780 Proceedings 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 Vancouver, B.C. May 15, 1992 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) THE REGISTRAR: In the Court of Appeal for British Columbia. Friday, May the 15th, 1992. In the matter of Delgamuukw versus Her Majesty the Queen at bar, my lords. TAGGART, J.A.: Ms. Mandell, just before you begin my brother Lambert has some queries that he wishes to pose, and I understand not for answers at the moment but for consideration and considered answers in due course. LAMBERT, J.A.: I'd like to put these questions now at the beginning of the day so that they will be easy to locate on the transcript, and I'd like to put them before our week off because I think that they will take some thought before they're answered. They have to do with the nature of aboriginal rights, and they're quite lengthy. It's probably going to be better to get them from the transcript than to try to write them down as we go. And I should give a little context I think. Last week Mr. Jackson responded to a question about the nature of aboriginal rights. He said, as I understand, that the right being claimed in this case is an exclusive proprietary right over the whole territory covered by the map. That it is sui generis, but that it includes an exclusive right of occupancy and an exclusive usufructuary right. In the exercise of an aboriginal right of that nature the Gitksan and Wet'suwet'en may engage in any activity that falls within that exclusive right of occupancy. That's how I understood his answer. On that basis specific hunting practices, fishing practices, trading practices, and other gathering activities are only illustrations of the way that the occupancy right has been used, asserted and demonstrated in the past. Those practices are not the rights themselves, but are instead authorized by the broader right of exclusive occupancy. We may well in this case have to decide whether that submission is correct. We also have to consider separate types of rights, the right to manage practices and rights to manage institutions. We have to consider rights that go with status rather than with activity such as 781 Proceedings 1 rights in relation to the custody or inheritance. 2 These may all not be directly raised by the pleadings, 3 but they have to be -- the pleadings have to be 4 understood in relation to a complete understanding of 5 the nature of aboriginal rights, in my view. So we 6 have to deal with rights that have no direct 7 relationship to occupancy of specific territory. 8 We have heard submissions about the historical 9 context of aboriginal rights in international law and 10 as set out in the Marshall cases, and those will be 11 helpful, but not in themselves, in my view, 12 determinative in our present context. Of course, we 13 have to pay the closest attention to the current 14 Canadian jurisprudence, much binding on us, but almost 15 all of the Canadian jurisprudence has arisen from the 16 assertion of the right to carry on a specific 17 practice. Someone may have been prosecuted for 18 shooting a goose not in accordance with the treaty or 19 catching fish not in accordance with the Fisheries 20 Act, and the only right that had to be asserted was an 21 aboriginal right to do the very thing with which he 22 was charged. So I don't believe that there is a well 23 analyzed jurisprudential foundation for aboriginal 24 rights as a whole. At least it hasn't come through to 25 me so far in the submissions that I've heard. 26 I think my particular problem is twofold. The 27 first question is what makes an activity, custom, 28 practice or institution into a right in the context of 29 aboriginal rights generally, and in the context of 30 Section 35 of the Constitution Act. This question 31 asks what makes something a right. The second 32 question is what makes an activity, custom, practice 33 or an institution carried on by aboriginal peoples 34 into an aboriginal right. This question asks what 35 makes a right aboriginal. 36 The evidence in this case describes Gitksan 37 Wet'suwet'en activities, customs, practices and 38 institutions. We have heard argument about what that 39 evidence establishes about those activities, customs, 40 practices and institutions. But every activity, 41 custom, practice and institution is not necessarily 42 the exercise of a right in itself, nor is it 43 necessarily carried out in the exercise of a more 44 abstract right. In order to state the nature of 45 aboriginal rights of the Gitksan and Wet'suwet'en I 46 would like to, speaking for myself, have a clear 47 understanding about the answers to the two questions 782 Proceedings 1 that I've asked. 2 In relation to the first question, namely, what 3 are the factors that make an action into an action in 4 the exercise of a right, there is no avoiding, in my 5 opinion, some form of analysis of the jurisprudential 6 formulation of rights. That jurisprudential 7 formulation should be able to put in place questions 8 about rights in rem and rights in persona, questions 9 about collective rights and individual rights, 10 questions about correlative, individual and general 11 duties, questions about enforceability and 12 non-enforceability in relation to rights, and 13 questions about the distinction between rights and 14 practices. No doubt there is a related question about 15 whether the organization of the society has a 16 relationship to rights and, indeed, about whether 17 that's the reason why organization and degree of 18 organization is a factor as set out in Baker Lake. 19 In relation to the second question, namely, what 20 makes a right an aboriginal right, one of the 21 questions will be whether the right has to be one that 22 is enjoyed only by aboriginal people and not by 23 others. Another question will be whether it is a 24 right that affects the central core of the lives of 25 the Gitksan and Wet'suwet'en people. What has been 26 called in other cases affecting them in their 27 Indianness. 28 Finally, as an additional problem, the answer to 29 the questions that I have asked have to be related to 30 Section 35 of the Constitution Act, and to the 31 aboriginal rights there referred to which include 32 rights under land claims agreements, different in 33 their nature perhaps from aboriginal rights generally. 34 The question about whether aboriginal rights apart 35 from Section 35 are the same as aboriginal rights 36 under Section 5, and perhaps therefore whether Section 37 35 controls what we must regard as aboriginal rights, 38 seem to me to be important also. 39 I'm raising these questions now because I'm not 40 certain that they're going to be covered in the course 41 of the remaining argument, and there's no point in me 42 raising them on the last day of the reply and saying 43 oh, I was worried about this or that, so that's why 44 I'm raising them now. I haven't studied the factums, 45 though I've been through the factums, and I wasn't 46 able to assure myself by doing that that these 47 questions which are troubling me are in fact going to 783 Proceedings 1 be answered. So I don't need anything on it now, and 2 I don't need anything on it when we resume, but 3 sometime before the case is ended I would like to 4 understand the parties, or at least the principal 5 parties' submissions on these questions. 6 MS. MANDELL: Thank you. 7 TAGGART, J.A.: All right. Yes, Ms. Mandell. 8 MS. MANDELL: I'd like to thank you, your lordship, for your 9 framing up of the questions you have. It's helpful 10 for us in responding to the concerns of the bench to 11 know the constraints that are guiding your thinking 12 and should be disciplining ours in what little time 13 remains. 14 I'm going to continue with the Royal Proclamation, 15 my lords. I'm hopeful that I'll get through this 16 section together with the constraints on Douglas' 17 power and what submissions we have to make concerning 18 the Colonial Laws Validity Act before the break this 19 morning. If I can do that then I think I can for the 20 balance of the day address you on blanket 21 extinguishment and I will be, hopefully, within the 22 times allotted to me. For the period then between now 23 and the break the binders which I'd ask your lordships 24 to have available to you are Appendix 2, which is the 25 volume -- the second volume of the Appendix A of 26 materials, together with your Appendix K volume, which 27 is the one that we were using yesterday, and your 28 speaking notes which I had asked you to insert in 29 front of Appendix K. And I will be referring to 30 several paragraphs of the Appendix K. 31 HUTCHEON, J.A.: I'm not sure I followed you on the first one. 32 MS. MANDELL: The first one I gave you is two volumes of 33 materials which supported Appendix A yesterday, and 34 I'm only going to refer to the Volume 2 of those 35 volumes today. 36 HUTCHEON, J.A.: Yes. 37 MS. MANDELL: And then, my lords, Appendix K, which I'm 38 primarily into, and your speaking notes and the factum 39 at Appendix K, I'll refer to several paragraphs of 40 that. I'm going to start with your speaking notes at 41 page nine. 42 My lords, I was in the midst of arguing that 43 although extrinsic evidence in our submission was 44 required for our application, that the extrinsic 45 evidence in this case supported the view that we take 46 that the drafters of the proclamation intended that 47 the boundary to the west be left open-ended, which is 784 Submissions by Ms. Mandell 1 precisely what appeared on the face of the instrument. 2 I had taken you through the geography and I'd like to 3 now address the question of the fur trade. 4 I say in page nine that the provisions regarding 5 the fur trade with the Indians were intended to apply 6 to Indians who were not known to the Crown in 17 63 and 7 to occupied land to the furthest reaches of the 8 continent. In other words, these are Indians who were 9 known or to be known as the fur trade progressed 10 westward. 11 And, Mr. Justice Wallace, I wanted to advise your 12 lordship that before I move you into the tab in 13 Appendix A the paragraphs that I'll be referring to in 14 Appendix A will be paragraphs 104, 108, 112, 115, 121 15 and 135. And if I could take your lordships now to 16 Appendix A to paragraph 104 and also to the second 17 volume of the appendix to tab 104. 18 My lords, this is a tab which sets out the 19 material which was -- which was part of the debate 20 prior to the enactment of the proclamation and 21 immediately thereafter, and it's to illuminate your 22 lordships as to what was in the mind of the Lords of 23 Trade respecting the Indians which are under our 24 protection or who -- the Indians with whom we are 25 connected and who live under our protection. And it's 26 our submission that the Lords of Trade anticipated 27 that those Indians are Indians which were then known 2 8 to the Crown, or Indians who were unknown but which 2 9 would come in contact with the Crown. And in 30 paragraph 104 I refer your lordships to some of these 31 documents, and I'm going to ask you to flip through 32 them. The first document I want to read. This is a 33 document which is to deal with the policy of the Crown 34 to treat the Indian people as was stated by Egremont 35 to conciliate the affection of the Indian nations by 36 every act of strict justice. 37 The next letter of May 5th, again I won't read 38 your lordship, it's one I already referred you to, and 39 this is where Egremont is encouraging the King that 40 rather than to make warfare he should instead adopt a 41 policy which will secure them in their possession the 42 territories of the hunting grounds which they had 43 grown to believe to be their own, and which would be 44 acquired by fair purchase only. 45 The next and long letter, again I won't ask your 46 lordship to read we've gone into it yesterday. This 47 is the June 6th letter where your lordships will 785 Submissions by Ms. Mandell 1 recall that when the Lords of Trade were reviewing 2 what territories came to them under the Treaty of 3 Paris they spoke of the immense continent of North 4 America and that it opened up trade with all the 5 Indians of North America. 6 And I will ask your lordship to turn to the next 7 letter, which is the August 5th, 1763 letter. This is 8 a letter the Lords of Trade wrote to Sir William 9 Johnson who at that time was the Superintendent of 10 Indian Affairs for the Northern District. And your 11 lordship will see that he's being directed. 12 13 "His Majesty having been pleased upon our 14 report to him of the arrangements necessary to 15 be taken in consequence of the Cessions made to 16 His Majesty in America by the late Definitive 17 Treaty of Paris, to direct that the Agents for 18 Indian Affairs should correspond with Us in all 19 matters regarding their departments, and should 20 transmit all such informations as we should 21 require from them, we take this opportunity of 22 acquainting you with His Majesty's commands, 23 not doubting of a regular and exact continuance 24 on your part of that correspondence with this 25 Board which has already produced so much useful 26 information and intelligence of the true state 27 of Indian Affairs. 28 29 A regular and constant correspondence upon 30 these points, at all times useful and 31 important, is now become essentially 32 necessary --" 33 34 And then I stress these words. 35 36 "-- from the great number of hitherto unknown 37 tribes and nations, which are now under His 38 Majesty's immediate protection and the 39 necessity there is of speedly falling upon some 40 method of regulating the Indian commerce and 41 policy, upon some more general and better 42 established system than has hitherto taken 43 place." 44 45 And so Mr. Johnson is being directed to continue 46 to advise the board of the great number of hitherto 47 unknown tribes of nations which are now under His 786 Submissions by Ms. Mandell 1 Majesty's protection. 2 And if your lordships will turn over to past the 3 next slip, this is a reply from Mr. Johnson. It's in 4 a document entitled "Enumeration of Indians within the 5 Northern Department", and it came one month after the 6 Royal Proclamation was pronounced. It's part of a 7 series of reports which Mr. Johnson gave to the Lords 8 of Trade. This one is November 18th, 1763. And your 9 lordship will see at the top there is a box which is 10 part of the report, and he's reporting on the Sioux. 11 This is the third category of Indian people. And he 12 says: 13 14 "They reside in the colony --" 15 16 And I stress these words: 17 18 "-- westward of the Mississippi. They are much 19 addicted to wandering and live mostly in 2 0 camps." 21 22 And then under general remarks: 23 24 "The Sioux who are the most numerous of the 25 Northern Indians, are little known to us, they 26 not appear well affected to the western 27 Indians, and promise to send Deputies to me in 28 the spring." 29 30 And I say that immediately after the proclamation 31 you have William Johnson upon instructions from the 32 Crown reporting about tribes of Indians which were 33 westward of the Mississippi and who at the time of the 34 proclamation were not known to the Crown. 35 And if your lordships will finally turn to the 36 last letter in this package. I've introduced you to 37 this letter before. It's the September letter where 38 the Lords of Trade decide on direction from the King 39 to introduce a larger number of matters in the 40 proclamation than merely the land provisions for 41 Indians. And if you will turn to the second page of 42 the document, the second to the last paragraph: 43 44 "I am further to acquaint Your Lordships, that, 45 as it is of the greatest Importance, that the 46 General Plan, upon which His Majesty's Subjects 47 are to carry on a free Trade -- 787 Submissions by Ms. Mandell 1 And I stress these words. 2 3 "-- with all the Indians of North America, 4 should be established as soon as possible --" 5 6 And then they recommend a system of regulation 7 which in the end found its way into the proclamation. 8 Now, so, my lords, you're aware that in the 9 proclamation at paragraph 4B there was a trade 10 provision where the colonies would grant the 11 regulation, would licence on a free trade basis those 12 who wish to go into the Indian country and trade with 13 the Indians. 14 And I have at paragraph 108 in the appendix stated 15 what I say is the proposition of this peace, and that 16 is that the various trade licenses issued by the 17 Government of the Province of Quebec between 1766 and 18 1790 established that all Indians with whom British 19 subjects traded were entitled to the protection of the 20 Crown. By 1790 northwest traders -- this isn't the 21 Hudson's Bay traders. These are the northwest traders 22 that are independently being licensed from Quebec, 23 licensed from Montreal, were doing business with 24 Indian tribes from as far away as the Arctic watershed 25 and the northeast of what is now British Columbia. 26 And, your lordships, if you will turn to the next 27 page we've set out at paragraph 111 and 112 the 28 ordinance or the regulation which was proclaimed by 29 James Murray in 1765. And I'm not going to read it to 30 your lordships, but you'll see that this is his 31 proclamation putting into effect the power of Quebec 32 to regulate the trade. And he declares in the same 33 language as the proclamation that it's -- that he's 34 regulating the trade and intercourse with the several 35 Indian nations living under His Majesty's protection, 36 and he issues trade licenses. 37 And paragraph 112 is a standard form of licence 38 which was issued by the Government of Quebec, the 39 governor. And you'll again see that in the licence 40 that the trader is in all intercourse with the Indians 41 regulated under certain conditions. And it's stated 42 in respect of the Indians with the several Indian 43 nations living under His Majesty's protection and then 44 there is certain stipulations which are provided that 45 he has to follow. 46 And at paragraph 115 I introduce your lordships to 47 a particular licence to Maurice Blondeau. And this is Submissions by Ms. Mandell 1 in the year 1769. And he was licensed to go to 2 Michilimakinak and La Mer de l'Ouest. And your 3 lordships will remember that La Mer de l'Ouest is kind 4 of a colloquial word to talk about the existing French 5 forts which were operating north of Saskatchewan. And 6 for a better description of the exact country that La 7 Mer de l'Ouest was intended to encompass I ask you to 8 note paragraph 20. I won't turn you to it, but 9 paragraph 20 of the appendix and the materials inside 10 the tab are a clear statement of exactly the territory 11 that La Mer de l'Ouest was intended to cover. 12 So in 1769, five years after the proclamation, 13 Quebec is licensing Mr. Blondeau to go to Saskatchewan 14 and beyond west of Lake Winnipeg, and this is west of 15 the Mississippi line, to go and trade with the Indian 16 people. 17 And if I could turn you to paragraph 121 and also 18 take you to the material inside the tab. My lords, 19 this is -- these are returns of the -- of Quebec 20 licenses to trade with Indians for the years 1777. 21 And it indicates that the fur trade of the interior 22 country was being conducted from La Mer de l'Ouest. 23 I'm not going to take you into it. I've circled in 24 the third column where the particular licensee was 25 trading from. This isn't that they're trading to that 26 point, this is the fort that they're trading from. 27 And so they would be moving to contact Indians from 28 that fort. And you'll see that there's a number of -- 29 HUTCHEON, J.A.: Can I just stop you for a moment. I thought 30 that so far as Quebec was concerned the Royal 31 Proclamation had run its course by 1774. 32 MS. MANDELL: Only in respect to the boundaries, my lord. 33 HUTCHEON, J.A.: Only in respect to the boundaries? 34 MS. MANDELL: Yes. 35 HUTCHEON, J.A.: So that the authority to issue licenses was 36 still coming out -- 37 MS. MANDELL: Continued, yes. 38 HUTCHEON, J.A.: — of the Royal Proclamation? 39 MS. MANDELL: And treaty making with the Indian people continued 40 as well. 41 HUTCHEON, J.A. : Coming out of the Royal Proclamation? 42 MS. MANDELL: Yes. Yes. 43 HUTCHEON, J.A.: I see. Thank you. 44 MS. MANDELL: My lords, I'd like to turn you now — the point I 45 wanted to leave you with at 121 is that under the 46 authority of the protection provisions of the 47 proclamation the fur traders were basically going as 789 Submissions by Ms. Mandell 1 far north as they could. And certainly they were not 2 as they encountered Indians expected to operate 3 outside their licence, which was a licence which 4 encompassed the protection of the Crown in their 5 relationships with the Indian people. 6 Now, my lords, if I could ask you to turn to 7 Appendix K again, just back to tab 1. I want to make 8 reference to what The Chief Justice said in respect of 9 several nations and tribes of Indians, and it's at 10 page -- it's at page 229. 11 HUTCHEON, J.A.: R-40? 12 MS. MANDELL: R-4 0, yes. We're at Volume R-4 0, Volume 1, page 13 229. 14 WALLACE, J.A.: Tab 1? Did you say, tab 1? 15 MS. MANDELL: Yes. I'm referring to the reasons for judgment. 16 You could take it from your own volume. 17 TAGGART, J.A.: What is the tab in R-40? 18 MS. MANDELL: Tab 1. It's only a passage from the reasons for 19 judgment, that's all I'm going to take you to, so if 20 you wanted to turn to page 229 you could follow it. 21 My lord, you'll see that at the top of the page 22 his lordship Mr. Justice McEachern recited the passage 23 and he -- dropping down he says that: 24 25 "Ad hoc arrangements were made in the field, 26 but the idea --" 27 28 I'm sorry. He's talking shortly before the date 29 of the proclamation he said: 30 31 "Lord Halifax, who succeeded Egremont as 32 Secretary of State for the Colonies, requested 33 the Lords of Trade to prepare a plan for Indian 34 trade in North America. The board sent a draft 35 plan to Sir William Johnson, presumably for his 36 consideration, but the plan was never 37 implemented because of objections from traders 38 about its impracticability. For example, the 39 plan required the Indians to come to the forts 40 in order to trade, while it was often found 41 necessary for the traders to go to the Indians. 42 Ad hoc arrangements were made in the field, the 43 the idea of a plan was revived after the 44 extension of the Quebec Act of 1774, which gave 45 Quebec control of the fur trade and exempted 46 that province from the operation of the Royal 47 Proclamation. 790 Submissions by Ms. Mandell 1 And I take issue with that. 2 3 "In 1777 a Plan was enacted in Quebec by 4 Ordinance which included the following terms 5 --" 6 7 And he then sets out two terms and he then says 8 that: 9 10 "The Lists A. and B. include 54 tribes, 12 in 11 the Southern District and 42 in the Northern 12 District. Of those in the Northern District, 13 all but the Sioux lived east of the 14 Mississippi." 15 16 And he goes to the point of contemporary maps 17 didn't show Indian people, and he concluded that 18 eventually that there was, as I've mentioned to you on 19 230, none of the tribes living in Rupert's Land were 20 mentioned in the lists. These were the lists he 21 refers to. And in 1764 Sir William Johnson made 22 reference to -- in a letter to Thomas Gage he referred 23 to the Christeneaux, northwest of Lake Superior, who 24 had no hand in the war and are rather remote to give 25 us much trouble. And then he's into the passage which 26 I've already cited. I have given this question much 27 careful thought, particularly the argument to the 28 prospective application. 29 And I just wanted to say in respect of the plan, 30 the 1777 plan which his lordship placed great reliance 31 on, I can't, and I stand to be corrected if my friends 32 can do so, I don't believe there was such a plan. It 33 certainly doesn't appear in the plaintiffs' list, and 34 I'm not aware of it. The only plan that I am aware of 35 is a plan which was in 1764. It wasn't a plan enacted 36 by Quebec or by ordinance, and there was lists A. and 37 B. but the numbers of Indian people under the southern 38 or northern district are different. And the plan that 39 I know about, the 1764 plan, was not intended to show 40 the Indian people that were to be governed by the 41 proclamation, but it was in respect of which of the 42 Indian people then known to the Crown would fall into 43 the newly created northern and southern districts 44 which the Department of Indian Affairs was setting up. 45 And in respect of that plan I'd ask your lordships to 46 turn to the appendix to page two -- I'm sorry. To 47 paragraph 134 and 135, which is at page 46. 791 Submissions by Ms. Mandell 1 TAGGART, J.A.: You say there was a 1764 — 2 MS. MANDELL: Plan. It wasn't enacted by Quebec. And the 3 numbers are different as to the Indian people that are 4 listed in A. and B.. 5 TAGGART, J.A.: Okay. Now, what's the reference that you gave 6 us? 7 MS. MANDELL: To that plan? 8 TAGGART, J.A. : Yes. 9 MS. MANDELL: I'll find the exhibit number, my lord. 10 TAGGART, J.A.: No, no. You gave us a reference following your 11 comment on the 1764 plan. You've just given us a 12 reference. You looked at something. 13 HUTCHEON, J.A.: 134. 14 MS. MANDELL: Yes. I'm going to take you back into the factum. 15 I want to deal with paragraphs 134 and 135 of the 16 appendix. 17 WALLACE, J.A.: Are you at page 10 of your factum yet or page 18 nine? 19 MS. MANDELL: This is the appendix. 20 WALLACE, J.A.: I know you're in the appendix of the document, 21 but your speaking notes. I'm sorry. 22 MS. MANDELL: No, my lord, I'm taking you to paragraph 134 and 23 135 of Appendix A to the reply. I'm referring to a 24 report which the committee of the North-West Company 25 provided to the King. And this was in December 11th, 26 1790. And they were in this report referring to the 27 1764 plan which I referred your lordship to. And that 28 is an exhibit at the trial which is Exhibit 1027-16. 29 And in there is reference to it. At paragraph 135 30 they say this, with apparent pride, and the King 31 apparently is receiving this information. 