Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-07-02] British Columbia. Supreme Court Jul 2, 1992

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 2650  Submissions by Mr. Jackson  1 Vancouver, B.C.  2 July 2, 1992  3  4  CORAM:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace  5  6 THE REGISTRAR:  Order in court.  In the Court of Appeal for  7 British Columbia, Thursday, July 2nd, 1992.  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lords.  10 TAGGART, J.A.:  Yes, Mr. Jackson.  11 MR. JACKSON:  Thank you, my lord.  I had left off Tuesday at  12 paragraph 29 of our revised position on remedies, and  13 I'll pick up at paragraph 30.  Your lordships will  14 recall I had gone through the thinking of the  15 appellants in how the declaration in relation to the  16 right to self-government had been constructed, and in  17 paragraph 30 I had turned to the alternative  18 declaration sought in paragraph 3 of the revised  19 order.  The difference between the two declarations is  20 that the right asserted in paragraph 3(a) as an  21 existing aboriginal right is a proprietary interest to  22 lands and resources within the claimed territory in  23 contradistinction to a right of ownership, which is  24 asserted in paragraph 2(a).  The essential distinction  25 here is that whereas the right asserted in paragraph  26 2(a) is an exclusive right, the proprietary right in  27 paragraph 3(a) is not so encompassing.  The  28 proprietary interest is exclusive as to certain lands  29 but may be non-exclusive as to others.  30 And the appellants have set out what they say  31 would be the appropriate principles, which do not have  32 to be identified in the order but which could be  33 referred to in the course of your lordships' reasons,  34 the principles which initially would guide  35 negotiations of this matter, but ultimately, if  36 necessary, would also inform a judicial consideration,  37 and we say that the extent to which the interest of  38 the appellants relating to specific lands would be  39 exclusive or non-exclusive would take into account  40 five factors:  the historical, cultural or spiritual  41 significance of the lands to the appellants; the  42 historical, contemporary and future economic  43 significance of the lands to the appellants; whether  44 the land is in its original or natural condition; the  45 extent to which similar lands in terms of general  46 location, climate, flora, fauna, resources and  47 accessibility are in the exclusive possession of the 2651  Submissions by Mr. Jackson  1 appellants; and the impact on the appellants of  2 interests and activities of third parties and the  3 Crown having regard to the responsibilities of the  4 appellants to protect and conserve the land and  5 resources for future generations, and to ensure to the  6 appellants a just, equitable and honourable  7 entitlement to the lands and resources within the  8 claimed territory.  9 In the revised position we have given some  10 examples of how those principles might be applied.  I  11 am not going to go through them, but I do want to just  12 take your lordships to paragraph 44 and 45, which  13 deals with the last of the factors.  The last factor  14 there requires a consideration of the impact on the  15 appellants of the interest and activities of third  16 parties and the Crown.  In essence, what this criteria  17 does is to require that restitutional attention be  18 paid to what has happened in the territory in the  19 past.  The appellants, as your lordships know, make no  20 claim in relation to fee simple grants.  However, the  21 inescapable reality is that the most fertile lands  22 within the territory have been taken up through fee  23 simple grants with the result that the appellants have  24 been effectively dispossessed of those lands.  And we  25 say even though they make no claims to those lands,  26 apart from a claim to compensation from the Crown, the  27 reality of dispossession must be given great weight in  28 determining whether the appellants have exclusive  29 rights to other lands which, in terms of their  30 productivity, are capable of supporting and sustaining  31 the appellants.  32 And the final clause, which is, as it were, an  33 umbrella, an overall clause which is designed to state  34 a purposive goal in the determination of the extent of  35 exclusivity, is directed, and in this sense I would  36 just reflect back on what I said on Tuesday in terms  37 of the duality of rights and responsibilities which  38 the appellants see as in viewing their relationship to  39 their territories, this is directed to the obligation  40 of the appellants to protect and conserve the land and  41 resources for future generations and their right to a  42 just, equitable and honourable entitlement to those  43 lands and resources.  The words chosen here are chosen  44 with care.  The entitlement must be just.  45 And in my previous arguments, my lords, you will  46 recall that the concept of justice is one which  47 reverberates down through the centuries in relation to 2652  Submissions by Mr. Jackson  1 how the Crown has understood its obligations towards  2 aboriginal peoples, and I have referred again to a  3 statement made by the Iroquois statesmen in 1744, the  4 Treaty of Lancester, where justice again was the  5 clarion call for the Iroquois in their demands of the  6 British Crown as the sine qua non of their renewing  7 the Covenant Chain.  8 But justice is also coupled with equity in the  9 appellants' formulation, and in conceiving of that I  10 had in mind the comments made by Mr. Justice Vancies  11 in a case cited by my friend Mr. Arvay during the  12 course of his submissions on remedies where in the  13 Saskatchewan Human Rights Commission case his lordship  14 said:  15  16 "The meaning of 'juste' contains within it an  17 element of 'justice' and 'equite' and conveys a  18 sense of fairness and respect for the rights of  19 others."  20  21 The final characteristic is that the entitlement  22 to lands and resources must be honourable.  As the  23 Supreme Court of Canada has so clearly articulated in  24 its dealings with aboriginal peoples, the honour of  25 the Crown is always engaged.  I say parenthetically,  26 although perhaps it is more than a parenthetical  27 statement, but in the context of British Columbia it  28 is more appropriate in terms of the past behaviour to  29 talk about the dishonour of the Crown.  But, in any  30 event, in determining the entitlement to lands and  31 resources and the contours of the accommodation  32 between aboriginal peoples and the Crown and those who  33 derive their interest from the Crown, the disregard of  34 aboriginal rights in the past and the extent to which  35 aboriginal peoples, including the appellants, have  36 been pushed to the margins of their own territories  37 and of our just society must be addressed in  38 determining how the honour of the Crown is exercised  39 today in order to achieve a just, fair and honourable  40 settlement.  41 Now, my lords, I have given Madam Registrar some  42 speaking notes which fall into the rare genre of  43 silent speaking notes.  I would ask you to put them  44 into your remedies piece following paragraph 48, where  45 hopefully they will remain full of meaning but  46 unspoken by me this morning.  Just to give you some  47 sense of what's in them, this is a comparison between 2653  Submissions by Mr. Jackson  1 what the appellants are seeking in their declarations  2 as to the nature of the rights compared to that which  3 the province has articulated, and I've consciously  4 tried to reflect upon the difference and the extent to  5 which the declarations of the appellants are more  6 likely to achieve what we say is a just resolution of  7 the issues before this case.  8 What I would like to turn to now, if I may, is the  9 second issue which the appellants have sought to  10 grapple with arising from your lordships' questions,  11 and that is the relationship between the rights the  12 appellants assert and on the one hand provincial and  13 federal powers and on the other hand the relationship  14 between the appellants' rights and the rights of third  15 parties.  