preclude the vesting of radical title in the  41 Crown.  It would be to reduce, qualify, or  42 burden the proprietary estate in land which  43 would otherwise have vested in the Crown."  44  45 So I'm not certain exactly what they are saying.  46 I believe they are not going quite in the same  47 direction as Mr. Justice Brennan would. 2752  Submissions by Mr. Williams  1 Justice Toohey says that:  2  3 "If the fiction that all the land was originally  4 owned by the Crown is to be applied, it may  5 well be that it cannot operate without also  6 according to fictitious grants to the  7 indigenous occupiers."  8  9 So Justice Toohey would create another fiction to  10 add to the list without more fiction than fact at the  11 end, but he adds the fiction or says:  'But if that's  12 the case and you are going to say that the Crown's  13 fictitious title is there, the natives must have had a  14 fictitious title too.'  And there we are.  15 Now, the application to Delgamuukw, I have given  16 you part of that, but I say that the history and the  17 mystery surrounding the nature of the Crown's  18 acquisition upon the assertion of sovereignty appears  19 fraught with confusion and conflicting notions of  20 ownership and title.  The phrases which have been  21 used, and I have mentioned before, radical,  22 underlying, et cetera, they describe that which now --  23 it takes upon the assertion of sovereignty.  We say  24 that the allodial title is the everything title, and I  25 have already given you that.  26 Justice Brennan, while arriving at the same result  27 and even using the same expression as the Crown's  28 burden, prefers to characterize the Crown's title as a  29 radical title which doesn't include the beneficial  30 interest which remains with the native people on the  31 Murray Islands.  In other words, Justice Brennan  32 includes the native title as part of the whole title  33 which the Crown until extinguishment only has the  34 postulate of radical title.  And it's the position of  35 the Province that the Crown does acquire the allodial  36 or radical, underlying, ultimate or plenary title on  37 the assertion of sovereignty but burdened by the  38 aboriginal interest.  39 In the end, my lords, I don't think it matters  40 which approach is taken.  In both approaches natives  41 have aboriginal rights, in both approaches there can't  42 be extinguishment without plain and clear intention.  43 In both it can't be general, like the preservation of  44 land through a reserve or the creation of a scheme.  45 And Justice Brennan uses those words.  You can't  46 extinguish that way.  So that the Calder XIII would  47 not extinguish and nor would the reserve of the Murray 2753  Submissions by Mr. Williams  1 Islands that sets it aside for whatever purpose.  That  2 doesn't amount to an extinguishment, except by Justice  3 Dawson, who believes that it does.  Only an  4 inconsistent grant will.  5 Now, over on page 13 we submit that Calder II  6 certainly didn't do it, as has been suggested, and  7 indeed what Calder II did, if sovereignty did not  8 eradicate ownership, then, as we have argued before,  9 Calder II would have eradicated ownership.  That's not  10 to say that it would have done anything to aboriginal  11 rights.  12 We say that Calder II did not, although Mr. Plant,  13 the Amicus argued before you that Brennan's judgment  14 explains Calder II.  He says that it explains Calder  15 II, I submit, because the idea that the Crown could  16 grab ownership for beneficial interest -- it takes on  17 sovereignty, the radical title, it can get out and get  18 ownership.  We know that.  We know that if it does it  19 right it can extinguish, and we know that it can set  20 up a reserve.  What I understood Mr. Plant to say is  21 that the explanation of Calder II rests in the Brennan  22 judgment.  And I submit that that's not the case at  23 all.  That's not the case at all.  Because the reason  24 for Calder II, as we know, and I'll just give you the  25 reference, it's Exhibit 1142-2.  And it's the  26 enclosure with Calder's -- I believe Calder I and II.  27 I may be wrong on that.  It may be Calder I.  It's  28 dated the 1st of December, 1858, which is a day before  29 Calder 1.  But, in any event, this is what Judge  30 Begbie had to say when he is talking about the need.  31 He says:  32  33 "It appears to me the title of the Crown can  34 only be conveyed by letters patent under a  35 great seal ... I should therefore recommend a  36 Proclamation and have the force of law to  37 immediately be issued."  38  39 Et cetera.  Then he says this:  40  41 "This merely provides machinery for carrying  42 into full legal effect the sales which have  43 already been made equitably at the auction and  44 subsequently thereto in the surveyor's office."  45  46 That's the reason for Calder I and Calder II and  47 the others.  It's to set up a system. 2754  Submissions by Mr. Williams  1 It's a reference to Calder I, I am told.  Thank  2 you.  3 That's the reason --  4 HUTCHEON, J.A.:  I think that was the criticism Mr. Willms  5 levied at you before.  You kept referring to it as  6 Calder II and it was Calder I.  7 MR. WILLIAMS:  I'm sorry.  They are about two and-a-half months  8 apart.  But I still submit that that's the rationale  9 for the Calder legislation.  And I say that the idea  10 that Justice Brennan's judgment explains Calder II is  11 without merit in my respectful submission.  What he  12 has done is to try to develop a theory to get around  13 the Australian cases that he disagreed with, and  14 that's the theory he came up with.  He could have come  15 up with this theory and it would have been the same,  16 and it would have made no difference.  17 I say that with respect to the so-called -- Mr.  18 Plant's remarks that it has no merit.  First of all I  19 say that that assists our argument.  Secondly, I say  20 that Mr. Justice Brennan also said that general  21 legislation for the development of a scheme does not  22 extinguish.  And you will recall the example of making  23 available property for a school and building a school.  24 It's the building of the school that does it.  So  25 Justice Brennan didn't have in his mind what Mr. Plant  26 had planted there -- put there.  Pardon me.  And I  27 submit that that's where that stands.  28 And thirdly, Mr. Plant himself said to the court,  29 and I have the transcript here, and I think I am  30 properly summarizing it.  He said Calder II didn't  31 itself extinguish aboriginal rights.  It extinguished  32 ownership only.  He says that it did not extinguish  33 aboriginal rights.  What he says did extinguish  34 aboriginal rights was the Calder documents put  35 together with Governor Douglas's promise.  A promise  36 that they can hunt on the land like everybody else and  37 the establishment of reserves in which they had no  38 input.  Those are the things that he says, taken  39 together with the Calder documents, create the  40 extinguishment.  And I submit that that doesn't stand  41 the test at all.  It doesn't stand the test of  42 intention and it doesn't stand the test of adverse  43 dominion.  44 Moving on.  The change of sovereignty.  I simply  45 say here that the court says it is not for this court,  46 that's their court, of course, to canvass the validity  47 of the Crown's acquisition of sovereignty over the 2755  Submissions by Mr. Williams  1 islands.  A mere change of sovereignty does not  2 extinguish native title to land.  3 And Justice Brennan says again the terra nullius  4 theory could hardly apply.  These people were  5 gardeners.  Justice Dawson says that sovereignty does  6 it all, as he said earlier.  And Justice Toohey says  7 that sovereignty is mainly a matter of jurisdiction.  8 Title to land is mainly a matter of municipal law.  9 This is over on page 14.  And he says that seizure of  10 private property in a settled colony is an  11 illegitimate act and the Crown has no power to make  12 laws.  13 The application to our case is the position of the  14 Province in this case is the same.  Mere assertion of  15 sovereignty doesn't extinguish aboriginal rights.  16 I turn now to blanket extinguishment on the bottom  17 of page 14 and say that six judges held that with the  18 exception of Crown grants the aboriginal rights of the  19 native people had not been extinguished in the Murray  20 Islands by the assertion of sovereignty or any other  21 legislative instrument.  And that is to say the  22 reserve, the statute setting up the reserve.  And  23 there has to be, according to the judges, a clear and  24 plain intention.  The clear and plain intention test  25 is not made out by the creation of a reserve to  26 control the land or a scheme to control the land.  27 And over on page 15 I say that intention,  28 according to Justice Brennan, may be a question of  29 fact, it may be a question of law, or it may be a  30 question of mixed fact and law.  "If land is used", I  31 am reading from the second complete paragraph:  32  33 "If land is used and occupied for a public  34 purpose (presumably a road) and the manner of  35 occupation is inconsistent with the continued  36 enjoyment of native title, native title will be  37 extinguished.  A reservation of land for future  38 use as a school, a courthouse or a public  39 office will not by itself extinguish native  40 title; construction of the building, however,  41 would extinguish such title."  42  43 Deanne and Gaudron say that -- they say, my lords,  44 that you can't unilaterally extinguish against the  45 wishes of the native people.  And they say that there  46 must be a plain and clear or they use the phrase clear  47 and ambiguous.  And I believe they say that it has to 2756  Submissions by Mr. Williams  1 be expressed in the legislation or that the -- if it's  2 to be an executive act, it must be clear in the  3 legislation that the executive has the power to do it.  4 That's a little different than saying it has to be  5 expressed in the legislation by itself.  But that's  6 what I understand them to be saying.  7 They say that --  8 LAMBERT, J.A.:  The clear and plain intention is the intention  9 of the legislature, whether you derive it from what  10 they say the executive could do or what they say  11 themselves that they are doing.  12 MR. WILLIAMS:  It's a delegated -- in a sense a delegated  13 function.  14 LAMBERT, J.A.:  Yes.  15 MR. WILLIAMS:  Yes.  I understand.  But I had the feeling in  16 reading their judgments that either the legislature  17 would have to have expressly extinguished or they  18 would have had to say something in their legislation  19 which would have authorized the executive to expressly  20 extinguish.  The legislation would not have to contain  21 the express intent.  That's what I understood them to  22 say.  In other words, if they had legislation saying  23 that we are going to issue deeds to a whole lot of  24 people, and those deeds will take care of any other  25 interests in land, but they don't expressly say and  26 we'll extinguish the native interest or something like  27 that, but the executive so interprets it and acts  28 within what he believes that intent to be, I took it  29 what they were saying that that was sufficient.  I  30 could be wrong.  It's not clear.  31 In any event, they say the waste land legislation  32 which affected native lands does not extinguish.  33 That's another point that they made and that's over on  34 page 16.  They say that if the lands became Crown  35 lands under the Crown Land Alienation Act, then the  36 native title was not extinguished but remained a  37 burden on the radical title.  So whatever -- and I'm  38 afraid I'm not familiar with all the terms of the  39 Crown Lands Alienation Act, but whatever it said and  40 whatever it did, it didn't extinguish so far as they  41 were concerned.  42 Justice Dawson says that not only did the  43 sovereignty extinguish but so did the reserve.  The  44 creation of the reserve was for the benefit of the  45 native people and that extinguished.  46 Justice Toohey says that native title cannot be  47 extinguished by -- unless there is clear and plain 2757  Submissions by Mr. Williams  1 intent, and the general legislation for the alienation  2 of land does not extinguish.  That's the same as  3 Deanne and Gaudron.  4 And the application to Delgamuukw, I say, is that  5 although the facts are different in the Mabo case,  6 there was legislation which dealt with the land okay.  7 It reserved the land.  It set it aside for a purpose,  8 namely, the purpose of the people, the native people.  9 That did not extinguish, except for what Justice  10 Dawson says.  And I say, particularly relying on what  11 Justice Brennan says, that neither does the Calder  12 XIII extinguish because it's exactly the same sort of  13 thing.  It's different.  Of course it's different.  14 It's dealing with settlers coming in, and it's a  15 general plan to take care of the settlers when they  16 come in, but conceptually it's the same thing as land  17 being set aside for a different purpose, as it was in  18 Australia.  19 I'll just end this by reading from the end of my  20 notes.  21 I say that six of the judges, and perhaps even  22 Justice Dawson on this point as well -- I'm reading  23 from about two inches down on page 17 -- concurred  24 that the reservation of land by statute for a purpose  25 does not by itself extinguish native title and that it  26 would take something more, for example, the building  27 of a school, et cetera.  We submit that in Delgamuukw,  28 as in Mabo, neither the assertion of sovereignty or  29 enactment of legislation declaring and designating  30 lands for a purpose, reserve or a scheme for purchase  31 by settlers is sufficient to demonstrate the plain and  32 clear intention to extinguish all aboriginal rights.  33 Now, my lords, I move to the intent and necessary  34 implications of the doctrine of adverse dominion.  35 Six judges held that a subsequent inconsistent grant  36 of the land will have the effect of extinguishing  37 aboriginal rights.  38 And dealing firstly with the Brennan group.  He  39 says that any Crown grant inconsistent with native  40 title will extinguish that right.  This does not  41 depend upon the intent of the Crown but on the effect  42 of the grant upon the right.  43 There is two ways of expressing this, my lords,  44 and I don't think it matters, because both come to the  45 same conclusion.  One is what Justice Brennan has just  46 said.  There is really two ways of arriving at an  47 extinguishment.  One is through the plain and clear 2758  Submissions by Mr. Williams  1 intention of the extinguisher, and the other is by --  2 through effect.  Doing something that is totally  3 inconsistent with the right.  The other way of  4 treating that is to say that it all comes down to  5 intention, but that the plain and clear intention of  6 the Crown can be gathered either from language in the  7 statute, from the surrounding circumstances in respect  8 of an overpowering conclusion you must arrive at from  9 the circumstances not present in this case, or that  10 the intention can be implied, and that the intention  11 would be implied to the Crown if they were to grant a  12 deed.  I don't think it matters which of those are  13 taken.  I don't think I need to deal with the other  14 judgments, because there is nothing new there.  15 I move on to the application to Delgamuukw.  The  16 Province argues in Delgamuukw that when the court has  17 used the phrase "plain and clear intention" rather  18 than "by express legislation" or "expressly", then it  19 must follow that there are situations which will  20 permit extinguishment by necessary implication.  21 If Justice Dixon and the others weren't prepared  22 to go as far as Mr. Justice Hall went, saying that it  23 had to be express, but only that it had to be plain  24 and clear, when he could have said express, then he  25 must have meant that there is something other than  26 express which will also extinguish, and that is  27 necessary implication.  28 Over on page 19.  I say that -- I just point out  29 the Province did not draw the line in the same manner  30 that Justice Brennan did about the lease, and we ask  31 that the line not be drawn.  We ask that it be put  32 back to the parties.  But that, of course, is for the  33 court to determine.  If you are to draw the line, then  34 the principle upon which it would be drawn is whether  35 or not the grant is inconsistent with the exercise of  36 the right.  37 I turn now to compensation.  And here four of the  38 judges, four of the seven would not award compensation  39 for extinguishment.  And I gather that -- I would say  40 here that it doesn't appear to me here that Justice  41 Dawson ever said that.  But if you look at the  42 beginning of the page 1, which is really the Chief  43 Justice's sort of headnote or the Chief Justice's  44 statement in the case, he says that in respect of  45 compensation, because of the judgment of Justice  46 Dawson on the will of the Crown, that there can be no  47 compensation.  And in effect what he is saying, he's 2759  Submissions by Mr. Williams  1 making it a four to three judgment on no compensation.  2 Justice Brennan says that -- well, I have already  3 pointed out what happened on page 1.  He says:  4  5 "... Dawson supports the conclusions since he  6 considers that native title, where it exists,  7 is a form of permissive occupancy at the will  8 of the sovereign."  9  10 The other three, though, say this, at least Deanne  11 and Gaudron say that even though the right is a  12 personal right, it would be a wrongful infringement  13 thereof to unilaterally extinguish.  And if the Crown  14 did that, they would be liable for compensatory  15 damages.  16 What Justice Toohey says, and I believe -- and, of  17 course, what Deanne and Gaudron say is that it amounts  18 to an expropriation.  I mean, it's an expropriation in  19 private rights, and I believe somewhere they say that  20 it's an expropriation of private rights under the  21 commonwealth constitution, Section 51, which simply  22 means that in Australia there is an absolute right to  23 not be expropriated under that commonwealth  24 constitution.  And it's predicated on that document  25 that these three judges deal with the right to  26 damages.  