32 33 "It is known to the committee that the 34 Gentlemen who thus pledge themselves are the 35 principal Houses concerned in the Interior 36 Commerce of the Western Countries and Lakes, 37 that they have carried it on for a long space 38 of time, that they have extended their 39 adventures to many Tribes of Indians unknown at 40 the time of framing the Scheme of the board of 41 trade. And, that they are in the actual course 42 of Beneficial Commercial discoveries in the 43 remotest parts of His Majesty's Dominions in 44 the Hemisphere we Inhabit." 45 46 And we say that these are the northwest fur 47 traders that are carrying out the protection of the 792 Submissions by Ms. Mandell 1 Crown through the fur trade licenses, reporting back 2 that they're moving into the remotest parts of His 3 Majesty's dominions in the hemispheres that we 4 inhabit. 5 Well, my lords, if I could ask your lordships to 6 turn back to your speaking notes at page ten, and 7 you're now finished with your appendix -- your Volume 8 2 materials but you'll still be referring to your 9 Appendix K materials. We're at that stage. 10 I'd just like to summarize this point by saying 11 when you look at the extrinsic evidence regarding the 12 proclamation's application in Indian country -- 13 TAGGART, J.A.: Now, where are we now in the speaking notes? 14 MS. MANDELL: I'm just concluding at the end of page nine, my 15 lord, and I'm going to move into page ten. 16 In summary on this point I wanted to say simply 17 that the fur trade provisions and their application on 18 the ground, in my submission, bespeak of prospective 19 application and not of a limited boundary. 20 Now, my lords, the last point which I want to 21 address on the proclamation is with respect to the 22 question of ambiguity. And it's -- if I could ask 23 your lordship to turn to paragraph -- to tab 28 of 24 Appendix K. I want to familiarize your lordships with 25 what The Chief Justice said on this point. This is 26 following the argument about prospective application 27 and denying that it has relevance. He says at the 28 last paragraph of the page: 29 30 "I have also considered recent jurisprudence 31 such as Nowegijick, and many others which 32 establish a contra proferentes approach 33 favourable to Indians. Nowegijick has recently 34 been considered by the Supreme Court of Canada 35 in Mitchell, where Mr. Justice La Forest 36 suggests different principles may apply as 37 between treaties and statutes. He expressly 38 disagrees that statutory interpretations 39 favourable to Indians must always be reached." 40 41 And we say that in respect the Nowegijick 42 principles apply to the proclamation's interpretation 43 and if there are ambiguities which can be discerned 44 from the face of the instrument or from a proper 45 interpretation of it based on extrinsic evidence that 46 those ambiguities ought to be resolved in favour of 47 the Indians and not against them. 793 Submissions by Ms. Mandell 1 Now, my lords, at the same tab what I have set out 2 for you are the various cases which have looked at the 3 proclamation. And in tab 28 these are only in respect 4 of British Columbia, whether the proclamation applies 5 to British Columbia, and these are not inclusive. 6 There are some lower court decisions which I haven't 7 included, but I have included the major decisions 8 revolving around the prospective application. And at 9 tab -- and all the cases in tab 28 or the portions 10 cited have found that the Royal Proclamation does not 11 apply to British Columbia. 12 And at tab 29 I've cited the portions of the 13 cases, and again not all of them and not the lower 14 court decisions, but those cases which decided that 15 the Royal Proclamation does apply to British Columbia. 16 And I have to advise your lordships that in respect of 17 tab 28 there are -- there is surprisingly little 18 language by anybody as to whether or not the 19 proclamation applies prospectively, and if so or if 20 not for what reasons. The most exhaustive analysis of 21 that was Mr. Justice Norris in White and Bob, and that 22 was an analysis which proceeded on the basis that the 23 proclamation applied prospectively. But apart from 24 that, I'm not going to ask you to turn to it, we get 25 very, very little comment. Without asking your 26 lordships to turn to it we have the decision of Mr. 27 Justice Tysoe in Calder who says: 28 29 "Nor can I give the Royal Proclamation a 30 prospective operation so that it applies to 31 later-discovered land on the North American 32 continent which might turn out to be inhabited 33 by Indian tribes rather than by Eskimos or 34 people of some other race and whose mode of 35 living, nature, character, intelligence and 36 state of culture was quite unknown." 37 38 And the only other comment about prospective 39 application that I was able to find in these cases was 40 in the decision of Mr. Justice Maclean, also in the 41 Calder case, and he says: 42 43 "Appellants' counsel has argued that even if 44 the Proclamation of 1763 did not apply to the 45 Nishgas at the time the Proclamation was 46 issued, it did apply to them when eventually 47 the tribal territories came under British 794 Submissions by Ms. Mandell 1 sovereignty in 1846. In my view the 2 Proclamation cannot be interpreted in that 3 way." 4 5 And in terms of the comments made judicially about 6 the prospective application of the proclamation I 7 believe that I've pretty much summarized and repeated 8 to you the very little judicial comment that there is. 9 But, in any event, there's been conflicting comment. 10 The courts have gone both ways on this. And if I 11 could ask your lordship to turn back to tab 12 of 12 these materials. I want to reveal for your lordships 13 that the very phrases in the proclamation that his 14 lordship found to be contra a prospective application 15 have been interpreted by other courts as in fact 16 favoring a prospective application. And I have cited 17 at tab 12 the decision of Mr. Justice Strong in the 18 St. Catharine's Milling case where he says: 19 20 "Then it is said that the proclamation was, as 21 regards the Indians, merely a temporary 22 measure, and that its character as such is 23 evidenced by the introductory words to the 24 clauses now material: 'and we further declare 25 it to be our Royal will and pleasure for the 26 present.' There is no force in this point 27 unless it can be shown that the proclamation 28 was revoked in a regular and constitutional 29 manner. A statute which makes provision 'for 30 the present' without any express limit in point 31 of time, or other indication by which its 32 duration can be ascertained, remains in force 33 until it is repealed." 34 35 And if your lordships can turn over the tab Mr. 36 Justice -- or turn over the divider, Mr. Justice 37 Norris in White and Bob says to the same effect: 38 39 "If the conception of the British claim and 40 continual extension of exploration be kept in 41 mind, the use of the present tense in the 42 expression 'with whom We are connected, and who 43 live under our Protection' is easily understood 44 as referring to all the Indians on all 45 territories claimed. The use of the term 'for 46 the present' presages the anticipated 47 extension. 795 Submissions by Ms. Mandell 1 And we say, my lords, that there not only is clear 2 ambiguity in terms of the proclamation itself 3 applying, but the very words which were used by The 4 Chief Justice to limit the application of the 5 proclamation have themselves attracted the ambiguity 6 principle because at least two judges have found those 7 words to mean something which can be construed 8 prospectively in favour of the Indian people. 9 Now, my lords, if I could turn you to tab 30 I 10 want to finally make the point that in our submission 11 The Chief Justice was wrong in how he viewed Mitchell 12 as permitting him to bypass the Nowegijick principles. 13 I've set out the passage from Nowegijick which has 14 been the subject of much legal following. 15 16 "It is legal lore that, to be valid, exemptions 17 to tax laws should be clearly expressed. It 18 seems to me, however, that treaties and 19 statutes relating to Indians should be 20 liberally construed and doubtful expressions 21 resolved in favour of the Indian. If the 22 statute contains language which can reasonably 23 be construed to confer tax exemption that 24 construction, in my view, is to be favored over 25 a more technical construction which might be 26 available to deny exemption. In Jones v. 27 Meehan it was held that: 28 29 'Indian treaties must be construed, not 30 according to the technical meaning of their 31 words, but in the sense in which they would 32 naturally be understood by the Indians.'" 33 34 And after the divider, my lords, I've cited the 35 passage from Sparrow. I won't read it to your 36 lordships, but it's the last paragraph in the page 37 where the court adopts the Nowegijick principle as 38 being applicable to a proper construction of a Section 39 35 right. And after the divider I've included a 40 section from the Claxton case because it's in our 41 submission what the treaty cases have done is they 42 have broken out the principle of Nowegijick to 43 comprise two different principles. The first is that 44 the treaty should be given a fair, large and liberal 45 construction in favour of the Indians. And that's the 46 principle which was affirmed in Sparrow in the passage 47 that your lordships have just been referred to. And a 796 Submissions by Ms. Mandell 1 further principle, that any ambiguity in wording 2 should be interpreted as against the drafters and 3 should not be interpreted to the prejudice of the 4 Indians if another construction is reasonably 5 possible, and in that the -- how the Indian people 6 understand the treaty has been very much in issue. 7 I ask your lordships in the next -- following the 8 next divider to note the same in respect of the Sioui 9 case. And, finally, I'd like you to turn to the 10 Mitchell case, which is the last case in the tab. 11 I've taken out the first two pages which were 63 and 12 64. These are from the judgment of Mr. Justice 13 Dickson who on this point was in dissent in Mitchell. 14 And what he said was that he thought that the 15 Nowegijick principles, that is that ambiguity -- 16 liberal interpretation and ambiguities should be 17 construed in favour of the Indians, as well as the 18 principle that the words should be afforded the 19 meaning that the Indian people themselves understand 20 it. Those two aspects of Nowegijick he thought should 21 apply to construing a statute. In this case it was 22 the Indian Act. And at page 64 he says the reason 23 why. I'm reading from the second paragraph to the -- 24 to the bottom beginning: 25 26 "It is Canadian society at large which bears 27 the historical burden of the current situation 28 of native peoples and, as a result, the liberal 29 interpretive approach applies to any statute 30 relating to Indians, even if the relationship 31 thereby affected as a private one. Underlying 32 Nowegijick is an appreciation of societal 33 responsibility, and a concern with remedying 34 disadvantage, if only in the somewhat marginal 35 context of treaty and statutory 36 interpretation." 37 38 TAGGART, J.A.: What page was that? What page did that come 3 9 from? 40 MS. MANDELL: That was page 64, my lord. It's the second 41 paragraph from the bottom, the last sentence in the 42 paragraph. 43 TAGGART, J.A.: Okay. I've got it. 44 MS. MANDELL: Now, Mr. Justice La Forest in the majority didn't 45 agree that the interpretation of a statute should bear 46 the meaning that the Indian people put on it. But 47 they didn't disagree that the interpretation of the 797 Submissions by Ms. Mandell 1 statute should be liberally construed with doubtful 2 expressions resolved in favour of the Indians. And 3 that's the part of Nowegijick upon which we rely in 4 our construction of the Royal Proclamation. And I 5 take you in the last page of this tab to the 6 majorities' discussion of this point. And I'm 7 beginning at the second paragraph after heading 8 Nowegijick. 9 10 "I note at the outset that I do not take issue 11 with the principal that treaties and statutes 12 relating to Indians should be liverally 13 construed and doubtful expressions resolved in 14 favour of the Indians." 15 16 And then he points out that: 17 18 "In the case of treaties, this principle finds 19 its justification in the fact that the Crown 20 enjoyed a superior bargaining position when 21 negotiating treaties with native peoples. From 22 the perspective of the Indians, treaties were 23 drawn up in a foreign language, and 24 incorporated references to legal concepts of a 25 system of law with which Indians were 26 infamiliar. In the interpretation of these 27 documents it is, therefore, only just that the 28 courts attempt to contrue various provisions as 29 the Indians may be taken to have understood 30 them. 31 32 But as I view the matter, somewhat different 33 considerations must apply in the case of 34 statutes relating to Indians. Whereas a treaty 35 is the product of bargaining between two 36 contracting parties, statutes relating to 37 Indians are an expression of the will of 38 Parliament. Given this fact --" 39 40 And I say that the rest of this paragraph is very 41 important. 42 43 "-- I do not find it particularly helpful to 44 engage in speculation as to how Indians may be 45 taken to understand a given provision." 46 47 That's the part of Nowegijick he isn't applying to 798 Submissions by Ms. Mandell 1 statutes. 2 3 "Rather, I think the approach must be to read 4 the Act concerned with a view to elucidating 5 what it was that Parliament wished to effect 6 in enacting the particular section in 7 question." 8 9 Then I stress these words. 10 11 "This approach is not a jettisoning of the 12 liberal interpretive method. As already 13 stated, it is clear that in the interpretation 14 of any statutory enactment dealing with 15 Indians, and particularly the Indian Act, it is 16 appropriate to interpret in a broad manner 17 provisions that are aimed at maintaining 18 Indians rights, and to interpret narrowly 19 provisions aimed at limiting or abrogating 2 0 them." 21 22 And then he says finally that he doesn't think 23 that just because Indian people would favour one 24 construction over another that that's what should 25 govern the day. 26 And we say in conclusion on this point, my lords, 27 that Mitchell did not permit the court to bypass the 28 Nowegijick principle that the statute should be 29 liberally construed and that doubtful expression 30 should be resolved in favour of the Indian people. 31 The only thing that Mitchell can be said to have 32 finally settled is interpreting the statute how the 33 Indian people understood the statute is of no 34 relevance. 35 My lords, I'd like to summarize then on the Royal 36 Proclamation with this. We say that the trial judge 37 construed the Royal Proclamation without reference, in 38 our submission, to a clear reading of the words of the 39 proclamation, without reference to the law of 40 prospective application, without reference to the 41 jurisdiction acts which in our submission are evidence 42 of a prospective application, and without reference to 43 the trade licenses. And in our submission his ruling 44 in respect of the prospective application if we're 45 wrong about our analysis, in any event, we ought to be 46 entitled to the ambiguity rule, and he was wrong in 47 denying to the appellants that construction. 799 Submissions by Ms. Mandell 1 Now, my lords, at this point we had intended to 2 revisit tab 7, which is the principles of Indian Crown 3 relations for these purposes, and that was to review 4 the trial judge's errors as to the principle of 5 consent and treaty making and to demonstrate that the 6 principle had been judicially recognized as a 7 principle of the common law, and in the alternative to 8 show that there is a constitutional convention that 9 Indian consent is necessary to the extinguishment of 10 aboriginal title or the extinguishment to aboriginal 11 right to self-government. And Mr. Jackson will be 12 giving the court speaking notes, which will remain 13 unspoken, which will address these points as he would 14 have spoken them, but he's not going to. And in 15 particular we will address the question raised by Mr. 16 Justice Lambert last week regarding the transition of 17 the principle of consent from a principle of 18 international law to either a principle of the common 19 law or a constitutional convention. 20 And at this point I'd like to turn your lordships 21 in the speaking notes to the question of Governor 22 Douglas' power to extinguish. And, my lords, I'd like 23 to refer to the speaking notes at this point. 24 The appellants submit that at the eve of the 25 establishment of the colony of British Columbia -- 26 TAGGART, J.A.: You referred to some speaking notes of Mr. 27 Jackson's. 28 MS. MANDELL: He's going to hand them up to you, my lord, at 29 the -- following the week off. 30 TAGGART, J.A.: Oh, all right. He's still working on it. 31 MS. MANDELL: They would have been — 32 TAGGART, J.A.: And can I ask if it would be appropriate to put 33 them in at your speaking notes at page 11 before this 34 heading? 35 MS. MANDELL: Yes, it would be. Thank you. 36 TAGGART, J.A.: Mr. Jackson, could I trouble you to put a 37 heading on your notes or a note on your notes to the 38 effect that they're to go in page 11 of Ms. Mandell's 39 speaking notes? 4 0 MR. JACKSON: Yes, my lord. 41 MS. MANDELL: My lords, I'm turning to Governor Douglas' power. 42 And the reason why -- one of the main reasons why we 43 have urged your lordships to consider the Royal 44 Proclamation's applicability to British Columbia, 45 although not the only one, is because we say that at 46 the eve of the establishment of the colony of British 47 Columbia the Royal Proclamation applied to the colony, 800 Submissions by Ms. Mandell 1 and had the effect of an Imperial statute. 2 Alternatively, if this court finds that the Royal 3 Proclamation did not apply prospectively, we still say 4 that the fundamental principles of the common law 5 which the Royal Proclamation reflected also applied in 6 the colonies. 7 And, my lord, I didn't believe Mr. Jackson 8 referred you to this, but I wanted to have your 9 lordships note that the privy council has affirmed the 10 Symonds case. And this was a decision Tamaki and 11 Baker, and the cite is (1900) J.C. 371. And I'll be 12 including that case in the next volume of authorities 13 which will clean up the authorities which are not 14 presently in your materials. 15 TAGGART, J.A.: What was the page number again, please? 16 MS. MANDELL: 371. 17 TAGGART, J.A.: And the name of the case? 18 MS. MANDELL: It's Tamaki and Baker. 19 TAGGART, J.A.: T-A-M? 20 MS. MANDELL: T-A-M-A-K-I. I had intended to refer to this case 21 in reply on the question of adverse dominion, but at 22 this minute I'm going to advise your lordships that 23 the Symonds decision was affirmed and authoritatively 24 relied upon by the privy council. 25 The appellants submit that Governor Douglas had no 26 power to repeal the Royal Proclamation or extinguish 27 the rights of Indian people recognized and confirmed 28 in the Royal Proclamation or in the common law. The 29 trial judge dismissed the argument regarding Douglas' 30 limited power. And if I could turn your lordships to 31 tab 33 where I set out what he says about this. It's 32 at page 264 of the judgment. And he says: 33 34 "Mr. Rush offered an interesting argument based 35 not on the Governor's instructions but rather 36 upon his commission, which precluded him from 37 making 'any law of an extraordinary nature and 38 importance whereby our prerogative, or the 39 rights and property of our subjects residing in 40 our said colony ... may be prejudiced.' He 41 argues from this that the Governor had no power 42 to make any law which would extinguish 43 aboriginal interests of the Indians who were 44 subjects of the Crown. This argument 45 presupposes aboriginal interests are not 46 subject to extinguishment whereas it seems 47 incontestable that they were extinguishable at 801 Submissions by Ms. Mandell 1 the option of the Crown. The contrary has 2 never been suggested in any of the Canadian 3 authorites such as St. Catharine's Milling, 4 Calder and Sparrow. In any event, as will be 5 shown, most of the colonial legislation was 6 also enacted by the Imperial Parliament." 7 8 Now, my lords, you've been already addressed on 9 the St. Catharine's Milling point, and I will address 10 you on the question of the colnonial legislation being 11 enacted by the Imperial Parliament, which we say it 12 wasn't. And I want to now address you to the argument 13 that The Chief Justice did not address at all, which 14 was the limited authority which the governor had which 15 was placed upon him by the instruments which 16 established his office. 17 And if I could ask your lordship to turn to tab 34 18 I've set out some of the key propositions of law. I'm 19 taking this from Slattery at page 304. 20 21 "Generally speaking, the Governor of a royal 22 colony enjoys only limited authority, the 23 bounds of which are prescribed in his 24 Commission and Instructions, or in other 25 prerogative instruments such as Orders in 26 Council and Proclamations. He is a creature of 27 the Crown, exercising such powers as are 28 conferred upon him from time to time, powers 29 which may be extended or restricted at the 30 Crown's pleasure. He is not a viceroy, nor 31 does his office import a full delegation of the 32 Crown's authority. His acts are not equivalent 33 to the Crown's acts: they are not necessarily 34 valid in all instances where the Crown would 35 be. Their validity depends upon the terms of 36 the instruments from which the Governor derives 37 his authority." 38 39 And if your lordships will turn over to the next 40 case under the divider. This is a case of Cameron v. 41 Kyte. And basically the principles which Dr. Slattery 42 was speaking about are affirmed by all of the courts 43 that have ruled on this point. In Cameron v. Kyte I'm 44 going to ask your lordships to at page 682 attempt to 45 follow me. I'm about 12 lines from the bottom of the 46 page beginning with the sentence: 47 802 Submissions by Ms. Mandell 1 "If a Governor had by virtue of that 2 appointment, the whole sovereignty of the 3 Colony delegated to him as a Viceroy, and 4 represented the King in the government of that 5 Colony, there would be good reason to contend 6 that an act of sovereignty done by him would be 7 valid and obligatory upon the subject living 8 within his government, provided the act would 9 be valid if done by the Sovereign himself, 10 though such act might not be in conformity with 11 the instructions which the Governor had 12 received for the regulation of his own conduct. 13 The breach of those instructions might well be 14 contended on this supposition to be matter 15 resting between the Sovereign and his Deputy, 16 rendering the latter liable to censure or 17 punishment, but not affecting the validity of 18 the act done. But if the Governor be an 19 officer, merely with a limited authority from 20 the Crown, his assumption of an act of 21 sovereign power, out of the limits of the 22 authority so given to him, would be purely 23 void, and the Courts of the Colony over which 24 he presided could not give it any legal effect. 25 We think the office of Governor is of the 26 latter description, for no authority or dictum 27 has been cited before us to show that a 28 Governor can be considered as having delegation 29 of the whole Royal power, in any colony, as 30 between him and the subject, when it is not 31 expressly given by his commission." 32 33 And then finally, my lords, if you'll turn over 34 past the divider to the House of Lords in the 35 Commercial Cable Company v. Newfoundland to the same 36 effect. 37 38 "Turning to the position of the Governor, it is 39 plain that, according to well-settled 40 principles, he is not a viceroy in the sense of 41 being a person to whom the full prerogative 42 power of the Crown has been delegated. His 43 capacity is defined and limited by his 44 commission and instructions." 45 46 And I'm not going to take you to it, my lord, but 47 the last case in this tab is Mr. Justice Hall in 803 Submissions by Ms. Mandell 1 Calder and his analysis of Governor Douglas' power, 2 adopting the cases some of which I've cited to your 3 lordships for the principle that he had limited 4 authority. 5 And if I could turn your lordships to tab 35. 6 I've set out here the instruments which establish 7 Governor Douglas' authority, and I'd like to read to 8 your lordships the -- 9 TAGGART, J.A.: 35? 10 MS. MANDELL: Yes, 35. The relevant portions. This is the act 11 to provide for the Government of British Columbia. 12 Paragraph II. 13 14 "It shall be lawful for Her Majesty, by any 15 Order or Orders to be by Her from time to time 16 made, with the advice of Her Privy Council, to 17 make, ordain, and establish, and (subject to 18 such conditions or restrictions as to Her shall 19 seem meet) to authorize and empower such 20 officer as She may from time to time appoint as 21 Governor of British Columbia to make provision 22 for the administration of justice therein, and 23 generally to make, ordain and establish all 24 such laws, institutions, and ordinances as may 25 be necessary for the peace, order, and good 26 government of Her Majesty's subjects and others 27 therein; provided that all such Orders in 28 Council, and all laws and ordinances so to be 29 made as aforesaid, shall be laid before both 30 Houses of Parliament as soon as conveniently 31 may be after the making and enactment thereof 32 respectively." 33 34 So there is a duty to lay the acts before 35 parliament. And, my lords, if you could turn over -- 36 and that his commission is subject to conditions or 37 restrictions. 38 Now, if you will turn over to the Letters Patent 39 which authorized Governor Douglas, which is your next 40 document at page three, I'm going to read from again 41 Paragraph II. 42 43 "And We do hereby require and command you to do 44 and execute all things in due manner that shall 45 belong unto your said command and the trust We 46 have reposed in you, according to the several 47 powers and authorities granted or appointed you 804 Submissions by Ms. Mandell 1 by this Our present Commission and the 2 Instructions --" 3 4 So that's where you're going to find what he can 5 do. 6 7 "-- herewith given you, or according to such 8 further powers, directions, and authorities as 9 shall at any time hereafter be granted or 10 appointed you, under Our Sign Manual and 11 Signet, or by Our Order in Our Privy Council 12 --" 13 14 And I stress these words. 