16 Now, addressing first the question of the  17 relationship between aboriginal rights and provincial  18 and federal legislative powers, what I have done  19 starting from paragraph 49 is to set out, and it  20 continues through to paragraph 61, in a summary form  21 what we have sought to do is, building upon the more  22 detailed elaboration given to you on Monday and  23 Tuesday by Mr. Paterson and the work and thought that  24 has gone into the factum, we've tried to summarize  25 what we say are the respective powers of federal and  26 provincial governments vis-a-vis aboriginal rights.  27 Mr. Macaulay in the course of his submission on  28 remedies was somewhat discomforted, I think, by the  29 inclusion of a section on federal powers given that in  30 this case there is no issue in relation to federal  31 powers.  I hope to allay his discomfort.  This was not  32 an intention to raise an issue which is not an issue.  33 It was an attempt to give your lordships the full  34 picture, as we understand it, of the relationship.  35 No statute is being challenged in these  36 proceedings.  The appellants do not say that any  37 particular provincial statute, let alone any federal  38 statute, is ultra vires or is inconsistent with the  39 exercise of their aboriginal rights.  That may be an  40 issue in future litigation, but it is not an issue in  41 this litigation.  We are trying to, as I say, respond  42 to your lordships' concern that how can you declare a  43 right of self-government without having some sense of  44 its relationship to other powers in s. 91 and 92.  45 And I thought that, in terms of perhaps clarifying  46 that by way of an illustrative example, it might be  47 helpful to give one example of how the appellants 2654  Submissions by Mr. Jackson  1 would see the interaction between an inherent right to  2 self-government defined in the manner its defined in  3 our revised position on remedies in relation to  4 provincial powers, and I have chosen the field of  5 education.  And, my lords, the Gitksan and  6 Wet'suwet'en have already done much work in the  7 development of educational goals which provide for  8 their children an experience which integrates Gitksan  9 and Wet'suwet'en ways of learning history and cultural  10 values within the non-aboriginal system.  Indeed, one  11 of the hereditary chiefs and a plaintiff and an  12 appellant in these proceedings, Hanamuxw, is one of  13 the great educational pioneers in this province in  14 relation to cross-cultural education.  She was one of  15 the founding members of the Native Indian Teacher  16 Education Programme at the University of British  17 Columbia and has been very much involved in the  18 founding of the First Nations House of Learning at the  19 university.  20 Now, my lords, clearly education is an area which  21 is integrally related to social, cultural and  22 linguistic identity and so prima facia would be  23 encompassed within the right to self-government as  24 it's identified in the declarations sought by the  25 appellants.  But this is a field where in thinking of  26 the relationship between the exercise of an aboriginal  27 right to self-government and provincial legislative  28 powers the experience of the past few years  29 demonstrates that the opportunities for cooperation  30 and accommodation are very broad.  The provincial  31 School Act already accommodates different educational  32 experiences, private schools, home education.  In  33 terms of a constitutional analysis, the provincial  34 School Act is a law of general application and as such  35 would continue to apply to the Gitksan and  36 Wet'suwet'en and any schools they established in the  37 absence of any conflicting exercise of Gitksan-  38 Wet'suwet'en self-government powers.  39 Now, in many areas we would suggest it is not  40 likely there would be any operational conflict.  The  41 standards for school safety, fire regulations, the  42 supervision of children in playgrounds, limitation on  43 the number of hours children can be kept in school are  44 all designed to protect the safety and well-being of  45 all our children, regardless of their aboriginality.  46 It's unlikely to anticipate the Gitksan and  47 Wet'suwet'en would see the need as part of retaining 2655  Submissions by Mr. Jackson  1 their identity, their cultural identity that those  2 matters would be challenged, but it is possible --  3 LAMBERT, J.A.:  I may not have grasped all the points in Mr.  4 Paterson's argument, but is what you're saying now a  5 statement that education of Indian people is not a  6 core value which as such is not susceptible to  7 provincial legislation at all?  8 MR. JACKSON:  No, my lords, that is not my submission.  9 LAMBERT, J.A.:  You're saying that education is not a core value  10 and consequently the School Act would apply to  11 Indians?  12 MR. JACKSON:  I am saying that education involves cultural  13 integrity.  All aspects of education, however, are not  14 foreclosed from provincial legislation.  15 LAMBERT, J.A.:  Some are, some aren't?  16 MR. JACKSON:  Some are, some are not, yes, my lord.  17 LAMBERT, J.A.:  And what you have to do to decide that is to  18 decide which are core and which are not?  19 MR. JACKSON:  What you have to do in our analysis, my lords, is  20 to determine whether or not the interference goes to a  21 matter which is integral to the cultural, spiritual,  22 linguistic identity of the Gitksan and Wet'suwet'en,  23 and what I am suggesting here is that matters dealing  24 with safety, minimum hours, that kind of thing, would  25 not be ones which necessarily would infringe upon the  26 exercise of an aboriginal right under s. 35 as we have  27 articulated it.  28 LAMBERT, J.A.:  But the School Act provisions dealing with the  29 appointment of teachers, for example --  3 0 MR. JACKSON:  Yes, my lord.  31 LAMBERT, J.A.:  — might well.  32 MR. JACKSON:  Yes, and I was going to address that point --  33 LAMBERT, J.A.:  All right.  34 MR. JACKSON:  — immediately.  35 LAMBERT, J.A.:  Sorry.  I anticipated you.  36 MR. JACKSON:  Just picking up on your lordship's point, it is  37 possible to envisage, however, conflict in some areas,  38 and I have tried to give some examples.  If the  39 Gitksan and Wet'suwet'en wish to change the structure  40 of the educational experience, if they wish to greatly  41 modify the curriculum, for example, place more  42 emphasis upon their own history rather than our  43 history, if they wish to alter the requirements for  44 teachers' certification, for example, to recognize  45 highly gifted educators amongst their own people who  46 did not have a university degree as required under the  47 School Act, these would be matters, we say, which 2656  Submissions by Mr. Jackson  1 would be within their powers under the declarations  2 sought and would take precedence over competing  3 provincial jurisdiction.  The question would be  4 whether in areas of conflict these were related to the  5 preservation and enhancement of social, cultural and  6 linguistic identity.  7 I would say, my lord, that even in these areas one  8 should not too readily jump to conflict as being the  9 premise for understanding the contours of this right.  10 Much work has already been done in these areas, but  11 ultimately under our declarations these matters would  12 not be determined, for example, whether or not there  13 should be some leeway given to certification for  14 exceptionally gifted educators who lack the normal  15 university qualification, these matters would not be  16 determined simply by reference to whether non-  17 aboriginal educators think that these developments are  18 appropriate, but would be based upon the legal rights  19 of aboriginal people to develop educational  20 experiences relevant to their own experience, their  21 own history, and their own vision of the future.  22 Now, my lords, what I wanted to do at this point  23 is to turn to the other side of the question of  24 reconciliation and relationships, the question of the  25 aboriginal rights, the lands and resources and third  26 party interests, which, of course, is an enormous  27 problem, at least it seemed to be an enormous problem.  28 And starting at paragraph 62, I have set out, and this  29 again builds upon the foundations of Ms. Mandell's  30 presentation and Mr. Paterson's presentation on  31 Monday, the analysis, the legal analysis based upon  32 s. 91(24) and s. 109, and those principles are  33 summarized in paragraph 68.  