Justice Brennan doesn't deal with it at all.  27 It's only Chief Justice Mason putting the words in his  28 mouth, if I can put it that way, in that comment at  29 the front of the case.  30 So, the application to Delgamuukw is simply that  31 the position of the Province, like the majority in  32 Mabo, is that extinguishment of aboriginal rights  33 would not give rise to a claim for compensatory  34 damages.  But you will recall that it is the  35 preference of the Province that that matter not be  36 dealt with in that case and also the preference of the  37 Appellants that the right to damages and the damages  38 not be dealt with by your lordships, but rather that  39 we be permitted to negotiate on that, which I submit  40 would be a greater benefit to both the Appellants and  41 the Province and indeed everyone else.  42 Excuse me, my lord.  It's been pointed out to me  43 that in my argument I may not have left it clear that  44 Deanne and Gaudron do permit a deed to extinguish.  I  45 thought I said that, but if I didn't, it's on page 18.  46 LAMBERT, J.A.:  What you said on page 17, the end of the third  47 paragraph, "... is sufficient to demonstrate a plain 2760  Submissions by Mr. Williams  1 and clear intention to extinguish", and then you said  2 all aboriginal rights.  And I'm not entirely sure  3 whether every aboriginal right is in the same category  4 with respect to extinguishment.  5 MR. WILLIAMS:  That's perhaps a careless use of the word "all".  6 LAMBERT, J.A.:  It was just oral.  That is, you went on after  7 you read the word "extinguish" at the end of the third  8 paragraph on page 17.  I just wonder about it.  In the  9 context of Mabo it is the claim to land that's the  10 only claim that's in issue, and presumably drawing on  11 that you are only considering the law in relation to  12 the extinguishment in British Columbia of the  13 interests in the land, the direct ownership or  14 occupation interests in the land and not other  15 aboriginal rights.  16 MR. WILLIAMS:  I said earlier, my lord, I said that one has to  17 understand the difference here, in that they weren't  18 dealing with hunting and berry picking rights on the  19 Murray Islands.  20 LAMBERT, J.A.:  Yes.  21 MR. WILLIAMS:  But I do say, in response to your question, my  22 lord, that if you except the proposition that these  23 are land related rights here in British Columbia, and  24 that to go fishing you have got to go on the land, and  25 to go hunting you have got to go on the land, I was  26 simply drawing the parallel that the same principles  27 apply.  The same basic principles apply in the sense  28 that whether or not you have lost your right to hunt,  29 and whether or not you have lost your right to kill a  30 goat or go fishing or trapping, are all so closely  31 related to the land that if the Appellants have  32 aboriginal rights of a sui generis nature with respect  33 to a part of the territory they are claiming or some  34 portion at least of the territory they are claiming,  35 that it would include those other rights.  I call them  36 sub-rights.  37 LAMBERT, J.A.:  Yes.  38 MR. WILLIAMS:  I am not dealing with -- in other words, my  39 submission would be that the whole claim to aboriginal  40 rights or the sui generis interest in respect of land  41 really came about that can be tested by these  42 practises.  They lived there, they hunted there, they  43 did all those things.  And if they have the rights to  44 the land, they have those rights to do other things,  45 subject to regulation, subject to whatever else.  And,  46 therefore, I think the principles in the Australian  47 case are fundamentally the same as they would be here. 2761  Submissions by Mr. Williams  1 LAMBERT, J.A.:  Well, subject to this, that the effect of the  2 issuance of a fee simple title of a lot in North  3 Vancouver from the Crown might well be different in  4 relation to hunting or for berry picking than the  5 issuance of a fee simple title to a forest company for  6 a huge tract of land in the Province.  Some of the  7 forest company titles are in fee simple, and I would  8 have thought that hunting rights and berry picking  9 rights might be unaffected by the issuance of such a  10 fee simple title.  11 MR. WILLIAMS:  Exactly, my lord.  And I suppose it's very hard  12 to use any kind of example without finding out that  13 there are exceptions.  It's like a law, there's always  14 an exception.  15 Basically the granting of a deed in North  16 Vancouver to a person who can build a fence right  17 around and stop them from trapping beaver on his lawn,  18 that's pretty heavy, and I would submit that amounts  19 to an extinguishment.  Of course the Bartleman case is  20 an example.  There was a treaty involved there, but it  21 was a slightly different situation.  22 Then you could argue, well, what's the difference  23 between a Crown granted forest right, if you like, and  24 one that is on a TFL or even a cutting licence, some  25 kind of a lesser cutting licence?  They are very  26 different in law.  The effect of them may be the same.  27 Of course you could still go berry hunting -- berry  28 picking and you wouldn't be affecting the logging.  29 The question is can the person whose got a deed in the  30 forestry, he's got a deed to his land for forestry  31 purposes, can he, by virtue of the fact that he's got  32 a deed, simply say that's all I need.  I got the right  33 to fence because I got the deed.  34 But those are the -- if I may say so, those are  35 the on the ground issues that it would seem to me  36 impossible for this court or any other court to deal  37 with at this point, and therefore back to the parties.  38 But I don't disagree, my lord, that it's possible that  39 deeds, certain deeds, it's possible that certain deeds  40 would diminish but not extinguish.  41 LAMBERT, J.A.:  And what was said by the High Court of Australia  42 in relation to this particular island in the Murray  43 Islands may not be appropriate to the extensive area  44 of British Columbia.  We must read it in that context.  45 MR. WILLIAMS: I outlined the difference, the exclusivity and the  46 non-settlement and so on may not be the same.  But I  47 still say, my lords, I still say that particularly in 2762  Submissions by Mr. Williams  1 the Brennan judgment those principles are -- and he  2 says this.  These are not limited to the Murray  3 Islands of Australia.  These are colonial aspects that  4 we are dealing with throughout the world.  I think  5 that his -- particularly his judgment is a very useful  6 one.  7 We have a page number problem.  If I may take you  8 to page 4.  It should be -- if you don't mind, Justice  9 Toohey there, just above "Application to Delgamuukw",  10 it should be 186, 187, rather than 106, 107.  If  11 you're with me there.  12 TAGGART, J.A.:  In the second paragraph at the end?  13 MR. WILLIAMS:  Just before "Application to Delgamuukw" on page  14 4.  The second paragraph up from that.  "Justice  15 Toohey appears to agree with Baker Lake."  Those  16 references ought to be 186, 187, rather than 106, 107.  17 I promised to finish by the break, and I'm done.  18 Thank you, my lord.  19 TAGGART, J.A.: All right.  Take the midmorning break.  20 THE REGISTRAR:  Order in court.  Court stands adjourned for a  21 short recess.  22  23 MORNING RECESS  24  25 THE REGISTRAR:  Order in court.  26 MR. WILLIAMS:  If I may just make one point.  I have  27 reconsidered my answer to my lord Justice Lambert on  28 the deeds, which really means my partner Taylor, who  29 has to argue adverse dominion that deeds extinguish  30 has taken me to the woodshed.  31 And I would like to say that our position is that  32 as a matter of law, and that's what it really gets  33 down to here, as matter of law it is the issuance of  34 the deed, we say, that is the adverse dominion.  That  35 is the thing that is inconsistent with native title.  36 It's the issuance of the deed.  So as a matter of law  37 I want to correct the record and say that our position  38 is that deeds extinguish, all Crown deeds extinguish.  39 Now, as to the question of access, of course, like  40 Bartlemen, if we take your lordship's example, if  41 someone owns 20,000 acres in land and they are  42 harvesting it as a forest, the question of access, if  43 it's not fenced, is another issue.  I don't think we  44 have to deal with that.  I just want to make sure that  45 as a matter of law that I correct the record on that.  4 6 Thank you.  47  TAGGART, J.A.:  Mr. Taylor. 2763  Submissions by Mr. Taylor  1 MR. TAYLOR:  Yes, my lords.  My lords, I have handed up a  2 document entitled "Sur-reply of the Province - Adverse  3 Dominion", and I have also prepared a book of extracts  4 to go with it, which you should have, and it's  5 labelled W-9.  And when we are concluded, if these  6 speaking notes or outline could be inserted at Tab A,  7 and then it will be all together.  8 LAMBERT, J.A.:  We've got out in front of us Volume 1 and Volume  9 2 of the corrected, revised factum of the respondent.  10 Are we going to need those during your submissions?  11 MR. TAYLOR:  I wouldn't think so, my lord.  No.  12 TAGGART, J.A.:  Yes, Mr. Taylor.  13 MR. TAYLOR:  Yes, my lords.  Just briefly if I can just give you  14 an overview, because it may be that I'll be leaving  15 portions of this document just with your lordships  16 rather than covering it all orally.  I have broken  17 down the sur-reply to cover areas that arose during  18 the reply of the Appellant and some of the submissions  19 of the Intervenors, and I have expanded it from what  20 it was -- as delivered on Monday as a result of  21 certain questions which were asked and responses to  22 those questions over the last couple of days.  It  23 deals really with five areas.  24 The first deals with this question of the federal  25 common law and the alleged paramountcy of federal  26 common law.  And that's tab -- that's letter A, and  27 that runs from page 1 through 6.  28 The second topic dealt with is Section 109 and the  29 argument of the intervenor Carrier Sekani with respect  30 to this third category of public property.  And that  31 runs from pages 7 through 12.  32 The next topic is sub C at page 13.  This question  33 of alleged federal statutory paramountcy.  34 And sub D begins at page 15 dealing with the  35 question and definition of lands for the reserve for  36 the Indians, including a discussion of the Appellants'  37 reliance on certain of the comments made by Justice  38 Dixon in the Guerin case.  39 The last section just deals with Section 91 (24),  40 the Indian concept, and essentially I am referring  41 your lordships back there to the original submissions  42 on that core interest.  43 And perhaps I can start with the concept of core  44 interests.  It's the Province's position that any  45 impediment to its power to legislate with respect to  46 lands in the Province, even lands to which an  47 aboriginal claim is asserted, is restricted, if at 2764  Submissions by Mr. Taylor  1 all, only pursuant to the provisions of 91(24).  And  2 with respect to 91(24), just to make it clear and  3 bring it into focus, we say that lands reserved for  4 the Indians mean Indian reserves.  Lands on the  5 cases -- lands which have been specifically allocated  6 and set aside for the use and benefit of Indians, and  7 that flows from the language of the B.N.A. Act, it  8 flows from the Terms of Union and it flows from the  9 cases themselves dealing with the concept of lands  10 reserved for the Indians.  11 With respect to the Indian portion, we say that  12 the question for the court in that is that the  13 Province, flowing from a source of power within 92,  14 can legislate and can affect Indians, the head of  15 power of Indians, provided it doesn't go into that  16 core which I discussed, that Indianess.  17 And I would like to then, given that overview, I  18 would like to bring into focus, I would like to  19 discuss those five areas that developed out of the  20 reply which, although my friend concedes that they are  21 not arguing an enclave theory in full, certainly they  22 are trying to seek immunity from the effect of  23 provincial legislation.  And how far that immunity  24 goes depends on who is doing the talking.  The  25 Appellants, as it appears, and I'll refer to the  26 speaking notes, perhaps now say that immunity doesn't  27 go to really anything other than extinguishment, but  28 certainly with respect to other parties in other  29 appeals that have been heard, together with -- or as  30 part of this overall Indian appeal package, and  31 certainly with respect to some of the intervenors,  32 their concept of immunity goes much farther than just  33 the question of extinguishment.  34 Now, first of all, dealing with the federal common  35 law, I start at paragraph 1.  Both the Appellants and  36 the intervenor Carrier Sekani have referred to the  37 concept of federal law, and primarily on the basis of  38 the Roberts decision have argued that the law of  39 aboriginal title, being an aspect of federal common  40 law, is therefore immune from provincial legislation  41 or actions.  42 And it's the Province's position that this  43 argument attempts to make the leap from concept  44 concerned in the Roberts case solely with the issue of  45 federal court jurisdiction to the proposition that the  46 federal government's exclusive powers under Section 91  47 are somehow expanded or supplemented by the common 2765  Submissions by Mr. Taylor  1 law.  We say that this leap is not justified and finds  2 no support in the Roberts decision.  3 Now, dealing with Roberts.  I have included a copy  4 of Roberts at Tab 1.  And the substantive issue in  5 that case was which of two bands was entitled to  6 possession of an Indian reserve.  And it's noteworthy  7 that it is a reserve because Guerin is one of the  8 cases which is relied on in the decision which also  9 concerned an Indian reserve.  Set aside by the  10 Province and the federal government, and that was done  11 in the 19th century, and it was subsequently dealt  12 with by the McKenna-McBride Commission in the early  13 part of the 20th century, and the question was -- that  14 substantive issue was not dealt with on its merits.  15 The question before the court was simply:  Did the  16 federal court have jurisdiction to hear the case?  17 Now, Mr. Paterson in his submissions suggested  18 that the plaintiff band was claiming that it had  19 aboriginal title to the land in question, however, as  20 appears in the judgment itself, the plaintiffs' claim  21 was not so based.  And I quoted there from the  22 decision of Madam Justice Wilson at page 337 where she  23 recites a concession by plaintiffs' counsel:  24  25 "In this court the plaintiff band conceded that  26 its claim was not based upon aboriginal title  27 but contended that such title would be relevant  28 to the determination of the right to occupation  29 of the reserve."  30  31 This is significant, in our submission, since the  32 jurisdictional ruling specifically dealt with the --  33 and this is the ultimate conclusion with respect to  34 the common law of aboriginal title as federal common  35 law.  It was in relation to the common law, was in  36 relation to the manner in which it underlay the  37 fiduciary obligation of the Crown to both of the  38 bands.  39 If I can just take a moment to explain the facts,  40 because I think it is critical.  This is not an  41 aboriginal title case.  This is an Indian reserve case  42 in which of two bands had the right to possess that  43 Indian reserve.  And if I could take your lordships to  44 page 325 and deal briefly with the facts just so that  45 you can understand the issue.  The plaintiffs, and  46 I'll call them the Campbell River Band, one of their  47 names, lived principally on what's known as Reserve 2766  Submissions by Mr. Taylor  1 No. 11.  And that was in Campbell River.  The  2 defendants, the Cape Mudge Indian Band, partially  3 resided on Cape Mudge Indian Reserve No. 10 on Quadra  4 Island, so there is no difficulty there, and partially  5 on the reserve which was the reserve in issue being  6 Reserve No. 12.  And the plaintiffs said in their  7 action or claimed in their action that in fact the  8 Cape Mudge Band was wrongfully occupying Reserve No.  9 12 and didn't have any right to be there, and that it  10 was properly the reserve of the Campbell River Band.  11 In the next paragraph it sets out the history of  12 the matter and, I submit, how the problem arose.  By  13 Order in Council in 1888 Mr. Green, Ashdown Green, was  14 sent out, on the instruction of both the provincial  15 and federal government, to determine the boundaries of  16 the Indian reserves in Campbell River.  And he did  17 that.  He settled the boundaries as Reserve No. 11 and  18 Reserve No. 12.  This is at the bottom of the last  19 paragraph on 326:  20  21 "According to the facts set out by the Crown and  22 defendant band the report of Ashdown Green  23 confirmed that the lands comprising the  24 surveyed reserves had been set aside for the  25 use of the defendant bands."  26  27 That's the Cape Mudge Band, and that's the reserve  28 in dispute.  29 And the problem, then, arose, turning to the top  30 of the next page, in 1912 when the McKenna-McBride  31 Commission was sent out to settle all differences  32 between the two governments.  And you have heard about  33 the McKenna-McBride in this proceeding.  And that  34 commission then ordered, and it's set out starting  35 around letter B:  36  37 "The Indian reserves 11 and 12 ..."  38  39 So both of them.  40  41 "... be confirmed as now fixed and determined  42 ..."  43  44 And it was then to be given to the Campbell River  45 Band.  And that was subsequently confirmed in  46 Orders-in-Council by both British Columbia and Canada.  47 And then at the very end of that paragraph: 2767  Submissions by Mr. Taylor  1  2 "According to the Crown this reference to the  3 Campbell River Band insofar as it refers to  4 Reserve No. 12 ..."  5  6 That's the disputed reserve.  7  8 "... was made in error or inadvertence and the  9 defendant band claims that Mr. Green in fact  10 set aside the reserves for it alone."  11  12 And it appears that the defendant band were in  13 fact in occupation of this reserve since at least the  14 late 19th century.  15 The question arose, as I say, as to whether or not  16 the federal court had jurisdiction.  I'm at paragraph  17 5.  Madam Justice Wilson analyzed the jurisdictional  18 issue on a test which had been referred to in earlier  19 cases that there had to be a statutory grant.  