15 16 "-- or by Us, through one of Our Principal 17 Secretaries of State." 18 19 So he's being confined first by the commissions 20 and the letters patent instructions which are part of 21 his original mandate, and further that he has to 22 respond to the directions of our principal secretaries 23 of state. 24 And if your lordships will turn over the page to 25 page four, again he's being given the power to make 26 laws but provided, and I'm reading from the fourth 27 line down: 28 29 "Provided that such laws, institutions, and 30 ordinances are not to be repugnant, but, as 31 near as may be, agreeable to the laws and 32 statutes of Our United Kingdom of Great 33 Britiain and Ireland: Provided also that all 34 laws, institutions, and ordinances, of what 35 nature or duration soever be transmitted under 36 the Public Seal of Our said Colony for Our 37 approbation or disallowance." 38 39 And we say at this point that he's instructed to 40 make laws which in our submission are not repugnant to 41 the English common law, which in this case we say he's 42 being at this stage governed as a matter of common law 43 by the Marshall decisions and the decision of the 44 court in Symonds as affirmed by the privy council or 45 by the Royal Proclamation, which is a law that applies 46 to England and has the force of statute in the colony. 47 Now, if I could ask your lordships to turn over to 505 Submissions by Ms. Mandell 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 his instructions, and I'm going to ask you to turn to page six, which is the second page of the series. He's told that he's being empowered to make all such laws, institutions, and ordinances as may be necessary for the peace and order of good government. And these are the provisos. "Now We do prescribe to you the following rules and regulations for your guidance." And I first go to number two. "You are, as much as possible, to observe, in the passing of all laws, that each different matter be provided for by a different law, without intermixing in one and the same law such things as have no proper relation to each other —" TAGGART, J.A. MS. MANDELL: TAGGART, J.A. HUTCHEON, J.A LAMBERT, J.A. MS. MANDELL: I'm sorry. I'm missing you here somewhere This is page six, it's Roman Numeral VII. You said -- : You said two. You said two. I'm sorry, my lords. Within instructions. If I can begin again. "You are, as much as possible, to observe, in passing of all laws, that each different matter be provided for by a different law, and without intermixing in one and the same law such things as have no proper relation to each other; and you are more especially to take care that no clause or clauses be inserted in or annexed to any law which shall be foreign to what the title of such law imports, and that no perpetual clause be part of any temporary law, and that no law whatever be suspended, altered, continued, revived, or repealed by general words, but that the title and date of such law so suspended, altered, continued, revived, or repealed be particularly mentioned and expressed in the enacting part." And we say from this, my lords, and it's an argument which we'll make in respect of the colonial instruments which are before you, that the land laws 806 Submissions by Ms. Mandell 1 for the settling of the colonies in our submission 2 should not be presumed to accomplish the dual purpose 3 of settlement on one hand and the extinguishment of 4 title on the other, because he's told that he ought 5 not to be passing laws that each have a different 6 subject matter or to intermix one law with the other. 7 And then he's told that he should not pass laws by 8 general words. We say that it parallels the clear and 9 plain test which in our submission becomes the test 10 which we'll urge upon you from Sparrow. He can't, if 11 he was to extinguish title, do so by general words, 12 but he must do so expressly. 13 And, finally, if I could drop down to paragraph 14 XIII. 15 16 "Nor any private law whereby the property of 17 any individual may be affected, in which there 18 is not a saving of the rights of Us, Our heirs 19 and successors, and of all bodies politic or 20 corporate, and of all other persons, excepting 21 those at whose instance or for whose especial 22 benefit such law may be enacted, and those 23 claiming by, from, through, and under them." 24 2 5 And, my lords, if you could drop down to XVIII. 26 And we rely upon both of these provisions together. 27 28 "Nor any law, of an extraordinary nature and 29 importance, whereby Our Prerogative, or the 30 rights and property of Our subjects residing in 31 Our said Colony, or the trade and shipping of 32 Our United Kingdom and its Dependencies, may be 33 prejudiced." 34 35 So we say that he cannot pass laws in this case 36 specifically to extinguish aboriginal rights. This 37 limitation, we say, must be seen as a statement by 38 parliament that if there is going to be an 39 interference with the property rights of the subjects, 40 that would be done by the Imperial parliament and not 41 by the governor himself. 42 And, my lords, if I could just conclude on this 43 point by asking your lordships to turn to Appendix K, 44 to page five, paragraph 9. I'm sorry. Page three, 45 paragraph 9. My lords, these -- I make the point in 46 the factum and in your speaking notes, and as your 47 lordship is now aware, that Governor Douglas' 807 Submissions by Ms. Mandell 1 authority is also limited by directions which he shall 2 receive instructions from the secretary of state of 3 the colony. And what I lay out between paragraphs 9 4 to -- 9 to 15 of the factum, and I won't read them to 5 you, but I'd ask your lordships to read it, is that 6 four successive secretaries of state for the colony 7 from the time immediately before the mainland colony 8 was created to well into the enactment of the colonial 9 instruments were instructing Douglas not to interfere 10 with the property rights of the Indian people, but 11 instead to make treaties with them. And if I could 12 just turn your lordships to paragraph 14. This is one 13 instruction, this was after the creation of the Colony 14 of British Columbia, and this is the Secretary of 15 State Carnarvon writing to Douglas. And he says: 16 17 "I am glad to perceive that you have directed 18 the attention of the House to that interesting 19 and important subject the relations of Her 20 Majesty's Government and of the Colony to the 21 Indian race. Proofs are unhappily still too 22 frequent of the neglect which Indians 23 experience when the White man obtains 24 possession of their Country and their claims to 25 consideration are forgotten at the moment when 2 6 equity most demands that the hand of the 27 protector should be extended to heop them. In 28 the case of the Indians of Vancouvers Island 29 and British Columbia Her Majesty Government 30 earnestly wish that when the advancing 31 requirements of Colonization press upon Lands 32 occupied by Members of that race measures of 33 the liberality and justice may be adopted for 34 compensating them for the surrender of the 35 territory which they have been taught to regard 36 as their own." 37 38 And we say these are very clear instructions from 39 the secretary of state of the colonies advising 40 Douglas as to what he should be doing in respect of 41 Indian title. 42 And, my lords, I can just -- if I can take you 43 back to the speaking notes I simply want to summarize 44 the argument with respect to the Colonial Laws 45 Validity Act. You'll find the Colonial Laws Validity 46 Act at tab 31. I'm not going to take you to it, nor 47 am I going to take you to the argument specifically in 808 Submissions by Ms. Mandell 1 respect of it, although I will ask your lordships to 2 please refer both to the act itself and also to our 3 Appendix K paragraph 105 to 136. 4 What we say is that prior to the passage of the 5 Colonial Laws Validity Act the general rule was that 6 colonial law repugnant to the law of England was 7 invalid. And major prerogative instruments such as 8 the Royal Proclamation constituted part of the 9 applicable law. And the limits on what laws of 10 England will become applicable to the colonies so as 11 to create a repugnancy principle to colonial laws was 12 captured in Section 2 of the Colonial Laws Validity 13 Act. And I state that in that section, Section 2 14 preserved the repugnancy principle to three kinds of 15 Imperial laws. The first is an Act of the Imperial 16 Parliament, the second is an Order or Regulation under 17 such act, and the third is an Order or Regulation 18 having the force and effect of such acts in the 19 colonies. And our submission is that the Royal 20 Proclamation, which was an order issued under the 21 great seal, and had the force of statute in the colony 22 was incorporated within Section 2 of the Colonial 23 Laws Validity Act and that prime facie then we say 24 that colonial laws should be read down to preserve the 25 constitutionality of the Royal Proclamation. 26 I think that that's as far as I can get now, my 27 lord. 28 TAGGART, J.A.: We now go on to the Colonial Laws Validity Act 29 heading and -- 30 MS. MANDELL: I was going to ask your lordships to simply read 31 it. I wasn't going to take you to it. 32 TAGGART, J.A.: All right. We'll take the morning break. 33 THE REGISTRAR: Order in court. Court stands adjourned for a 34 short recess. 35 36 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING SHORT RECESS) 37 38 TAGGART, J.A.: Yes. 39 MS. MANDELL: My lords, I'm going to finish in summary with the 40 speaking notes. I'm at page 15. We say that this is 41 in respect of the constitutional authority of the 42 colony to extinguish aboriginal title. 43 We say in summary, Douglas acting alone could not 44 repeal the land provisions of the Royal Proclamation 45 or extinguish the rights recognized thereunder. All 46 colonial instruments passed under his reign must be 47 read down to preserve the application of the Royal 809 Submissions by Ms. Mandell 1 Proclamation. 2 This conclusion flows either from the Royal 3 Proclamation having the force of law in the colony and 4 by virtue of the repugnancy rule confirmed the 5 Colonial Laws Validity Act, or alternatively, if the 6 Royal Proclamation does not apply to British Columbia 7 we say the same conclusion follows from Douglas' 8 limited power. 9 Nor do we say could colonial legislatures repeal 10 the land provisions of the proclamation or extinguish 11 the rights thereunder. This conclusion, we say, 12 follows from the repugnancy rule confirmed in the 13 Colonial Laws Validity Act. 14 However, throughout this period the Imperial 15 Parliament have the constitutional power to repeal 16 both the proclamation or to extinguish the land rights 17 of the Indians reflected and confirmed thereunder. 18 And I draw to your lordships' attention the Quebec Act 19 where provisions of the Royal Proclamation were 20 expressly repealed by the Imperial Statute. However, 21 because the vested rights of the Indians were 22 recognized by the Crown in the proclamation, and 23 further such rights were vested rights of the common 24 law, the Imperial Parliament would have to, and I say, 25 both repeal the Royal Proclamation and/or extinguish 26 such rights clearly and plainly. 27 In the alternative, if the appellants are wrong 28 regarding the above submissions, and if Douglas or the 29 colonial legislatures of the colony had the power to 30 repeal the land provisions of the proclamation or to 31 extinguish aboriginal rights, such extinguishment must 32 be accomplished by clear and plain sovereign acts. It 33 will be submitted that no such clear and plain 34 sovereign acts were enacted in the colonial period by 35 Douglas, by the colonial legislature or by the 36 Imperial Parliament. 37 And that's the subject of my next submission, my 38 lords. I'm going to take you to tab 8 of the factum, 39 and I've handed up a Volume R-17 which will be the 40 only volume which we are going to use in respect of 41 that set of materials. 42 TAGGART, J.A.: Are we finished with — 43 MS. MANDELL: You're finished, yeah. 44 TAGGART, J.A.: And we'll return to where? 45 MS. MANDELL: Tab 8. 46 MACFARLANE, J.A.: Is that tab 8 of the reply factum? 47 MS. MANDELL: Tab 8 of the factum, my lord. It's Volume 1. 810 Submissions by Ms. Mandell 1 HUTCHEON, J.A.: Did you say you have handed up a volume? 2 MS. MANDELL: Yes. Volume R-17. My lords, this is a submission 3 concerning blanket extinguishment. In our opinion 4 this is the ratio of the judgment. And I'd like to 5 take your lordships to the passages of the judgment 6 which are found at tab 1 of our volume which pertain 7 to this issue. 8 WALLACE, J.A.: Tab 1? 9 MS. MANDELL: Yes. 10 WALLACE, J.A.: Of R-17? It starts off with 990, doesn't it? 11 MS. MANDELL: That's right. Thank you, my lord. I'm still in 12 the Royal Proclamation. I've -- this volume is 13 created to correspond with the passages, the 14 paragraphs of the factum, so it's tab 8-90. 15 WALLACE, J.A.: 990. 16 LAMBERT, J.A.: 990. 17 MS. MANDELL: I'm going too fast. I have to slow down. Yes. 18 This volume is arranged, my lords, to correspond with 19 the paragraphs of the factum. And I'll advise you 20 where I've added material which isn't otherwise 21 contained in the factum. 22 My lords, what The Chief Justice does is he makes 23 a distinction as to whether or not the aboriginal 24 title or rights to ownership of the land were 25 extinguished, and he creates reasons with respect to 26 that, and also whether or not what he calls aboriginal 27 rights, whether or not they have been extinguished. 28 And he has different reasons in respect of that. And 29 I'm going to begin with the aboriginal ownership of 30 land which is at 408 which is -- it's the second page 31 into the tab. He begins in the first paragraph 32 beginning: 33 34 "My judgment is that any aboriginal interests 35 in land that survived sovereignty were included 36 within the rubric of aboriginal rights which I 37 shall consider in a moment. As I understand 38 the authorities, there is no jurisprudence 39 binding on me which suggests the aboriginal 40 interests of the plaintiffs' ancestors after 41 the assertion of sovereignty consisted anything 42 more than a user burden on the underlying title 43 of the Crown." 44 45 TAGGART, J.A.: Where are you in this? 46 MS. MANDELL: This is the first paragraph, my lord, on page 408 47 under the heading "Aboriginal ownership of land. 811 Submissions by Ms. Mandell 1 TAGGART, J.A.: Okay. 2 MS. MANDELL: At the outset he's saying that it's his opinion 3 that everything is really an aboriginal right, as he 4 describes it as a user right, and he doesn't really 5 have to deal with a right which is stronger than that. 6 However, on the question as to whether or not a right 7 which could be construed as one stronger than that 8 would be extinguished he goes on to find that it was. 9 And in the next paragraph he says: 10 11 "If that is not so —" 12 13 That is if the right is bigger than a user right. 14 15 "-- I find the evidence establishes beyond 16 question that the Crown, in the colonial 17 period, clearly and plainly intended to, and 18 did extinguish any aboriginal right of 19 ownership which existed in the colony. I say 20 this because the colonial legislation so 21 clearly appropriated all the land of the colony 22 to the Crown and made provision for its 23 alienation firstly on the authority of the 24 Governor according to English law and 25 subsequently pursuant to legislation. That, in 26 my judgment, is completely inconsistent with 27 any continuing aboriginal ownership interest." 28 29 And if you will drop down, my lords, he refers to 30 the 1959 what he calls Calder II instruments where 31 it's declared: 32 33 "All the lands in British Columbia, and all the 34 Mines and Minerals therein, belong to the Crown 35 in fee." 36 37 And at the top of page 409 he says: 38 39 "To put it in a nutshell, I find that 40 legislation passed in the colony and by the 41 Imperial Parliament that all the land in the 42 colony belonged to the Crown in fee, apart 43 altogether from any other enactments, 44 extinguished any possible right of ownership on 45 the part of the Indians." 46 47 So he pitted the all land in the colony belongs to 812 Submissions by Ms. Mandell 1 the Crown in fee against what he would construe as an 2 aboriginal ownership interest, and he says that apart 3 altogether with any other enactments that's what 4 extinguished the aboriginal right. I'm sorry, the 5 aboriginal title. 6 Now, as to an aboriginal right, my lords, if I 7 could turn you past page 410 to the discussion into 8 411 which is where he, in my submission, settles the 9 issue. And he says at page 411 after the discussion 10 of the 1860 instrument: 11 12 "There is, as described in Pt. 11, a great deal 13 of evidence demonstrating that the Crown with 14 full knowledge of the local situation fully 15 intended to settle the colony and to grant 16 titles and tenures unburdened by any aboriginal 17 interests. The Crown must be taken to have 18 known that it could not free the land from this 19 burden without extinguishing these aboriginal 20 interests. This probably did not trouble the 21 Crown, because it also intended to allot 22 generous reserves, and to allow the Indians to 23 use vacant lands. The primary intention, 24 however, was obviously to settle the colony by 25 granting unburdened interest to settlers. 26 27 In view of this history, I respectfully agree 28 with the views of the seven judges who reached 29 the same conclusion in Calder." 30 31 He's talking about the seven judges up the 32 judicial ladder. 33 34 "I find the constitutional and legal 35 arrangements put in place in the colony were 36 totally inconsistent with aboriginal rights the 37 continuation of which would have prevented the 38 Crown from the settlement and development of 39 the colony. As the intention of the Crown must 40 be ascertained objectively from a consideration 41 of all the circumstances and their historical 42 setting, I find the Crown clearly and plainly 43 intended to, and did, extinguish aboriginal 44 rights in the colony by the arrangements it 45 made for the development of the colony --" 46 47 That's what did it. 813 Submissions by Ms. Mandell 1 "-- the arrangements it made for the 2 development of the colony, including provision 3 for conveying titles and tenures unencumbered 4 by any aboriginal rights and by the other 5 arrangements it made for Indians." 6 7 And if I could just drop down in page 412 to a 8 final comment, which I submit is important in terms of 9 his decision. 10 11 "I have also considered --" 12 13 This is on page 412, third paragraph. 14 15 "-- whether the intention of the Crown to 16 extinguish aboriginal rights could be limited 17 just to the lands it actually transferred to 18 third parties, but I reject that, as did all 19 the seven judges who reached the same 20 conclusion in Calder. I find that was not the 21 intention of the Crown. This is shown in many 22 different ways, including the fact that the 23 Crown took title to all the land in the colony 24 and enacted comprehensive land law legislation 25 for that very purpose. The Crown's intention 26 was clearly ongoing with Indian interests 27 looked after by reserves and the right to use 28 vacant land and all the rest of the colony 29 thrown open for settlement. The colonial 30 legislation must be taken to have extinguished 31 aboriginal rights as they existed in the colony 32 at the date of sovereignty except for Indian 33 reserves." 34 35 Now, my lords, I say that the -- and our primary 36 submission is that the trial judge adopted and applied 37 a test for extinguishment which was expressly 38 repudiated by the Supreme Court of Canada in Sparrow. 39 And, in my submission, his judgment erred completely 40 in that respect. I want to say to you, my lords, that 41 in our submission what The Chief Justice did was he 42 adopted expressly the views of the judges who wrote 43 with Mr. Justice Judson in Calder, and he agreed with 44 their reasoning. He agreed with that reasoning and he 45 proceeded to apply that test in the colony. And I 46 make the point that in the Russell & DuMoulin factum 47 at tab Roman Numeral X, tab 3, paragraph 5, the 814 Submissions by Ms. Mandell 1 Russell & DuMoulin team poses the question this way, 2 which in our submission is right. They say the 3 question which is now before the court is whether as 4 found by The Chief Justice adopting the judgment of 5 Judson, J. in Calder, aboriginal rights in British 6 Columbia were extinguished during the colonial period, 7 that is prior to B.C.'s entry into Confederation in 8 1871, or whether they still exist in accordance with 9 the views expressed by Mr. Justice Hall. And I say 10 they expressly posed the question that way because in 11 fact what The Chief Justice did was adopt the test 12 which was decided upon in Calder. 13 WALLACE, J.A.: What's the reference in the Russell & DuMoulin 14 factum? 15 MS. MANDELL: That was Roman Numeral X, tab 3, paragraph 5. 16 WALLACE, J.A.: Thank you. 17 MS. MANDELL: My lords, if you will turn past the divide I've 18 set out the relevant passages from the Calder case, 19 and I'd like to refamiliarize your lordship with the 20 debate. In the first -- 21 TAGGART, J.A.: Tab what? 22 MS. MANDELL: We're still in tab 8-90, my lord, and I've just 23 passed the divide after the judgment. 24 This is Mr. Justice Judson's ratio. And it's the 25 bottom paragraph -- the second paragraph from the 26 bottom of the page. 27 28 "In my opinion, in the present case, the 29 sovereign authority elected to exercise 30 complete dominion over the lands in question, 31 adverse to any right of occupancy which the 32 Nishga Tribe might have had, when, by 33 legislation, it opened up such lands for 34 settlement, subject to the reserves of land set 35 aside for Indian occupation." 36 37 And I say that's essentially the judgment of the 38 trial judge. 39 Now, my lords, if you will turn over the page this 40 is Mr. Justice Hall's comments. At the top of page 41 208 he begins the discussion. 42 43 "This important question remains: were the 44 rights either at common law or under the 45 Proclamation extinguished? Mr. Justice Tysoe 46 said in this regard of his reasons: 47 815 Submissions by Ms. Mandell 1 'It is true, as the appellants have 2 submitted, that nowhere can one find 3 express words extinguishing Indian title.'" 4 5 And that's the question that he set up. And I'm 6 going to ask your lordships to take note of the next 7 paragraph because it will become relevant later. 8 9 "The parties here agree that if extinguishment 10 was accomplished, it must have occurred between 11 1858 and when British Columbia joined 12 Confederation in 1871. The respondent relies 13 on what was done by Governor Douglas and by his 14 successor, Frederick Seymour, who became 15 Governor in 1864." 16 17 Calder was pled entirely on the basis of the 18 pre-Confederation period, and in fact as your 19 lordships will see there was an admission in that case 20 that if title survived Confederation there was no act 21 that could have extinguished it or did after the 22 Confederation period. 23 HUTCHEON, J.A.: I'm sorry. 24 MS. MANDELL: The admission was that there was no acts which -- 25 there was no acts which did -- I'm going to have to 26 look for the exact wording. The admission was that 27 only the Federal Government after Confederation could 28 extinguish and that they have taken no such acts to do 29 so. That was the admission. 30 At the bottom of the page at 208 Mr. Justice Hall 31 continues. 32 33 "The appellants rely on the presumption that 34 the British Crown intended to respect native 35 rights; therefore, when the Nishga people came 36 under British sovereignty (and that is subject 37 to what I said about sovereignty over part of 38 the lands not being determined until 1903) they 39 were entitled to assert as a legal right their 40 Indian title. It being a legal right it could 41 not therefore be extinguished except by 42 surrender to the Crown or by competent 43 legislative authority, and then only by 44 specific legislation." 45 46 And if your lordships will turn over to page 210 47 to his finding in this respect having set up the 816 Submissions by Ms. Mandell 1 issues. He says at 210: 2 3 "It would, accordingly, appear to be beyond 4 question that the onus of proving that the 5 Sovereign intended to extinguish the Indian 6 title lies on the respondent and that intention 7 must be 'clear and plain'. There is no such 8 proof in the case at bar; no legislation to 9 that effect." 10 11 And at page 216 he gives an example of clear and 12 plain legislation. 13 14 "If the Colony had intended extinguishing the 15 Indian title to public lands as referred to in 16 the foregoing letter, it could easily have 17 said, 'Indian title to public lands in the 18 Colony is hereby extinguished'. No such 19 enactment or language to like effect was ever 20 passed." 21 22 Now, my lords, after Calder, and I'm going to ask 23 you to turn -- 24 TAGGART, J.A.: I'm sorry. Where are you? 25 MS. MANDELL: That was at page 216. 26 TAGGART, J.A.: Two. 27 MS. MANDELL: 16, my lord. 28 TAGGART, J.A.: 216. 29 MS. MANDELL: 216. 30 TAGGART, J.A.: Okay. I've got it. 31 MS. MANDELL: All right. My lords, after Calder there was two 32 unsettled issues which became the subject of judicial 33 review. The first was whether or not the B.C. Court 34 of Appeal's decision in Calder should be relied upon 35 as precedent. And that was a decision where the court 36 said that aboriginal title to be -- to be existing 37 needed to have some expression, some positive 38 recognition in statute or treaty or otherwise. And 39 the question was whether the doctrine of recognition 40 still applied and whether or not that was the law. 41 And I've set out for your lordships in the next tab 42 that this part of the debate was really not settled 43 until this court in the MacMillan Bloedel case 44 unanimously held that it remained an open issue to be 45 tried. And I put into this tab the judgment of Mr. 46 Justice Seaton and also Mr. Justice Macfarlane, both 47 of whom speaking with the majority said that the issue 817 Submissions by Ms. Mandell 1 was an open issue to be tried. 