And if your lordships  34 would just turn to paragraph 68, and essentially there  35 are three principles.  The province has no power to  36 extinguish aboriginal title.  Third party grants do  37 not extinguish aboriginal title, and the grantee takes  38 the grant subject to aboriginal title.  Three, the  39 province may not legislate in respect of Indian land.  40 That power rests with the federal government under  41 91(24) and the appellants as an incident of their  42 aboriginal rights.  43 Now, my lords, if I could just take you back a  44 paragraph to paragraph 67, and I want to make a point  45 which I think is of the essence here.  We say that the  46 jurisprudence clearly establishes that a grant made  47 prior to the lawful extinguishment, and we say through 2657  Submissions by Mr. Jackson  1 cession or surrender with consent, of aboriginal  2 title, while it is a valid grant vis-a-vis the Crown  3 and the grantee, is subject to aboriginal title, and  4 we have cited the American decisions in Buttz and  5 Santa Fe.  6 Now, my lords, when you look at those cases in  7 their historical context, what you see is that at the  8 time the grants were made to the third party, the  9 railway companies in both cases, aboriginal title had  10 not been surrendered.  The grantee, the Supreme Court  11 unequivocally said, took the naked fee subject to the  12 aboriginal title.  But the other thing is that by the  13 time the case came before the courts the Indian title  14 had been surrendered through a treaty of cession.  15 Now, the question facing and the issue facing your  16 lordships in British Columbia in the context of  17 British Columbian history is that with the exception  18 of the Vancouver Island treaties and area covered by  19 Treaty No. 8, the historical reality is that cessions  20 have not taken place.  Grants have been made for a  21 hundred years, and no cessions have been made.  It is  22 a different historical reality, and it gives rise, my  23 lords, to the question how do your lordships respond  24 to that very different historical reality.  Are those  25 cases, in other words, applicable to the different  26 historical reality of British Columbia where the right  27 thing was not done?  And I have referred this argument  28 to how do you deal in a fair and just way with that  29 historical reality as the weight of history argument.  30 That's how it was referred to in the recent decision  31 of the Supreme Court of Vermont.  Things have happened  32 in British Columbia for a hundred years.  People have  33 acquired rights under grants.  Expectations have been  34 laid and founded.  How does this court respond to  35 that?  Fairly.  In accordance with the law.  36 The weight of history metaphor, my lord, is not an  37 inappropriate one for your lordships to deal with.  We  38 say as a matter of law that aboriginal title is a  39 burden on the title of the Crown and those who derive  40 their rights and interests from the Crown.  Aboriginal  41 title has a legal weight.  It is a legal right to  42 possess and occupy lands.  The reality, of course, in  43 British Columbia is that the province has ignored that  44 legal weight and has acted as if either deiure it did  45 not exist or that it could de facto ignore it, and  46 grants and interests have, as I've said, been made for  47 a hundred years on that basis. 265?  Submissions by Mr. Jackson  1 In considering how this court should legally react  2 to the weight of history argument there are a number  3 of things which the appellants say you should take  4 into account, and some of them have been dealt with  5 extensively in our factum.  One of them, which I would  6 like to take your lordships to now, if I may, which we  7 say is highly significant, is that in 1910, after a  8 decade of intense activity by aboriginal people to  9 obtain a reference to the Privy Council on the Indian  10 title issue, a joint provincial reference was proposed  11 by Canada identifying certain questions relating to  12 Indian title and Indian reserves.  Even though those  13 questions were worked out jointly by counsel between  14 Canada and the province, the Premier of British  15 Columbia at the last moment refused to agree to the  16 joint reference if the questions involving aboriginal  17 title were part of it.  And I want your lordships to  18 consider for a moment what those questions were and  19 why it was felt appropriate in 1909 or 1910 to have  20 them referred to the Supreme Court, and both the  21 rationale for the reference and the questions  22 themselves are set out in a memorandum, and I've given  23 Madam Registrar copies of it.  The reference is --  24 this is all set out in our factum, but this will make  25 it easier, I think, for your lordships to follow my  2 6 argument.  27 LAMBERT, J.A.:  It's in your factum but at a different place?  28 MR. JACKSON:  Yes, my lords.  I'll give you the references where  29 this can be found.  I wanted to avoid the problems of  30 your turning to the factum at this point.  31 LAMBERT, J.A.:  All right.  32 MR. JACKSON:  This is a memorandum by the then Deputy Minister  33 of Justice, Mr. Newcombe, who subsequently is Mr.  34 Justice Newcombe of the Supreme Court of Canada, and  35 the original memorandum is Exhibit 1040, tab 123.  And  36 that memorandum is in the package I have just given  37 your lordships, but at the front of that in a  38 typescript form rather more legible is Mr. Newcombe's  39 memorandum, which is Exhibit 1040, tab 149.  And the  40 factum references where all this sequence is set out  41 is Volume 2 of the appellants' factum, Appendix K,  42 paragraphs 210 to 256.  43 And if your lordships could turn to the  44 memorandum, the very first page.  4 5  TAGGART, J.A.:  Volume 2?  4 6  MR. JACKSON:  Volume 2, Appendix K.  47  TAGGART, J.A.:  Appendix K.  Thank you. 2659  Submissions by Mr. Jackson  1 MR. JACKSON:  Paras. 210-256.  If your lordships could turn to  2 the document just handed up and go to the second page  3 of the document, the second full paragraph, which  4 should in your lordships' copy have a bold mark down  5 the side.  It begins, "There, are however..."  Do your  6 lordships have that?  7  8 "There are, however,"  9  10 and this is the rationale for the reference,  11  12 "There are, however, in the northern part of  13 the Province, which is now becoming a field of  14 settlement, large areas of public lands in  15 which the Indian title has never been ceded or  16 surrendered, and where no special reserves have  17 been laid out.  The Indians there remain in  18 such possession as they have had from time  19 immemorial, and they deny the right of British  20 Columbia to put settlers on their lands until  21 treaties, surrenders or cessions have been made  22 as usual.  It has been held distinctly by the  23 Judicial Committee of the Privy Council with  24 regard to the Indian title in Ontario and  25 Manitoba,"  26  27 and this obviously is a reference to St. Catherine's  28 Milling,  29  30 "that the Indians have an interest other than  31 that of the Province within the meaning of  32 Section 109 of the British North America Act --  33 an interest which may be vindicated in  34 competition with the beneficial interest of the  35 Province.  If this rule applies,"  36  37 and this is Mr. Newcombe,  38  39 "as we contend in British Columbia it would seem  40 to follow that those portions of the Province,"  41  42 and that should be,  43  44 "which have not been ceded or surrendered cannot  45 be open for settlement until competent  46 arrangements are made to secure the rights of  47 the Indians.  You will observe that the first 2660  Submissions by Mr. Jackson  1 three of my draft questions are directed  2 entirely to this point, which of course  3 underlies the whole situation,"  4  5 and I emphasize those words,  6  7 "and now for some reason which has not been  8 explained the Government of British Columbia  9 object to having this question elucidated by  10 the court."  11  12 Now, your lords, if you would just keep turning  13 the pages, after the typescript you will see the  14 original copy from the archives of Mr. Newcombe's  15 memorandum.  