And  20 then the second and third branches of the test, which  21 concerned the issue of common law:  There must be an  22 existing body of federal law which is essential to the  23 disposition of the case and which nourishes the  24 statutory grant of jurisdiction; the law on which the  25 case is based must be a law of Canada, as the phrase  26 is used in Section 101 of the Constitution Act.  27 The first branch of the test took up a fair  28 portion of the judgment, dealt with the statutory  29 grant, and it was ultimately decided that Section 17  30 (3) (c), an inter-pleader type provision, gave the  31 statutory grant.  32 Madam Justice Wilson then discussed the second and  33 third branches of the test in the following terms:  34  35 "While there is clearly an overlap between the  36 second and third elements of the test for  37 Federal Court jurisdiction, the second element,  38 as I understand it, requires a general body of  39 federal law covering the area of the dispute,  40 i.e. in this case the law relating to Indians  41 and Indian interests in reserve lands, and the  42 third element requires that the specific law  43 which will be resolutive of the dispute be 'a  44 law of Canada' within the meaning of s. 101 of  45 the Constitution Act, 1867.  No difficulty  46 arises in meeting the third element of the test  47 if the dispute is to be determined on the basis 2768  Submissions by Mr. Taylor  1 of an existing federal statute.  As will be  2 seen, problems can, however, arise if the law  3 of Canada which is relied on is not federal  4 legislation but so-called 'federal common law'  5 or if federal law is not exclusively applicable  6 to the issue in dispute."  7  8 Now, at paragraph 8 it is our position in  9 determining whether or not the common law of  10 aboriginal title could be termed a law of Canada  11 within the meaning of Section 101, Madam Justice  12 Wilson was not determining the limits of federal  13 legislative competence or considering the division of  14 powers under the Constitution Act.  The decision, in  15 fact, confirmed earlier rulings by Chief Justice  16 Laskin that federal legislative competence over a  17 subject matter is not enough to satisfy the third  18 branch of the test for federal court jurisdiction.  19 Moreover, Madam Justice Wilson didn't decide that  20 the common law of aboriginal title was federal law and  21 thereby somehow immune from provincial legislation.  22 What was decided was that the common law of aboriginal  23 title, which, and this is important, which underlay  24 the fiduciary obligations of the Crown to both bands,  25 was federal common law for jurisdictional purposes.  26 And at paragraph 10 I pointed out that it was  27 fundamental to this action that the Crown was a party.  28 The Crown, in effect, was in the middle, and that was  29 the primary focus of the case in terms of who was to  30 reside on the reserve.  And Madam Justice Wilson  31 discussed that in this fashion:  32  33 "The Crown must hold the land comprising Reserve  34 No. 12 for the use and benefit of one of the  35 bands.  The question is:  Which one?  Finally,  36 the case at bar falls within the wording of  37 17(3) (c) because the conflicting claims are  38 undoubtedly in respect of the Crown's  39 obligation.  Each band claims that the Crown,  40 which holds the underlying title to the land,  41 owes to it alone the obligation to hold the  42 land for its exclusive use and occupancy."  43  44 Now, the fact that the law of aboriginal title as  45 federal common law for jurisdictional purposes was  46 tied to the Crown's alleged duties is made clear in  47 the conclusion of the case itself, which is set out at 2769  Submissions by Mr. Taylor  1 340, and I have quoted from it.  2  3 "While, as was made clear in Guerin, Section  4 18(1) of the Indian Act did not create the  5 unique relationship between the Crown and  6 Indians, it certainly incorporated it into  7 federal law by affirming that 'reserves are  8 held by Her Majesty for the use and benefit of  9 the respective bands for which they are set  10 apart'.  11 I would conclude therefore that the 'laws  12 of Canada' are exclusively required for the  13 disposition of this appeal, namely the relevant  14 provisions of the Indian Act, the act of the  15 federal executive pursuant to the Indian Act in  16 setting aside the reserve in issue for the use  17 and occupancy of one or other of the two  18 claimant bands, and the common law of  19 aboriginal title which underlies the fiduciary  20 obligations of the Crown to both bands."  21  22 Accordingly, the remaining two elements were met.  23 So the Roberts case looked at, in our submission,  24 common law of aboriginal title in relation to the  25 obligations of the Federal Crown to the Indians  26 involved under the Indian Act.  It's not dissimilar  27 from the use to which that concept was put in Guerin,  28 where, and I'll deal with Guerin later, but in Guerin,  29 as you will recall, it wasn't the fact that the  30 Musqueam Band had aboriginal title to the lands in  31 question which gave rise to liability on a fiduciary,  32 it was that they surrendered the reserve lands that  33 gave rise to the fiduciary obligation.  34 Now, I have next referred to the Monk Corporation  35 case, which is a maritime case which again expands or  36 appears to expand the jurisdiction of the federal  37 court in maritime matters to matters going beyond  38 statute.  And it's a decision by Mr. Justice  39 Iacobacci.  And in our submission this makes clear  40 that in terms of looking at the concept of federal  41 common law one must look at these core interests  42 again.  It's not enough to say it's been used or  43 associated.  It must go to some core aspect of the  44 federal head of power or jurisdiction.  And there is a  45 quote from the ITO case, Mr. Justice Mclntyre's  46 decision, setting out two of the principles, in our  47 submission, which make that clear.  And Mr. Justice 2770  Submissions by Mr. Taylor  1 Iacobacci applied those principles, and I have said it  2 at the quote on the bottom of paragraph 12:  3  4 "Applying the principles and approach of the ITO  5 case to the case at bar, one must begin by  6 asking whether the claims made by Monk are so  7 integrally connected to maritime matters as to  8 be legitimate Canadian maritime within federal  9 competence."  10  11 And of course the argument by the defendants in  12 that case was that this was a contract for the  13 delivery by ship of some fertilizer, and they said it  14 was too much.  They delivered too much so it cost them  15 too much to unload it and ship it and all the rest of  16 it.  17 The argument of the defendants was this is a  18 matter of sale of goods.  The decision was no because  19 of all of the connections to maritime law with the  20 case, on the facts of the case, it's integrally  21 connected to maritime law, whereas if there weren't  22 those connections, it would be a matter of property  23 and civil rights.  So in that sense maritime law was  24 held to apply, federal maritime law was held to apply,  25 rather, than provincial law.  26 Accordingly, it's our submission that no support  27 for the proposition advanced by the Appellants in  28 Carrier Sekani can be found in the Roberts decision.  29 And that is that federal common law somehow immunizes  30 claims of aboriginal title from the application of  31 provincial law.  32 We go on to develop the concept in paragraph 14,  33 and state that the common law is the common law.  It  34 makes no sense for the purposes of determining  35 legislative authority under the Constitution Act to  36 characterize it exclusively as federal or provincial.  37 Jurisdiction and division of powers under the  38 Constitution Act flow from Sections 91 and 92.  Any  39 limitation on legislative authority must flow from  40 those provisions.  And the two cases set out are long  41 standing authority for that proposition.  42 Now, Professor Hogg in an article in 1977  43 discussed the predecessor cases to the Roberts case  44 and advocated and articulated the view that the common  45 law -- and he was advocating that the federal court  46 should have an expanded jurisdiction to get rid of the  47 complications involved in taking a matter to that 2771  Submissions by Mr. Taylor  1 court, and he articulated the view that common law  2 need not be characterized as exclusively provincial or  3 exclusively federal, but in many cases has a dual  4 federal provincial aspect.  And I have set out the  5 quote there.  6 Now, the Appellants have pointed out that  7 Professor Hogg's -- some of Professor Hogg's article  8 has not been followed.  I submit that that was not  9 adversely commented on.  His article as a whole was  10 cited in the Roberts case, and I'll just leave your  11 lordships with a reference at page 334, Professor  12 Hogg's thesis.  In other words, there should be a  13 concurrent intended jurisdiction in the federal court  14 is left open by Madam Justice Wilson.  15 So there is no criticism of Professor Hogg's  16 analysis or approach, but it's our position that the  17 comments, articulation of that view of Professor Hogg  18 makes eminent good sense.  It's the common law that  19 somehow fufills or supplements or acquires a federal  20 provincial characteristic in respect to the areas  21 which is to be applied and in a dual aspect area, in  22 other words, where the Province can legislate based on  23 its head of power and could, incidently, affect a  24 federal matter that the common law is really two  25 common laws or could be characterized as two common  2 6 laws.  27 And Justice Taggart's referred counsel to the case  28 of Deputy Sheriff Holmes, and I have included that  29 case at Tab 16.  I won't take your lordships to it,  30 but as I understand the decision, is that the law of  31 execution in a federal court context was federal  32 common law, not that the law of execution for all  33 purposes was federal common law.  34 LAMBERT, J.A.:  Let me ask you something about that.  There is  35 no doubt about it that there is a federal law in  36 relation to labour relations and a provincial law in  37 relation to labour relations.  There is a federal law,  38 according to Holmes, in relation to execution, and  39 there's clearly a provincial law in relation to  40 execution.  So there are certainly some areas which  41 come within the double aspect test that's spoken of by  42 Professor Hogg that you have adopted, but the both of  43 those examples of labour law and execution are -- come  44 within matters and not classes of subjects.  So they  45 are kind of necessarily incidental or incidental to  46 classes of subjects and they have different aspects.  47 But where the common law that we are talking about is 2772  Submissions by Mr. Taylor  1 directly on a class of subjects as, perhaps, this is  2 on Indians and lands reserved for the Indians, it may  3 be that the double aspect test that we are obviously  4 speaking of doesn't have the same force.  And if you  5 were to decide that the question, the common law  6 question is a common law question in relation to core  7 Indian rights, it may well be that there is only a  8 federal common law and no provincial common law at  9 all.  10 MR. TAYLOR:  That's the thrust of our submissions, my lord, is  11 that it really makes no sense to try and decide  12 whether or not common law is federal or provincial for  13 jurisdictional allocation purposes.  And as I'll  14 discuss when I refer to another case cited by the  15 Appellants, it's really circular.  The test proposed  16 is the federal law -- common law is federal common law  17 if it can only be abolished, repealed, amended by  18 Parliament, but that begs the question, why is it only  19 that it can be abolished, repealed or amended by  20 Parliament.  Surely that decision, the source for that  21 decision is found in the concept of the core interests  22 in 91 and 92 of the Constitution Act.  I don't think  23 there is any other way that the court can determine  24 whether or not that this decisional rule or common law  25 rule is either provincial or federal, other than by  26 looking at the B.N.A. Act or the Constitutional Act to  27 say what is it about this matter, this subject that  28 makes it essentially federal, so that no provincial  29 legislation otherwise competent can affect any part of  30 it, whether it be statutory or whether it be  31 non-statutory rules.  32 Now, that approach was adopted in the Keable case  33 that I referred to at 17 and 18, which had to do with  34 the police secrecy rule which was held to be a matter  35 that a provincially appointed commission had no right  36 to overrule because it was a matter of the criminal  37 law.  And I'll just refer your lordships briefly to  38 the decision, which is at Tab 17, and specifically it  39 was the analysis undertaken by Mr. Justice Beetz in  40 that case.  41 WALLACE, J.A.:  What tab is that?  42 MR. TAYLOR:  Tab 17, my lord, and at page 106.  The analysis  43 undertaken was as to whether or not this rule was a  44 part of the criminal law core, because there is no  45 doubt, as is made clear in the case, there are many  46 aspects of the criminal law that can be touched upon  47 by the civil law as an example.  And this is made 2773  Submissions by Mr. Taylor  1 clear at page 106, starting at paragraph E.  2  3 "In view of the many facets of the secrecy rule  4 regarding police informers and the diversity of  5 the legal rules resulting from it, it might at  6 first sight be thought that this rule has  7 several aspects, some under federal and other  8 under provincial jurisdictions."  9  10 And then he goes on to discuss a rule of evidence.  11 Criminal proceedings might have an application in  12 civil proceedings.  And then flipping over the page to  13 107, starting at the first full paragraph.  Mr.  14 Justice Beetz disposes of the argument in this  15 fashion:  16  17 "On further analysis, however, it will be seen  18 that the rule in question is difficult to  19 reconcile with the multi-aspect theory, at  20 least as regards whether a peace officer can be  21 compelled by the court to disclose his  22 informer's identity.  This irreconcilability  23 results from the indivisible nature of the  24 secrecy which the rule is intended to protect  25 and the essential singleness of the reason  26 underlying the rule, which is the same in  27 criminal and in civil proceedings."  28  29 And then going down to the bottom it's finally  30 disposed of in this language:  31  32 "If therefore, the secrecy rule regarding police  33 informers' identity must be considered an  34 indivisible whole in constitutional terms, it  35 must be classified according to its salient  36 characteristics.  Whether one considers the  37 historical origins of the rule, the basis for  38 it, its direct connection with a peace  39 officer's status or powers or the rules of  40 evidence which result from it in a criminal  41 proceeding, and the one exception to it ..."  42 Which was that if the accused's innocence, proof  43 of the accused's innocence depends on disclosure, it  44 can be ordered.  45  46 "... In my opinion these salient characteristics  47 make it a rule of criminal law." 2774  Submissions by Mr. Taylor  1  2 And next it's set out in the passage that the  3 Appellants have relied upon that it need not be a  4 statutory rule to have paramountcy, but clearly in  5 this case the analysis of this non-statutory rule was  6 held to be exclusively federal because it was  7 integrally connected to the essence of the criminal  8 law power.  9 And then further on it's discussed that in effect  10 there is also a statutory basis for the paramountcy  11 alleged, being the Criminal Code itself adopting the  12 common law of England and Section 37 of the Canada  13 Evidence Act.  14 So again it's not -- the inquiry is not what is  15 the -- whether or not the law is federal or  16 provincial, it's whether the common law so-called is  17 properly a matter under 91 or 92 or properly a matter  18 with a dual aspect.  19 HUTCHEON, J.A.:  As I understand you on your approach, then, the  20 plaintiffs have to come under 91(24) in order to get  21 any help out of these cases.  22 MR. TAYLOR:  The inquiry remains the same, my lord, yes.  23 And the remaining passages we make those  24 submissions and say again as part of it that in  25 looking at the core we say not all aboriginal rights  26 are core rights, and I have made that submission and  27 I'll leave it with your lordship.  28 Now, dealing with Section 109.  The Carrier Sekani  29 have argued that the effect of Section 109 of the  30 Constitution Act is to create a third category of  31 public property in Canada.  32 LAMBERT, J.A.:  I'm sorry.  You say not all aboriginal rights  33 are core rights, and we've had so many submissions in  34 this case and you have said you have made that  35 submission.  Can you tell me -- you haven't made it  36 earlier today --  37 MR. TAYLOR:  Some days ago.  38 LAMBERT, J.A.:  It was somewhere included in your argument that  39 you made the other day?  40 MR. TAYLOR:  Yes.  And actually it's referred to at paragraph  41 21, the actual reference.  It's paragraphs 217 to 228  42 of the Province's corrected, revised factum and 228 A  43 to Z of the speaking notes.  44 LAMBERT, J.A.:  That's exactly what I wanted to know.  Thank  4 5 you.  46 MR. TAYLOR:  Now, with respect to Section 109 it's really the  47 Carrier Sekani who have, in our submission, made an 2775  Submissions by Mr. Taylor  1 issue, more of an issue of Section 109 than should be,  2 because the question on the authorities is clearly  3 with respect to jurisdiction, a 91(24) question.  It's  4 not a 109 question, but the Carrier Sekani have argued  5 it, and it's an interesting argument.  I think it's  6 wrong, but it's interesting.  Is that the effect of  7 109 is to create this third category of public  8 property in Canada, namely, and this is a quote from  9 their factum, "a proprietary interest of Indian  10 peoples, reflected by their aboriginal title", and  11 that the Province has no power to extinguish this  12 third category since it does not belong to the  13 Province.  14 Now, the Appellants don't appear to go this far,  15 and I have set out the reply factum paragraphs, but  16 there are hints that they perhaps go somewhat that  17 far.  And I'll leave it to your lordships to assess  18 exactly what the Appellants are saying on this topic.  