2 And following the section, my lords, you'll see as 3 well that I've included the judgment of this court in 4 Sparrow, because this was a major part of the case. 5 You'll recall that Mr. Justice Goulet in Sparrow ruled 6 against Mr. Sparrow at trial on the basis that he was 7 bound by the B.C. Court of Appeal's decision in 8 Calder. And this court dedicated five pages of their 9 judgment to expressing the fact that that's not good 10 law. And I've included that discussion for your 11 lordships. And following the tab I've included the 12 reference to this debate by the Supreme Court of 13 Canada in Sparrow where at page 390 they set out the 14 differences which have arisen over this issue. And, 15 of course, the court in Sparrow resolved this by in 16 effect agreeing with the B.C. Court of Appeal's 17 decision and finding there was existing aboriginal 18 right to fish. 19 Now, my lords, if I could take you to the second 20 debate which arose as a result of Sparrow, and it 21 begins following the divider which divides the Supreme 22 Court of Canada's decision in Sparrow and it moves 23 into an extract from the Baker Lake case. It's in the 24 same tab, my lords. I've got an extract from Baker 25 Lake, and I'm going to take you to it. 26 The second debate which flowed out of Sparrow was 27 whether or not the court can look to the effect of a 28 statute for a clear and plain intention. And if so 29 are the two tests which were pronounced in Calder 30 between Mr. Justice Hall and Mr. Justice Judson, are 31 they reconcileable. In other words, if the effect of 32 the statute is to clearly and plainly extinguish an 33 Indian title, if that's the effect of the statute does 34 that in fact satisfy the plain and clear test. And 35 this was stated in the Baker Lake case, and I'm going 36 to set that paragraph out for you. It's at the bottom 37 paragraph of 568. 38 39 "I cannot accept the plaintiffs' argument that 40 Parliament's intention to extinguish an 41 aboriginal title must be set forth explicitly 42 in the pertinent legislation. I do not agree 43 that Mr. Justice Hall went that far. Once a 44 statute has been validly enacted, it must be 45 given effect. If its necessary effect is to 46 abridge or entirely abrogate a common law 47 right, then that is the effect that the courts Submissions by Ms. Mandell 1 must give it. That is as true of an aboriginal 2 title as of any other common law right." 3 4 And if your lordships will turn over the page he 5 concludes this discussion. 6 7 "To say that the necessary result of 8 legislation is adverse to any right of 9 aboriginal occupancy is tantamount to saying 10 that the legislature has expressed a clear and 11 plain intention to extinguish that right of 12 occupancy. Justices Hall and Judson were, I 13 think, in agreement on the law, if not its 14 application in the particular circumstances." 15 16 Now, this debate was carried forward into the 17 Bear Island case, and I brought the passages to light 18 here. This is the judgment of Mr. Justice Steel. And 19 at page 407 under the method of extinguishment he has 20 this to say -- 21 TAGGART, J.A.: This is Mr. Justice Steel? 22 MS. MANDELL: Yes. It's the next — 23 HUTCHEON, J.A.: Yes, I have it. But it's the trial judge? 24 MS. MANDELL: That's right. 25 26 "In Calder it was held by Mr. Justice Judson 27 that, though the British Columbia Government 28 had not made land surveys of the area, 29 nevertheless, it had made alienations in the 30 area inconsistent with the existence of an 31 aboriginal title. Mr. Justice Hall when 32 dissenting in Calder, appears to have stated, 33 that Indian title may only be extinguished by 34 surrender to the Crown or by competent 35 legislative authority, and then only by 36 'specific legislation', and that the intention 37 to extinguish must be 'clear and plain'. He 38 did not go so far as to say that there must be 39 legislation stating that its express intent is 40 to extinguish aboriginal title. I have 41 reviewed the decision of Mr. Justice Mahoney in 42 Baker Lake. I agree with him that there is no 43 Canadian statute that requires that legislative 44 extinguishment of aboriginal rights (as opposed 45 to extinguishment of rights in reserves 46 established under the Indian Act) be effected 47 in a particular way. I also agree with him 819 Submissions by Ms. Mandell 1 when he said: 2 3 'Once a statute has been validly enacted, 4 it must be given effect. If its necessary 5 effect is to abridge or abrogate a common 6 law right, then that is the effect that the 7 Courts must give it. That is as true of an 8 aboriginal title as of any common law 9 right.' 10 11 And also his statement: 12 13 'To say that the necessary result of 14 legislation is adverse to any right of 15 aboriginal occupancy is tantamount to 16 saying that the legislator has expressed a 17 clear and plain intention to extinguish 18 that right of occupancy. Justices Hall and 19 Judson were, I think, in agreement on the 20 law, if not on its application in the 21 particular circumstances.' 22 23 In the Baker Lake case, notwithstanding that it 24 was found that there was no intention to open 25 up the lands in question for settlement, it was 26 held that, where there had been grants of 27 interest in the lands by the Crown pursuant to 28 legislation, these grants prevailed over the 29 aboriginal title of the plaintiffs." 30 31 In that respect I think that Mr. Justice Steel has 32 overstated what the ratio of the Baker Lake case was. 33 It was in that case in respect of the application of 34 mining laws and whether or not those mining laws could 35 apply so as to interfere with an aboriginal right, and 36 the answer was yes. But he doesn't -- the Baker Lake 37 case doesn't go so far as to say that grants of 38 interests of land in the generic sense. That wasn't 39 before the court. But in any event he says: 40 41 "In our case, there is a clear intent by the 42 Crown to open up the lands for settlement. 43 44 The opening up of land to settlement pursuant 45 to such legislation (or even in the absence of 46 legislation) is sufficient to extinguish 47 aboriginal rights. 820 Submissions by Ms. Mandell 1 And this is the debate which was raging before the 2 Supreme Court of Canada dealt with it. I wanted to 3 point your lordships to what the court started to say 4 about this in Paul v. Canadian Pacific. And I've set 5 that out in the next tab and it's -- this is a 6 decision which your lordships have already been 7 introduced to. And in the beginning of the first 8 sentence of the last paragraph on the page the court 9 says: 10 11 "How then is Indian title to land extinguished? 12 In Calder —" 13 14 And this is the important point. He says: 15 16 "-- two views were expressed as to what was 17 necessary to show that the sovereign intended 18 to extinguish Indian title. Mr. Justice Judson 19 (speaking for himself and Martland and Ritchie, 20 JJ.) thought that the alienation and other acts 21 inconsistent with the existence of an 22 aboriginal title was sufficient. Mr. Justice 23 Hall (speaking for himself, Spence and Laskin 24 JJ.) was of the view that such an intention 25 must be 'clear and plain'." 26 27 So the court said it's not one view, it's two 28 views which were expressed in Calder. 29 And, finally, the court in Sparrow dealt with 30 this. And if I could turn your lordships to page 401, 31 which is the second of the two pages I've put into 32 this tab on Sparrow, I want to read what the court 33 said. 34 35 "In the context of aboriginal rights, it could 36 be argued that before 1982, an aboriginal right 37 was automatically extinguished to the extent 38 that it was inconsistent with a statute. As 39 Mr. Justice Mahoney stated in Baker Lake. 40 41 'Once a statute has been validly enacted, 42 it must be given effect. If its necessary 43 effect is to abridge or entirely abrogate a 44 common law right, then that is the effect 45 that the courts must give it. That is as 46 true of an aboriginal title as any common 47 law right. 821 Submissions by Ms. Mandell 1 And then they also cite the passage from Bear 2 Island which I've read to your lordships. 3 4 "That in Mr. Judson's view is what occurred in 5 Calder, where, as he saw it, a series of 6 statutes evinced a unity of intention to 7 exercise a sovereignty inconsistent with any 8 conflicting interest, including aboriginal 9 title. But Mr. Justice Hall in that case 10 stated that 'the onus of proving that the 11 Sovereign intended to extinguish the Indian 12 title lies on the respondent and that intention 13 must be 'clear and plain'. The test of 14 extinguishment to be adopted, in our opinion, 15 is that the Sovereign's intention must be clear 16 and plain if it is to extinguish an aboriginal 17 right." 18 19 And, my lords, if I could just turn you back one 20 page to 400. I say that in rejecting Mr. Justice 21 Mahoney and Mr. Justice Steel's view the court did so 22 within the context of the decision which it was 23 looking at before him. And on page 400 this was the 24 argument that they were responding to. 25 26 "It is this progressive restriction and 27 detailed regulation of the fisheries which, 28 respondent's counsel maintains, have had the 29 effect of extinguishing any aboriginal right to 30 fish. The extinguishment need not be express, 31 he argued, but may take place where the 32 sovereign authority is exercised in a manner 33 'necessarily inconsistent' with the continued 34 enjoyment of aboriginal rights. For this 35 proposition, he particularly relied upon St. 36 Catharine's Milling, Mr. Justice Judson in 37 Calder, the Baker Lake case and the Bear Island 38 case —" 39 40 All of which your lordships have now turned to. 41 42 "The consent to its extinguishment before the 43 Constitution Act was not required; the intent 44 of the sovereign could be effected not only by 45 statute but by valid regulations. Here, in his 46 view, the regulations had entirely displaced 47 any aboriginal right. There is, he submitted, 822 Submissions by Ms. Mandell 1 a fundamental inconsistency between the 2 communal right to fish embodied in the 3 aboriginal right, and fishing under the special 4 licence or permit issued to individual Indians 5 (as was the case until 1977) in the discretion 6 of the Minister and subject to terms and 7 conditions which, if breached, may result in 8 cancellation of the licence. The Fisheries Act 9 and its regulations were, he argued, intended 10 to constitute a complete code inconsistent with 11 the continued exercise of an aboriginal right." 12 13 And we say, my lords, that what the Supreme Court 14 of Canada did in pronouncing upon the clear and plain 15 test is that they first of all settled this debate 16 about whether or not the clear and plain test could be 17 resolved by looking at the effective legislation, and 18 they said clearly that can't work. They said that the 19 means by which extinguishment must take place is clear 20 and plain, and the subject matter which must be 21 addressed is the intention to extinguish. They said 22 that's what must happen. And, in our submission, 23 that's what they said when they adopted Mr. Justice 24 Hall's test. And I wanted to emphasize -- 25 HUTCHEON, J.A.: I don't follow what the subject matter must be. 26 MS. MANDELL: The intention to extinguish. 27 HUTCHEON, J.A.: You mean in the legislation? 28 MS. MANDELL: In the legislation, yes. 29 HUTCHEON, J.A.: I see. It's not — as I'm looking at 401 it's 30 not as clear a statement to me as it seems to be in 31 your proposition in paragraph 394. I don't know what 32 you're saying. 33 MS. MANDELL: My lord, what part? Is it beginning when they 34 cite Mr. Justice Hall when they say the sovereign 35 intended? 36 HUTCHEON, J.A.: I suppose that use of the word automatically is 37 to be -- I'm looking at the -- just below paragraph b 38 in context of aboriginal rights was automatically 39 extinguished. 4 0 MS. MANDELL: Yes. 41 HUTCHEON, J.A.: And you say that's to be contrasted with the 42 passage that the intention must be clear and plain. 43 MS. MANDELL: The sovereign intention must be clear and plain. 44 Sovereign being expressed through its legislation, 45 yes. 46 HUTCHEON, J.A.: Yes, I see. So you say that's a rejection of 47 Mr. Judson's -- Mr. Justice Judson's view? 823 Submissions by Ms. Mandell 1 MS. MANDELL: Yes. I say that that is. 2 The point perhaps that requires emphasis then is 3 that when they say the sovereign intention, it's a 4 point I will be developing later, I say that the 5 sovereign expresses this intention through 6 legislation. So that's where, in our submission, 7 there's been that point made clearly. And I emphasize 8 at paragraph -- 9 TAGGART, J.A.: Let me just be clear about that. Let's take an 10 example of what Governor Douglas did in the early days 11 of the colony and prior to 1871. 12 MS. MANDELL: Yes. 13 TAGGART, J.A.: He recognized the necessity of the settlers 14 flooding in to give them some form of pre-emptive 15 rights, and a system was evolved by which pre-emption 16 was recognized. And in due course acting, I think, 17 under colonial legislation approved by the colonial 18 office, if not by parliament, title to those 19 pre-emptive lands was given all in accordance with 20 colonial legislation. Now, if that colonial -- if I 21 understand your interpretation of Sparrow correctly, 22 if that colonial legislation says he who pre-empts and 23 holds forth or whatever, may apply for and receive a 24 grant and title to fee-simple to the land that he has 25 pre-empted and any other interest, including any 26 aboriginal interest, in that land is extinguished. If 27 that sort of language was in that colonial statute 28 then that meets what you conceive to be the test in 29 Sparrow? 30 MS. MANDELL: Subject only to the argument which we've already 31 dealt with, and that is that we say that that kind of 32 legislation isn't within Douglas' power to pass. If 33 that kind of legislation were passed by the Imperial 34 government -- 35 TAGGART, J.A.: Let's say it were passed by the Imperial 36 government, but absent that kind of language, the fact 37 that there is legislation providing for pre-emption, 38 and a means whereby title in fee-simple can be 39 conveyed to the pre-emptor. 4 0 MS. MANDELL: Right. 41 TAGGART, J.A.: Absent some specific reference in the 42 legislation to the extinguishment of aboriginal title 43 it's ineffective to extinguish the title? 44 MS. MANDELL: Yes. That's our argument, my lord, yes. My lord, 45 I wanted to emphasize that when the court in Sparrow 46 set out this test they had in mind exactly the same 47 legislation as the court dealt with in Calder. 824 Submissions by Ms. Mandell 1 TAGGART, J.A.: Let me just pursue that one step further. 2 MS. MANDELL: I'm sorry. 3 TAGGART, J.A.: Instead of talking about fee-simple we have more 4 than fee-simple interests interested in this appeal. 5 MS. MANDELL: Yes. 6 TAGGART, J.A.: We have corporate interests involved in the 7 mining field, the forestry field, the natural resource 8 field in general. Absent, and I'm now taking us, of 9 course, into the post-Confederation here. 10 MS. MANDELL: All right. 11 TAGGART, J.A.: But I would -- I would judge from what you have 12 said that you apply to that era the same requirements 13 with respect to extinguishment as prevails prior to 14 the entry of B.C. into Confederation. So that if 15 there is a provincial statute expressly authorizing 16 the minister of lands and forests to grant to 17 corporation X a tree farm licence with all the rules 18 and regulations and so on thereto that pertain, that 19 grant has no effect on aboriginal title which 20 continues to prevail. It would be only if the 21 provincial statute said that upon the grant of that 22 licence all interests by way of aboriginal rights are 23 extinguished. The fact that the extinguishment would 24 take place. 25 MS. MANDELL: My lord, I have to answer your question in two 26 ways. Once you moved into the post-Confederation 27 period again I have to deal with the legislative 28 competency question which comes up first, and your 29 lordships will hear from us that it's settled law, in 30 our submission, by the Supreme Court of Canada, that 31 the province has no power to extinguish aboriginal 32 title. That's within the domain of 91(24) . Again, 33 the first hurdle is through the competency question. 34 The next question I thought your lordship was 35 asking was whether or not the grant of an interest in 36 land minus express language by the competent 37 legislator could extinguish aboriginal title, and we 38 say that they can't. We say there has to be -- the 39 legislator has to address their mind to it and it has 40 to be authorized in a statute in some clear and plain 41 way. That would be, in our submission, what Sparrow 42 says. 43 You raise a further question and I don't, unless 44 your lordships ask me to at this point, intend to deal 45 with it. And that is well, what is the effect of a 46 grant made in respect of aboriginal title. What is 47 the effect on the grantor and what's the effect on the 825 Submissions by Ms. Mandell 1 Indian people. And there are cases for your 2 lordships' consideration on that point. The bottom 3 line for this argument is that there's no 4 extinguishment of title, but there is, in our 5 submission, more to be said about where that places 6 the grantor and where that places the Indian person in 7 respect of a grant made where aboriginal title has not 8 been extinguished. But I didn't intend to address 9 that point at this stage of the argument. 10 TAGGART, J.A.: I understand that. I'm addressing these 11 questions to the use of the words clear and plain. 12 MS. MANDELL: Clear and plain. That's right. 13 TAGGART, J.A.: And you equate clear and plain to legislative 14 expression? 15 MS. MANDELL: That's right. 16 TAGGART, J.A.: Of the extinguishment of aboriginal rights? 17 MS. MANDELL: That's right. We say that what Sparrow says is if 18 the legislator is going to do that then they have got 19 the sovereign intention, that is through the act of 20 parliament, has to be expressed clearly and plainly. 21 That's what we say. 22 WALLACE, J.A.: It has to be expressed expressly, not 23 implicitly? 24 MS. MANDELL: That's right. Now, how express, I'm sure there is 25 many cases which your lordship will see in the United 26 States where the question of how express has come up. 27 Does it have to be as Mr. Justice Hall said where 28 aboriginal title is hereby extinguished or does it 29 have to be that expressed or is there another plain 30 and clear way to do that. At this point I don't 31 really think it matters. 32 WALLACE, J.A.: Aren't you saying that it has to be expressed -- 33 MS. MANDELL: Expressed, yes. 34 WALLACE, J.A.: -- clear and plainly? In other words it can't 35 arise -- 36 MS. MANDELL: From implication. 37 WALLACE, J.A.: — from implication? 38 MS. MANDELL: No. That's exactly what we are saying. 39 My lords, I just want to say before I get on with 40 this, I was interested in where the words clear and 41 plain came from when I read the Sparrow judgment, and 42 I tried to find their legal ethnology, and the only 43 place that was similar was in the cases where they 44 were dealing with the striking of the statement of 45 claim, and there you get the words plain and obvious 46 used. And we say that there's a similarity in the 47 sense that legislative acts will not be deemed by the 826 Submissions by Ms. Mandell 1 court to extinguish aboriginal title unless they do so 2 clear and plain. And the same way to strike a 3 statement of claim is to take away one's rights to 4 protect one's interests, whether the property 5 interests be interests in land or otherwise. And I 6 say that the main difference between these two kinds 7 of cases is that aboriginal title is a right which 8 already exists, it's pre-existing, while within a 9 statement of claim you have a potential right which is 10 being protected. But the courts have used the words 11 plain and obvious in a very strict sense in construing 12 when they will be prepared to strike a statement of 13 claim, and they ask for the case to be blatantly 14 obvious. And I say that the test with respect to the 15 clear and plain extinguishment of an aboriginal title 16 the words are even more germane in the sense of a 17 strict requirement being put on the legislature to do 18 something. 19 My lords, I'm sorry, I wanted to make the point 20 that the court in Sparrow when they set forth this 21 test had in mind the same legislation as the court 22 dealt with in Calder and which The Chief Justice dealt 23 with in this case. 24 HUTCHEON, J.A.: When you say that you're not saying that they 25 were dealing with the same legislation, but in dealing 26 with Calder -- 27 MS. MANDELL: The test, yes. 28 HUTCHEON, J.A.: — that's what they had in mind? 29 MS. MANDELL: That's right. 30 HUTCHEON, J.A.: Certainly different legislation. 31 MS. MANDELL: It's not the Fisheries Act, but when they were 32 dealing with the test they were dealing with the same 33 legislation. 34 HUTCHEON, J.A.: I have an understanding now, yes. 35 MS. MANDELL: I wanted to read to your lordships what the trial 36 judge said about Sparrow. It's the next -- it's 37 behind the next divider, and it's at page 406. He 38 says: 39 40 "The unanimous judicial decision of all the 41 judges (in Sparrow) so long after these 42 historical events to regard intention at a time 43 of uncertain law and understanding as the 44 governing factor in extinguishment persuades me 45 that intention in this context must relate not 46 to a specific or precise state of mind on the 47 part of the historical actors, but rather to 327 Submissions by Ms. Mandell 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, the consequences they intended for their actions. In other words, the question is not did the Crown through its officers specifically address the question of aboriginal rights, but rather did they clearly and plainly intend to create a legal regime from which is necessary to infer that aboriginal interests were in fact extinguished." And I say, my lords, that Mr. Justice McEachern decided that Sparrow wasn't relevant completely to his analysis because they in Sparrow regarded the events so long after the historical events and intention is a matter of uncertain law. And he felt himself able to move off of the test pronounced in Sparrow and re-introduce, in our submission, the test which Mr. Justice Judson proposed. And, my lord, finally in this -- in this tab if I could simply turn you to the last item. I have introduced certain paragraphs of the province's factum where they have agreed in substance with the submissions which the appellants here are making. And if I could just read you paragraph 88. "The Province submits that the trial Judge erred in law in concluding that there had been a blanket --" Hold on a minute. Paragraph MS the WALLACE, J.A. MS. MANDELL: where do I find It's in J.A. : that? MANDELL: This is behind the next divider, my lord same tab. This is the new factum? This is the new factum. Paragraph 88. "The Province submits that the trial Judge erred in law in concluding that there had been a blanket extinguishment of Aboriginal Rights in the colony prior to Union. As argued below, although the Crown had the legal authority to to extinguish Aboriginal Rights in the colony, Aboriginal Rights were not and have not been totally extinguished in British Columbia and the Appellants continue to enjoy certain Aboriginal Rights to some portions of the Claim Area. Submissions by Ms. Mandell 1 And then if I can draw your lordships' attention, 2 I won't read it, to paragraphs 110 and 111. The 3 province sets out the various reasons why they believe 4 that the trial judge erred in adopting the test that 5 it did. And the first one on 111, the Supreme Court 6 of Canada's endorsement in Sparrow of Mr. Justice 7 Hall's approach in Calder to extinguishment, that's 8 basically the point we're in agreement with. And I 9 should mention to your lordships as well that while we 10 agree with the rest of paragraph 111, as I understand 11 Canada's factum, they do not support the trial judge 12 in his finding of blanket extinguishment. 13 Now, my lords, I wanted to summarize on this 14 point. And I say that -- this isn't in my factum. 15 It's a conclusion which I'd like your lordships to 16 take note of though. That the onus which the courts 17 pronounced upon in Sparrow for a clear and plain 18 sovereign intention to be expressed to extinguish is a 19 high onus. And I say that it's a high onus which is 20 appropriately high. And I say that for three reasons. 21 The first is that following from the Marshall 22 cases and Guerin and Calder what the courts have said 23 is that the Indian people have a pre-existing legal 24 right. It's not created by the Crown, and it's a 25 right which constitutes a burden on the underlying 26 title of the Crown. And I say that from that it 27 follows that the Crown must prove some affirmative 28 action by which the sovereign can extinguish the 29 aboriginal title which it didn't create. It 30 inherited. 31 The second point, the reason why in my submission 32 the onus is high, is that following from what this 33 court said in Pasco the aboriginal rights continue in 34 the descendants until lawfully extinguished. And so 35 the consequences of an extinguishment of aboriginal 36 rights are very far reaching. It's not just this 37 generation who loses their rights. It's all children 38 yet to be born. It's the nation's perpetuation of 39 itself which is what is cut off at the pass. And I 40 say because of the far reaching consequences to a 41 finding of extinguishment it should be a high onus 42 which is placed on the Crown. 43 And, finally, I say, my lords, that it's the 44 honour of the Crown which is involved most directly in 45 the issue, because the onus is on the Crown to prove 46 extinguishment, and to meet that onus the Crown 47 asserts its own conduct. And what the court said in 829 Submissions by Ms. Mandell 1 Sparrow is the way in which a legislative objective is 2 to be obtained must uphold the honour of the Crown and 3 must be in keeping with the unique contemporary 4 relationship grounded in history and policy between 5 Canada and Canadian aboriginal peoples. And the 6 courts will supervise the honour of the Crown. And I 7 say that it's appropriate that the onus be high 8 because the Crown is asserting its own conduct to meet 9 something which ultimately it, the Crown, will benefit 10 by if aboriginal title is extinguished. 