That goes for five pages.  And then if  16 your lordships turn the page one more time, you will  17 see the questions, which were the questions to be  18 referred to the Supreme Court of Canada.  And the  19 first three deal with aboriginal title issues.  The  20 next seven deal with questions of reserves and the  21 question of the reversionary interest of the province  22 in the reserves.  I'm just going to take your  23 lordships through the first two questions.  24 The first question:  25  26 "Was the right or title of the Crown as  27 represented by the Government of British  28 Columbia at the Union in or to the lands in the  29 province which were at the time ungranted, and  30 which were claimed by and then were and had  31 been from time immemorial in the possession of  32 the several tribes of Indians inhabiting the  33 province within their respective limits,  34 subject to any interest, right or title of the  35 said tribes in so far as the interest, right or  36 title claimed by them had not been theretofore  37 ceded, surrendered or otherwise relinquished?  38  39 If so,"  40  41 second question,  42  43 "does such interest, right or title of the said  44 tribes of Indians so inhabiting constitute an  45 interest other than that of the province in the  46 said lands within the meaning of Section 109 of  47 the British North America Act, 1867? 2661  Submissions by Mr. Jackson  1 Is such interest, right or title of the  2 said tribes of Indians an interest independent  3 of and legally sustainable in competition with  4 the beneficial interest of the province?"  5  6 And most significantly, my lords, the next part of the  7 question:  8  9 "Are the said tribes of Indians entitled to  10 remain in possession of the said lands  11 according to their respective limits as against  12 the Government of the province, or any person  13 to whom the province may grant the same, until  14 the said interest, right or title of the said  15 tribes of Indians shall have been ceded,  16 surrendered or otherwise relinquished?"  17  18  19 Now, my lords, the reference never happened.  With  20 the changing government in Ottawa the questions of the  21 reference was not pursued.  Instead negotiations took  22 place between Canada and the province to resolve  23 outstanding differences on the Indian issue.  Once  24 again, because of the resistance of the premier of  25 British Columbia, Mr. McBride, to deal with the Indian  26 land title issue, that was dropped from the terms of  27 reference, and the agreement was limited to the  28 question of reserves and the establishment of the  29 McKenna-McBride Reserve Commission.  Both in the  30 establishment of the terms of reference of that  31 commission and the way it was explained to aboriginal  32 peoples as the commission went around the province  33 make it exquisitely clear that the question of  34 reserves was entirely separate from the question of  35 the unsurrendered Indian title in lands outside of the  36 reserves.  37 And I make this point in relation to the question  38 posed on Tuesday by my lord Mr. Justice Taggart, where  39 in response to Mr. Paterson's argument the question  40 was posed why were Indian reserve commissions  41 travelling around British Columbia establishing what  42 should be the size of reserves if, quite apart from  43 that, there was an Indian interest in land outside of  44 the reserves, and we say that question is very much  45 answered in the context of this course of events  46 because it was always understood that that was a  47 separate question which was not resolved by the 2662  Submissions by Mr. Jackson  1 allocation of reserves.  2 In 1914 the federal government provided the legal  3 machinery for another reference to the Exchequer Court  4 and from there to the Privy Council, but the terms of  5 reference under which it was to be made were  6 calculated to elicit, as indeed they did elicit,  7 rejection by the Indian peoples of British Columbia.  8 The conditions for the reference -- the reference in  9 1910 was unconditional.  There were no conditions  10 attached.  It was a straight reference.  There are the  11 questions.  The reference proposed in 1914 was of an  12 entirely different order.  It required that the Indian  13 peoples of British Columbia in advance, before the  14 reference, agree to certain conditions.  One of the  15 conditions was that counsel for the Indians be  16 nominated and paid for by Canada.  The Indians could  17 not choose their own counsel.  Secondly, if the  18 questions were answered in the affirmative, the  19 Indians were required in advance of the  20 recommendations being known to accept the  21 recommendations of the Royal Commission, the McKenna-  22 McBride Commission as to the size of their reserves.  23 And not knowing what the commission was going to do  24 and how responsive it was going to be to Indian  25 demands for much larger reserves in order to support  26 their economies, and not being prepared to have a  27 lawyer they could not instruct themselves, the  28 reference never took place.  And this historical event  29 is set out in Appendix K, paras. 249 to 256.  30 Now, my lords, I'd like you just to think for a  31 moment what would happen had that reference been made.  32 In 1910 settlement was still in its very early stages  33 in the appellants' territories.  Had the reference  34 been made and had the Supreme Court found, as Canada  35 was confident it would find, that the province's  36 underlying title was burdened by the Indian interest  37 under 109, that it was an interest independent of and  38 legally sustainable in competition with the beneficial  39 interest of the province, that the Indians were  40 entitled to remain in possession of their lands until  41 lawfully ceded or surrendered by treaty, the basis for  42 treaty-making would have been established, and the  43 opportunity for mutual accommodation would have been  44 laid.  Most significantly, most of the dispossession  45 which took place in the Bulkley Valley would not have  4 6 happened.  It would have been known to have been  47 illegal before it started, unless there was the 2663  Submissions by Mr. Jackson  1 consent given by the Wet'suwet'en to those coming in  2 and taking over and settling on their lands.  3 But because, what we say, of provincial  4 intrasigence the reference didn't happen and the  5 weight of history, unburdened by a recognition of  6 aboriginal title, bore inexorably onwards as more and  7 more and more alienations took place.  8 What else should your lordships consider in the  9 weight of history argument?  In 1927, following the  10 hearings of the Joint House of Commons and Senate  11 Committee, the likelihood of aboriginal peoples  12 bringing a case before the courts of this country was  13 further and immeasurably burdened by another legal  14 weight:  amendments to the Indian Act which made it an  15 offence to solicit monies for the purpose of pursuing  16 Indian land claims.  17 What else should go into your lordships'  18 deliberations?  Under the law as Canada understood it,  19 both in 1874, when it disallowed the first provincial  20 land act, and as it's reflected in the Newcombe  21 memorandum, and also as the appellants have argued  22 what the law is, it is the province which has to bear  23 the weight of the Indian legal burden, which is  24 aboriginal title, but the reality has been entirely  25 different.  It is the Indian peoples of British  26 Columbia, including the appellants, who have borne and  27 borne alone the burden of de facto dispossession.  28 But, my lords, that is not all they have borne.  29 They have borne the effects which dispossession and  30 marginalization have caused everywhere in the world  31 where they have occurred.  They are reflected in the  32 litany of disadvantage and disempowerment which  33 collectively represent the trail of tears along which  34 the aboriginal peoples of this province travelled.  35 And I would refer your lordships to a report of the  36 Canadian Bar Association written during the presidency  37 of my friend Mr. Williams, which describes some of  38 that litany, much of which, of course, is now all too  39 familiar to Canadians.  That the infant mortality rate  40 is 60 per cent higher than the national rate.  