19 I take them at their word in their reply that they  20 say, 'We are not saying that there is any taking away  21 from the beneficial interest of the Province.'  That's  22 how I read it.  And they talk about the Indian  23 interest as a burden.  24 And perhaps if I could -- it might be worthwhile  25 just to refer briefly to that.  It's the -- I'll give  26 you the reference.  It's Tab 8 of the reply speaking  27 notes.  It's Mr. Paterson's submissions of July 2,  28 1992.  He responded to the sur-reply, the written  29 notice of the sur-reply.  It would be at Tab 8, my  30 lords, paragraph 60 on page 24.  The paragraphs before  31 also relate, but I think it's clear, and if it isn't,  32 then it's still for the decision of this court, that  33 the Province receive the entire Crown interest -- the  34 Province receive the entire Crown interest in the  35 lands in the Province.  That's paragraph 60.  That  36 was, however, an impaired or burdened or encumbered  37 interest in Section 109 did not and was not intended  38 to convey to the Province a greater interest than had  39 been held by the former colony.  Confederation did not  40 unburden the land of its existing encumbrances.  41 And if that is only -- if that passage stands for  42 the fact that the Indian interest constitutes a burden  43 and Section 109 itself did not remove that burden,  44 there is no issue between the Appellants and the  45 Province.  It's only if it could be said, as Mr. Pape  46 has said on behalf of the Carrier Sekani, that the  47 109, the effect of 109 is to take away the beneficial 2776  Submissions by Mr. Taylor  1 interest, then do we have an issue.  Because as I  2 understand Carrier Sekani's argument, the Province's  3 jurisdiction flows from its proprietary interest in  4 the lands in question as owner.  And if it doesn't own  5 it can't -- it's a nemo dat rule in effect he said at  6 one point.  You can't give what you haven't got.  I  7 don't restrict the Province's power under the  8 Constitution Act that far, but clearly I think that  9 submission is wrong.  But there seems to be a  10 difference in thrust between the Appellants and the  11 Carrier Sekani on this issue.  12 We set that out at paragraph 24.  This position is  13 supported neither by the authorities nor by the  14 provisions of the Constitution Act.  15 I refer again to the Bank of Toronto and Lambe  16 case and the Attorney-General for Ontario and  17 Attorney-General for Canada case.  I refer -- and I  18 have included copies of all of the provisions of the  19 Constitution Act which deal with property, and I have  20 also included 109 which I say I will deal with later.  21 It does not exclude but it's clear in reading those  22 provisions the framers of the constitution sat down  23 and looked at this property and said who owns it.  The  24 Province gets this, the federal government gets this,  25 and all of these provisions deal with that  26 distribution.  And in our submission on a reading of  27 that, plus looking at the third schedule where they  28 actually get down to lighthouses and particular  29 islands that are given to the federal government, it  30 can't be said that the framers of the constitution  31 have left any room for a third category of public  32 property.  The beneficial interest in the property in  33 Canada belongs to either the Province or the federal  34 government under the constitution.  35 Now, with respect to the Terms of Union it's made  36 clear that with respect to lands in British Columbia  37 to be reserved for Indians, the Terms of Union  38 specifically contemplated that all lands in British  39 Columbia which were not owned by Canada were owned by  40 British Columbia, and that the agreement of British  41 Columbia was required before any lands could be  42 reserved for the Indians.  And that's set out in Term  43 13 which I have set there.  And over on page 8, the  44 second paragraph of Term 13 provides:  45  46 "To carry out such policy, tracts of land of  47 such extent as it has hitherto been the 2777  Submissions by Mr. Taylor  1 practice of the British Columbia Government to  2 appropriate for that purpose, shall from time  3 to time be conveyed by the Local Government to  4 the Dominion Government in trust for the use  5 and benefit of the Indians on application of  6 the Dominion Government; and in case of  7 disagreement between the two Governments  8 respecting the quantity of such tracts of land,  9 to be so granted, the matter shall be referred  10 for the decision of the Secretary of State for  11 the Colonies."  12  13 So, British Columbia's concurrence was needed, and  14 like any other -- not like any other, but like some  15 marriage agreements there seems to be a provision for  16 an arbitrator if the two parties can't agree.  But it  17 takes British Columbia's concurrence to agree or else  18 the arbitrator to say your agreement is not necessary,  19 my decision will rule.  20 Again we say that on the basis of this there is  21 just no room of this concept of the third category of  22 public property.  And we say that the fact that the  23 Carrier Sekani cited no authority approving such a  24 concept is significant.  25 I point out that the Carrier Sekani argue that the  26 effect of Section 109 of the Constitution Act is to  27 diminish the Province's title to the lands and  28 resources within its boundaries, thereby giving rise  29 to this nemo dat theory of incapacity.  And it's our  30 position that it's clear from the cases that I have  31 set out there, and I won't take your lordships to  32 them, they are in the book and I have referred to some  33 of them before, that there is no taking away of the  34 title.  There is a burden, but there is no taking away  35 of the beneficial title.  And that's made clear  36 throughout all of those cases, and perhaps made clear  37 as to the Smith case, which I referred to in argument,  38 which was cited with approval by all three decisions  39 and the Guerin case.  And I have set out those  40 portions of Guerin where it was approved.  41 And, as you recall, Smith was the case of where it  42 was held that the usufructuary right was discussed and  43 that it vanished as any other personal right would  44 vanish.  45 At 31 I have referred to the St. Catherine's case  46 which stated "The entire beneficial interest of the  47 Crown in all lands within its boundaries." 2778  Submissions by Mr. Taylor  1 The Indians Annuities case talked about the Crown  2 getting the entire beneficial interest.  Smith talked  3 about that.  The Ontario Mining and Seybold case was a  4 case that said it takes the Province to allocate lands  5 to be reserved for Indians, even though by failing to  6 do so they are in breach of a surrender arrangement.  7 The Indian interest is not such that it can bound a  8 requirement that a reserve be set up.  It's the  9 Province's land in all respects.  However, we do  10 concede that interests or trusts that burdened Crown  11 land prior to union continued to exist at union.  12 And Mr. Williams explained this morning our  13 concept of the burden as overlying the whole  14 beneficial title.  And we acknowledge that it has to  15 be removed.  We say that the Province can remove it  16 and it's not an incapacity issue under 109.  It's a  17 distribution of power issue.  18 Now, even if it could be argued that in other  19 jurisdictions aboriginal rights diminish the interest  20 of the Crown, such could not be said about British  21 Columbia's title to lands within its boundaries.  This  22 is based on Calder II, and 34, 35 and 36 I say the  23 Province agrees with the Chief Justice that Calder II,  24 if it did anything, at least extinguished ownership  25 claims if sovereignty didn't do that.  26 And at 37 it's our position and we say the  27 declaration in Calder II that all land in the colony  28 belonged to the Crown in fee had the clear effect of  29 ensuring that the Crown's title comprised the  30 beneficial interest.  This was the state of title at  31 the time of union and the provisions of Section 109  32 did not in any way diminish the entire beneficial  33 interest.  The fee simple interest is the entire  34 beneficial interest, and all that's left in the Crown  35 in the ultimate owner is the reversion of that.  36 Now, we don't say that that extinguished, and Mr.  37 Williams has explained that.  And as the Amicus has  38 conceded, Calder II did not, without more, extinguish  39 aboriginal rights.  And I have set out for your  40 lordships the portion of that transcript where that  41 was discussed.  42 Aboriginal rights continued until extinguished,  43 and you have our position on that, and they continue  44 to exist today in some areas of the territory.  45 However, aboriginal rights in British Columbia at most  46 constitute a burden and in no way diminish the  47 beneficial interest of the Province.  As stated in the 2779  Submissions by Mr. Taylor  1 Province's factum, any limit on the power to  2 extinguish the burden must stem from 91(24), not 109.  3 I next deal with Mr. Paterson's response to Mr.  4 Justice Lambert's question.  Actually, it was first  5 directed to Ms. Mandell and then to Mr. Paterson.  6 This had to do with the continuation of the Calder II  7 concept pursuant to Section 129 post-confederation,  8 and that forming a basis on which executive grant  9 could extinguish.  10 And Mr. Paterson advised the court that Colonial  11 Instrument II, as he called them, we called it Calder  12 II, was repealed by Calder XIII, which did not include  13 a corresponding declaration that all lands belonged to  14 the Crown in fee and that such a construction that  15 such a right in the Crown survived was not tenable.  16 At paragraph 41 we say, and I have set out the  17 various colonial instruments or portions that make  18 this clear, that the legislative history and effect of  19 Calder XIII is not as submitted by the Appellants.  20 First of all Calder II was substantially, not  21 totally, repealed by Calder X.  What was -- one of the  22 things that was repealed was Section 2, the Crown fee  23 concept.  24 And then over at sub B.  Calder X, while  25 repealing, amongst other things, this Crown fee  26 provision, re-enacted it in substantially the same  27 terms, and it's set out and it's virtually identical  28 with the Calder II provisions.  29 Calder XIII repealed the balance of Calder II and  30 there were a few things which are accepted from its  31 earlier repeal and Calder X.  32 Section 2 of Calder XIII specifically provided  33 that such repeal should not prejudice or effect any  34 rights acquired prior to the passing of this ordinance  35 in respect of any land in its colony.  That would  36 include rights to the fee and the Crown we say.  37 Similar language was contained in Section 2 of Calder  38 X as well.  39 Now, contrary to the Appellants' submission that  40 Section 2 of Calder XIII cannot be construed as  41 continuing the Crown fee provision, we say that  42 Section 1 of Calder XIII expressly provides that it's  43 continued.  And that is they define Crown lands as  44 meaning all lands of this colony held by the Crown in  45 fee simple.  So Calder -- the Crown fee concept was  46 continued from Calder II to Calder X into Calder XIII  47 and by virtue of the provisions of Section 129 of the 2780  Submissions by Mr. Taylor  1 Constitution Act was continued past 1871.  It in fact  2 continues today with respect to Crown lands.  It is  3 worth noting as well that the ordinance, the Land  4 Registry ordinance, and that was that ordinance I  5 referred your lordships to, the precursor to the Land  6 Titles Act was also continued.  7 LAMBERT, J.A.:  I don't know if you have looked to see whether  8 there was a -- there was anything, any legislative  9 change after 1871 to 1982 that would affect your  10 statement that in fact continues to today.  11 MR. TAYLOR:  The concept continues to today.  The Land Registry  12 ordinance, as an example, has gone through a number of  13 changes, and that's been changed many, many times.  In  14 fact was a few years ago recently re-enacted by virtue  15 in two pieces.  With respect to Calder XIII and the  16 Public Lands documents, I'm sure there's been  17 amendments in the Public Lands statutes as well.  When  18 they started I'm not sure.  19 LAMBERT, J.A.:  To the extent that it's a supportable theory at  20 all, it is that the legislative intention on a plain  21 and clear basis was formed and carried into effect  22 before 1871, and the provisions allowing it to be  23 carried into effect have continued without  24 interruption, though they have perhaps been repealed  25 and re-enacted, right through to 1982, and that that  26 meets the clear and plain intention test of the  27 legislative mind being focused on doing it and the  28 executive act just being carried out, though perhaps a  29 century later.  That's the theory.  And you say there  30 hasn't been any break in that legislative confirmand  31 of power on the executives to do it that would affect  32 that theory.  33 MR. TAYLOR:  That's my understanding, is that the Crown from  34 very earliest times in British Columbia has been the  35 mediate owner of the land.  In other words, people who  36 acquire interests in the land acquire it from the  37 Crown because of its fee, its ownership rights, and  38 that has been the policy of the land legislation in  39 British Columbia since the very earliest colonial  40 times, since Calder II.  And that has not changed.  41 Now, there is another aspect to it as well, my  42 lord.  And it has that aspect -- it also has the 109  43 aspect that nothing changed because of the  44 constitution.  Canada went into confederation with the  45 fee.  That may be different in other provinces, I'm  46 not sure, because other provinces had different  47 regimes, but -- and certainly Manitoba and Alberta and 2781  Submissions by Mr. Taylor  1 those -- Northwest Territories -- not Northwest  2 Territories, but Manitoba and Alberta had different  3 aspects, and I'll deal with that with the Public Lands  4 of the Dominion Act.  5 But there is another argument, and that's 129, in  6 that 129 they say can't -- the Appellants say, and  7 I'll just deal with it briefly, can't -- doesn't allow  8 the Crown fee principle to continue, and because of  9 129 the Province can't act with respect to  10 extinguishment.  But I would say if that's the  11 argument, then they are hoisted by that argument as  12 well, in the sense that if only the federal government  13 can extinguish -- can deal with extinguishment as they  14 say, then we would submit that the federal government  15 has not dealt with it.  And I'll deal with the  16 legislation later.  The law reflected by Calder II was  17 the law of the unified Crown, and that was continued  18 under 129.  If you look at 129, you will see it's  19 clear it doesn't provide for reading down, it doesn't  20 provide for constitutional invalidity of the colonial  21 statute.  There had to be a carry over.  And if the  22 appropriate authority did not legislate to repeal,  23 amend that legislation, it continues, and conceivably,  24 if my friends are right with respect to  25 extinguishment, in British Columbia today if there is  26 this enclave of Indian property interest, they are  27 governed by Calder XIII and related colonial  28 enactments, because it has not been repealed.  29 I don't think you have to go that far, but that's  30 where that line of reasoning leads to.  And in our  31 submission it's valid, if the Appellants are  32 insistent, that it can only be amended by the federal  33 government.  It just simply hasn't, and it would still  34 apply today.  35 Now, nobody has acted on that, and the argument  36 that is being addressed, I submit, is with respect to  37 129 and 109, and these immunity provisions and federal  38 common law and statutory paramountcy, which I'll deal  39 with next, are far fetched.  Nobody has ever acted on  40 these principles, and that's because they don't really  41 have very much merit.  Interesting, but they don't  42 have much merit.  43 If I could just finish briefly after lunch.  44 TAGGART, J.A.:  All right.  2 o'clock.  45 THE REGISTRAR: Order in Court.  46  47 2782  Submissions by Mr. Taylor  1 I HEREBY CERTIFY THE FOREGOING TO  2 BE A TRUE AND ACCURATE TRANSCRIPT  3 OF THE PROCEEDINGS TRANSCRIBED TO  4 THE BEST OF MY SKILL AND ABILITY.  5  6  7  8 LORI OXLEY  9 OFFICIAL REPORTER  10 UNITED REPORTING SERVICE LTD.  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 2783  Submission by Mr. Macaulay  1 (PROCEEDINGS RESUMED AT 2:00 O'CLOCK P.M.)  2  3 MR. TAYLOR:  Yes, my lords, Mr. Macaulay asked if he could have  4 a few moments to address you on a matter that arose  5 out of prior submissions.  6 TAGGART, J.A.:  Yes, Mr. Macaulay?  7 MR. MACAULAY:  My lords, yesterday we received and heard  8 submissions on speaking notes, including a speaking  9 note at tab 11.  I am referring particularly to what  10 the appellants describe as their reply to Canada's  11 argument on the reliability of the appellants'  12 collective memory, and they spend almost 30 paragraphs  13 dealing with the Ksun, Upper and Lower Ksun fishery,  14 and submit that we were totally wrong, in our  15 submissions, that we misunderstood the evidence, and  16 that the submission itself was extravagant.  17 This matter didn't appear -- and I am not saying  18 this in any critical sense -- it didn't appear in the  19 reply factum, and I don't say it should have.  But I  20 thought that I shouldn't wait until after the hearing  21 to ask for leave to submit three pages and a bit of  22 reply to that.  It's important, the Chief Justice  23 referred to that, the Ksun Canyon fishery, seven times  24 in his judgment, and he made findings of fact at pages  25 184 and 320.  At page 184 he comments that it was  26 odd -- well, he makes -- he comments on the fact that  27 there was no evidence about it.  So it's not -- and it  28 isn't a matter that's of relative insignificance.  29 Mr. Grant relied on such things as draft maps,  30 notes of statements given ten years ago by people now  31 deceased and the like.  My submission attaches most of  32 the material that they rely on, and one of Loring's  33 lists of fisheries.  And I suggest --  34 LAMBERT, J.A.:  May I just stop you for a minute, please, Mr.  35 Macaulay?  