11 And, finally, my lords, and this is a point which 12 we haven't had the opportunity of addressing you 13 orally on, extinguishment by legislation, in our 14 submission, is a violation of the constitutional 15 principles which we say have become part of the common 16 law and are part of a convention that aboriginal title 17 be extinguished by consent. This is a more 18 interventionist, not a consensual method by which 19 aboriginal title is being held to extinguish. And I 20 say that the onus is high, and rightfully so, if a 21 constitutional convention of consent is being 22 overtaken by way of positive legislative enactment. 23 My lords, I'd like to return to the factum at page 24 99 -- I'm sorry. Page 395 at paragraph 996. 25 LAMBERT, J.A.: I wonder if I can just ask a question. It may 26 have been answered by you in relation to Mr. Justice 27 Taggart's question, but I didn't quite understand the 28 answer. 29 You say there must be a clear and plain intention 30 in the statute. So if a statutory system is set up 31 for granting Crown lands you say that's not a clear 32 and plain intention to extinguish all aboriginal title 33 to any land that the Crown may subsequently seek to 34 grant. But if under that statute a title in 35 fee-simple is issued to a particular person over a 36 particular tract of land, the statute and the act of 37 issuing the title, certainly I would have thought, 38 constituted a clear and plain assertion on the part of 39 the Crown that the aboriginal interest in that land is 40 gone because it's not consistent with fee-simple. And 41 fee-simple is a right in perpetuity. Now, I can see 42 that a Crown grant of a 50 year lease of forest rights 43 could be regarded as just putting aboriginal rights in 44 abeyance over that area to the extent of the 45 inconsistency and for that period, and not as an 46 extinguishment of aboriginal rights. But as I 47 understood your argument those fee-simple grants that 830 Submissions by Ms. Mandell 1 are authorized by statute would not operate as an 2 extinguishment of aboriginal interests in that area. 3 MS. MANDELL: That's correct. 4 LAMBERT, J.A.: And that's because the legislation doesn't say 5 and the aboriginal right and when we grant fee-simple 6 title the aboriginal rights are extinguished. 7 MS. MANDELL: Exactly. That's right. And, my lord, if I could 8 just go one step further and say that, and I'll be 9 taking you to some of these cases, that the American 10 cases on this point have said that the grantors can 11 get whatever the Crown has to give, but they don't 12 get -- they don't get aboriginal title. So, in other 13 words, the grantor will take their rights subject to 14 aboriginal title. And there's authority in Canada 15 from our Supreme Court of Canada in the Lady McMaster 16 case. In that case the Indian people, not the Crown, 17 gave away an interest outside the proclamation and the 18 the court there found that the grant was void. So 19 you've got two different ways of approaching the 20 problem. 21 But, in our submission, and it will be part of 22 another argument as to what the effect is on the 23 grantee, the person who receives the grant under such 24 a regime, our point is the one that your lordships 25 captured, and that is that if the Crown -- if the 26 legislature expressly stated that upon -- that this is 27 how we issue fee-simple grants and upon the issuing of 28 the fee-simple grant aboriginal title to that area is 29 hereby extinguished, we say that could do that. That 30 would extinguish the right. That's provided the 31 legislature was competent to enact a law which would 32 extinguish aboriginal title, we say that would do it. 33 But, we say, and I'll eventually take your lordships 34 to some cases, that a bureaucrat in Victoria who in 35 administering the act gives some land away to a party, 36 a third party, has no more right to extinguish 37 aboriginal title without clear and plain legislation, 38 we say, than if the legislature itself had failed to 39 mention it. There needs to be some expression by the 4 0 legislature which then would empower a government 41 agent through that legislation, not through an 42 administrative act to then extinguish aboriginal 43 title. The empowerment to extinguish must come from 44 the statute itself, that's what we say, and not by any 45 necessary implication. 46 LAMBERT, J.A.: Yes. But the parliament in the example that 47 I've given you, and the one we are talking about, is 831 Submissions by Ms. Mandell 1 in the statute in the sense that the statute confers 2 the express power on the administrative official to 3 issue a fee-simple title. The legislature says you 4 do. 5 MS. MANDELL: Yes, I understand that. 6 LAMBERT, J.A.: And the fee-simple title seems to everyone to be 7 inconsistent with the continuing existence of any 8 aboriginal rights. So I would have said that's clear 9 and plain necessary implication, and what you have to 10 argue is that clear and plain necessary implication is 11 not enough. That it has to be clear and plain -- 12 MS. MANDELL: Legislation. 13 LAMBERT, J.A.: -- and express -- and express in the 14 legislation. 15 MS. MANDELL: That's right. My lord, I think that the question 16 as to whether or not clear and plain necessary 17 implication could do it was expressly addressed by the 18 court in Sparrow when they repudiated the Baker Lake 19 and Bear Island propositions which in our submission 20 were exactly that. It's clear and plain necessary 21 implication which was repudiated before they moved 22 into the test. 23 LAMBERT, J.A.: Thank you. 24 MS. MANDELL: My lords, what do you want to do? 25 TAGGART, J.A.: Where are we now in the — 26 MS. MANDELL: Well, we are going to begin -- I've got two points 27 to make about, in our submission, how the trial judge, 28 Mr. Justice Judson, made the same error. It's at page 29 395 and paragraph 996 of the factum. 30 TAGGART, J.A.: 395. All right. We'll adjourn for lunch. 31 THE REGISTRAR: Order in court. Court stands adjourned until 32 two o'clock. 33 34 (PROCEEDINGS ADJOURNED) 35 36 I hereby certify the foregoing to 37 be a true and accurate transcript 38 of the proceedings transcribed to 39 the best of my skill and ability. 40 41 42 43 44 45 Peri McHale, 46 Official Reporter, 47 UNITED REPORTING SERVICE LTD. 832 Submissions by Ms. Mandell 1 LUNCH BREAK 2 3 MR. WILLIAMS: My lord, I wonder if I could just have a moment 4 of the Court's time to say during this morning's -- 5 during the period of this morning we've lost a student 6 but gained an associate and I'd like to say that Ms. 7 Lindgren was called to the bar this morning and we've 8 told her about my lord Mr. Justice Lambert's question 9 and she's prepared to answer that. 10 TAGGART, J.A.: Well, we are very happy to welcome you back in a 11 new capacity. 12 MS. LINDGREN: Thank you, my lord. 13 TAGGART, J.A.: And I am sure you will now be able to guide your 14 senior Mr. Williams -- 15 MS. LINDGREN: I look forward to doing so. 16 TAGGART, J.A.: — in the appropriate fashion. 17 MS. MANDELL: She doesn't know what she's getting into, my lord. 18 I'd like to address your lordships with two comments 19 before continuing. The first is that I wanted to 20 remind your lordships that there were no alienations 21 in fee simple in the territory before Confederation. 22 And Mr. Justice -- Chief Justice McEachern reflects 23 that at page 419 of his judgment, and I'll just read 24 to you the place. He says: 25 26 "Settlement, which did not begin in the 27 territory until the beginning of this century, 28 was initially confined to the Bulkley and 29 Kispiox valleys, where land cultivation had not 30 been pursued vigorously by many Indians. There 31 were no large railway land grants in the 32 territory, and even the pre-emption of most 33 agricultural land did not impinge seriously 34 upon most aspects of aboriginal life." 35 36 And in fact the -- there was no alienations of fee 37 simple in the territory. The settlement began really 38 in earnest around 1910 at the turn of the century. 39 And I also wish to advise your lordships that if your 40 lordships are not fully aware of it, that in the 41 pleadings the plaintiffs are not putting fee simple 42 titles in issue in this appeal. And I wanted to 43 address your lordships to that problem and those 44 positions and turn back to the decision of the trial 45 judge where he did not have to deal with the question 46 of fee simple grants, especially in the 47 post-Confederation period, because he found that the 833 Submissions by Ms. Mandell 1 title had all been extinguished before 1871. And we 2 do intend and your lordships will be aware that in the 3 Reply Factum which was filed by the appellants we have 4 fully addressed the question as to what we say 5 occurred after 1871 and especially in respect of the 6 granting of grants, and we'll be making more full 7 arguments to you in the context of the 18 -- post-1871 8 argument. But as I've mentioned, the post-1871 9 argument isn't before your lordships by way of 10 judgment from the Chief Justice. He did not deal with 11 that at all and I'm confining my submissions at this 12 stage to his judgment which we say with respect to 13 pre-Confederation extinguishment was in error. 14 My lords, I'm going to abbreviate the Factum, but 15 I would like to take you, and I will selectively, 16 through it and at this point if you could turn to page 17 395 at paragraph 997 of tab 8. I say that both the 18 trial judge and Mr. Justice Judson erred in equating 19 laws directed at providing the machinery necessary for 20 settlement in the establishment of governmental 21 authority, with the extinguishment of title. To 22 conclude that the Crown affected an implied 23 extinguishment of aboriginal title mistakenly merges 24 two separate processes. The first is the process of 25 creating a colony and settling it. Public land 26 legislation is necessary to provide for the orderly 27 development of any colony. Such laws can be found in 28 every jurisdiction whether First Nations are there or 29 not. And the second, and we say distinct process of 30 extinguishing aboriginal title, and we say that if the 31 drafters intend these land laws to bear the additional 32 and heavy weight of extinguishing aboriginal title, 33 the law must say so. 34 And my lords, I'd like to at this time take you to 35 the Santa Fe case. This is a case which has been 36 relied upon by the Chief Justice and also by Mr. 37 Justice Judson and it is relied upon by my friends. 38 The supporting of the proposition that adverse 39 dominion is one way in which aboriginal title can be 40 extinguished, and it's a case which is seen to be 41 opposed to the clear and plain test. And in my 42 submission the Santa Fe case is not opposed to the 43 clear and plain test and does not support the weight 44 ascribed to a phrase in the case that there is the 45 possibility that aboriginal title can be extinguished 46 by the exercise of adverse dominion. 47 And if your lordships will go to tab 1000, 8-1000, 834 Submissions by Ms. Mandell 1 I have there -- in your R-17 materials, I've set out 2 the Santa Fe case. This is -- while you are turning 3 to it, my lords, it's a case which was brought by the 4 United States against a railway company in joining the 5 company from interfering with the possession and 6 occupancy of the Indians in Arizona, and the issue was 7 whether aboriginal rights had been extinguished. If 8 not, the railway got their lands subject to the grant, 9 and if so, the railway had clean title. And the 10 passage which is often referred to and was referred to 11 by both Mr. Justice Judson and in our submission with 12 approval by the Chief Justice, is found at page -- 13 these pages are hard to read. It's the -- it's after 14 page 269. It's page 270, but your lordships will have 15 to get to it by -- it's the third page into the 16 judgment. 17 MACFARLANE, J.A.: Is that paragraph numbers there or page 18 numbers? 19 MS. MANDELL: It's 270 and it's under the place where it says 20 Headnote 4. Can your lordship see it? The bottom 21 left-hand corner, my lord, would be where you find the 22 page number. So I am going to be reading from 23 paragraph 347. 24 MACFARLANE, J.A.: 347? 25 MS. MANDELL: Yes. This is in the case. Was that your 26 question? 27 MACFARLANE, J.A.: Yes. 2 8 MS. MANDELL: Yes. 29 MACFARLANE, J.A.: I thought that might be an easier way of 30 finding it. 31 MS. MANDELL: Yes, okay, thank you. I am sorry, I am going to 32 drop down to where in 347 it begins with: 33 34 "Extinguishment of Indian title based on 35 aboriginal possession is of course a different 36 matter. The power of Congress in that regard 37 is supreme. The manner, method and time of 38 such extinguishment raise political not 39 justiciable issues. As stated by Chief Justice 40 Marshall in Johnson v. M'Intosh, 'the exclusive 41 right of the United States to extinguish' 42 Indian title has never been doubted. And 43 whether it be done by treaty, by the sword, by 44 purchase, by the exercise of complete dominion 45 adverse to the right of occupancy, or 46 otherwise, its justness is not open to inquiry 47 in the courts. 835 Submissions by Ms. Mandell 1 2 And it's that passage which is relied upon. And I'd 3 like to say first that the passage is not directed to 4 the question of the means of extinguishing title. 5 It's directed to the question of governmental power. 6 The court is saying that the United States has the 7 power to extinguish, and that if that power is 8 exercised the court will not review it on grounds of 9 whether the power ought to have been exercised. And 10 in this context we say, my lords, the court's comment 11 is unremarkable and it mirrors the traditional stance 12 of the courts faced with an intra vires exercise of 13 governmental power. The means of extinguishment 14 referred to in the passage are clearly an aside by the 15 court and not the focus of comment. And in that 16 respect the actual ratio of the case was that the 17 extinguishment which the court found in this case took 18 place by consent and there was no issue in the present 19 appeal that Indian title may be voluntarily 20 surrendered. 21 And if I could just take your lordships to page 22 276, which is at paragraph -- I am going to read just 23 above paragraph 358: 24 25 "But in view of all of the circumstances, we 26 conclude that its creation at the request of 27 the Walapais --" 28 29 Now, this is a reserve, 30 31 " -- and its acceptance by them amounted to a 32 relinquishment of any tribal claims to lands 33 which they might have had outside that 34 reservation and that relinquishment was 35 tantamount to a extinguishment by 'voluntary 36 cession' within the meaning of the Act." 37 38 And if you can go down to the words beginning: 39 40 "In view of the long-standing attempt to settle 41 the Walapais' problem by placing them on a 42 reservation, their acceptance of this 43 reservation must be regarded in law as the 44 equivalent of a release of any tribal rights 45 which they may have had in lands outside the 46 reservation." 47 836 Submissions by Ms. Mandell 1 And I say, my lords, it's important to note that the 2 standard required by Mr. Justice Douglas in Santa Fe 3 is very high. In that case Congress had created a 4 reserve for the Walapais. This is not the reserve 5 which they consented to but an earlier one, and then 6 forcibly removed these people from their ancestral 7 lands to the reserve. And on the creation of that 8 reserve Mr. Justice Douglas said, and I am reading at 9 page 273, which is found at paragraph -- within 10 paragraph 353. He says: 11 12 "We search the public records in vain for any 13 clear and plain indication that Congress in 14 creating the Colorado River reservation was 15 doing more than making an offer to the Indians, 16 including the Walapais, which it was hoped 17 would be accepted as a compromise of a 18 troublesome question. We find no indication 19 that Congress by creating that reservation 20 intended to extinguish all of the rights which 21 the Walapais had in their ancestral home. That 22 Congress could have effected such an 23 extinguishment is not doubted. But an 24 extinguishment cannot be lightly implied in 25 view of the avowed solicitude of the Federal 26 Government for welfare of its Indian wards." 27 28 And it's that phrase "extinguishment cannot be lightly 29 implied" which was picked up by our courts in Simon. 30 And if your lordships will drop down to the paragraph 31 just above 356, this is what the court said about the 32 forcible removal. 33 34 "Their forcible removal in 1874 was not 35 pursuant to any mandate of Congress. It was a 36 high-handed endeavor to wrest from these Indian 37 lands which Congress had never declared 38 forfeited." 39 40 So in other words, the power to do that resides in 41 Congress, not in the power in this case to simply 42 remove the people. 43 And my lords, if I can turn you back in the case 44 to the passage I had read already at 270, I wanted 45 to -- this is now still within paragraph 347, I wanted 46 to comment to your lordships about the proposition 47 that you began with as before the break and that is 837 Submissions by Ms. Mandell 1 well, what about adverse dominion in the face of a fee 2 simple grant? And if your lordships will see that in 3 citing the proposition which I have already read to 4 you they cited the case Beecher and Wetherby, and then 5 they go: 6 7 "If the right of occupancy of the Walapais was 8 not extinguished prior to the date of definite 9 location of the railroad in 1872, then the 10 respondent's predecessor took the fee subject 11 to the encumbrance of Indian title." 12 13 And that's Buttz, and that is also what was held in 14 Beecher and Wetherby where lands are surrendered by 15 treaty. And in Beecher they considered the problem 16 where certain lands were transferred to the United 17 States, from the United States to Wisconsin when 18 Wisconsin became a state, and the court considered 19 what rights would Wisconsin get, and in Beecher the 20 court said that the rights were subject, as in all 21 other cases of grants of public lands, to the existing 22 occupancy of the Indians so long as that occupancy 23 should continue. And I am just -- I am not going to 24 go further into the point, but only to say, my lords, 25 that Buttz, which is that the holder of the grant 26 takes their fees subject to the encumbrance of the 27 Indian title, is the -- is consistent with a long line 28 of American cases which have been decided on that 29 point. Now, my lords, if I could turn you to the -- 30 LAMBERT, J.A.: Did you say that we can take a fee subject to an 31 Indian occupancy in rights of British Columbia? 32 MS. MANDELL: Yes. 33 LAMBERT, J.A.: It certainly would be contrary to a torrens 34 system, whereas it might not be contrary to a register 35 system, which might be in the effect in the United 36 States cases. 37 MS. MANDELL: Well, my lord, I can say that what the torrens 38 system would specify is that the owner in fee simple 39 has rights in our submission whatever the Crown had to 40 give, the full package of rights that the Crown had to 41 offer. But if the Crown did not have the right to 42 pass the Indian occupancy to that fee simple owner, 43 then in our submission that couldn't be passed and the 44 only thing the torrens system could register, because 45 it's a grant from the Crown, is whatever rights the 46 Crown had to give. And if it's the full package of 47 the Crown's rights and that's what the torrens system Submissions by Ms. Mandell 1 registers, that's what the fee simple owner in our 2 submission would be able to receive. But they can't 3 receive pre-existing rights which the Crown has not 4 extinguished and the Crown doesn't have to offer. And 5 that -- in our submission that's the thrust of the 6 U.S. cases. And your lordship has raised the 7 distinction between the two registry systems and we'll 8 address that when we address the question of the 9 grants and their effect on the ground. 10 My lords, if I could ask you to turn to paragraph 11 1002 at page 397. As I mentioned in Santa Fe, the 12 question in our submission which was addressed by the 13 court was one of the government power. But as to the 14 means of extinguishing title, that was not addressed 15 until Lipan Apache, and I have set out the passage in 16 Lipan Apache and I can say in both Santa Fe and Lipan 17 Apache the court considered a large number of 18 arguments aimed at adverse possession where there 19 wasn't an express Act of Congress which extinguished 20 the right, and in all cases the arguments of adverse 21 possession were rejected. And in Lipan Apache the 22 court said: 23 24 "The correct inquiry is, not whether the 25 Republic of Texas accorded or granted the 26 Indians any rights, but whether that sovereign 27 extinguished their pre-existing occupancy 28 rights. Extinguishment can take several forms; 29 it can be effected 'by treaty, by the sword, by 30 purchase, by the exercise of complete dominion 31 adverse to the right of occupancy, or 32 otherwise.'" 33 34 Simply quoting Santa Fe. 35 36 "While the selection of a means is a 37 governmental prerogative," 38 39 And that's what Santa Fe says, 40 41 "the actual act (or acts) of extinguishment 42 must be plain and ambiguous. In the absence of 43 a 'clear and plain indication' in the public 44 records that the sovereign -- " 45 46 that should be: 47 839 Submissions by Ms. Mandell 1 "extinguish all of the [claimants'] rights' in 2 their property, Indian title continues." 3 4 And it was the Lipan Apache quote which was applied by 5 Mr. Justice Hall in Calder and which was not 6 considered or applied by Mr. Justice Judson in Calder 7 or by in our submission the Chief Justice in his 8 decision. 9 And I say at paragraph 1004 that in considering 10 Santa Fe, American law does not regard statutes passed 11 in anticipation of or in preparation for non-Indian 12 settlement as necessarily extinguishing Indian title. 13 One American commentator, and it's the article of 14 Ralph Erickson, a leading writer on aboriginal rights, 15 concluded that a U.S. Court would likely "view the 16 legislative acts considered in Calder as necessary to 17 the administration of government... without a 18 sufficient intent to affect aboriginal rights." In so 19 doing, he adds, such a court would probably "rely 20 heavily on the analogous facts in U.S. v. Santa Fe, " 21 the very case cited by the trial judge and Mr. Justice 22 Judson to reach the opposite conclusions. And I won't 23 take you to either Mr. Erickson or Professor Foster's 24 article, but I will ask your lordships to review the 25 references at 1004 on this and advise that with 26 respect to Mr. -- Professor Foster's article he 27 actually goes through the various U.S. cases which 28 have not regarded statutes passed in anticipation of 29 settlement as extinguishing the aboriginal rights. 30 So the first error which I say was made by both 31 Mr. Justice Judson and the trial judge was 32 inappropriately applying a significance to the Santa 33 Fe case which the case itself wouldn't bear. But I 34 say as well that both of them denied co-existence 35 between the aboriginal peoples and the Crown, either 36 as a matter of policy or on the question of title. 37 And I say that co-existence is to be presumed, not to 38 be denied. 39 And if I could ask your lordships to turn to 40 paragraph 1006, I say that the Canadian courts have 41 seen the different Crown policies of colonization, and 42 treaty making as co-existing. And your lordships are 43 aware that the trial judge said that once we begin to 44 colonize, that is the demise of the Indian people. 45 But in our submission the Imperial Government gave 46 legislative expression to the Crown's assertion of 47 sovereignty over claimed territory by providing the 840 Submissions by Ms. Mandell 1 legal machinery for settlement and government. But at 2 the same time the government also recognized 3 aboriginal title and the need to extinguish such 4 rights by formal agreement with the First Nations. 5 And if I could ask your lordships to turn to tab 6 1006 in the book of authorities, I want to point out 7 that these dual policies of colonization on the one 8 hand and treaty making on the other were in the 9 interests of the Crown. This isn't only a matter 10 which is in the interest of the Indians. And I refer 11 back to the Royal Proclamation where at paragraph -- 12 in paragraph in the preamble it begins: 13 14 "And whereas it is just and reasonable" 15 16 And these are the words I rely upon, 17 18 "and essential to our Interest, and the 19 Security of our Colonies." 20 21 The Crown sees it as part of their interest to enact 22 these provisions. 23 And just behind the divider, my lords, there is an 24 article by Professor Slattery which was referred to in 25 part by the Supreme Court of Canada. And he makes 26 this point at page 753. He says: 27 28 "In offering its protection, the Crown was 29 animated less by philanthropy or moral 30 sentiment than by the need to establish 31 peaceful relations with peoples whose 32 friendship was a source of military and 33 economic advantage, and whose enmity was a 34 threat to the security and prosperity of the 35 colonies. The sources of the general fiduciary 36 duty do not lie, then, in a paternalistic 37 concern to protect a 'weaker' or 'primitive' 38 people, as has sometimes been suggested, but 39 rather in the necessity of persuading native 40 peoples, at a time when they still had 41 considerable military capacities, that their 42 rights would be better protected by reliance on 43 the Crown than by self-help." 44 45 And he cites the Royal Proclamation for that 46 proposition. 47 And my lords, while I won't read you all of these 841 Submissions by Ms. Mandell 1 passages, I have in paragraphs 1007 to 1014 of the 2 Factum, I have gone through the Saanichton Marina 3 case, the White and Bob case, quoting from the A.G. 4 Ontario case, the Secretary of State case and the 5 Sparrow case, all cases where in my submission the 6 court at the same time as considering the policy of 7 colonization considers as co-existent the policy of 8 treaty making. And I say they are co-existent and the 9 trial judge was wrong in seeing that one precluded the 10 other. And if I could turn your lordships to 11 paragraph 1015 at page 402 of the Factum, this is a 12 companion point. Because we say that not only were 13 these two policies co-existent as opposed to in 14 conflict, but we say that the titles, Crown title and 15 aboriginal title, are co-existent, and the assertion 16 or the fulfillment of Crown title does not in our 17 submission lead to the denial of the title of the 18 Indian people. 