That  41 Indian children who survive their first year of life  42 can expect to live ten years less than non-Indian  43 Canadians.  The rate of violent death is more than  44 three times the national average.  Rates of suicide,  45 especially among young people, are six times the  46 national average.  The likelihood of Indian children  47 being taken out of their family and community and 2664  Submissions by Mr. Jackson  1 placed under the care of a child welfare agency is  2 five times higher.  And the final statistic, which is  3 the subject matter of this report, appropriately  4 entitled Locking Up Natives in Canada, is the  5 horrendous over-representation of aboriginal peoples  6 in the prisons of this country, such that prison has  7 become for young aboriginal people the promise of a  8 just society that high school and university  9 represents for the rest of our children.  10 Now, these facts, my lords, make us all feel very  11 guilty.  But what are we to do with such feelings as  12 lawyers and judges in the context of legal proceedings  13 in which legal rights are being asserted?  The trial  14 judge was of the view the courts of law, and I'm  15 quoting from his lordship's reasons, are "frequently  16 unable to respond to these subjective considerations".  17 But I say, my lords, that we as lawyers and your  18 lordships, particularly your lordships as judges of  19 the highest court of British Columbia, have a special  20 responsibility.  We see every day in our courtrooms  21 the young aboriginal men and women upon whom the  22 weight of history has placed its heavy and unkind  23 mantle.  In determining how to respond to the weight  24 of history argument and what are appropriate  25 declarations of rights to make in this case, these are  26 not irrelevant considerations and they should not be  27 shrugged off.  28 The legal implications of the appellants' argument  29 is that Crown grants are subject to the burden of  30 their aboriginal title, and the appellants say that  31 the assumption and acceptance of such a burden is  32 entirely appropriate.  Having for a century assumed  33 the benefit from the enjoyment of unsurrendered Indian  34 lands, is it not time that all of us accepted that  35 some of the weight of history falls on our collective  36 shoulders?  37 Now, this court has before it a number of possible  38 responses to the weight of history argument.  It can  39 accede to it in the manner suggested by the province  40 and Canada, which is to say that the appellants'  41 aboriginal rights have been extinguished to the extent  42 that they are inconsistent with Crown grants.  43 Now, my lords I would point out to you this is not  44 a theory upon which either the province or Canada has  45 ever acted before.  It is a theory which should be  46 understood for what it is.  It is a theory developed  47 to legitimate the weight of history argument and to 2665  Submissions by Mr. Jackson  1 secure and protect the rights of everybody else in  2 preference to those of aboriginal people.  It is a  3 rationale developed late in the day to legitimate  4 dispossession.  It may be seen as being more palatable  5 than blanket extinguishment because it has the  6 appearance of leaving something for aboriginal  7 peoples, which is to say whatever else is left.  8 Now, the appellants say that these theories of  9 extinguishment, blanket or inconsistent grant, are not  10 legally supportable and they are blatantly unjust, and  11 Ms. Mandell has elegantly and eloquently addressed you  12 on that matter the other day.  It is true that in Mabo  13 the High Court of Australia has concluded that Crown  14 grants extinguish aboriginal title to the extent of  15 inconsistency, but it is our submission that in that  16 decision the intellectual energy of the court was  17 directed principally to rejecting Australia's own  18 legacy of injustice in that Australia was seen by the  19 courts of that country as terra nullius and the  20 aboriginal peoples never had any rights at all.  This  21 court can do better than the High Court of Australia,  22 and we say it has to do better to achieve a just  23 resolution of the issues in this case in accordance  24 with the law.  25 My lords, the appellants in their revised position  26 on remedies have sought to provide the basis for a  27 just resolution of the issues in accordance with the  28 law.  They do not assert that the implications of the  29 declarations sought are that they can turn back the  30 clock and recover all the lands they have lost.  They  31 have purposely refrained from making claims in  32 relation to fee simple.  They say that the principal  33 way to resolve the issue of existing third party  34 interests is not through a judicial stroke of the pen  35 in the way the province and the federal government  36 would have it by getting a declaration of  37 extinguishment through inconsistent grant any more  38 than it is through the legislative and executive  39 stroke of the pen which was the basis for the trial  40 judge's conclusions on extinguishment.  41 The principal and principled process for resolving  42 the issue between aboriginal rights and third party  43 interests is through negotiation and treaty-making.  44 The appellants have established the very long history  45 of treaty-making.  In a contemporary context, when  46 modern treaties have been entered into, an integral  47 part of those treaties has been to address existing 2666  Submissions by Mr. Jackson  1 third party interests.  This is not uncharted terrain  2 in the context of the realities of contemporary life,  3 including the weight of history.  Treaty negotiations  4 in British Columbia will not start with a blank slate.  5 We have learned much over the past 15 years since the  6 James Bay Agreement was signed in Northern Quebec, and  7 we know more about the process of accommodation  8 between aboriginal rights and third party interests.  9 This court's declarations anchor those negotiations  10 and will give them an urgency and incentive which they  11 have never had before in this province.  12 The emphasis of the appellants and their whole  13 approach to remedies as reflected in the revised  14 position is to secure the co-existence rather than the  15 extinguishment of aboriginal rights.  That is why we  16 have advanced what we say are principles upon which to  17 determine the co-existence of those rights and third  18 party interests.  And I would refer your lordships to  19 those principles in paragraph 70 of our revised  20 position.  21 Let me be clear about this, my lords.  The  22 appellants make no claim that those principles  23 represent the best that our collective legal thinking  24 and imagination can develop.  Negotiations themselves  25 may lead to different or better principles, and  26 ultimately the courts will have to make their  27 contribution to a new jurisprudence dealing with the  28 co-existence, not the extinguishment of aboriginal  29 rights.  We say this court, in other words, is at the  30 crossroads of legal history.  It marks a point in  31 which a British Columbian court can declare and give  32 real substance to the rights of aboriginal peoples as  33 part of the contemporary fabric of Canadian law which  34 have to be taken into account in the determination of  35 British Columbia's future.  From this court's  36 declarations the pathways to justice lead to the  37 negotiation table, where the energies of the  38 appellants and the respondents can be put to far  39 better use in seeking a true accommodation founded  40 upon respect and recognition of each other's rights.  41 But negotiations may not resolve all of the  42 problems, and this court therefore finds itself, as I  43 say, at a crossroads pointing the way to a new  44 jurisprudence directed to the resolution of problems  45 of co-existence.  Courts in the United States and New  46 Zealand have found themselves in just such a  47 situation, and it is reasonable to expect that a 2667  Submissions by Mr. Jackson  1 comparative law perspective will benefit all of us.  2 Nor should this be seen as an accident of history that  3 the courts in those countries find themselves at this  4 juncture.  