3 6 MR. MACAULAY:  Yes.  37 TAGGART, J.A.:  Mr. Macaulay, as you know we are under tight,  38 tight restrictions with respect to time.  39 MR. MACAULAY:  I understand, my lord.  40 TAGGART, J.A.:  We are using up the province's time with respect  41 to a matter that, strictly speaking, Canada has  42 exhausted the subject matter.  Now, what we have done  43 is we have sent round to counsel, through the  44 registrar, instructions with respect to submissions  45 after the conclusion of oral argument.  Any such  46 submissions will be received by leave of a judge of  47 this division only.  If you wish to pursue these 2784  Submissions by Mr. Taylor  1 submissions you may do so under the provisions of  2 those rules.  3 I think that's the only sensible way to dispose of  4 this.  We would have to hear Mr. Rush or Mr. Grant in  5 reply, half an hour is gone and the province is  6 thereby losing a substantial part of the time it  7 requires to make a reply that's been scheduled for  8 some time.  9 MR. MACAULAY:  I understand, my lord. The reason I thought I  10 should raise it is that I shouldn't wait until any  11 longer than was absolutely necessary.  12 TAGGART, J.A.:  I think the better course to pursue is follow  13 the provisions of those rules, a judge of the court  14 will receive the material in due course, together with  15 any response on the application for leave, and a  16 decision will be made whether to accept the further  17 submissions.  18 MR. MACAULAY:  Is that by way of Notice of Motion?  19 TAGGART, J.A.:  It's all set out, I think, in the directive that  20 went from the registrar.  21 Mr. Taylor?  22 MR. TAYLOR:  Thank you, my lord.  23 My lords, I am at page 12 of the outline dealing  24 again with these Colonial Instruments.  And Mr.  25 Patterson in his speaking notes handed out on July 2nd  26 made another point about those, the Colonial  27 Instrument 2, and he stated this is paragraph 14 of  28 tab 8 of his speaking notes, never applied to lands on  29 Vancouver Island, it was limited to the Mainland,  30 colony, if significance is attached to the declaration  31 then it follows that there is a different regime in  32 place on Vancouver Island where such a declaration was  33 never made.  Well, it's true that it wasn't made with  34 respect to Vancouver Island.  There is a very good  35 reason for that, of course, is that Vancouver Island  36 had been granted to the Hudson's Bay Company by its  37 Letters Patent, which created or held or provided that  38 the Hudson's Bay Company were to be the true and  39 absolute lords of Vancouver Island, " be beholden  40 of the Crown in free and common sogage", and I could  41 spend, I am sure, several days explaining what that  42 ancient doctrine means.  But suffice to say there is a  43 good reason why Vancouver Island was not included in  44 Calder II, and that's because at the time it belonged  45 to the Hudson's Bay Company.  46 Now, in 1867 the Hudson's Bay re-conveyed all its  47 estate, title and interest in Vancouver Island, with a 2785  Submissions by Mr. Taylor  1 few minor exceptions that hadn't been conveyed to  2 third parties, back to the Crown.  So it's clear there  3 is a different regime.  And the explanation for that  4 is that the Hudson's Bay Company was involved.  But,  5 in our submission, the lands held by the Crown on  6 Vancouver Island as contemplated by Calder XIII, which  7 was a statute of the unified colony, were still lands  8 held in fee.  That's because of the conveyance  9 provisions.  10 Now, it's very complicated, and I haven't had time  11 to get all of the various statutes and proclamations  12 of land ordinances relating to Vancouver Island from  13 the archives, and I submit it's irrelevant.  But I  14 don't think there is any significance in the  15 distinction between Vancouver Island and the mainland  16 in that Calder II didn't apply.  17 Now, moving on to the page 13 and the argument made  18 with respect to this alleged federal statutory  19 paramouncy, and the appellants have argued that  20 parliament has legislated with respect to surrender  21 requirements for non-reserve Indian lands.  And they  22 cite in support of that this act providing for the  23 organization of the Department of Secretary of State  24 of 1868.  However, as we have stated, that act on its  25 face applied not to lands generally, or lands subject  26 to a claim of aboriginal rights or title, but to lands  27 reserved for Indians.  And I have set out the two  28 pertinent provisions dealing with that, "all lands  29 reserved for Indians or for any tribe..." et cetera,  30 in section 6; and 8, "no release or surrender of lands  31 in section 8.  The language of those provisions  32 mirrors the language employed in section 91(24),  33 almost exactly, in other words lands reserved for  34 Indians.  The province has already addressed your  35 lordships, and I have set out the factum paragraph on  36 the point, but on the basis of Exchequer Court and  37 Supreme Court of Canada authority, lands reserved for  38 the Indians in section 91(24) means only lands  39 specifically set apart and reserved for the use of the  40 Indians.  41 HUTCHEON, J.A.:  May I just stop you there, I thought we were  42 told that St. Catherine's Milling decided otherwise?  43 MR. TAYLOR:  St. Catherine's Milling, my lord, held that the  44 Royal Proclamation in fact was a sufficient reserve of  45 lands so as to bring it within the definition of lands  46 reserved for the Indians.  But there has to be some  47 governmental reserve.  In the case of the Royal 2786  Submissions by Mr. Taylor  1 Proclamation, there was a reservation of lands to  2 which the proclamation applied.  3 HUTCHEON, J.A.:  But it was all the lands covered by the  4 proclamation, not just the part that set aside by  5 reserves, Indian reserve land, they expressly, in the  6 St. Catherine's case, said it was not, it didn't mean  7 Indian reserves.  8 MR. TAYLOR:  And I am not saying it's necessarily Indian  9 reserves, although in the modern context it is Indian  10 reserves as administered under the Indian Act, which  11 took full effect in 1886, I believe.  But the St.  12 Catherine's case, it was held that lands reserved for  13 Indians is not the same as Indian Act reserves.  And  14 it can encompass, and I believe the language is to the  15 effect, any lands which are reserved on any terms and  16 conditions.  And so the Royal Proclamation reservation  17 with respect to those lands to which it applied, was  18 sufficient to bring those lands within the definition  19 of lands reserved for Indians.  In fact, the Bonhomme  20 case relied on the ratio in the St. Catharine's case.  21 But it certainly doesn't apply for lands, traditional  22 lands or lands to which merely an aboriginal claim has  23 been asserted.  24 The appellants referred to the Royalties Case, and  25 I have set out why I think in our submission the  26 Royalties Case does not affect the question.  And then  27 an act of 1874 was referred to, which extended the  28 provisions of the 1886 act to British Columbia.  And  29 we say that doesn't assist the appellants since the  30 1868 act applied only to lands reserved for Indians.  31 Now, again, and I won't take your lordships back to  32 Term 13, but Term 13 is significant in view of the  33 language used in Term 13, it's inconceiveable that it  34 would have been so drafted if either government  35 believed that the phrase "lands reserved for their..."  36 that being the Indians, "...use and benefit", included  37 any lands other than those appropriated for that  38 purpose.  39 So Term 13 as a constitutional document, we submit,  40 is in keeping with the authorities on the meaning of  41 lands reserved for the Indians.  But in any event, it  42 is a constitutional document and it, of its own force,  43 gives definition to what is meant by "lands reserved  44 for their use and benefit."  And those are lands set  45 aside or appropriated for the use and benefit of  46 Indians.  I don't think there is a difference.  On the  47 authorities the language of Term 13 is the same, but 2787  Submissions by Mr. Taylor  1 it certainly doesn't apply to traditional lands or  2 lands over which merely a claim has been asserted.  3 An extra authority to the Ontario and Seybold case,  4 that's the case where it was held that the province's  5 consent was required to set aside lands, for lands to  6 be reserved for the Indians.  And, finally, Mr.  7 Patterson referred to the public lands of the Dominion  8 Act of 1871 as further support for the proposition  9 that the federal government has exercised legislative  10 jurisdiction with respect to the area, but -- and I  11 have set the act out.  The act on its face applies  12 exclusively to lands included in Manitoba and the  13 Northwest Territories.  It has nothing to do with  14 British Columbia.  15 And then at the bottom, I set this out as well, and  16 it's -- the passage from the act is included.  Both  17 the 1868 and the 1874 act were repealed by the  18 provisions of the Indian Act, 1876.  And that 1876  19 act, essentially, has the reserve scheme as we know it  20 today in a very early and rudimentary form.  But the  21 acts, those two other acts were repealed by that  22 legislation.  And the fact that they were, I suggest,  23 is further evidence that when parliament was  24 legislating with respect to lands reserved for the  25 Indians, it was an Indian Act-type power, a section  26 91(24) defined power.  27 Now, going on to page 15, lands reserved for the  28 Indians in 19(24), I have already dealt with that  29 briefly.  It is necessary to point out, however, that  30 the appellants, and some of the intervenors, confuse  31 Indian lands and lands reserved for the Indians.  And  32 when looking at the cases it's necessary to see  33 whether or not the cases discussing a reserve land or  34 a land, a traditional land or land to which a claim is  35 asserted.  And as an example, CP and Paul, the  36 decision of the Supreme Court of Canada, was cited in  37 the factum, the reply factum, as an example for a  38 statement that provincial prescription laws could not  39 apply to "Indian lands."  But in CP and Paul the  40 question concerned reserve lands.  The railway,  41 through the vagaries of history, and somebody missing  42 it, went through a portion of a reserve and two parts  43 of them had been extinguished, but the one -- or  44 surrendered -- but the one hadn't.  So it was reserve  45 lands.  And those types of comments have to be read in  46 context of whether or not it's reserve land or whether  47 or not it's traditional lands.  And the reason for 2788  Submissions by Mr. Taylor  1 that is that, as set out in 58, that the courts have  2 held and treated lands reserved for Indians, meaning  3 those lands specifically set aside, differently than,  4 and in many, many respects differently than non-  5 reserve lands.  And I have set out the quote from the  6 Mitchell and Peguis Indian Band, and Mr. Justice La  7 Forest, and Madam Justice Wilson agreed on this point,  8 discussing a provision of the Indian Act and the  9 argument that garnishment was not available in that  10 case.  He had this to say:  11  12 "My conclusion rests on the fact that such a  13 result cannot be reconciled with the scope of  14 the protections that the Crown has  15 traditionally extended to the property of  16 natives.  As I stated earlier, a review of the  17 obligations which the Crown has assumed in this  18 area shows it has done no more than seek to  19 shield the property of Indians that is has an  20 immediate and discernible nexus to the  21 occupancy of reserve lands from interference at  22 the hands of non-natives.  The legislation has  23 always distinguished between property situated  24 on reserves and property Indians hold outside  25 reserves.  There is simply no evidence that the  26 Crown has ever taken the position that it must  27 protect property simply because that property  28 is held by an Indian as opposed to a non-  29 native."  30  31 Now, the appellants have referred to the Guerin  32 case to suggest, or to draw or to argue, that  33 traditional lands are the same as reserved lands and  34 that traditional lands are immune from provincial  35 legislation.  In our submission, that's just not an  36 argument that is maintainable on the basis of Guerin.  37 Guerin simply does not go that far.  And I have  38 discussed it a little bit and I have set it out, some  39 passages from Guerin in 60, 61 and 62.  But, simply,  40 if I can boil it down in 64, we say that with respect  41 to this issue the passage relied upon in Mr. Justice  42 Dickson's decision amounts to no more than dicta.  And  43 in fact the province submits that it does not refer to  44 this issue at all.  And that issue is with respect to  45 immunity from provincial legislation, that traditional  46 lands have the same immunity as reserve lands.  And  47 further, at best it's equivocal, and is acknowledged 2789  Submissions by Mr. Taylor  1 by Mr. Patterson in response to questions from the  2 bench, the province was not a party to the Guerin case  3 and it does not appear from the reasons that the issue  4 of provincial competence was argued on the many  5 arguments relating to this issue.  In other words, a  6 provincial competence, which have been put before this  7 court were argued in Guerin.  8 At paragraph 65, I refer to the appellants'  9 reference to Roberts.  I have already dealt with  10 Roberts.  I don't think Roberts puts it on any higher  11 footing.  It was the same application of the principle  12 of aboriginal title that was employed in Guerin, and  13 that was to the fiduciary obligations of the Crown.  14 And, finally, the appellants refer to a quote from  15 the decision of Sparrow in support of this argument  16 for immunity from provincial legislation.  I haven't  17 repeated the quote, but I find -- I find the quote  18 entirely equivocal.  What it refers to is a matter of  19 speculation but, in any event, even though the  20 province in the Sparrow case was represented.  As  21 appears from the reasons it certainly doesn't appear  22 that the immunity issue with respect to traditional  23 lands was before the Sparrow court.  And, again, the  24 detailed arguments that are before your lordships  25 certainly weren't before the Sparrow court.  26 So Guerin, Roberts, Sparrow on that issue, at  27 most, amount to dicta.  At most.  And I say at most  28 because I don't think the issue was addressed in those  29 cases.  30 Now, at 67 I make reference to the Pasco case, and  31 it was asserted in the speaking notes that this was an  32 example of Guerin, of a case applying the Guerin  33 principles to British Columbia.  Now, the Guerin  34 decision was referred to with respect to the question  35 of aboriginal rights, but other cases were as well.  36 Smith and the Queen, being a personal right, was  37 referred to, and the decision of Mr. Justice Judson in  38 Calder was referred to.  And it should be noted that  39 in Pasco it was an interlocutory appeal, it had to do  40 with pleading points, and I won't get into the details  41 of it.  That decision was taken to the Supreme Court  42 of Canada twice.  Once, the last time, being on a  43 leave application to re-argue.  And I have set out the  44 passage from the decision of the court at the bottom  45 of page 18, where it discusses the analysis of the  46 cases undertaken in the Pasco case.  And in the middle  47 of that paragraph, I think it makes it abundantly 2790  Submissions by Mr. Taylor  1 clear that there is certainly no ringing endorsation  2 of any alleged application of Guerin.  3  4 "As the conclusions of the Court of Appeal on  5 those issues were obiter dicta and we are not  6 holding that the Court of Appeal erred in  7 arriving at these conclusions but merely that  8 they should not be decided at this time, the  9 plaintiffs cannot complain that a decision in  10 their favour was reversed without their being  11 heard."  12  13 The argument was is that -- I believe Mr. Pape  14 wasn't called upon to respond to the first appeal  15 brought on by the railway company.  16 And so we say -- I think it can be said that -- it  17 can hardly be said that Pasco applied the Guerin  18 principle.  19 Now, just in conclusion on Indians, I have set out  20 again, my lords, where we have dealt with this core  21 interests concept, but the appellants and several of  22 the intervenors have relied heavily on the Bell Canada  23 case.  In our submission, Bell Canada does not alter  24 the necessity of finding that provincial legislation  25 infringes on core interests under a particular  26 ennumerated head, before it can be read down or held  27 to be ultra vires.  The language of Mr. Justice Beetz  28 in the Bell Canada case is set out there, and it's  29 made clear -- and this may flow from a question of  30 yours, Lord Justice Lambert, that in fact Indians are  31 a dual aspect matter.  32  33 ", such as federal railways, things,  34 such as land reserved for Indians, and persons,  35 such as Indians, who are within the special and  36 exclusive jurisdiction of Parliament, are still  37 subject to provincial statutes that are general  38 in their application, whether municipal  39 legislation, legislation on adoption, hunting  40 or the distribution of family property;  41 provided, however, that the application of  42 these provincial laws does not bear upon those  43 subjects in what makes them specifically a  44 federal jurisdiction."  45  46 That -- and in the speaking notes Mr. Patterson has  47 said what I am going to say now, that is another way 2791  Submissions by Mr. Taylor  1 of saying core.  You can talk about core, you can talk  2 about intergrally-connected, you can talk about what  3 makes them specifically a federal jurisdiction.  But  4 it's something other than being conceptually connected  5 with an ennumerated head of power.  And if you compare  6 the language of Mr. Justice Beetz in Bell with the  7 language of Mr. Justice Beetz in Four B in paragraph  8 73, I think it becomes abundantly clear.  Just at the  9 second paragraph -- this is the case where the shoe  10 manufacturing operation run by Indians on the reserve  11 lands was held to be subject to labour legislation.  12  13 "But even if the situation is considered from  14 the sole point of view of Indian employees, and  15 as if the employer were an Indian, neither  16 Indian status is at stake nor rights so closely  17 connected with Indian status that they should  18 be regarded as necessary incidents of status  19 such for instance as registerability,  20 membership in a band, the right to participate  21 in the election of Chiefs and Band Councils,  22 reserve privileges, etc."  23  24 So in Four B the same judge again is defining the  25 analysis of what is a core interest in a different  26 way.  