19 And I say at paragraph 1015, the principle of 20 separate but co-existing titles has constantly been 21 affirmed in Canadian case law. In Guerin Mr. Justice 22 Dickson noted that "Indians have a legal right to 23 occupy and possess certain lands, the ultimate title 24 of which is in the Crown." This isn't a language of 25 conflict of titles. It's a language of co-existence. 26 In Bartleman, a hunting right was held to be not 27 inconsistent with ownership in fee simple. The very 28 notion that native title limits or burdens the 29 underlying title of the Crown in our submission 30 assumes their mutual co-existence. 31 And my lords, if I could turn to 1015 in the 32 materials, I've also included and not referred to in 33 the Factum the passage from Amodu Tijani which deals 34 in my submission with this point. It was read to you 35 by Mr. Jackson but for a different point and I would 36 like to emphasize the paragraph at the bottom of page 37 407. The court says: 38 39 "In the light afforded by the narrative, it is 40 not admissible to conclude that the Crown is 41 generally speaking entitled to the beneficial 42 ownership of the land as having so passed to 43 the Crown as to displace any presumptive title 44 to the natives." 45 46 And they cite a case decided by the Supreme Court of 47 the Colony, 842 Submissions by Ms. Mandell 1 2 "Mr. Justice Osborne laid down as regards the 3 effect of the cession of 1861, that he was of 4 the opinion that 'the ownership rights of 5 private landowners, including the families of 6 the Idejos, were left entirely unimpaired, and 7 as freely exercisable after the Cession as 8 before.' In this view their Lordships concur. 9 A mere change in sovereignty is not to be 10 presumed as meant to disturb rights of private 11 owners; and the general terms of a cession are 12 prima facie to be construed accordingly. The 13 introduction of the system of Crown grants 14 which was made subsequently must be regarded as 15 having been brought about mainly, if not 16 exclusively, for conveyancing purposes, and not 17 with a view to altering substantive titles 18 already existing." 19 20 And, my lords, this principle has been reaffirmed in 21 our Canadian courts repeatedly. We have got a whole 22 litany of cases where statutes have been read down to 23 accommodate the continued exercise of aboriginal 24 title. And at page 1000 -- paragraph 1016 I draw your 25 lordships' attention back to Sparrow where the court 2 6 rejected the argument advanced by the Crown, that 27 there is a fundamental inconsistency between the 28 continued enjoyment of aboriginal title and at 29 regulation passed to control the Indian fishery. And 30 I have already read you that passage. 31 In paragraph 1017 -- sorry 1018 I say that in 32 Simon the Court rejected the argument that the Crown 33 through occupancy by the white man has in effect 34 extinguished native rights. And my lords, if you will 35 turn to the tab, I've taken the passage from the case 36 at the Supreme Court where the Supreme Court recites 37 the lower court decision. This was -- Simon was 38 decided at the lower court against the Indian people 39 on the basis of the proposition which was later 40 repudiated and this was the judgment of Mr. Justice -- 41 of Judge Kimball who said, and this is in Simon: 42 43 "I am satisfied that any right which the 44 defendant may have to hunt off the reserve is 45 not applicable to the area where the offence 46 took place. It is my opinion that any right 47 which the defendant may have to hunt on that 843 Submissions by Ms. Mandell 1 said land has been extinguished 'by Crown grant 2 to others or by occupation by the white man.' 3 There is little evidence as to the nature of 4 the area in question, but the admitted facts 5 establish that the defendant was at the 6 material time the only occupant driving on the 7 West indian Road, a public highway, in 8 Colchester County, Province of Nova Scotia and 9 that the road is not an Indian Reserve but 10 adjacent to the -- " 11 12 I can never pronounce the name, 13 14 " -- Indian Reserve. I am satisfied that the 15 area in question is an area which has been 16 occupied extensively by the white man for 17 farming as a rural mixed-farming and 18 dairy-farming area. I am prepared to take 19 judicial notice of the fact that the area is 2 0 made up of land where the right to hunt no 21 longer exists because the land has been settled 22 and occupied by the white man for purposes of 23 farming and that the Crown grants have been 24 extended to farmers for some considerable 25 length of time so that any right which might 26 have at one time existed to the defendant or 27 his ancestors, to use or occupy the said lands 28 for purposes of hunting, has long since been 29 extinguished." 30 31 And the court in Simon rejected that argument and, my 32 lords, found instead, and I cited the page at 412 that 33 the appellant has a valid treaty right to hunt. 34 And, my lords, if I could take you back to the 35 Factum in Sioui, this is at paragraph 1019, again the 36 same principles were applied. The court refused to 37 find extinguishment -- and these were the arguments, 38 all these implied extinguishment arguments were raised 39 and they are recited in the judgment. The court 40 refused to find extinguishment by either the Articles 41 of Capitulation, the Royal Proclamation, which did not 42 mention the treaty, legislative acts including an Act 43 to Establish the National Park which, it was argued, 44 demonstrated that the Quebec Legislature intended to 45 prohibit activities inconsistent with the use of land 46 for purposes other than public parkland. Instead, 47 co-existence was acknowledged as a principle inherent 844 Submissions by Ms. Mandell 1 in that case in the definition of the treaty right 2 itself, and the rights of the Huron were protected and 3 could be exercised within the context of the National 4 Park. 5 And, my lords, I am not going to turn you to it, 6 but I would ask you to note in the Sioui case at page 7 157, that the right of the -- there was a right which 8 the treaty found -- I am sorry, one of the treaty 9 terms which was found was that there was -- that there 10 was -- that the treaty cannot intend that there be 11 incompatibility. That there was an intention 12 expressed on the part of both parties that the rights 13 of both be exercised compatibly. And at page 157 I 14 only draw to your lordships' attention that the court 15 held that incompatibility is not to be lightly implied 16 with the burden of the Crown and that it was the 17 burden of the Crown to prove that Indian rights cannot 18 reasonably be accommodated. So there was a special -- 19 in our submission a special burden put to the Crown of 20 incompatibility or irreconcilability in the context of 21 a treaty term was to be proved, the onus of the Crown 22 fell to do that. My lords, I have set that out in my 23 materials at tab 8-1005. You'll find it in the tab in 24 that place. 25 I turn to Baker Lake, and my lords, even though as 26 you have been told in the Baker Lake case the court 27 there in our submission adopted a wrong approach to 28 the question of Mr. Justice Hall and Mr. Justice 29 Judson's application of test. Nevertheless, in Baker 30 Lake the court did in the end reject all the arguments 31 of implied extinguishment and the court rejected the 32 argument that the aboriginal title was extinguished by 33 the Royal Charter of 1670 which granted the lands to 34 the Company because the Company's ownership was 35 analogous to that of the Crown, they said, and there 36 was no inconsistency between an aboriginal title 37 superimposed upon the radical title of the Crown. And 38 Mr. Justice Mahoney also rejected extinguishment by 39 land legislation. He was there considering the 40 Territorial Land Act, which Section 4 provided for the 41 making of the grants to third parties. 42 In the Saanichton Marina case this court rejected 43 the argument that as settlement and development 44 occurred in and around Saanichton Bay the right of the 45 Indians was generally restricted and might ultimately 46 be extinguished. And the proper page reference there, 47 my lord, is 89. 845 Submissions by Ms. Mandell 1 I say that systems of land legislation granting 2 land in fee simple were established throughout both 3 Canada -- established throughout Canada both before 4 and after Confederation. Such land legislation was in 5 place in Upper Canada. Yet Colonial laws did not 6 displace aboriginal title. And your lordships are 7 aware that in St. Catherine's Milling aboriginal title 8 survived all of the pre-Confederation Land Acts and I 9 have cited some of them below, and was held to be an 10 interest other than the Province under Section 109. 11 And if I could just add this comment to the 12 section, my lord, I say that similar land regimes were 13 in place prior to the treaties with the Indians 14 throughout Canada and in respect of British Columbia 15 Treaty 8, which was concluded in 1899, contained an 16 extinguishment clause which was in our submission on 17 the back of land legislation existing in the Province 18 of British Columbia. And I just ask your lordships to 19 note that Mr. Justice Hall in Calder said that if 20 there was no Indian title extant in British Columbia 21 in 1899 why was the treaty negotiated and ratified? 22 And I draw your lordships' attention in this respect 23 to the new Provincial Factum, paragraph 105, where the 24 Province appears to agree that Treaty 8 also reflected 25 the fact that there was Indian title extant to the 26 extent that they agreed with what Indian title is 27 prior to 1899. 28 So I say finally at paragraph 1023 that the 29 approach of the trial judge and of Mr. Justice Judson 30 wrongly assumes that the establishment and settlement 31 of British Columbia leads inevitably to the demise of 32 the First Nations. This conclusion is contrary to the 33 constitutional framework of this country. And I just 34 ask your lordship to note that tab 1023 in your 35 materials, it's there that I have included the page 36 from the Reasons at page 419 where it's been confirmed 37 which was evidence in the case that there was no 38 grants in our territory prior to Confederation. 39 My lords, the second point that I wish to address 40 you is in respect of the statements made by the trial 41 judge as to what constitutes from his point of view 42 the clear and plain test. And if I could ask your 43 lordships to turn in the materials to 1025, tab 1025, 44 I have set out there the relevant portions of the 45 judgment. And if I could first ask you to turn to 46 page 403, which is the second page in the tab. He 47 says at the very bottom of the page, and I'll be 846 Submissions by Ms. Mandell 1 turning the page in a minute: 2 3 "I therefore conclude that express statutory 4 language is not a requirement for 5 extinguishment." 6 7 And then at 404, I have already read that paragraph 8 but I'd like to read the last sentence again: 9 10 "In other words, the question is not did the 11 Crown through its officers specifically intend 12 to extinguish aboriginal rights apart from 13 their general intention, but rather did they 14 plainly and clearly demonstrate an intention to 15 create a legal regime from which it is 16 necessary to infer that aboriginal interests 17 were in fact extinguished. 18 There are two further reasons why I have 19 reached the conclusion just expressed. First, 20 the governing intention is that of the Crown in 21 the 1850s and 1860s. It surely cannot be the 22 intention of Her Majesty that is relevant, but 23 rather that of her ministers, governors and 24 other officers, in short, an amalgam of 25 thought, belief, planning and intention on the 26 part of a number of officials who may all have 27 had different knowledge, understanding and 28 priorities. Intention, in this context, must 29 be a matter of implication. 30 Secondly, the colonial period lasted for 31 nearly 13 years, from 1858 to 1871. Those were 32 busy times in the colony and it would be 33 unrealistic to think that this question of 34 extinguishment should be focused narrowly upon 35 single moments or isolated events." 36 37 And if your lordships could turn to page 406 he 38 summarizes his conclusion and he states it in a 39 slightly different way. This is the fourth paragraph 4 0 down. He says: 41 42 "Thus, in my judgment, intention sufficient to 43 establish extinguishment must be examined 44 broadly and need not be confined to a specific 45 act or decision at a particular moment in 46 colonial history. Instead, intention may more 47 properly be discerned from a course of conduct 847 Submissions by Ms. Mandell 1 over the whole of the colonial period." 2 3 And I say, my lords, that with respect to the 4 question of intention and where do you look for it, we 5 say that there is three errors in our submission which 6 were made and I'd like to address each in turn. The 7 first is that I say that the Chief Justice 8 misconstrued the authorities, which I will take you 9 back to, that he relied upon to say that he doesn't 10 need to find that the intention needs to be expressed 11 in legislation. I say that he was wrong on his 12 construction of those authorities. 13 The second point I say is that he violated two 14 principles which I say are fundamental to our system 15 in the definition of intention that he expressed. The 16 first is that express language is required if there is 17 an intention to interfere with vested rights, and 18 secondly, I say the other principle is that you look 19 to the legislation and not to the drafters of the 20 legislation or to an amalgam of belief or planning 21 among a number of officials to find out what it is 22 that the legislature, or in this case the sovereign, 23 intended to do. I say those are the three places that 24 in our submission where his test is in error. 25 And I would like to first address the question of 26 the authorities and I've set out his finding at 27 paragraph 1030. These are the authorities that he 28 relies upon to say he doesn't need to deal with it, a 29 matter being expressed in legislation. The very 30 bottom of the page in C.P. v. Paul, that's the first 31 case, he says: 32 33 "the Supreme Court of Canada seems to accept 34 proposition that a grant of a fee simple 35 interest in land without mention of aboriginal 36 rights would extinguish those rights, and that 37 grants of lesser interests, such as a 38 right-of-way, might not extinguish those rights 39 but would nevertheless create a valid 40 interest." 41 42 And the second point he says is on the question of 43 express statutory language: 44 45 "I note the recent finding of Mr. Justice 46 Cory — " 47 848 Submissions by Ms. Mandell 1 HUTCHEON, J.A.: I am sorry, I have lost you somewhere. 2 MS. MANDELL: My lord, it's at tab 1030. 3 HUTCHEON, J.A.: Yes. 4 MS. MANDELL: And I have read from the bottom of page 402. 5 HUTCHEON, J.A.: 402. 6 MS. MANDELL: 402. 7 WALLACE, J.A.: 407. 8 MS. MANDELL: Do I have a different note? That's right. And 9 the top of 4 03. I am in the judgment. 10 WALLACE, J.A.: Oh. Over here. 11 MS. MANDELL: I am sorry, I am in the judgment, my lord. 12 HUTCHEON, J.A.: You started at the bottom of page 402. 13 MS. MANDELL: It's in C.P. and Paul and I have read as to what 14 he says about C.P. and Paul. 15 HUTCHEON, J.A.: All right. Okay. 16 MS. MANDELL: And I was about to say that he also relies upon 17 Horseman. 18 19 "On the question of express statutory language 20 I note the recent finding of Cory J., speaking 21 for the majority in R. v. Horseman... that 'the 22 onus of proving either express or implicit 23 extinguishment lies upon the Crown.'" 24 25 So he takes comfort in the cases of C.P. and Paul and 26 in Horseman to say that he doesn't need to find 27 express extinguishment. 28 My lords, if you could stay in the volume, if I 29 could turn you to the next tab which is 1033, I there 30 deal with the C.P. and Paul case, and the first page 31 is only a repeat of what Mr. Jackson reminded you of 32 and that is the interest that both parties were found 33 to have. 34 35 "The interest of the railway is certainly 36 capable of forming the subject matter of a 37 grant. Thus, we conclude that the interest 38 granted to the Woodstock Railway Company from 39 which CP now derives any benefit it might have 40 is a statutory easement in the nature of a 41 right of way." 42 43 And if you turn the page to page 503 I have set out 44 the court's finding on the Indian's interest: 45 46 "We are of the view that it can be accepted 47 that the land in question is part of the 849 Submissions by Ms. Mandell 1 Woodstock reserve before Confederation." 2 3 Now, if your lordships will turn to the next page 4 which is 505, this is there where the court deals with 5 the question of extinguishment. I've already read to 6 you the passage at the last paragraph of 505, and I am 7 just going to summarize it, but this is the paragraph 8 that I'd ask your lordships to again take note of: 9 10 "How then is Indian title to land 11 extinguished?" 12 13 And then they said that there is two views expressed: 14 15 Did the Woodstock Railway Company's acquisition 16 of an easement or right of way over the land 17 extinguish the Band's interest in the 18 underlying fee which continued to be held by 19 the Crown? There seems to be no doubt, having 20 regard to the fact that a right of way is 21 itself a limited interest in land, that the 22 Crown continued to hold the fee for the benefit 23 of the Band unless it can be said that the 24 Band's only interest was to the enjoyment and 25 occupation. If its only interest was to the 26 enjoyment and occupation, then it is clearly 27 arguable that the Woodstock Railway's right of 28 way was inconsistent with such an interest 29 continuing in the Band." 30 31 And these are the words I rely upon: 32 33 "On the other hand, can it be said that the New 34 Brunswick legislature's intention to extinguish 35 the Band's interest in the underlying fee 36 remaining in the Crown was 'clear and plain'? 37 Fortunately, we do not have to answer this 38 difficult question because it is enough for 39 purposes of this appeal to find that CP has a 40 valid easement or right of way over the eastern 41 crossing." 42 43 Now, when they are looking at intention, the court 44 addressed itself to the New Brunswick legislature's 45 intention and recited clear and plain. And if your 46 lordships will turn to the next tab, I say that what 47 they did in this respect was uphold the judgment of 850 Submissions by Ms. Mandell 1 Mr. Justice La Forest who he -- as he then was in the 2 Court of Appeal writing for the Court of Appeal in the 3 C.P. and Paul case. And he said at page 33: 4 5 "At the same time, it must be remembered that 6 the Indian title cannot compulsorily be 7 divested in the absence of a clear intention on 8 the part of the Legislature." 9 10 That's the words. 11 12 "In the course of examining a series of 13 statutes in Calder, Mr. Justice Hall had this 14 to say: 15 16 'It would, accordingly, appear to be beyond 17 question that the onus of proving that the 18 Sovereign intended to extinguish the Indian 19 title lies on the respondent and that 20 intention must be 'clear and plain.' There 21 is no such proof in the case at bar: no 22 legislation to that effect.' 23 24 This appears to be a special application of the 25 general presumption that the Legislature does 26 not, in the absence of clear words, intend to 27 interfere with vested rights:" 28 29 And I say, my lords, that C.P. and Paul is not 30 authority nor can the -- nor should the trial judge 31 have taken support or comfort in that case to find 32 that he can bypass clear and plain expression in the 33 legislation. 34 Now, the second case he relies upon is Horseman, 35 and if your lordships will go to tab 8-1035, I set out 36 in Horseman the passage that the trial judge relies 37 upon under the effect of the 1830 Transfer Agreement. 38 39 "At the outset two established principles must 40 be borne in mind. First, the onus of proving 41 either express or implicit extinguishment lies 42 upon the Crown." 43 44 Now, you'll see, my lords, that the two cases which 45 are cited are Simon and Calder. Now, we know that 46 Calder didn't resolve this question. And neither did 47 Simon. And if your lordships will just go beyond the 851 Submissions by Ms. Mandell 1 divider, I have set out what the court in Simon has to 2 say about this question about express or implied 3 extinguishment. It's at page 405. Under the -- 4 HUTCHEON, J.A.: I am sorry, is your proposition that Mr. 5 Justice Cory should not have -- 6 MS. MANDELL: My proposition, my lord, is that he was not 7 deciding this question. 8 HUTCHEON, J.A.: No, I can understand that, but are you saying 9 it didn't come out of Simon or it didn't come out of 10 Calder? 11 MS. MANDELL: I am saying that the proposition that 12 extinguishment could either be expressed or implicit 13 came out of both cases. We don't -- the decision is 14 undecided yet. I say it wasn't decided until a month 15 later when the court in Sparrow settled the case. But 16 at the time when the court was writing in Horseman 17 what the court was reflecting was the then existing 18 state of uncertainty in the law on that point. 19 They -- because the court goes on to say that they 20 don't have to decide extinguishment in this case. 21 They ended up finding a merger, a consolidation and 22 merger theory in the Transfer Agreements, but I say 23 that when the court began this exercise on the 24 question of the effect of the Transfer Agreement, they 25 were reciting at this stage the uncertainty in the 26 state of the law that extinguishment could either be 27 expressed or implicit and they cited Simon and Calder 28 for that which I say is accurate. That's what the 29 state of the law was at the time when Horseman was 30 decided. 31 And behind the divider, my lords, I have stated 32 the passage from Simon where the court deliberately 33 leaves this question up in the air, and it's at page 34 405 under "Termination by Extinguishment" and it 35 begins with the sentence: 36 37 "The respondent submits that absolute title in 38 the land covered by the treaty lies with the 39 Crown and, therefore, the Crown has the right 40 to extinguish any Indian rights in any such 41 lands. The respondent further submits, based 42 on Isaac, that the Crown, through occupancy by 43 the white man under Crown grant or lease, has, 44 in effect, extinguished native rights in Nova 45 Scotia in territory situated outside of reserve 46 lands. As the appellant was stopped on a 47 highway outside the... Reserve, the respondent 852 Submissions by Ms. Mandell 1 argues that the Treaty of 1752 affords no 2 defence to the appellant regardless of whether 3 the treaty is itself valid." 4 5 And he says, the court says: 6 7 "In my opinion, it is not necessary to come to 8 a final decision on the respondent's argument. 9 Given the serious and far-reaching consequences 10 of a finding that a treaty right has been 11 extinguished, it seems appropriate to demand 12 strict proof of the fact of extinguishment in 13 each case where the issue arises." 14 15 And they quoted Santa Fe. And, my lords, this issue, 16 that is whether a treaty can be extinguished by 17 implication, was not decided until Sioui. This was 18 after Simon and after Horseman and in Sioui the court 19 decided that if a treaty is to be extinguished it has 20 to be done by consent. 21 Now, getting back to Horseman, my lord, I have 22 passed the tab. I just want to show your lordships 23 what happened in Horseman in our submission. The 24 court was concerned with the effect of the 1930 25 Transfer Agreement. And in our submission it was not 26 necessary for Mr. Justice Cory to resolve this issue 27 in Horseman, and so the comment which was relied upon 28 by the Chief Justice is obiter. The majority 29 considered themselves bound to find that the 1930 30 Transfer Agreement modified the treaty right to hunt 31 because of a merger and consolidation theory which 32 produced that result and it already had been adopted 33 by three Supreme Court of Canada cases: Frank, 34 Sutherland and Moosehunter. So what the court did was 35 applied those cases and it was unnecessary for the 36 court to go beyond the modification to reach its 37 decision and the question of the test for 38 extinguishment was left open. And if I could just 39 turn your lordships to page 377 of the judgment. 40 Under the paragraph "these contentions" we're talking 41 about whether or not there was an extinguishment or 42 recognition by the 1930 Transfer Agreement and the 43 court rested its decision on Frank, Sutherland and 44 Moosehunter. 45 46 These contentions cannot be accepted. The 47 short answer to the appellant's position is 853 Submissions by Ms. Mandell 1 that para. 12 of the 1930 Transfer Agreement 2 was carefully considered and interpreted by 3 Chief Justice Dickson in the three recent cases 4 of Frank, Sutherland and Moosehunter. These 5 cases dealt with the analogous problems arising 6 from the transfer agreements with Manitoba and 7 Saskatchewan which were worded in precisely the 8 same way as the Transfer Agreement with Alberta 9 under consideration in this case. These 10 reasons constitute the carefully considered 11 recent opinion of this court. They are just as 12 persuasive today as they were when they were 13 released. Nothing in the appellant's 14 submission would lead me to vary in any way the 15 reasons so well and clearly expressed in those 16 cases." 17 18 And so in the end, if you can drop down to the last 19 paragraph, the court finds that there was a quid pro 2 0 quo granted by the Crown in the Transfer Agreements 21 that the right to sell under the agreements, sell 22 game, had been replaced by a right which permitted 23 hunting over a broader territory. And that was what 24 the court had expressed the quid pro quo to be. 25 2 6 "Although the agreement did take away the right 27 to hunt commercially, the nature of the right 28 to hunt for food was substantially enlarged." 