The appellants have sought to show that the  5 early legal history of each of our countries resonates  6 with mutual accommodation based upon treaty-making and  7 reflects a common source of legal principles reflected  8 in the Marshall judgments.  9 1992 brings with it the weight of 500 years of  10 European colonization.  The judgment of this court and  11 the declarations it makes offers the enormous  12 opportunity of creating a new beginning based upon  13 principles of respect and recognition which have been  14 so long denied the aboriginal peoples of this  15 province.  Your lordships' judgment, to contribute to  16 that process, must ensure that the injustices of the  17 past are not retained as the foundations for the  18 accommodation of aboriginal rights and the interests  19 of other British Columbians in both our futures.  20 Now, my lords, the remedies which are sought, the  21 last order which your lordships are being asked to  22 make, it's in paragraph 6 of the revised order, is an  23 order that pending the determination -- it's page 3 of  24 the free-standing document -- that pending the  25 determination of the scope of the proprietary rights  26 of the appellants, no grants of land, interest in land  27 or right to use land or resources in the territory  28 shall be made by the province without the consent of  29 the appellants or by court orders.  My lords, we say  30 that declaration reflects nothing more or less than  31 what the appellants say the law demands.  If the  32 appellants are right and their aboriginal rights have  33 not been extinguished, if the appellants are right  34 that their aboriginal rights represent in relation to  35 their interest in lands and resources an interest  36 other than that of the province, if the appellants are  37 right that that interest can be vindicated in  38 competition with the interest of the province, there  39 is no foundation or basis in law upon which the  40 province should be permitted to act illegally.  And  41 pending negotiations, we say no such grants should be  42 made, save and except by order of this court or  43 through consent, which, of course, we come back to as  44 the hallmark, the principal and principled process  45 through which there should be reconciliation of third  46 party interests and aboriginal rights.  47 My lords, we have in our remedies also addressed 266?  Submissions by Mr. Jackson  1 the position advanced by the Amicus, and your  2 lordships should have in tab 5, appellants' speaking  3 notes --  4 TAGGART, J.A.:  Tab 5 of what?  5 MR. JACKSON:  Of the speaking notes book, my lord.  Tab 5 of the  6 red book in which everyone else's speaking notes seem  7 to be going.  Do your lordships have something headed  8 "Appellants' Speaking Notes In Relation To Amicus'  9 Submissions On Remedies"?  10 TAGGART, J.A.:  Yes.  11 MR. JACKSON:  We don't intend to address all of the issues in  12 oral submissions.  The speaking notes, of course, we  13 commend to your lordships.  Mr. Rush will be  14 addressing some of the issues.  I just want to deal  15 with two of them, starting at paragraph 31.  16 LAMBERT, J.A.:  Maybe this is an appropriate time.  If I may  17 interrupt you, Mr. Jackson.  You're moving away now  18 from the text, the speaking notes that you gave us  19 earlier and the factum, but on page 26 of tab 9 you  20 start off in paragraph 62, in essence, to deal in  21 summary form with the argument that was made by Ms.  22 Mandell and Mr. Paterson, and you say:  23  24 "The starting point of this analysis is s.  25 91(24).  The focus is on exclusive federal  26 jurisdiction in respect of 'lands reserved for  27 Indians.'  The enquiry also involves an  28 interpretation of s. 109."  29  30 And then as the argument goes on, as I understand it,  31 it deals with what is meant by lands reserved for the  32 Indians, and as I understand the conclusion we are  33 invited to reach, it is that essentially all of the  34 lands in British Columbia are in the sense of  35 s. 91(24) lands reserved for the Indians.  3 6 MR. JACKSON:  Yes, my lord.  37 LAMBERT, J.A.:  That argument is not self-evident just by  38 stating it.  It requires a very careful analysis of  39 St. Catherine's and other cases and a good deal of  4 0 thought.  41 MR. JACKSON:  Yes, my lord.  42 LAMBERT, J.A.:  But it has occurred to me that the section says,  43 91(24), Indians and lands reserved for the Indians and  44 that maybe the argument isn't entirely dependent on an  45 acceptance of the fact that the whole of British  46 Columbia is land reserved for the Indians.  Maybe the  47 argument will hang together, perhaps in a slightly 2669  Submissions by Mr. Jackson  1 modified way, but will hang together if the question  2 of the Indians' interest in the land of British  3 Columbia is regarded as coming within the class of  4 subjects Indians.  That is, it's not necessarily in  5 the context of s. 91(24) a question of lands.  It's  6 within the broader class of subjects of Indians as a  7 legislative class of subjects, and so the same  8 argument that the province's powers have been  9 sterilized since 1871 in relation to extinguishment of  10 Indian title may all hang together on Indians in  11 91(24) without necessarily having to decide that all  12 the lands in the province are lands reserved for the  13 Indians.  14 I am putting that to you now not truly because I  15 need an answer now, but if there is an easy answer of  16 some kind that puts the matter away one way or the  17 other, I'd like you or Ms. Mandell or Mr. Paterson or  18 Mr. Rush to say what it is and perhaps if you wish to,  19 and certainly when the province's surreply comes on  20 tomorrow then they should have an opportunity to put  21 my mind at rest too on this question, so I thought I  22 would raise it now.  23 MR. JACKSON:  I'm obliged, my lord.  We will endeavour to  24 respond to your lordship's concern.  25 In relation to the Amicus' position -- I seem to  26 have shrugged off.  Paragraph 31.  The Amicus argues,  27 and in this respect it's an argument in which they're  28 joined by the Business Council and Alcan, that the  29 appellants and the province in seeking a retained  30 jurisdiction of this court to permit them to do the  31 difficult task of negotiating the scope of aboriginal  32 rights in relation to the claimed territory have  33 misconceived the nature of aboriginal rights.  The  34 argument, as I understand it, is that you can't  35 negotiate aboriginal rights.  You can negotiate treaty  36 rights, but only the courts can determine aboriginal  37 rights.  38 And I think that was a point which at one time, as  39 I was reviewing the transcripts, I think my lord Mr.  40 Justice Wallace, you raised that as a concern that you  41 had which you wanted some response to.  And our  42 position on that, my lords, is that negotiations will  43 not determine as a legal matter the scope of  44 aboriginal rights.  The courts ultimately have and, of  45 course, retain that power.  But that does not prevent  46 this court making declarations which encourage, indeed  47 invite the parties to seek an accommodation and a 2670  Submissions by Mr. Jackson  1 resolution.  Every day governments and private parties  2 negotiate settlements of issues which courts could  3 adjudicate but are not asked to, and we say that s.  4 35(3) expressly contemplates such negotiations with  5 respect to aboriginal rights.  6 And, my lords, to envisage that there's a bright  7 line between aboriginal rights and treaty rights, you  8 can negotiate the latter, but aboriginal rights  9 negotiations have nothing to do with that, that's  10 entirely a matter of legal adjudication, we say that  11 misconceives the relationship between aboriginal and  12 treaty rights.  13 At paragraph 34 I have referred to a number of  14 cases in which the courts have dealt with this,  15 including this court in White and Bob, but the  16 reference I made in particular is to Simon, where the  17 Supreme Court in relation to an argument there that  18 the treaty should not be given any particular weight  19 because it didn't really do anything different, didn't  20 reflect on aboriginal right, the Supreme Court said:  21  22 "[T]he right to hunt already existed at the time  23 the treaty was entered into by virtue of the  24 Micmac's general aboriginal right to hunt."  25  26 "To begin, the fact that the Treaty did not  27 create new hunting or fishing rights but merely  28 recognized pre-existing rights does not render  29 S. 88 inapplicable."  