But it's the same test.  Bell Canada doesn't  27 change the exercise.  It so happened that this federal  28 undertaking, what was affected was held to be the core  29 of that federal undertaking.  But it's for your  30 lordships to look at whether or not any of these  31 alleged rights, and not conceptually, but factually,  32 based on the facts as the cases hold, are so closely  33 connected with Indianness, that they are immune from  34 provincial legislation.  And I have gone through that  35 analysis and I won't go through it again.  36 Just in conclusion, Mr. Patterson, at the close of  37 his submission yesterday, in response to a question  38 from Mr. Justice Lambert, as to lands reserved for  39 Indians, the difference between lands reserved for  40 Indians and Indians and whether aboriginal land, or  41 aboriginal rights could be land-based personal rights,  42 answered in this way:  43  44 "In a practical sense, I think the reasons why  45 there are two phrases in 91 (24) ..."  46  47 This is the page 2687 of the July 2nd transcript. 2792  Submissions by Mr. Taylor  1  2 "...and why both limbs were put in that section  3 doesn't make it clear that any court following  4 that the import -- that is to make it clear to  5 any court following that the import of the  6 section is that parliament was having a power  7 in rem over lands, and not just a power in  8 relation to persons.  It was to make clear that  9 91(24) was not, for example, analogous to the  10 power in relation to aliens.  If you wanted to  11 give separate effect and see 91(24) as  12 including two classes of subject..."  13 And I should say, my lords, there is authority,  14 Supreme Court of Canada authority, is that is exactly  15 what you do.  There are two classes of subject.  16  17 "Then you would say the power over Indians  18 affects those things which are rights in  19 persona, if we can put it that way, and lands  20 reserved for Indians would protect and address  21 those which are rights in rem.  And if you find  22 as we have submitted that this has been our  23 submission that the Indian rights to lands are  24 in rem and constitute an ownership or a  25 proprietary interest, then they would fall  26 under 91(24), land reserved for the Indians."  27  28 Now we say, the province says that that finding is  29 not available on the evidence of this case, or the law  30 for the various reasons that have already been  31 addressed.  In other words, it's not in rem rights,  32 there are no ownership rights, that was either  33 extinguished on sovereignty or extinguished by the  34 Calder documents.  And similarly in the face of the  35 fee simple interest in the Crown, it can't be said  36 that it is a proprietary interest.  It's a burden.  37 And Mr. Patterson, I submit, I think states it  38 correctly, and if you find that there are rights in  39 persona that you are not prepared to address as  40 proprietary or ownership or rights in rem, then you  41 may very well find that those same rights and the  42 exercise of them is protected under the first head of  43 91(24), that's Indians.  And it's our position that  44 this burden is to be addressed with respect to the  45 concept of Indianness under 91(24), and that requires  46 a finding before the legislation can be ruled to be  47 ultra vires, or read down, that that affects the 2793  Submisions by Mr. Arvay  1 rights alleged, the particular rights alleged, in a  2 core way, in a way that is integrally connected to  3 Indianness.  And that is the essential analysis, and I  4 have -- we have made those submissions before.  But on  5 the basis of Mr. Patterson's analysis, I think that we  6 are not that far apart, except we say they are not in  7 rem rights, they are personal rights.  And I think on  8 the evidence and law in this case your lordships will  9 come to the same conclusion.  10 HUTCHEON, J.A.:  But it could fit into that word Indian?  11 MR. TAYLOR:  No, in rem rights.  12 HUTCHEON, J.A.:  Not the in rem, but as personal rights?  13 MR. TAYLOR:  Personal rights, yes, could fit.  14 HUTCHEON, J.A.:  Land rights?  15 MR. TAYLOR:  Personal rights —  16 HUTCHEON, J.A.:  To land?  17 MR. TAYLOR:  A sui generis interest with respect to land, I  18 would say, is a definition of a personal right.  19 HUTCHEON, J.A.:  It could fit under Indians?  20 MR. TAYLOR:  It could fit under Indians, but in determining  21 whether or not that personal right can be extinguished  22 you go to examine the core.  Certainly we are not  23 saying that it's not Indians.  24 Thank you, my lords.  25 TAGGART, J.A.:  Thank you, Mr. Taylor.  26  27 SUBMISSIONS BY MR. ARVAY:  28  2 9 MR. ARVAY:  My lords, with your leave, I am handing up a  30 document which says The Province's Reply on Remedies,  31 and another white book, volume 10.  And, as well,  32 there will be two cases which I would ask you to  33 insert into volume five, the Dumont case, and it's the  34 Trial Division and the Court of Appeal decision, which  35 is to be inserted in volume five of the white book,  36 W-10, which presently has the Supreme Court of Canada  37 decision in Dumont.  38 Also it may be convenient or helpful if you had a  39 copy of the appellants' revised position on remedies  40 before you.  I am sorry, I didn't make an extra copy  41 of that.  You don't necessarily need the whole  42 document but just the actual order sought.  And we are  43 in the process as we speak in just revising slightly  44 the nature of the order that we seek to make it  45 conform more accurately to our submissions to date and  46 you will hear today.  That's on its way over.  I was  47 hoping it would be here now but it's not quite.  It 2794  Submisions by Mr. Arvay  1 may be the most useful document which has all the  2 orders sought would be that of the amicus, if that's  3 handy, the amicus's, I think it's part 14 on remedies.  4 Yes, their part 14.  In their document they have both  5 the appellants' revised position on remedies and the  6 province's presently-drafted order under part 4 of the  7 factum.  Is that a handy document for your lordships?  8 I am sorry, that's the one thing as I was coming up  9 here I thought I should have done and I didn't do.  10 Let me make do then without that rather than holding  11 up the proceedings.  12 If you can turn to the reply that I have handed up,  13 my lords, under the heading Re: Declarations -- and I  14 will endeavour to refresh your memory as to what the  15 appellants said with respect to remedies.  Under the  16 heading number 1. --  17 TAGGART, J.A.:  Could you give me the tab number in the  18 appellants' material so that when I find it I can make  19 this referable to it?  20 MR. ARVAY:  Yes, the appellants is tab 14 of their factum.  21 TAGGART, J.A.:  Volume one of the factum, is it?  22 MR. ARVAY:  I think so.  I think so.  I am handing up a document  23 that I haven't proofread yet.  I think it's right.  24 This is the revised nature of order sought.  25 Our reply, my lords, to the submissions on remedies  26 by the appellants, the amicus, Canada, and some of the  27 intervenors, notably the Carrier-Sekani and the  28 Business Coalition.  The other intervenors did not  29 address it in any detail.  30 I deal first with the declarations that the  31 appellants and the province seek that are somewhat in  32 common.  The declaration that there has not been  33 blanket extinguishment of aboriginal rights and the  34 declaration that there are existing aboriginal rights,  35 which basically flows from the first.  36 And I deal in the first part of the speaking notes,  37 starting at paragraph Roman Numeral I, and then 1  38 through to 46, the amicus's submissions insofar as the  39 amicus takes issue with those orders.  And I have  40 summarized in paragraph 1 all the reasons why the  41 amicus takes issue with those essential orders.  Now,  42 I am abbreviating for the purpose of my submissions at  43 this point.  And you will see in paragraph 1 he says  44 or they say that the trial judge didn't purport to  45 hold that there had been blanket extinguishment;  46 Two, there is no proper contradictor;  47 Three, they are hypothetical; 2795  Submisions by Mr. Arvay  1 Four, they are interim;  2 Five, they are otiose;  3 Six, they involve a component of a constitutional  4 right;  5 Seven, they will foster uncertainty; and,  6 eight, they will require overturning a significatnt  7 body of findings of fact and law.  8 Under heading (a) and commencing at paragraph 2  9 through to 13 I deal with the complaint of the amicus  10 that the phrase blanket extinguishment is not a  11 particularly apt or accurate expression of what the  12 trial judge did.  We confess that it is not a  13 particularly precise and artful expression, but it  14 seemed to be a useful shorthand way of describing what  15 the trial judge did.  With respect to the amicus,  16 their criticism of our expression I thought was  17 somewhat picky.  The point is that the trial judge did  18 not purport to extinguish reserves, we acknowledge  19 that only 45 square miles in an otherwise claim of  20 22,000 square miles.  But I am not convinced that the  21 trial judge was of the view that reserves are  22 unextinguished aboriginal rights.  23 I do an analysis in paragraphs 2 through to 10  24 that the trial judge -- that treated reserves not as  25 aboriginal rights at common law, but rather land that  26 the state had bestowed on aboriginal people, and they  27 were protected for that reason, not because they were  28 aboriginal rights protected at common law.  There is  29 not much point in debating that, in my view, because  30 it's not important for all of our purposes.  The point  31 is is that there was a massive extinguishment of  32 aboriginal rights by virtue of the trial judge's  33 decision, and we tried to find words to express that.  34 And what I have done now in the revised nature of the  35 order sought in paragraph (a), attempted to describe  36 that somewhat more artfully.  I don't know whether I  37 have accomplished it.  38 Now, we say that -- going back to the revised  39 nature of the order sought, you should write in there  40 revised, I suspect, paragraph B flows from paragraph  41 A, if there has not been a blanket extinguishment  42 that, therefore, the appellants do have existing  43 aboriginal rights with respect to an undefined portion  44 or portions of the territory in question.  It just  45 follows logically, and it ought to be said.  46 Now, if you will go back to the reply, the written  47 document, and go to page four, I deal with the 2796  Submisions by Mr. Arvay  1 amicus's point or argument that there is no proper  2 contradictor.  Again, I don't think it's necessary to  3 spend very much time on that.  Counsel for Canada does  4 not agree with that position, although the province  5 and the appellants agree to the extent that there has  6 not been blanket extinguishment, and forgive me if I  7 continue to use that expression, it just seems to be  8 the easiest way of expressing the point, at least for  9 the purpose of argument.  10 We agree there has been no blanket extinguishment,  11 therefore we agree there are existing aboriginal  12 rights.  The province disagrees with the appellants'  13 proposed orders in every other respect.  If you go to  14 the appellants' revised position on remedies,  15 paragraphs one, two and three -- let me stop there.  16 The province disagrees with the orders that the  17 appellants seek.  It just can't be said that there is  18 no proper contradictor.  More importantly, insofar as  19 we agree on the issue of blanket extinguishment, and  20 that therefore there are existing aboriginal rights.  21 That doesn't prevent, the fact that we are not arguing  22 with each other, that doesn't prevent the court from  23 giving effect to our submissions.  This is not a case  24 where we are asking the court to sign a consent order.  25 And there are authorities to the effect that perhaps  26 courts ought not to give declarations by consent.  But  27 the authorities that the amicus cites himself, and  28 other authorities that I have referred to in my  29 written notes at paragraph 16, 17 and 18, all say that  30 courts can give declaratory orders, so long as it does  31 so on the basis of argument, on the basis of the  32 evidence, so long as it's not done in a summary  33 fashion.  No one could ever accuse this court of  34 giving this order on the basis of a summary matter.  35 And so, it would be very wrong, it would be very  36 counter-productive to suggest that a court could never  37 give a declaration as to fact and/or law, merely  38 because the parties agree, because the parties may be  39 right.  And all we are saying to the court is give  40 effect to our declaratory orders, not just because we  41 agree, but because we have argued it and because you  42 agree.  Because you agree.  43 Now, finally, I set out in paragraph 19 that the  44 whole point of this court, at our suggestion, of  45 appointing an amicus, was to have argument, opposing  46 argument on the issues on which the appellants and the  47 province agreed.  And you have heard very vigorous 2797  Submisions by Mr. Arvay  1 argument in defence of the trial judgment by the  2 amicus and some of the intervenors.  3 If I can ask you to skip to page six of the  4 written argument, under the heading that the  5 hypothetical, it simply cannot be said that this  6 dispute between the appellants and the province and  7 the federal government is hypothetical.  The failure  8 to resolve this dispute by settlement negotiation to  9 date means it's very real, very ripe for resolution,  10 it's very justiciable.  It's no less real merely  11 because the declarations that the parties seek are  12 less than well-defined.  It may have been the amicus's  13 point, although I am not certain, that the  14 declarations are hypothetical, because -- and I am at  15 paragraph 22 of my argument -- because there may be  16 some pre-existing rights, i.e., those rights between  17 sovereignty that survived sovereignty, put it that  18 way, those rights that survived sovereignty but did  19 not make it to 1982.  There may have been some rights  20 that survived sovereignty that didn't make it to 1982,  21 because they were extinguished by 1982, that that  22 somehow means that the order is hypothetical.  But,  23 again, that misses the point.  Because there has not  24 been blanket extinguishment, because the court can be  25 confident that even if, arguably, for the sake of  26 argument -- let me rephrase that.  We don't ask you to  2 7 decide, we don't want you to jump the gun and decide  28 the issue of so-called specific extinguishment in  29 order to give effect to our declaration that the  30 appellants have existing aboriginal rights.  So long  31 as you're satisfied that there hasn't been blanket  32 extinguishment, and so long as you're satisfied that  33 there are no Crown grants which could possibly  34 extinguish that extend to the whole area of the claim,  35 then it's axiomatic that the appellants have existing  36 aboriginal rights someplace.  Now, they could be very  37 extensive, they may not be very extensive, but they  38 exist in some portion or portions of the claim.  39 And Mr. Lowes's submissions I thought were very  40 helpful to the court in demonstrating that although  41 the alienations project involved significant -- there  42 were a lot -- was a lot of Crown activity in the claim  43 area, there still was not -- there still were not  44 Crown grants which extended to the whole breadth of  45 the claim area. In fact, there are significant parts,  46 by my analysis of the alienations project, of land in  47 the claim area which has not been the subject of a 2798  Submisions by Mr. Arvay  1 Crown grant.  The only point that Mr. Lowes made was  2 that the guide outfitters' licences extended through  3 the whole claim area, but no one suggested that guide  4 outfitters' licences extinguish all aboriginal rights.  5 And there are extensive traplines, perhaps through the  6 whole area, but again there is no suggestion that they  7 extinguish all aboriginal rights.  8 Now, in paragraph 25 I make the point, nor would  9 the declarations be hypothetical merely because there  10 are going to be post-1982 provincial and federal laws  11 which possibly -- probably unduly but justifiably  12 interfere with aboriginal rights.  They still exist.  13 Over to the next page, under the heading interim,  14 in oral submissions Mr. Willms said a number of times  15 that the declarations were interim.  They are not  16 interim.  I know, I understand that the court cannot  17 give an interim declaration, and I cite a case for  18 that later in the argument.  But these are not  19 interim, they are final.  Once the court gives the  20 declaration that there has not been a blanket  21 extinguishment and that the appellants have existing  22 aboriginal rights, in an undefined portion or portions  23 of the territory, it is final.  You are functus.  And  24 that is why, again going back to Mr. Justice Lambert's  25 question about comity and what subsequent panels are  26 to do, a subsequent panel of this court in this appeal  27 is going to be just as bound by that finding as your  28 lordships would be, or as any other panel in any other  29 proceedings would be.  30 Paragraph E on page seven, declarations are otiose,  31 rather nasty-sounding word --  32 LAMBERT, J.A.:  You are saying they are even more bound than a  33 subsequent panel would be, because you are saying that  34 they are final in this very case.  That being so, they  35 are decided and beyond consideration again in this  36 very case.  So that there wouldn't be any question of  37 being bound, they are not even "lookatable"?  38 MR. ARVAY:  Except to the extent that in para 27 of my written  39 argument, the exceptions referred to in Worthington  40 apply.  In other words, you made a big mistake.  41 LAMBERT, J.A.:  I would think perhaps not, perhaps they  42 wouldn't.  43 MR. ARVAY:  Well, as a practical matter, perhaps definitely not,  44 I would think.  Declarations are otiose, the amicus  45 says, they will have no practical effect, they will  46 provide no guidance to the parties and public.  