29 30 That was what the quid pro quo was expressed to be. 31 And so the court didn't in this case find there had 32 been extinguishment, the court found that there had 33 been a merger and consolidation through the Transfer 34 Agreement and by that effect a modification of the 35 treaty right which was found in earlier cases, Frank, 36 Sutherland and Moosehunter. And so I say, my lords, 37 that the two cases that the Chief Justice relied upon, 38 C.P. and Paul and Horseman, are not authorities for 39 the proposition that express language can be bypassed. 40 Now, my lords, if I could ask you to turn to the 41 next tab, I am addressing the use made by the Chief 42 Justice of the -- of his vision that intention can be 43 gleaned from colonial documents or the views of 44 colonial officials without having to look in the 45 legislation itself to interpret those views, looking 46 in the legislation for express language. And I have 47 set out in the beginning of tab 1036 various places 854 Submissions by Ms. Mandell 1 where the Chief Justice clearly relies upon the views 2 of the colonial officials as expressing Crown 3 intention, and I am not going to take you to all the 4 parts, but to note at the bottom of page 409 when he 5 begins his discussion of extinguishment of aboriginal 6 rights, he builds his analysis on the back of a letter 7 that was written from Lord Lytton to Douglas, and then 8 at page 411 he says: There is, as evidenced in the 9 earlier paragraphs: 10 11 "a great deal of evidence demonstrating that 12 the Crown with the full knowledge of the local 13 situation fully intended to settle the colony 14 and to grant titles and tenures unburdened by 15 any aboriginal interests." 16 17 So he's looking at the evidence of this. He's not 18 analysing the Act. 19 2 0 "The Crown must be taken to have known that it 21 could not free the land from this burden 22 without extinguishing these aboriginal 23 interests." 24 25 Well, that is an inference from the documents that 26 he's dealing with. 27 28 "This probably did not trouble the Crown, 29 because it also intended to allot generous 30 reserves, and to allow the Indians to use 31 vacant lands." 32 33 Another inference which he's taking from the 34 documents. 35 36 "The primary intention, however, was obviously 37 to settle the colony by granting unburdened 38 interests to settlers." 39 40 And he says: "In view of this history," and then he 41 moves into his acceptance of the approach by the court 42 in Calder expressed by Mr. Justice Judson. And my 43 lord, I'd like to just -- I've put a yellow sticky in 44 this tab to indicate the Laidlaw case where I'd like 45 to take your lordships to. 46 TAGGART, J.A.: All right. Can we do that after we have had 47 five minutes to stretch our legs. 855 Submissions by Ms. Mandell 1 MS. MANDELL: Yes. 2 3 AFTERNOON BREAK 4 5 TAGGART, J.A.: Ms. Lindgren, we have a copy of the questions 6 now if you would like them. 7 MS. LINDGREN: I would be prepared to take them under 8 advisement. 9 TAGGART, J.A.: Yes, Ms. Mandell. 10 MS. MANDELL: Thank you, my lord. I am going to finish at four 11 o'clock. I was going say one way or another, but -- I 12 am at tab 1036 and I have marked in your books with a 13 sticky the Laidlaw case which I am going to turn you 14 to. My lords, this is now addressing what we say is 15 the essential of the second error and approached by 16 the Chief Justice and that is that express language is 17 required to interfere with the vested right. And in 18 Laidlaw the court, Mr. Justice Spence for the court 19 said: 20 21 "A remedial statute should not be interpreted, 22 in the event of an ambiguity, to deprive one of 23 common law rights unless that is the plain 24 provision of the statute.... The same principle 25 has been expressed in this court as long as 26 1896... and thereafter both in this court and 27 the Courts of Appeal of various provinces." 28 29 And the next case I'd like to refer you to is the 30 Estabrooks case cited by Mr. Justice La Forest in 31 C.P. and Paul, and if I could turn you to page 29. He 32 says -- still same tab, just go beyond the divide: 33 34 "This approach of the courts to legislative 35 action permitted them to exrcise an important 36 role in the protection of individual liberties 37 even in the absence of an entrenched Bill of 38 Rights. If the legislation is clear, of 39 course, the intent of the Legislature must be 40 respected. But what these presumptions ensure 41 is that a law that appears to transgress our 42 basic political understandings should be 43 clearly expressed so as to invite the debate 44 which is the life-blood of parliamentary 45 democracy." 46 47 And we say it's that debate which the clear and plain 856 Submissions by Ms. Mandell 1 intention expressed in legislation would invite. If 2 an aboriginal right is to be extinguished this should 3 be done in an open way and in our submission it's so 4 fundamental to the constitution and rights of this 5 country that it can't be extinguished in a back-handed 6 way. 7 8 "One of these presumptions is that a statute 9 should not, in the absence of clear words, be 10 construed as taking the property of an 11 individual without compensation. This, of 12 course, frequently arises in expropriation 13 cases but it is not limited to these." 14 15 And then, my lords, at page 31, if you can turn over 16 the case, he says: 17 18 "The principle I have described is fundamental. 19 It is a constitutional principle in the British 20 sense... The Legislature may modify or even 21 abolish it in certain circumstances, but it is 22 not to be readily assumed that it has done so." 23 24 And then dropping to the bottom of the page: 25 26 "It is probably to avoid difficulties of this 27 kind that the security of property was not 28 expressly protected by the Charter. But when 29 we are asked to construe a statute as taking 30 the property of one person to pay the debts of 31 another, as we are here, it is our duty to 32 scrutinize the legislation with great care to 33 see whether the Legislature really intended to 34 do this. That has always been an important 35 role of the courts and the Charter, by s. 26, 36 carefully provides that it is not to be 37 construed 'as denying the existence of other 38 rights and freedoms'" 39 40 And, my lords, I am not going to take you to it, but 41 the last extract in this tab is Mr. Justice Hall 42 applying these principles in respect of aboriginal 43 rights and he relies upon the Court of Appeal case in 44 Oyekan and Adele, citing the same principles in 45 respect of aboriginal rights. 46 If I could ask you to turn to the next tab in your 47 book, 1039, this tab addresses the materials which we 857 Submissions by Ms. Mandell 1 rely upon to say that it's the legislation which 2 should be looked at and not as the trial judge did to 3 the views of the enactors or to other people who were 4 part of the colonial historical period. And I've at 5 the yellow marker drawn your lordships' attention to 6 Craies and I read from there: 7 8 "The cardinal rule for the construction of Acts 9 of Parliament is that they should be construed 10 according to the intention expressed in the 11 acts themselves." 12 13 And we take that as the fundamental principle. And my 14 lords, if you go behind the divide, this is the case 15 of Black-Clawson, and I'd like to make special 16 emphasis to the passage that begins "the acceptance." 17 18 "The acceptance of the rule of law as a 19 constitutional principle requires that a 20 citizen, before committing himself to any 21 course of the action, should be able to know in 22 advance what are the legal consequences that 23 will flow from it. Where those consequence are 24 regulated by a statute the source of that 25 knowledge is what the statute says. In 26 construing it the court must give effect to 27 what the words of the statute would be 28 reasonably understood to mean by those whose 29 conduct it regulates. That any or all of the 30 individual members of the two Houses of 31 Parliament that passed it may have thought the 32 words bore a different meaning cannot affect 33 the matter. Parliament, under our 34 constitution, is sovereign only in respect of 35 what it expresses by the words used in the 36 legislation it has passed." 37 38 And I say that that passage embodies two points which 39 I'd like to stress. One is that the rule that we look 40 to the Act of Parliament and not outside it to find 41 what is the expression of the will of sovereign is in 42 order that we also can enforce the law that ignorance 43 of the law is no excuse and people should be able to 44 look to the law itself to know what it is which is 45 being done. And I say that in this case when the 46 trial judge took notice of several thousands of pages 47 reflected in many hundreds of documents to try and Submissions by Ms. Mandell 1 find out whether from there he could read in a term 2 into the Colonial Instruments where none existed which 3 say that there has been extinguishment in the colony, 4 that's hardly either the clear and plain intention 5 expressed by the sovereign or in our submission is 6 that the kind of intention which an ordinary citizen 7 would be expected to know happened. And I must say 8 that in this respect, my lords, I say that the trial 9 judge in our submission erred in the same manner with 10 respect to the Colonial Instruments as he did with the 11 Royal Proclamation. In both instances, we say, he 12 read from many hundreds of documents to find a term in 13 a statute which didn't expressly have that term and 14 placed that term there by reference to a large number 15 of documents. And in this case we say that it was 16 wrong in law to construe an intention to extinguish 17 beyond the four corners of what each of the Colonial 18 Instruments themselves stated and none of them stated 19 anything to do with aboriginal title. 20 My lord, finally if you could just turn over the 21 tab, I'd like to address the Mercure case briefly. At 22 page 48 Mr. Justice La Forest, who was speaking for 23 everybody but Mr. Justice Mclntyre and Estey, said: 24 25 "As I indicated — " 26 27 HUTCHEON, J.A.: I am sorry I am not with — oh, I have it. 28 MS. MANDELL: This should be behind the tab, behind the marker 2 9 in the same tab. 30 TAGGART, J.A.: Page? 31 MS. MANDELL: It would be page 48. 32 TAGGART, J.A.: This is Mercure? 33 MS. MANDELL: Mercure. 34 TAGGART, J.A.: And the judge is? 35 MS. MANDELL: This is Mr. Justice La Forest and he's speaking 36 for the majority. He says at the bottom of the page: 37 38 "As I indicated, however -- " 39 40 But there was a dissent, so he's speaking for all but 41 Mr. Justice Estey and Mclntyre. 42 43 "As I indicated, however, while legislative 44 history may be useful in providing the backdrop 45 and assisting in determining the purpose of 46 legislation, the interpretation of the statute 47 must in this as in other contexts be determined 859 Submissions by Ms. Mandell 1 by the words used by the legislature to convey 2 its intent." 3 4 Now, my lords, we rely upon those cases for the 5 proposition that if the words of the statutes, in 6 these cases the Colonial Instruments, are to be 7 construed there is not one word mentioned about 8 aboriginal title and that it's not -- it wasn't for 9 the trial judge to read that provision in by reference 10 to a large body of documents which expressed various 11 opinions in the colony. 12 And if I could ask your lordships to turn to 1046, 13 I say that the trial judge's test failed to take into 14 account the constitutional fact that the Crown acts as 15 fiduciary to the First Nations, a relationship which 16 has its roots in the concept of aboriginal title and 17 the further proposition that the Indian interest in 18 land is inalienable except upon surrender to the 19 Crown. 20 The canons of construction which your lordships 21 have been considering which have developed are rooted 22 in this trust relationship, and I won't take you to 23 it, but at 1047 I have cited from the Oneida case 24 where the root of clear and plain language to 25 extinguish and liberal constructions are all 26 attributed to the fiduciary principle. These two 27 principles also having been adopted by our courts. 28 Applying the first canon to the issue of 29 extinguishment, recent decisions of the Supreme Court 30 of the United States have required the legislation to 31 expressly and directly consider the specific rights to 32 be extinguished, and to clearly and plainly express in 33 legislation that such rights have been extinguished. 34 And I have cited the passage in the Oneida case at 35 that paragraph. I won't take you to it, but this is 36 in response to your question, my lord, about whether 37 or not if there was a grant would the legislation have 38 to speak directly to that point and the Oneida case 39 uses those words precisely that there has to be a 40 speaking directly to the issue in order for Congress 41 to be held to have extinguished it. 42 And we see a similarly high standard in Canadian 43 legislation and I draw your lordships' attention to 44 the James Bay Settlement Act and there is a provision 45 as with the Alaska Settlement Act which says "All 46 Native claims, rights, titles, and interests... are 47 hereby extinguished..." It's a very express provision 860 Submissions by Ms. Mandell 1 and then within the context of the Act what rights are 2 part of the settlement are spelled out. 3 And we say that the trial judge was bound by the 4 second canon of construction and this is the resolving 5 ambiguity rule to resolve ambiguities in favour of the 6 Indians and he didn't. And your lordships will recall 7 that for the aboriginal rights he found that the 8 phrase "all the lands in British Columbia and all the 9 mines and minerals belong to the Crown in fee," that 10 phrase alone extinguished aboriginal rights. And I 11 say that the implication of his conclusions must be 12 that there is no ambiguity and that the sovereign 13 clearly and plainly intended to extinguish aboriginal 14 rights. Yet I point out that three judges of the 15 Supreme Court of Canada expressly found to the 16 contrary in their review of the same instruments which 17 were considered by the trial judge. And on this point 18 Mr. Justice Hall stated: "The appellants — " this is 19 in respect of the all lands in British Columbia 20 provision are held in fee, the same provision which 21 the trial judge found to extinguish, Mr. Justice Hall 22 stated: 23 24 "The appellants do not dispute the Province's 25 claim that it holds title to the lands in fee. 26 They acknowledge that the fee is in the Crown. 27 The enactments just referred to merely state 28 what was the actual situation under the common 29 law and add nothing new or additional to the 30 Crown's paramount title and they are of no 31 assistance in this regard to the respondent." 32 33 And then referring to the Ordinance of 1866, the court 34 goes on to hold that the rights which have have denied 35 Indian people to hold land are permissive. And I say 36 that with respect to the other instruments which 37 permitted the pre-emption of land -- I am sorry, I 38 misspoke. I am going to read the quote again: 39 40 "As to the Ordinance of March 31, 1866," 41 42 and am I quoting from Mr. Justice Hall, 43 44 "the limitations on the rights of an aborigine 45 to hold land in fee simple has no bearing 46 whatsoever on the right of the aborigine to 47 remain in possession of the land which has been 861 Submissions by Ms. Mandell 1 in the possession of his people since time 2 immemorial." 3 4 So I say that you have got at least three judges of 5 the Supreme Court of Canada reading the same language 6 as the Chief Justice read to find that there was 7 another interpretation possible. And I say that that 8 ambiguity ought to have been resolved in the 9 appellants' favour. 10 And I wanted to just conclude with respect to the 11 honour of the Crown, my lord, and remind you that 12 Chief Justice Dickson in Guerin quoted with approval 13 Professor Winerub. This is at page 340 in the 14 judgment. I am not going to turn you to it. But he 15 says that the hallmark of a fiduciary relation is that 16 relative legal positions are such that one party is at 17 the mercy of another's discretion. And I ask you to 18 consider extinguishment by the Colonial Instruments at 19 a time when first of all, the Indian people could not 20 vote; they didn't vote until 1949 in the B.C. 21 Elections or 1960 in the Federal Elections. They 22 couldn't at that time pre-empt land. That was not 23 changed until 1953. They weren't told that these Acts 24 extinguished title. There was no compensation paid to 25 them or expressed in the statute that it would be 26 paid. And the Crown benefited from the very 27 extinguishment of title which has been said to have 28 occurred. And I say this is not -- this is not a 29 conclusion which in our submission upholds the honour 30 of the Crown. And if I could just turn lordships to 31 tab 1050 -- I am sorry, 1049. I have created a sticky 32 again in that tab. I wanted to refer you to a passage 33 in the Alcea case. This is a decision -- 1052 and I 34 have just given the one page of it. It's the last -- 35 the last reference in the tab. 36 HUTCHEON, J.A.: 1052? 37 MS. MANDELL: Yes. And I'm reading from the column which 38 begins: 39 40 "In our opinion taking original Indian title 41 without compensation and without consent does 42 not satisfy the 'high standards for fair 43 dealing' required of the United States in 44 controlling Indian affairs." 45 46 And I say that this is a decision or the reasoning of 47 which we adopt in saying that the -- that the trial 862 Submissions by Ms. Mandell 1 judge's finding that extinguishment could occur in 2 this manner does not uphold the honour of the Crown in 3 its dealings with the Indian people. 4 Now, my lords, I'd like to move forward and take 5 you to page 417 at paragraph 1066. I haven't made 6 this point and then I'll spend the balance of the time 7 dealing with the documents. His lordship found that 8 you don't need to find a precise point in time, that 9 extinguishment occurred sometime in the colonies, 10 sometime during the colonial period as he put it. 11 They were busy times in the colonies, and he didn't 12 require a precise moment for this act of 13 extinguishment to occur. 14 And I say at paragraph 1065 that the trial judge's 15 conclusion that extinguishment need not relate to a 16 specific Act runs contrary to the Supreme Court's 17 decision in Simon. In Simon the court held that 18 extinguishment must be strictly proven by the Crown in 19 each case where it is alleged. And I have already 20 read you that passage: 21 22 "It is impossible for this court to consider 23 the doctrine of extinguishment 'in the air'; 24 the respondent must anchor that argument in the 25 bedrock of specific lands." 26 27 Now, my lords, if I could turn you to the question of 28 documents, and if -- and to page 418, paragraph 1070. 29 Our first point, my lord, is that the use of documents 30 isn't relevant for this inquiry. We say that the 31 colonial officials were bound by the law which was 32 expressed in the Marshall decisions in Simon and the 33 Royal Proclamation, and what they thought the law was 34 is really not big -- it's really not the issue. 35 And at 1070 I say as well that extrinsic evidence 36 is not to be used as an aid to interpreting a statute 37 in the absence of ambiguity or where the results would 38 be to alter its terms by adding words or subtracting 39 words from the Instrument. And I've set out that rule 40 in the Horse case. I'm not going to take you to it. 41 It's at paragraph 1070 in your materials. 42 And we say that there is no ambiguity. The 43 Colonial Instruments on their face are about settling 44 land. And I wanted to draw your lordships' attention 45 in the reasons, if you could make note of it at page 46 404 and 405, the trial judge acknowledges that the 47 intention of the Colonial Instruments was to create a 863 Submissions by Ms. Mandell 1 general land system over the colony and to settle it. 2 And I say that's exactly what they were to do. He 3 acknowledged that that's what their intention was. 4 There is is no ambiguity about that and there is 5 nothing expressed in any of the Instruments that that 6 was an order to extinguish title. 7 My lord, at paragraph 1073 I say that if your 8 lordships are inclined to look at the documentary 9 record, we say that there are several trends that are 10 revealed therein. And at page 420 we say that you are 11 going to find that the colonial officials, colonial 12 and British governments intended to and did establish 13 the legal machinery for settlement and government of 14 the colonies. And we say these documents include the 15 Colonial Instruments which was relied upon by the 16 Chief Justice. At the same time as colonial officials 17 and colonial British governments pursued actions and 18 deliberated on the first point, the same people in 19 governments pursued reserve policies, of which there 20 were several, of allocating Indian reserves at the 21 location of known villages and settlements. The 22 reserves served a number of colonial objectives 23 ranging from "civilizing" the Indians to preventing 24 conflict between Indians and non-Indians on the 25 frontier. And I have set out, but I won't turn you, 26 at tab 1073, the trial judge's findings that the 27 establishment of Indian reserves and the use of them 28 by the First Nations does not extinguish much less 29 address the question of unextinguished aboriginal 30 title outside the reserves. 31 Now, at the same time as the governments were 32 pursuing settlements and at the same time as they were 33 setting up Indian reserves, the same colonial 34 officials and the colonial and British governments 35 were also recognizing that aboriginal title in the 36 colony must be extinguished by treaty. And until 37 aboriginal title was extinguished, it co-existed with 38 Crown title. Government officials expressed the 39 position that ideally, aboriginal title should be 40 extinguished at the time when lands were open to 41 settlement but in practice settlement pressed ahead of 42 treaties. The documents showed that no one in the 43 colonies or in Britain considered or intended that the 44 land laws including the Colonial Instruments 45 extinguished such rights. 46 The lack of intention to extinguish is evidenced 47 from a number of documents in the post-1871 period 864 Submissions by Ms. Mandell 1 which showed that the Federal, Provincial and the 2 Imperial governments and officials recognized 3 aboriginal title in lands in British Columbia and the 4 Federal government and Governor General continued to 5 assert the need to extinguish the rights for treaties. 6 And I say the documents which evidenced the first 7 two propositions, that is settling the machinery for 8 government and setting up reserves, were relied upon 9 by in this case the Russell and DuMoulin respondents 10 at trial and were referred to by the trial judge. The 11 documents which evidenced the treaty making and the 12 lack of intention to extinguish were also before the 13 court and I have reviewed them and it's not Appendix 14 A, my lords. They are to be found at Appendix J and I 15 am not going to take you to them immediately, but I 16 will shortly. 17 Now, I'd like to highlight several of the -- what 18 we say are the key relevant documents in the colonial 19 period. These documents I say fit into the normal 2 0 rules which would admit documents. And because Mr. 21 Rush addressed you on them in the Alfonse appeal, I 22 won't dwell on them. But I do want to remind your 23 lordships and I will take you to tab -- I am sorry, to 24 paragraph 1083 at page 424, and remind your lordships 25 of the exchange which went on in the 1860 Land 26 Ordinance involving one of its drafters, Judge Begbie. 27 Your lordships will recall that after the drafting of 28 this proclamation but before its approval in England, 29 Judge Begbie was asked by Governor Douglas to review 30 and comment upon a proposed land settlement scheme for 31 the new mainland colony advanced by Captain Clarke. 32 Captain Clarke had experience in Australia but was 33 ignorant in the situation in British Columbia. And in 34 his proposal Clarke had assumed that aboriginal title 35 had been extinguished. And he says that: 36 37 "I must at the outset remark that the proposed 38 scheme is suggested under the impression that 39 no claims or rights have arisen to the soil of 40 British Columbia excepting isolated claims of 41 the Hudson's Bay Company not yet decided other 42 than those of the Crown and that no Indian 43 title exists or if any, that it has been 44 extinguished, and separate provision made for 45 them." 46 47 And on April 30, 1860, having reviewed the Clarke 865 Submissions by Ms. Mandell 1 Proposal, Judge Begbie gave his written opinion. He 2 unequivocally rejected Clarke's assumption that 3 aboriginal title did not exist in the colony. And 4 with respect to the pre-emption clause, Judge Begbie 5 stated: 6 7 "... I may also observe that the Indian title 8 is by no means extinguished. Separate 9 provision must be made for it, and soon: though 10 how this is to be done will require some 11 consideration. From the friendly intercourse 12 with the natives however, no serious difficulty 13 is to be an apprehended." 14 15 We say that Judge Begbie's use of the phrase "separate 16 provision must be made for it and soon" indicates that 17 extinguishment was not intended to be accomplishd by 18 that 1860 Land Ordinance. And in the same report 19 after expressing his opinion that aboriginal title is 20 by no means extinguished, Judge Begbie said: 21 22 "The absolute right of the crown in all these 23 lands is perfectly recognized and I am happy to 24 say that great confidence in the honour of the 25 Government is shewn by all parties." 26 27 And I remind your lordships of that, we say that Judge 28 Begbie's opinion is relevant document to understand 29 the meaning of the 1860 Act. 30 HUTCHEON, J.A.: Is there any treatment of this by the trial 31 judge? I have forgotton. I remember we discussed 32 this. 33 MS. MANDELL: In Alfonse, yes. 34 HUTCHEON, J.A.: But was there a response? 