30  31 Treaties, my lords, often are about recognizing  32 and affirming existing aboriginal rights.  They may do  33 other things.  They may include matters which are not,  34 strictly speaking, to do with aboriginal rights at  35 all.  But commonly they are reflective of and an  36 affirmation of existing aboriginal rights, and we say  37 on that basis that that is not an inhibitor to your  38 lordships making the declarations we seek.  39 The second argument which my friends make, which I  40 just want to briefly touch upon, is they say, and I'm  41 at paragraph 37, that your lordships ought not to make  42 the declarations in relation to the right to  43 self-government either in relation to land or in  44 relation to non-land matters because there is an  45 interplay between s. 35 and s. 25, and without your  46 lordships knowing what the nature of that interplay  47 is, you should tread cautiously, indeed you should not 2671  Submissions by Mr. Jackson  1 tread at all, and we say that argument is  2 misconceived.  3 The argument, as I understand it as developed by  4 Mr. Willms, is that s. 35 says that nothing in the  5 Charter shall affect the aboriginal rights or other  6 freedoms of aboriginal peoples, s. 25, either under  7 the Constitution or under the Royal Proclamation, and  8 my friend's argument is that seems to suggest that the  9 exercise of the right to self-government is not bound  10 by the Charter and you should not make that kind of  11 declaration because members of the Gitksan-  12 Wet'suwet'en houses may not be prepared to accede to  13 that.  14 Now, our declarations are as against the Crown,  15 but quite apart from that point, the Amicus has  16 misunderstood why s. 25 is there.  And I've referred  17 your lordships to an article by my colleague at the  18 university, Professor Saunders, who having reviewed  19 the debates on the Charter has summarized why s. 25  20 was put in the Charter, and he says:  21  22 "After the experience with the 1969 White  23 Paper,"  24  25 this was the document in which the Government of  26 Canada advanced the point that aboriginal rights and  27 treaty rights should be abolished and we should simply  28 get on with the job of assimilation,  29  30 "After the experience with the 1969 White Paper  31 and the controversies over the Lavell  32 litigation the federal government recognized  33 that a Constitutional bill of rights must  34 explicitly signal whether Indian status was to  35 continue or not [and therefore] a protective  36 section along the lines of section 25, should  37 be inserted in the Charter."  38  39 In other words, it was put there to ensure that  40 aboriginal rights would not be challenged on the basis  41 they're a denial of equality, they deal with  42 aboriginal peoples differently, and therefore under s.  43 15 they could be impugned.  This was meant to immunize  44 those kinds of rights from equality arguments.  It  45 plays the same function as s. 29.  And you'll notice,  4 6 my lords, that I've referred to a judgment of Madam  47 Justice Wilson, where in relation to s. 29, which 2672  Submissions by Mr. Jackson  1 provides along parallel lines to s. 25 that nothing in  2 this Charter abrogates or derogates from, it uses the  3 words rights and privileges as opposed to rights and  4 freedoms, rights and privileges guaranteed by and  5 under the Constitution in relation to denominational  6 and separate schools.  So again, it was intended to  7 avoid s. 15 challenges.  8 Now, it may be in the future that s. 25 will be a  9 vehicle for an argument that aboriginal collective  10 rights are subject to the Charter in some way, that  11 collective rights are not immune from respect for  12 individual rights.  That is another case.  That  13 argument has yet to be made.  It may be made, but it  14 does not stand in the way of your lordships making  15 declarations as against the province that they have a  16 right to self-government.  17 As I say, my lords, other matters, in particular  18 the de facto argument of the Amicus, which has a close  19 relationship to the weight of history argument, will  20 be addressed by Mr. Rush this afternoon.  This would  21 be a convenient point to take the break.  22 TAGGART, J.A.:  All right.  We'll take the morning break.  23 THE REGISTRAR:  Order in court.  Court stands adjourned for a  24 short recess  25  2 6 MORNING RECESS  27  28 I hereby certify the foregoing to  29 be a true and accurate transcript  30 of the proceedings transcribed to  31 the best of my skill and ability.  32  33  34  35  3 6    37 Leanna Smith  38 Official Reporter  39 UNITED REPORTING SERVICE LTD.  40  41  42  43  44  45  46  47 2673  Submissions by Ms. Mandell  1 (MORNING RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  Thank you, my lord.  I have a brief few minutes to  6 reply on the Royal Proclamation.  And I have asked  7 Madam Registrar to put into your speaking notes binder  8 at tab 7 a reply to the Proclamation issue, together  9 with a reference book which is labelled tab 7 which  10 I'll be referring to one tab in it briefly.  11 My Lords, I began in the speaking notes to bring  12 together for your lordships the various places in the  13 factum where the Royal Proclamation argument has been  14 referred to.  I did this not for any reply purpose,  15 but simply to save you the time that it took me to  16 figure out where all of these arguments were to be  17 located.  And I would like to at this time address  18 only a few points which have not been covered in the  19 factum reply but which, in our submission, are raised  20 directly by the oral submissions of the Province on  21 this point and which have to be separately addressed.  22 I am beginning at page 2 of the speaking notes.  23 And the headings which I've -- which I've created are  24 an attempt to concisely state what the Province's  25 argument is on these points, not what ours are.  26 This is in reply to Mr. Bell's argument that the  27 Royal Proclamation defined geographic boundaries.  And  28 his first point was in respect of the Treaty of Paris.  29 He said that the Treaty of Paris stated that Britain  30 got Canada from France.  He made an argument to you as  31 to what constitutes Canada.  And in this first point  32 we point out that the Treaty of Paris didn't simply  33 state the word "Canada", which was the source of Mr.  34 Bell's submission, but the phrase "...in full  35 right" -- France surrendered to Britain "...in full  36 right, Canada, with all its dependencies."  And in the  37 next number of paragraphs I set out the evidence.  I  38 have contained it in your reference binder as to what  39 "with all its dependencies" was intended to mean.  40 And if I could ask your lordships in your own time  41 to review those evidence references but to turn at  42 this stage to page 6.  I'm sorry, at the end of page  43 5, the very last line under i.  We point out that  44 England had added the word "dependencies" to the  45 description of the proposed French session and the  46 French wanted the word defined.  47 And then dropping down to paragraph j, the English 2674  Submissions by Ms. Mandell  1 Crown believed there were other dependencies in  2 Canada.  And this was contained in a dispatch.  The  3 French were asked in address what it is that England  4 wanted to be added to the Treaty of Paris.  5 And down at the bottom of page 6 under k, among  6 the documents which the Crown received, this is the  7 British Crown, in answer to Egremont's dispatch was a  8 report from Mayor General Thomas Gage.  And Gage  9 attached to his report a "List and account of the  10 trading posts in Indian country".  11 The Crown also received a report from James  12 Murray, who was the Military Governor of Quebec.  13 Murray enclosed an extract of a letter giving some  14 account of the "Indian trade in Upper Country".  And  15 your lordships will recall that the French trading  16 posts were the ones at that point which were in our  17 present-day prairies, which were at that point the  18 French trading posts.  19 We say if His Majesty did not already know that  20 the claims of the French had extended indefinitely  21 westwards -- and we believe that he did -- then these  22 reports were determinative.  