47 I am indebted to the amicus bringing to our 2799  Submisions by Mr. Arvay  1 attention the case of Dumont, which is found at tab 5  2 of the authorities.  That's the only case I am going  3 to bring you on that.  And I would like you to put  4 that in volume 10. I have added the lower court  5 decisions, which I just had an opportunity look at at  6 the lunch hour, and they are very interesting for a  7 number of reasons.  This is the case where the metis  8 in Manitoba were attempting to get declaratory relief  9 that certain federal laws enacted between 1871 and  10 1886, and now spent, were unconstitutional.  And the  11 trial judgment -- and the whole question was whether  12 this was a justiciable claim, and there was an  13 application brought to strike the claim.  14 At the trial decision, which is inserted in tab 5,  15 it's one that doesn't have a three-hole punch, and I  16 am sorry to say -- at page nine, if you go to  17 paragraph 20 on page nine, Mr. Justice Barkman says,  18 page nine of the trial judgment, the long one, page  19 nine, paragraph 20:  20  21 "The applicant (defendant) argues that since the  22 legislation referred to as allegedly  23 unconstitutional in the statement of claim is  24 spent, it is not appropriate for the plaintiffs  25 to litigate the question of its  26 unconstitutionality.  The applicant refers the  27 court to a number of authorities..."  28  29 Skipping the page at paragraph 25 and 26:  30  31 "Having decided that there is a real issue or  32 issue to be decided, there remains the question  33 of whether the declaration is capable of having  34 any practical effect in resolving the issues in  35 the case.  36 I am satisfied that the granting of a  37 declaration, if the plaintiffs are successful,  38 will have the practical effect of supporting  39 the position of the plaintiffs in their  40 negotiations with the federal government  41 relating to the Metis land claims.  I therefore  42 conclude that this action is appropriate for  43 declaratory relief."  44  45 If you go to the Court of Appeal's decision, which  46 is the next loose insert, Mr. Justice 0'Sullivan  47 dissented.  And just as a side note, your lordships 2800  Submisions by Mr. Arvay  1 may be interested in his comments at pages 33 and 34  2 on the issue of now to deal with constitutional facts  3 on matters of history.  And it's an interesting  4 discussion and a plea for an innovative court process  5 and procedures in order to deal with matters that  6 judges, he says, are often not trained or qualified  7 to -- insofar as being able to distinguish between  8 propaganda and truth.  But Mr. Justice 0'Sullivan  9 dissented in the Court of Appeal.  Mr. Justice Twaddle  10 upheld -- I am sorry, the other way around.  I had it  11 right but not very accurate.  Mr. Justice 0'Sullivan  12 did dissent in the Court of Appeal but the Court of  13 Appeal reversed the trial or the chambers judgment.  14 Mr. Justice Twaddle, at the bottom of page 41, wonders  15 why these declarations should be granted, given that  16 the purpose is to assist the Metis in their land  17 claims negotiations.  At the bottom of page 41, Mr.  18 Justice Twaddle says:  19  20 "The federal government will be influenced in  21 its negotiations with the Metis by many  22 considerations.  As well as by the Metis claim  23 to legal rights, the federal government will be  24 influenced by social and political  25 considerations and by the historical  26 circumstances which have resulted in the Metis  27 being an aboriginal people without a land base.  28 Those historical circumstances include the  29 effects of the impugned legislation on the land  30 holding of individual Metis.  The federal  31 government will be able to consider those  32 effects regardless of the legislation's  33 constitutional validity.  34 The constitutional validity of the impugned  35 legislation is certainly an issue of academic  36 interest.  The question is, however, whether a  37 decision on the issue has the potential of  38 being useful to the parties in the course of  39 negotiating a political settlement of the Metis  40 land claim."  41  42 He said unlike certain cases this case,  43  44 "...will not decide an issue essential to the  45 resolution of the extra-judicial claim.  The  46 settlement of the Metis claim will not be  47 promoted in any real sense by the making of the 2801  Submisions by Mr. Arvay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  declaration sought by the plaintiffs."  The Supreme Court of Canada, in very brief  reasons, reversed the Court of Appeal in a judgment  found at tab 5.  And Madam Justice Wilson for the  court said at the third full paragraph:  "The court is of the view also that the subject  matter of the dispute, inasmuch as it involves  the constitutionality of legislation ancillary  to the Manitoba Act, is justiciable in the  courts and that declaratory relief may be  granted in the discretion of the court in aid  of extra-judicial claims in an appropriate  case."  Now, returning to our argument that it is clear  that the declarations that the appellants and the  province seek to the extent that there is common  ground, and even where there is not common ground, in  our submission, will have great practical effect in  assisting the parties in resolving their dispute and  reaching, hopefully, a just and clear treaty.  Now, my lords, I see the time.  I can tell you that  I will be all of the hour and I am in your lordships'  hands.  J.A.:  All right.  Well, we will take five minutes.  AFTERNOON RECESS  TAGGART, J.A.: Mr. Arvay, there was a TV show called This Hour  Has Seven Days. I am going to adapt that to say this  hour has 50 minutes.  MR. ARVAY:  I deserve that, my lords.  My lords, I am at paragraph 30.  The point, simple  point is that it's wrong for the amicus to say that  the declarations that we seek do little more than  repeat the provisions of section 35 of the  Constitution Act and that the -- indeed, it restores  to the appellants, and indeed aboriginal people in  this province, their rightful claim that they do  continue to enjoy some aboriginal rights in respect to  the claim area, contrary to what the trial judge had  said.  Under heading F, at amicus's components of a  constitutional right, the amicus says that the  essential point of the amicus's submission in this 2802  Submisions by Mr. Arvay  1 respect is that it's set out in paragraph 32 of the  2 argument:  3 "The declarations sought by the the appellants  4 and the province are really declarations that  5 the appellants have met the first part of the  6 Sparrow test and have shown that they have  7 existing rights.  Neither the appellants nor  8 the province cited any authority for the  9 proposition that declarations are available in  10 respect of components of a constitutional  11 right."  12  13 In fact, what we are seeking is quite consistent  14 in principle of what happens every day in the courts  15 of this land with respect to the Charter.  With  16 respect to the Charter, the courts always, or I  17 suppose, allowing for some exceptions, almost always,  18 give two kinds of declarations:  One is with respect  19 to the right of freedom, and the other is with respect  20 to whether or not infringements on the right or  21 freedom can be justified.  And the difference between  22 the Charter and section 35 is that section 35, the  23 section 35 right houses both the entitlement, if I can  24 use that expression, and the limitation on the  25 entitlement.  And, yes, the appellants and the  26 province are seeking declarations with respect to the  27 entitlement aspect of section 35, without seeking any  28 declarations with respect to the limitation aspect of  29 section 35.  30 Now, in Charter cases indeed it's more common than  31 not, I am sure, that the court decides both the right  32 and the limitation in the same case.  But there is no  33 reason why if the parties ask or the court thought  34 there was his a good reason that the court couldn't  35 decide the right first and the limitation later.  And  36 indeed in the the doctors' billing number case, which  37 I have referred to in paragraph 35, the government  38 chose to just put forward a case based on section 7,  39 presumably confident it didn't need to defend the law  40 on the basis of section 1, not that it couldn't.  And  41 it lost on section 7.  The court didn't feel compelled  42 to bring the parties back and say what about that  43 limitation?  What about justification?  So what we are  44 asking the court to do is perhaps not supported by  45 direct authority on the point, but it is clearly  46 consistent with principle in Charter litigation.  47 Next page over, page nine, under the heading foster 2803  Submisions by Mr. Arvay  1 uncertainty.  Yes, the declarations will foster some  2 uncertainty.  But that's no reason, my lords, to deny  3 the relief sought.  The common law is replete with  4 examples where courts decide cases which raise more  5 questions than resolve questions.  It's the  6 incremental progress and the uncertainty it engenders  7 is the hallmark of the common law, and even moreso,  8 constitutional litigation.  We say, my lords, better  9 countenance, better that we countenance some  10 uncertainty than perpetuate an injustice just because  11 it's certain.  12 At paragraph 39, my lords, we do, though, say that  13 we will be opposing and opposing vigourously paragraph  14 6 of the appellants' proposed order, insofar as they  15 are seeking interlocutory injunctive relief pending  16 the resolution of this matter.  17 Under the heading H the amicus claims that the  18 declarations involved overruling of the trial judge on  19 the facts and on the law.  First of all, the amicus is  20 wrong insofar as they suggest that the province or the  21 appellants have to demonstrate clear and palpable  22 error on matters of law.  We don't.  We just have to  23 demonstrate error.  24 Secondly, it is probably true to say that to give  25 effect to the appellants' relief you have to overrule  26 the trial judge in significant areas of fact and law.  27 But that's not the case if you were to give effect to  28 the province's proposed order.  Where the province  29 differs with the trial judge is primarily on matters  30 of law.  31 With respect to the scope than content of  32 aboriginal rights as we conceive them, leaving  33 ownership aside, the trial judge said very little.  34 There is a massive amount of evidence on the scope and  35 content of aboriginal rights, but the trial judge said  36 very little.  And it will be necessary, in order to  37 give more definition to the right, to the scope, to  38 the content of the right, for the court to examine the  39 record.  And it doesn't involve overruling the trial  40 judge as far as he went.  But he didn't go very far.  41 Essentially, he said they lived in the villages and  42 they wandered in the territories.  And I probably can  43 be accused of some over-simplification, but it doesn't  44 go much further than that.  45 Under the next heading, Ownership/Proprietary  46 interest and jurisdiction, that addresses the  47 appellants' proposed orders, apparently paragraphs 2 2804  Submisions by Mr. Arvay  1 and 3.  And this is where they claim that they have  2 ownership rights or proprietary rights, and the  3 difference is that proprietary rights are not  4 necessarily exclusive rights.  We simply say that we  5 disagree --  we want the court to address those  6 orders, we want the court to answer those questions,  7 but we ask that the court answer those questions  8 against the appellants for the reasons we have already  9 set out and I won't go over.  10 Under that heading on page ten, Roman Numeral II,  11 paragraphs one through to eight, I put in my two cents  12 in on the Mabo case.  I hope --  I think it's  13 consistent with what Mr. Williams said, but if not, he  14 tells me he wins.  But I won't go over that now.  15 Now, on the issue on page 12, under the heading  16 Retain Jurisdiction - Transition Period, I want to  17 spend a little more time on this point.  At paragraph  18 one in the bottom of page 12 I set out what the  19 appellants request as what the court ought not to  20 decide.  And they said the court ought not to decide  21 the identification and determination of the scope of  22 the rights on to the said lands, the -- sorry, the  23 lands in respect to which the appellants have  24 aboriginal rights, the scope of such rights on to the  25 said lands and the appellants' entitlement to a  26 quantum of damages.   We agree in principle with that,  27 with those orders.  We have expressed it slightly  28 differently in our order but we agree in principle  29 that those are issues which ought not to be decided at  30 this time.  31 Now, the question of the scope and content of the  32 right, in our view, does involve a close on-the-ground  33 analysis, either -- preferably throughout the whole  34 area of the claim or, if not, if that's not possible,  35 where the record supports that analysis.  36 In paragraph 5 we say well, the province accepts  37 the finding of the trial judge that the appellants  38 have made much greater use of the village sites and  39 adjacent land than the larger territory.  The trial  40 judge did not perform the acre-by-acre analysis that  41 can be done by the Court of Appeal or its designate,  42 such as a master, to the extent that the record  43 discloses that information and to the extent that it  44 is in as good a position as the trial judge to make  45 those determinations.  Otherwise, these issues must be  46 remitted to the trial judge.  47 Now, under the heading Specific Extinguishment/ 2805  Submisions by Mr. Arvay  1 Constitutional Authority, I deal with essentially  2 the -- what I think is a difference between the  3 province and the appellants.  Whereas we started out  4 this appeal both agreeing that no questions relating  5 to specific extinguishment, if I can use that phrase,  6 ought to be decided by this court, at least now, the  7 appellants, at least, as I understand their position,  8 would like the court to decide whether the province  9 has the constitutional authority to extinguish  10 aboriginal rights on a case-by-case basis.  They  11 are -- I am still somewhat confused in my own mind as  12 to whether they want this court now or later to  13 actually -- assuming the province does have the  14 constitutional authority to extinguish, to determine  15 whether there has been any extinguishment and where.  16 The province's -- the appellants never addressed that  17 point, presumably on the assumption, I say the hope,  18 that the province does not have the constitutional  19 authority to extinguish.  20 LAMBERT, J.A.:  I am not sure how it can be said that the  21 province still has the constitutional authority to  22 extinguish, having regard to section 35 of the  23 Constitution Act.  24 MR. ARVAY:  Before 1982?  I am sorry, before 1982?  25 LAMBERT, J.A.:  Yes.  So it is, did the province have the  26 constitutional right to extinguish between 1871 and  27 1982?  This is really the question.  28 MR. ARVAY:  Yes.  We have heard some argument that maybe the  29 province or the federal government can extinguish  30 after 1982, perhaps with full consent.  I don't push  31 that point.  But my point is up to 1982.  32 Now —  33 MR. RUSH:  Excuse me,  if my friend needs some clarity on that  34 issue, to that question that your lordship poses, we  35 do ask that the court decide that issue.  And with  36 respect to my friend's ambiguity expressed in  37 paragraph 9 of his speaking notes, to clarify our  38 position, is that we do not ask that a decision, a  39 finding be made by this court on that issue.  So my  40 friend's description in paragraph 9 is correct.  41 MR. ARVAY:  Yes.  Thank you, Mr. Rush.  42 Now, the only difference then, between us, is on  43 the issue of the province's constitutional authority  44 to extinguish prior to 1982, between 1871, even more  45 precisely, between 1871 and 1982.  If your lordships  46 can answer that question as a strict matter of law,  47 then answer it.  But, in our submission, you probably 2806  Submisions by Mr. Arvay  1 cannot do that, not if you are going to give effect to  2 what has been described now over and over again by the  3 Supreme Court of Canada as the contextual approach to  4 constitutional interpretation.  The contextual  5 approach to constitutional interpretation means that  6 you can't give life to and meaning to constitutional  7 provisions except in a real -- in their context, in a  8 real dispute with real issues.  And if this court is  9 not going to be asked, as Mr. Rush has now explained,  10 and no one else disagrees, is not going to be asked to  11 decide whether there has been any specific  12 extinguishment in any parts of the claim, and we say  13 that, whether you're asked or not, you could do not do  14 so on the basis of the record.  So if you are not  15 going to be asked, and if you cannot decide whether  16 there is going to be any specific extinguishment, then  17 it would be, in our submission, wrong in principle,  18 contrary to proper rules of constitutional  19 interpretation, to decide whether the province has the  20 constitutional authority to specifically extinguish  21 after 1871 and before 1982.  If you're not going to  22 examine a real life case of specific extinguishment,  23 then you ought not to, in the abstract, so to speak,  24 decide whether the province has the constitutional  25 authority to extinguish.  And that, in effect, is the  26 essence of all of paragraph 6, starting at page 13  27 through to 20.  28 I appreciate Mr. Pape's comments -- he will  29 probably appreciate me saying that, maybe he won't --  30 at paragraph 14, where he talked about the order of  31 analysis.  I think he was quite right.  He says, first  32 you decide whether there has been an impairment, and  33 then you decide whether it's been authorized by  34 statute, and then you decide if it's ultra vires, then  35 you decide, if need be, whether it's contrary to  36 section 35.  And that all has to be done on a case-by-  37 case, on a case-by-case analysis.  38 We appreciate, my lords, that there is a massive  39 factual record in this court, and to say that  40 something in the abstract seems wrong, there is a  41 massive factual record on the issue of the scope and  42 content of the aboriginal rights in the area of the  43 claim as of sovereignty.  