35 MS. MANDELL: Yes. 36 TAGGART, J.A.: Was there a treatment by the trial judge? 37 MS. MANDELL: Yes. My lord, I am going to — I am going to give 38 you the pages. What he -- he did deal with this and I 39 will show you in what context. He -- if your 40 lordships will permit me, I am going to continue and I 41 will come back to it, because -- 42 HUTCHEON, J.A.: It did involve a response from England, did it? 4 3 Anyway, we will come to it. 44 MS. MANDELL: Yes. Well, the trial judge's response basically 45 was that well, because they passed the Act anyways 46 with no mention of aboriginal title, that clearly and 47 plainly shows that they intended to extinguish 866 Submissions by Ms. Mandell 1 aboriginal title. And that's -- that was his response 2 to this interaction. And my lords, if I could ask you 3 to turn to the -- to tab 1002, I wanted to remind -- I 4 am sorry, paragraph 1002 and also tab 1002. 5 HUTCHEON, J.A.: You mean go back? 6 MS. MANDELL: I am sorry, 1102. My lords, I wanted to remind 7 you again of this. We have submitted these points to 8 you in the Alfonse appeal. But they are very in our 9 submission crucial to this period and I would like the 10 opportunity of refreshing your memory. The 11 Appropriation Acts, my lords, were not before the 12 trial judge. They came to light after the judgment 13 and so the trial judge didn't consider these and 14 didn't know of their existence. But what these Acts 15 show is that there was only one -- in our submission 16 one set of Instruments in the colonial period that 17 actually did clearly and plainly deal with the 18 question of aboriginal title, and that is these -- the 19 Acts which have been called the Appropriation Acts. 20 And I have set out for your lordships the Acts at 1102 21 tab and your lordships will see that these are Acts 22 which appropriate money out of the general revenue of 23 the colony and authorize their expenditure. And 24 you'll see that in Schedule 2 of the 1863 Act there is 25 $9,700 which has been legislatively appropriated for 26 Indian claims at Cowichan. And in the 1864 27 Appropriation Act I've barred the place where in the 28 same Act but a different schedule authorizes payment 2 9 for lands at Chemainus and Cowichan. And so you had 30 two Acts which specified the appropriation of money 31 for the extinguishment of aboriginal title. And if 32 your lordships will turn to tab 1103, the next tab, 33 this is a despatch from Douglas to the Secretary of 34 State Newcastle explaining the Appropriation Act to 35 them. And at paragraph three he says: 36 37 "The Estimates were not materially altered in 38 amount, in their passage through the House, and 39 fully provide for the proposed expenditure of 40 the year. The aggregate vote of the House, 41 including the sum of $180,600 Dollars granted 42 for public works;" 43 4 4 And then: 45 46 "The extinction of Indian Titles to public 47 lands, 867 Submissions by Ms. Mandell 1 2 And I highlight that for your lordships. He's 3 speaking of the extinction of Indian Titles to public 4 lands. That's what he understands these Acts are for, 5 and he carries on what else it is that the Acts are 6 there to do. 7 And I say that at paragraph 1006 that the 8 Appropriation Acts -- I am sorry, 1106, the 9 Appropriation Acts are express legislation unlike the 10 Colonial Instruments which recognized that aboriginal 11 title on Vancouver Island had not been extinguished. 12 And this is very late in the day. These 13 Appropriation Acts, my lords, occurred after the 14 Colonial Instruments had been enacted. Except for the 15 1870 Act which was a consolidation of existing Land 16 Acts, all the other Colonial Instruments had already 17 been enacted. 18 And we say that the Appropriation Acts are express 19 legislation which recognized that aboriginal title on 20 Vancouver Island had not been extinguished. These 21 Acts repudiate any implied sovereign intention that 22 aboriginal title had been extinguished by earlier Land 23 Acts. 24 And my lords, if I could finally just before I 25 move you very quickly into Appendix J, I'd like to 26 address the point which the trial judge makes that 27 possibly these Acts are enacted by Britain, and I make 28 that point at page 435 of this tab at paragraph 1116. 29 The trial judge placed reliance for his conclusion 30 that aboriginal title had been extinguished by 31 Colonial Instruments on his finding that they were 32 enacted not just in the colony, but also by the 33 Imperial Parliament. Later in the judgment he 34 mentioned that he's not "... presently satisfied that 35 each of the Calder XIII were all enacted by the 36 Imperial Parliament, as I first thought." And I say, 37 my lords, that none of the Colonial Instruments were 38 enacted by the Imperial Parliament. Although, as your 39 lordships have been made aware Governor Douglas was 40 required to lay before parliament for consideration 41 the bills of the colony. The latter does not suggest 42 or imply Imperial legislative will. 43 Now, I'd like to ask your lordships to turn to 44 1120, and I've set out there portions of the article 45 by Professor Foster on this question, and I really 46 can't do better than what he said in terms of what it 47 means to lay a bill before parliament. This is the Submissions by Ms. Mandell 1 only item in the tab, and I am going to begin at the 2 paragraph which said: 3 4 "Third, the constitution of the colony at B.C. 5 was quite unusual. In 1858 the imperial 6 parliament authorized the Crown to appoint a 7 governor would could, without consulting a 8 council or establishing a representative 9 assembly, make laws for the peace, order and 10 good government of the colony. These powers, 11 conferred upon James Douglas because of the 12 gold rush conditions obtaining at the time, 13 were extraordinarily wide, and this probably 14 explains why, in addition to the normal process 15 of Colonial Office review, the imperial 16 parliament took an extraordinary step: it 17 required that the governor's laws be laid 18 before it 'as soon as conveniently may be' 19 after their enactment. When Douglas stepped 20 down and provision for a legislative council 21 was made in 1863, this additional requirement 22 was no longer necessary, and was repealed. 23 Normally such details would not be worth 24 remarking upon. However, it is necessary to do 25 so here because the chief justice, relying upon 26 documentary evidence adduced by the province, 27 ruled that most of the Calder XIII legislation 28 had also been enacted by the Imperial 29 Parliament. In light of the court's earlier 30 ruling that the Royal Proclamation does not 31 apply in B.C., this conclusion is probably not 32 very signficant. But the chief justice appears 33 to attach a high degree of importance to it. 34 He repeats it a number of times, and at one 35 point in the judgment suggests that Hall, J... 36 was unaware of it. 37 In fact, it would have been highly unusual, 38 perhaps even unique, for the imperial 39 parliament to have re-enacted the Calder XIII. 40 Review of colonial laws was for the king, not 41 parliament: the responsible official was the 42 Secretary of State for the Colonies, and royal 43 assent, when granted, was in respect of the 44 colonial law itself, not some re-enacted 45 imperial one. Although, formally, this might 46 be done by the king-in-council and embodied in 47 an order-in-council, in reality the decision 869 Submissions by Ms. Mandell 1 was made by the Colonial Office. On very rare 2 occasions this procedure was modified by 3 requiring colonial laws to be laid before 4 parliament before being confirmed, as in B.C. 5 from 1858 to 1864. But it is difficult to see 6 why such a provision would involve 7 re-enactment. In British Guiana, for example, 8 this requirement simply meant that laws laid 9 before parliament were subject to a negative 10 resolution, i.e., either House could present an 11 address to Her Majesty against such a law and 12 prevent the Colonial Office from confirming it. 13 And in Canada, the Act of Union stipulated that 14 the colonial statutes dealing with the sale of 15 public lands had been laid before parliament 16 for thirty days, a requirement that has been 17 described as merely a 'formality.' Because 18 parliament rarely paid much attention to the 19 nitty-gritty of colonial affairs unless 20 rebellian was at hand, intervention was highly 21 unlikely, and the Colonial Office and the Privy 22 Council would carry on as usual. Thus, if the 23 province choses to rely upon the chief 24 justice's finding that most of the so-called 25 Calder XIII were re-enacted as imperial laws, 26 further and better particulars that are 27 provided in the judgment ought to be required." 28 29 And, my lords, if I could just turn you into the 30 Appendices at page 355, he's quoting from Swinfen, he 31 says "although -- " this is at footnote 34: 32 33 "Although in theory every colonial law could be 34 proved in this fashion, in fact the vast 35 majority were simply 'left to their operaion.' 36 The remainder were either 'specially confirmed' 37 (usually because the law contained a clause 38 suspending its operation until confirmed) or 39 were disallowed. For example, in 1858 a total 40 of 649 colonial laws were referred to the Privy 41 Council, and of these only nine were specially 42 confirmed and only 4 disallowed; the rest 43 appear to have been simply left to take effect 44 without more. The figures are similar for other 45 years, and B.C.'s laws seem to have been dealt 46 with only by the Colonial Office, because 47 Swinfen does not list B.C. as one of the 870 Submissions by Ms. Mandell 1 colonies whose laws passed through the Privy 2 Council in 1813-1865." 3 4 And, my lords, I can in this point summarize with the 5 Naden case which I have set out at paragraph 1121, and 6 this is a case where the Privy Council held invalid a 7 section of the Criminal Code which had been given 8 royal assent, and the impunged section purported to 9 annul the royal prerogative to grant special leave to 10 the Privy Council. And the court held that the 11 section was invalid as being inconsistent with the 12 Imperial Judicial Committee Acts and therefore invalid 13 under Section 2 of the Colonial Laws Validity Act. 14 And in the course of judgment Viscount Cave said: 15 16 "It is true that the code has received this 17 royal assent, but this assent cannot give 18 validity to an enactment which is void by 19 Imperial statute." 20 21 And we summarize that confirmation is given to 22 colonial legislation on its face. Given the 23 obligations of the Crown of fair dealings with the 24 First Nations, and given further, that not a word 25 appeared on the Colonial Instruments of any implied 26 colonial purpose of deriving First Nations of their 27 land and rights, it cannot be said that the Imperial 28 Parliament clearly and plainly intended to extinguish 29 the aboriginal rights. And, my lords, I'd like to 30 take the last ten minutes and walk you through 31 Appendix J which is found in tab three of your 32 materials -- I am sorry, Volume 3 of your materials. 33 TAGGART, J.A.: This is the Factum? 34 MS. MANDELL: This is Volume 3 of the Factum, my lord. You will 35 recall that while I was reviewing in the Factum the 36 documents which showed that at the same time as the 37 Colonial Instruments were being enacted there was 38 another body of documents which were part of the 39 record which showed that at the same time the Crown 40 and its officials were construing and debating and 41 deliberating upon the extinguishment of aboriginal 42 rights. And I have set out that record in this tab 43 and I'd ask your lordships to read it. I don't have 44 time to do it, but I'd like to walk you through it so 45 you'll know what's here. I am going to leave with 46 your lordships today three volumes of documents which 47 correspond to each of the paragraph numbers of this 871 Submissions by Ms. Mandell 1 tab and your lordships can find the document in its 2 original form there and I also at this stage would 3 like to offer to your lordships our office's 4 continuing assistance both for these documents and the 5 Royal Proclamation. If you come across documents in 6 their original which you would like transcribed or in 7 the case of some of the Royal Proclamation documents 8 if you would like them translated from French to 9 English. You'll find those problems when you get 10 inside the documents itself. 11 My lords, this is a documentary record on the 12 expression by the Crown of the need to extinguish 13 aboriginal title and positive acts taken by them to do 14 that, from the earliest time of Cook's exploration to 15 long past Confederation. And I'll just -- if your 16 lordships will stay with me, I am going explain what's 17 in it. Paragraphs three to eleven, which is page one 18 to eleven, is the period from James Cook, the first 19 explorer, to the time when, in 1846, the land came 20 under the sovereignty of Great Britain. And we've set 21 out a number of points in that history where the Crown 22 reaffirms the principles of the Royal Proclamation and 23 asserts what we say are the principles of the common 24 law which is that they recognize that their title is 25 subject to a co-existing right of possession of the 26 Indian people. And by way of example, my lords, if 27 you will turn to paragraph five on page two this was 28 given to -- this was the order given to Captain Cook 29 when he was sent out and it's -- I am just going to 30 read to you what's in the bold: 31 32 "You are also with the consent of the 33 natives to take possession in the name of the 34 King of Great Britain of convenient stations in 35 such countries as you may discover." 36 37 Now, the next session, my lord, begins at page 38 eleven and this is -- 39 HUTCHEON, J.A.: Page eleven or paragraph 11? 40 MS. MANDELL: Page eleven. It's paragraph 28. And it goes from 41 page eleven to page 22, paragraph 28 to 54. And this 42 is the period from the time when the first Hudson's 43 Bay grant was made to the time when Douglas received 44 his commission in 1858. And this section is marked 45 with in our submission positive stages of recognition 46 of title. It's marked by treaties and it's marked by 47 Imperial instructions from the Secretary of State to 872 Submissions by Ms. Mandell 1 settle aboriginal title. And if I could by way of 2 example, my lord, take you to paragraph 31 at page 12, 3 this is the grant which was given to the Hudson's Bay 4 Company to colonize and the only mention of Indian 5 people was that the Company was to engage in "the 6 protection and welfare of the Indians residing within 7 Vancouver Island if such island were colonized." 8 And then at paragraph 32, treaty making was 9 expressed in a confidential memo which was presented 10 at the Foreign Office March of 1849 and this was sent 11 to the Company. The memo explained why the grant 12 contained no mention of Indians or aboriginal title. 13 The memo was explicit that the land grant to the 14 Company carried with it the same burden of 15 extinguishing aboriginal title as that which rested on 16 the Crown. And I'll just refer your lordships to the 17 bold: 18 19 "With regard to the Indians it has been thought 20 on the whole the better course to make no 21 stipulations respecting them in the grant.... 22 And it is thought the more safe to leave this 23 matter to the Company," 24 25 And finally: 26 27 "It must however be added that in parting with 28 the land of the island Her Majesty parts only 29 with her own right therein, and that whatever 30 measures she was bound to take in order to 31 extinguish the aboriginal title are equally 32 obligatory on the Company." 33 34 And your lordships have already been directed at page 35 15, paragraph 37 and 8 to the treaties, the 14 36 treaties which were made during this period. 37 And I ask you now to go to page 22 which begins the 38 next batch of documents. This batch is -- goes from 39 page 22 to 54, paragraphs 55 to 145 and what I have 40 done in this -- in this section I think it's quite 41 important, my lord, if you are to read no other that 42 you read this. As I have taken the Colonial 43 Instruments and have put them chronologically in 44 between statements made and actions taken by the 45 Imperial and the colonial governments during the same 46 time which recognized aboriginal title and need to 47 extinguish them by treaty. So you are going to see a 873 Submissions by Ms. Mandell 1 number of statements made by the Secretary of State of 2 the colonies or actions taken by the colonial 3 governments in this respect and suddenly there will be 4 a Colonial Instrument pop in. It's only in order to 5 show you that chronologically these Colonial 6 Instruments were being enacted right to the end of the 7 period, there was at the same time references being 8 made by the same officials which the trial judge 9 relied upon that aboriginal title in the colony needed 10 to be extinguished. And by way of example, my lord, 11 if I could take you to paragraph 79, I draw to your 12 lordships' attention that the opening session of the 13 Legislative Council and House of Assembly on Vancouver 14 Island in 1860, Governor Douglas addressed the members 15 of the government on matters that would require 16 attention, and in the first paragraph he tells them 17 they are going to have to pass laws which would allow 18 for the registration of deeds and to deal with the 19 value of real estate and the transfer of lands. And 20 in the same address he says: 21 22 "... The House of Assembly will have to provide 23 means for extinguishing, by purchase, the 24 native Title to the Lands in the districts of 25 Cowichan, Chemainus, and Salt Spring Island, 26 which are now thrown open for settlement. This 27 purchase should be effective without delay, as 28 the Indians may otherwise regard the settlers 29 as trespassers and become troublesome." 30 31 And I say at paragraph 83 that this address was to the 32 first session of the Second House of Assembly, which 33 is the body that passed five land laws in Vancouver 34 Island, including the Proclamation of 1861, which has 35 been stated by the Chief Justice to closely resemble 36 the Mainland Proclamation as being totally 37 inconsistent with aboriginal title. 38 And my lord, finally, I am going to ask your 39 lordships to move to page 54, and 54 to the end of 40 the -- of this summary of documents is what happened 41 after union, and you'll see that after union there was 42 statements made and actions taken primarily by the 43 Governor General on behalf of the Crown and the 44 Federal Crown, Federal government and ministers for 45 it, to compel the Province of British Columbia to 46 recognize aboriginal title. And I say that there 47 is -- these documents taken together create the 874 Submissions by Ms. Mandell 1 question which in our submission becomes rhetorical, 2 which is why would the government who's now 3 responsible for Indian people and the Imperial Crown 4 continue to press for the extinguishment of Indian 5 title during this period if the Colonial Instruments 6 were known by the government to have extinguished 7 aboriginal title? And if I could just refer your 8 lordships to a few examples in this period, I draw to 9 your lordships' attention first of all paragraph 156, 10 which is found at page 60, and I won't read it, but 11 this is the opinion by the Dominion Deputy Minister of 12 Justice. 13 HUTCHEON, J.A.: Something happened, the number is on page -- 14 MS. MANDELL: I know. 15 HUTCHEON, J.A.: It should be 186 there? 16 MS. MANDELL: Well, in some ways, my lord, I think it might be 17 easier at this point -- 18 HUTCHEON, J.A.: To leave it. 19 MS. MANDELL: Yes. Not to change them. 20 HUTCHEON, J.A.: All right. 21 MS. MANDELL: But at paragraph 156 on page 60, I refer to the 22 opinion of the Deputy Minister of Justice, Mr. 23 Bernard, who recommended the disallowance of the B.C. 24 Land Act and he says: 25 26 "It is sufficient, for the present 27 circumstances, to ascertain the policy of 28 England in respect of the acquisition of the 29 Indian territorial rights, and how entirely 30 that policy has been followed to the present 31 time, except in the instance of British 32 Columbia." 33 34 And that his views were concurred in by the Minister 35 of Justice, Mr. Fournier, and the B.C. Land Act was 36 disallowed. And your lordships will see that the next 37 act was not disallowed because the Province had agreed 38 to involve themselves in a process in respect of 39 reserve land. 40 Now, at paragraph 163, which is at page 64, you 41 have -- this is an example of one of the many examples 42 of the Governor General and the Federal ministers 43 taking public occasions or issuing letters to try and 44 convince British Columbia to respond more honourably 45 in respect of Indian people. And this was the speech 46 made by Lord Dufferin in 1876. He was the Governor 47 General. And if your lordships will turn to page 66 875 Submissions by Ms. Mandell 1 he says: 2 3 "I think, there has been an initial error ever 4 since Sir James Douglas quitted office, in the 5 Government of British Columbia neglecting to 6 recognize what is known as the aboriginal 7 rights." 8 9 And he took the occasion to make that same public 10 speech. 11 My lord, if you could turn to page 74, I want to 12 bring to your lordships' attention in respect of 13 Treaty 8 that there was an Order-in-Council where the 14 Province of British Columbia acquiesced in the treaty 15 and that's found at paragraphs 83, 84 and 85 (sic). 16 And we say that if the Province was saying at that 17 time or the Federal government that aboriginal title 18 had been already extinguished by the Colonial 19 Instruments, why were they passing an Order-in-Council 20 which acquiesced to a treaty whose terms, among other 21 things, purported to extinguish aboriginal rights. 22 My lords, if you will turn to page 77 you'll see 23 that between pages 77 to 82 I've cited all the Federal 24 legislation which was passed during this period where 25 the Federal government expressly extended a 26 recognition of aboriginal rights to lands in British 27 Columbia outside of the Indian reserves. We say that 28 it was part of the 91/24 jurisdiction to do that and 29 at various times this was done. 30 And finally, my lords, between the pages of 83 to 31 the end -- and Mr. Justice Lambert, this is in 32 response to a question you asked. These are the pages 33 which deal with the process where for a number of 34 years both the Federal government and the Indians 35 sought to have a reference to the Privy Council to 36 have the rights determined in that forum and the 37 various Orders-in-Council which were passed to 38 accomplish that and the refusal of the Province to 39 participate is set out in those pages. 40 My lords, I just finally wanted to bring to your 41 lordships' attention Mr. Justice -- Chief Justice's 42 references to Judge Begbie's letter. At page 253 to 43 255 he sets out his comments and at the bottom of page 44 254 this conclusion is reached: 45 46 "This leads me to conclude that Begbie, J. could 47 not have believed the Indians of the colony 376 Proceedings 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, J. A MS. MANDELL: TAGGART, J. A MS. MANDELL: TAGGART, MR. owned the soil of the Province, nor did they have an interest which stood in the way of settlement, even though he believed some accommodation should be made with them. I am puzzled by his suggestion that apprehended no serious difficulty in connection with 'Indian title.'" He was not ordinarily given to naivety and he recognized some consideration would be required." 255? 254 and 255, my lord. Thank you. My lord, I have gone over the time so I can conclude. J.A.: All right. Thank you. Do you propose to adjourn now until the 25th? WILLIAMS: My lord, if I may just for one moment address the court. I won't take any time I promise. But the problem has arisen I believe in the scheduling and I wonder if we might set something up for a week Monday when we come back. I think it should be dealt with. My learned friend Ms. Mandell mentioned in her argument that she wouldn't be dealing with the post-Confederation issues until reply and that means we won't -- we have raised it in our Factum. There will be no chance to respond to that and they aren't prepared to agree to deal with it first. I think that's one issue. The second issue is that I had a call today from Mr. Pape talking about time for him to fit in and whether that should be first or second and I believe that if we could have a few minutes to discuss the scheduling perhaps on Monday it would be useful so we know where we are going. TAGGART, J.A.: On the Monday that we resume or do you want -- MR. WILLIAMS: Yes. No, no, on the Monday when we assume. I thought it would be useful to deal with it right away because -- before -- so no one is taken by surprise later on when they finish their argument. And this is the last day of the argument of my learned friends on Monday so I believe it should be raised. I won't be here, but my colleagues will and Mr. Macaulay will be and we can deal with it. TAGGART, J.A.: Yes. Only those two aspects. MR. WILLIAMS: Yes. We should perhaps notify Mr. Pape. The other point is the intervention on Dick which is something that perhaps should come before the 877 Proceedings 1 respondents rather than after because it's going to 2 raise issues we'll need to deal with. It's just a 3 matter of shuffling days around. 4 TAGGART, J.A.: The parties who are parties to the appeals 5 already heard can intervene in this appeal only in 6 respect of arguments that impinge on their positions 7 in the earlier appeals. And that is all. I don't see 8 how they can do that until they have heard what people 9 say in this appeal. 10 MR. WILLIAMS: Very well, my lord. Perhaps that's something we 11 can consider, but in any event the other issues will 12 have to be I think dealt with. Thank you. 13 14 PROCEEDINGS ADJOURNED 15 16 I hereby certify the foregoing to 17 be a true and accurate transcript 18 of the proceedings transcribed to 19 the best of my skill and ability. 20 21 22 23 24 25 Laara Yardley, 26 Official Reporter, 27 UNITED REPORTING SERVICE LTD. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
Delgamuukw Trial Transcripts
[British Columbia Court of Appeal 1992-05-15] British Columbia. Supreme Court May 15, 1992
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