There is not the same record  44 for the purpose of the scope and content, if you will,  45 of the core of 91(24), particularly if you accept our  46 submission that any analysis of extinguishment has to  47 be examined at least at the time of the impugned 2807  Submisions by Mr. Arvay  1 enactment, and not at the time of sovereignty.  That  2 was never the focus of this case.  Sure, evidence was  3 led about post-1871 events, but that was all to argue  4 by inference what was going on at the time of  5 sovereignty.  6 And, most importantly, there is simply not enough  7 information in parties before your lordships to decide  8 any question of specific extinguishment.  If any  9 questions of specific extinguishment are to be  10 decided, in my submission, I say that it is a new  11 trial, it is a new case.  Because your lordships  12 cannot decide, and no one is asking you to decide  13 questions of specific extinguishment.  We say it would  14 be a mistake to decide the constitutional authority of  15 the province, because otherwise you will be doing that  16 in the abstract.  17 Again, I bring your attention to -- I will leave  18 those paragraphs with you, my lords, in the interests  19 of time, and I will just move to paragraph 22.  Sorry,  20 21.  Again, I have sort of divided this analysis up  21 that you can't decide the constitutional authority  22 until you decide -- unless you're dealing with the  23 concrete case of whether there has been specific  24 extinguishment.  But even if you get over that hurdle  25 and decide that the province does have the  26 constitutional authority to extinguish prior to 1982,  27 I say that it would also be a mistake to go on and  28 decide what permits, what acts extinguish.  In other  29 words, even though the province is very firm in its  30 position that grants in fee simple extinguish, and  31 even though we have powerful compelling authority in  32 our support now in the decision of Mabo, we still are  33 saying to the court, don't decide it.  You don't need  34 to, it's still being done, it's not being done in its  35 proper context and it's not necessary to decide.  36 Now, at paragraph 27, I try and -- and paragraph  37 30 -- I try to identify the significant similarities  38 in all our positions and the significant differences.  39 In paragraph 27, it seems that just about everybody is  40 of the same view, similar view, same as similar -- I  41 may be overstating that a little bit -- there are  42 similarities in the position of almost everyone in the  43 court, with the possible exception of the amicus, as  44 to what the court should decide.  And in paragraph 27  45 I set out Canada's position in A and B, and their  46 position A is very similar to the province's A.  Their  47 position B is -- they go further and they say the 2808  Submisions by Mr. Arvay  1 court should decide the constitutional authority of  2 the province to extinguish.  We say that shouldn't be  3 a matter of great interest of the federal government,  4 particularly when they support our position that we do  5 have the constitutional authority to extinguish.  6 Counsel for the intervenor Carrier-Sekani position is  7 similar to that of the province, as was the Business  8 Coalition, as to what should be decided.  The main  9 difference between the province and the appellants on  10 the one hand, and Canada and the amicus and the  11 intervenors on the other hand, is that we are saying  12 there may be some unfinished business.  We are saying  13 that we may want to come back to the court to decide  14 other matters.  Where the other group is saying, no,  15 after you make the declarations that you're being  16 asked to make, you're finished.  17 Now, in paragraph 31 I set out what I think is my  18 best guess at what might happen.  We are saying or  19 trying to set up more accurately what our position is,  20 and I say, and I am going to read this part, at the  21 very least the province says, paragraph 31, the scope,  22 content and location of the appellants' aboriginal  23 rights should not be decided now by this court but  24 these are issues -- these issues should, or at least  25 might, ultimately be decided either by this court or  26 its designate or perhaps the trial judge or even some  27 combination thereof.  Without wading deeply into the  28 record, it is difficult to predict now how many of  29 these questions, if any, can eventually be answered or  30 whether they can only be answered in relation to all  31 or parts of the claim area.  These are questions of  32 the scope, the content, the location.  Both the  33 province, and we believe the appellants, say that the  34 court should not wade at all for these purposes.  35 If it is necessary to obtain a judicial determination  36 of these questions, and it may not be, then assuming  37 there is a proper factual record, these are questions  38 that are sufficiently discrete from those that this  39 panel will have decided that, if this panel is not  40 available, another panel of this court can decide  41 them.  It may be that once that panel examines the  42 record it will conclude that the matter can only be  43 decided by the trial judge, or indeed that in the end  44 a new action must be commenced.  We say that these are  45 questions that can be left to be decided by this court  46 should the parties choose to return.  In the meantime,  47 the court should retain jurisdiction instead of 2809  Submisions by Mr. Arvay  1 addressing these questions.  So the court retains  2 jurisdiction because it may need to retain  3 jurisdiction to fulfill its constitutional and  4 judicial duties, and we also say that retaining  5 jurisdiction may have an incidental but salutory  6 effect on keeping the parties at the bargaining table  7 and reasonable and honest in their positions.  8 Under the heading The Transition Period, the  9 amicus and the intervenor Business Coalition say that  10 the province and the appellants cannot negotiate  11 precise location, scope, content or consequences of  12 the aboriginal rights.  They say only the court can  13 make determinations of aboriginal rights.  The parties  14 can negotiate a treaty, and that's different.  And I  15 agree with Mr. Jackson that there is not a clear line  16 between the aboriginal rights and treaty rights.  But  17 my point is this, that -- it's really two-fold:  First  18 of all, it is not right to say that the parties have  19 no role to play in giving definition to aboriginal  20 rights, legal rights.  It is true to say that we do  21 not have the ability to finally and ultimately  22 determine the definition or existence of those legal  23 rights.  That is the function and the role of the  24 courts.  But it is not right to say that we have no  25 role to play, particularly when you think about the  26 right, the section 35 right housing both the  27 entitlement and the limitation.  Limitations by their  28 nature are the product of a democratic process, the  29 political process.  And the courts, through the  30 Charter, have said time and again that it ought to be  31 deferential to the way the legislature has determined  32 it is necessary to infringe rights and freedoms.  It  33 ought not to accept the legislature's determination,  34 but it should be deferential, recognizing that there  35 are different ways of drawing lines, that there are  36 trade-offs and compromises made in the political  37 process, and all of this has to be taken into account  38 in determining at the end of the day whether someone's  39 rights or freedoms have been infringed and, therefore,  40 since the limitation on the right is necessarily  41 something that is done as part of the democratic and  42 political process, there is nothing to say that the  43 province and the appellants can't be part -- and the  44 federal government and third party interests -- can't  45 be part of that process of determining how the  46 entitlements in section 35 should or should not be  47 infringed.  Yes, at the end of the day if there is not 2810  Submisions by Mr. Arvay  1 agreement, or if even if there is agreement, if the  2 parties want an order as to what is -- what are their  3 aboriginal rights, it's for the court.  But that  4 doesn't mean that the parties don't have a role to  5 play in giving meaning and content to their legal  6 rights.  7 Now, the second point I make in response to the  8 amicus's position, and perhaps the more important one,  9 is that although the parties may use the interim  10 period in order to give meaning and definition to  11 their legal rights, what is much more likely to happen  12 is that they will use that period to negotiate a  13 treaty.  And we say that is the most important reason  14 for section 35, it is to provide the parties, and  15 particularly the aboriginal people, with a solid  16 constitutional basis upon which subsequent  17 negotiations can occur.  And that is something which  18 the amicus simply fails to address.  And that, in a  19 very brief but powerful way, is -- has been vindicated  2 0 by the Supreme Court's ruling in Dumont as well.  21 Now at paragraph 41, I add at paragraph 39 yet  22 another transition case, the Sinclair case, from the  23 Supreme Court of Canada.  The amicus says, and I am at  24 paragraph 41, that the only time the court can have a  25 transition period during which laws are held to be  26 valid is in periods of chaos and anarchy, periods of  27 great emergency or crisis.  It is true in Manitoba  28 Language that the court ordered the transition period,  29 because but for the transition period the rule of law  30 might have been threatened.  But remember what was  31 going on in those cases.  And all of those cases that  32 we referred you to where there were transition  33 periods, and particularly in those where there were --  34 where it might be described that there was a situation  35 of some crisis or necessity, the court was being asked  36 to breathe life into an unconstitutional statute.  It  37 was being asked to deem valid something that they had  38 already said was invalid.  If the court is being asked  39 to do that, which is an exercise of great power, then  40 yes, there should be a situation of some urgency.  But  41 we are not asking the court to do that.  We are asking  42 the court to adjourn the proceedings and to have a  43 transition period between the declaration of initial  44 entitlements and a later declaration of why the court  45 gives greater meaning and definition to the aboriginal  46 rights.  In asking the court to do that, we are not  47 asking the court to breathe life into anything or to 2811  Submisions by Mr. Arvay  1 do anything extraordinary, we are asking the court to  2 exercise restraint.  And it seems to me, my lords,  3 that when we are asking the court to exercise  4 restraint, it's not necessary to demonstrate that  5 there is some emergency or urgency or chaos before the  6 court can do that.  All we need to demonstrate is that  7 there is some good reason, good reason in principle.  8 And the parties think there is a very good reason, the  9 parties think it's going to facilitate the making of a  10 treaty, and that should be good enough.  11 My lords, at paragraph -- page 23, under the  12 heading Interlocutory Injunction, we oppose the  13 appellants' order in paragraph 6.  In effect, the  14 appellants are asking for an interlocutory injunction  15 over the whole of the claim area.  We say that even  16 though they have existing aboriginal rights in some  17 portion or portions of the claim area, that is still  18 too indeterminate an entitlement to give rise to such  19 a sweeping order; that such an order would amount to  20 suspending the operation of all laws and  21 administrative acts in the interim, it's contrary to  22 all this court's jurisprudence and that of the Supreme  23 Court of Canada on granting interlocutory relief.  And  24 those submissions are set out at page 23 from  25 paragraphs 1 through to 9.  And I leave that for your  26 lordships.  27 On page 26, under the heading The De Facto  28 Doctrine, we agree with the submissions of the amicus,  29 insofar as they said that if it was required to invoke  30 the de facto doctrine, this is an appropriate case.  31 However, we don't think -- we say that there is no  32 need for such a remedy in this case.  Likewise,  33 although we take no issue with the correctness of the  34 amicus's exposition of the law on transition periods  35 where there are -- where you need it in order to  36 maintain order and the rule of law, we don't  37 understand why the amicus made that submission.  The  38 appellants have described it as an interim argument.  39 I don't disagree.  40 Under the heading Constitutional Exemption, the  41 amicus says that the court can't give a constitutional  42 exemption under section 35, that's only something that  43 can be done under section 24.  We don't understand  44 their submission on that point either.  We weren't  45 asking the court to give anyone a constitutional  46 exemption.  We referred to the constitutional  47 exemption cases only as illustrations of the way the 2812  Submisions by Mr. Arvay  1 court has been innovative in crafting remedies in  2 constitutional cases.  We say, nevertheless, if it was  3 needed you can do it and you can do it by reference to  4 section 52 of the Constitution Act and you don't need  5 section 24.  I don't need to explore that.  6 Under the heading damages, we just repeat what we  7 said to you before, and at paragraph 2 indicate that,  8 going back to our submission, Mr. Justice Lambert  9 asked, what if the rights were proprietory?  Would  10 compensation be available?  I wasn't sure, hadn't  11 developed an argument.  Still not sure and still  12 haven't developed an argument.  But I say to the court  13 that in Mabo, even though they describe it as  14 proprietary, the majority said it was not compensible.  15 HUTCHEON, J.A.:  Paragraph 1 that should be damages, should it?  16 MR. ARVAY:  I am at page 27, my lord.  17 HUTCHEON, J.A.:  Yes, paragraph 1, entitlement to and a quantum,  18 should that be damages?  19 MR. ARVAY:  Yes.  Thank you, my lord.  20 And so I simply say that the Mabo case says that  21 even if it's proprietary, it's not compensible.  We  22 say this is a matter that you must leave for the  23 parties.  24 On the issues of costs, we simply agree with the  25 trial judge that each you side should bear its own  26 costs.  27 My lord, this hour has 30 minutes.  I would just  28 like to make my closing speech, everybody had theirs.  29 I consider it somewhat of a privilege to be the one  30 with the last word in this case.  I feel uneasy about  31 it and I said to Mr. Rush I wish he had had the last  32 word since he did it so nicely yesterday.  33 My lords, you have heard lengthy, thorough,  34 erudite, passionate, intellectual, humorous arguments  35 in this very long and interesting appeal.  You heard a  36 range of views on how aboriginal rights as legal  37 rights should be conceptualized.  But there is no  38 controversy in this court, my lords,  on one thing,  39 you heard no dispute on one fundamental point, and  40 that is that this is a matter which must be resolved  41 at the end of the day by the treaty-making process.  42 There is just no question about that in anybody's  43 mind.  A treaty which we say is not only going to  44 address past wrongs but is especially going to ensure  45 that aboriginal people in the province can co-exist  46 with non-aboriginal people and live in dignity and  47 maintain strong, healthy and prosperous communities. 2813  Submisions by Mr. Arvay  1 This government has made a very strong commitment to  2 negotiate a treaty with the appellants and other  3 aboriginal people.  It has made that committment in  4 the legislature, it has made that commitment in this  5 courtroom through counsel.  We say, my lords, whatever  6 this court can do to facilitate that process, it must  7 do.  But, in our respectful submission, it should do  8 no more.  We say that the remedy that the province has  9 urged upon this court will provide the aboriginal  10 people and the appellants specifically with the  11 necessary baseline entitlements to permit them to  12 negotiate with the province from a position of  13 strength and dignity.  14 We also say, my lords, that if there is going to be  15 a just and lasting resolution of this problem, it's  16 imperative that the parties be permitted to have a  17 very direct and relatively free hand in crafting the  18 ultimate outcome and not have any solutions imposed on  19 them by anyone.  This proceeding, and your lordships'  20 judgment, will be historic and of immense importance.  21 We urge your lordships to channel all of your  22 intellectual energy, which appears to be boundless, on  23 that end, on the end of allowing the parties to  24 negotiate a just and fair resolution to the problems.  25 And, hopefully, hopefully, this judgment, whatever it  26 is, will be one which marks the beginning of a new era  27 of relations between aboriginal people and governments  28 and third party interests in this province, which we  29 can all look back on with considerable pride.  30 Those are my submissions.  31 TAGGART, J.A.:  Thank you, Mr. Arvay.  32 Judgment will be reserved.  I do not want to part  33 with the appeal and your company without expressing on  34 behalf of the court our appreciation for the time and  35 effort that has been put into the preparation and  36 presentation of, not only this appeal, but as well all  37 of the earlier appeals.  I mean that to apply not only  38 to those who are seen and heard in court but, as well,  39 if I can find a neutral expression, to those who  40 labour in the obscurity, perhaps, of the back office,  41 on some occasions doing pretty menial tasks, but  42 essential to the effective presentation which counsel  4 3 have made.  44 All of the cases present considerable intellectual  45 challenges to the court.  It will take us some time to  46 review the material which you have put before us.  We  47 will do that with as much expedition as we can, 2814  Submisions by Mr. Arvay  1 consistent with producing a result which we all hope  2 will be of assistance to the parties.  3 Thank you.  We will adjourn now.  4  5  6  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings herein to the best of my  11 skill and ability.  12  13  14  15  16 Wilf Roy  17 Official Reporter  18 United Reporting Service Ltd.  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


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