There was no northwestern  23 boundary between Canada and Louisiana.  These reports  24 were among the papers considered by the Board of Trade  25 in its June 8th letter when they were reporting on the  26 "cessions made by France and Spain" in the Treaty of  27 Paris.  And that land was described as:  28  29 "Canada possessed and claimed by the French  30 consisted of an immense tract of country  31 including the whole lands to the westward  32 indefinitely which was the subject of the  33 Indian trade."  34  35 Now, the next point which I want to address is this  36 question about a so-called boundary which was to be  37 inferred or implied by a reading of paragraph 2 of the  38 Proclamation.  And I address this section at paragraph  39 6, page 8.  The Province argues that when you read  40 paragraph 2 that a western and northwest boundary can  41 be implied.  42 And our first point is that when you read  43 paragraph 2, you have to read it in the context of the  44 whole of the Proclamation.  And we have already  45 submitted to you that read as a whole no such  46 interpretation can be read into it.  47 The Province puts great stock on the fact that 2675  Submissions by Ms. Mandell  1 since it was the practice of the day to describe  2 boundaries by reference to heights of land and  3 watersheds, it would have been logical to infer that  4 when such descriptions are used in paragraph 2 they  5 were intended to be used to describe a boundary which  6 can be inferred to be a contiguous line along the  7 Mississippi River where it meets the height of land  8 delineating Ruperts Land.  Now, we say that on its own  9 argument the Province concedes that this approach, in  10 our submission, is not well founded.  11 And if I could take you to paragraph 10 of page 9,  12 the southern and western boundary of the territory  13 granted to the Hudson's Bay was never settled and  14 there was considerable disagreement about it.  And  15 this fact was admitted by the Province.  16 Nor was the source of the Mississippi known in  17 1763.  Maps show various theories of its location, and  18 official maps show no intersection of the Mississippi  19 with the Hudson's Bay territory.  The fact that the  20 source of the Mississippi was unknown is also conceded  21 by the Province.  22 So at the very place that this so-called western  23 boundary was to meet with the northwestern part of the  24 supposed reserve, the Province concedes that that  25 geography was not known.  But they say that from the  26 fact that the source of the Mississippi was unknown,  27 it can be inferred that the drafters must have  28 intended to imply an intersection with Hudson's Bay  29 territory.  And we say that if such a result was  30 intended the drafters should not -- should have said  31 so.  32 We say it is not logical the Crown would intend  33 that unsettled boundaries and unknown rivers would be  34 used to define a boundary in respect of newly  35 organized territory.  That the Province would  36 interpret a public legal instrument by reference to  37 ancient maps reflecting the contingent historical  38 knowledge of particular people and what they knew of  39 the geographic bounds of the colonies, plantations,  40 territories and unceded and unpurchased lands.  We say  41 that when boundaries are in question, they are to be  42 decided as a matter of fact and interpretation, not on  43 the basis of private opinions or geographic  44 misconceptions of officials or cartographers.  45 Now, the Province puts stock on the fact that when  46 the Proclamation was being considered, Egremont in a  47 letter from him to the Lords of Trade, proposed that 2676  Submissions by Ms. Mandell  1 the commission for Canada should, in fact, include the  2 area which was under discussion as being Indian  3 country.  And in that proposal the -- Egremont creates  4 a boundary which he suggests should be the upper most  5 boundary for Canada.  6  7 "The King therefore is of the opinion, that, in  8 the commission for the Governor of Canada, all  9 the Lakes, Ontario, Eerie, Huron, Michigan and  10 Superior, should be included with all the  11 country, as far north and west as the limits of  12 the Hudson's Bay company and the Mississippi."  13  14 Now, the King and the Lords of Trade decided not to  15 include such a land description for Canada, and not to  16 define a western boundary for Indian country.  We say  17 if, as the Province argues, the western boundary of  18 the Mississippi is so clearly intended that it ought  19 to be read into the Proclamation, the question is  20 raised:  Why the drafters did not include such a  21 boundary in the description of paragraph 2 when the  22 clear wording to do so was before them for their  23 consideration.  And this is as late as July of 1763.  24 We point out that where the drafters intended to  25 define the boundaries for the new colony, they did so  26 with precise language.  And I am referring to Part I  27 of the Proclamation.  And I have set out the  28 description of the Quebec boundary which your  29 lordships in reading it will notice that the boundary  30 uses heights of land.  But it is not done in order to  31 obscure the boundary, it is done in order to provide a  32 geographic reference point.  Otherwise, the boundary  33 is very well described.  And in looking at the  34 boundary for West Florida, the Mississippi river is  35 actually used as a reference point inside the boundary  36 itself.  37 And we say at paragraph 19 that the Mississippi  38 River is actually used as part of the boundary  39 description.  The question is raised if the  40 Mississippi were intended as a western boundary for  41 the Indian reserve, why was it not so stated as in the  42 case of West Florida?  Even if the drafters did not  43 know with certainty the area, but wished to close off  44 a reserve, as the Province argues, they could at least  45 have said: "...and the line running north of the  46 Mississippi source to intersect with the height of  47 land delineating Ruperts Land".  They could have made 2677  Submissions by Ms. Mandell  1 those clear words in the same way they did when they  2 were describing the boundary for West Florida and  3 Quebec.  4 We finally say on this point that we don't  5 speculate because there is no language or evidence to  6 show that the Proclamation intended a western  7 intersection at the Mississippi and the southern  8 boundary of Ruperts Land (wherever it was).  And we  9 say, finally, if the Province's theory is correct,  10 there would have been no purpose in including section  11 25 in the Constitution Act because by then treaties  12 had already been concluded in that part of Indian  13 country which the Province says was encompassed within  14 the Proclamation.  15 My Lords, I would just like to address the final  16 point about Indians affected.  And your lordships will  17 recall that the Appellants commented on the trial  18 judge's error in relying upon the plan which the trial  19 judge said was enacted in Quebec.  We say that the  20 Province has not disagreed with our analysis that  21 there was no plan enacted in Quebec in 1777.  22 The 1764 plan was argued by the Province as  23 accomplising the result of confining the Indians with  24 whom we are connected.  And our point is that that  25 plan was not intended to circumscribe the Indians with  26 whom the Crown is connected.  And if your lordships  27 would turn to tab 44 of the reference material, I  28 would like your lordships' attention to be put to the  29 document which actually described the plan when it was  30 first brought into place in 177 -- 1764.  It is found  31 in tab 7, volume 44 -- tab 44.  And I only -- at this  32 point if your lordships don't want to turn to it I can  33 read you the letter.  This is the Lords of Trade to  34 William Johnson.  He, William Johnson, received the  35 plans.  And the Lords of Trade was explaining to him  36 at the last page -- I'm sorry, the last paragraph at  37 the bottom of page 634:  38  39 "This Plan has for its object the regulation of  40 Indian Affairs both commercial and political  41 throughout all North America, upon one general  42 system, under the direction of Officers  43 appointed by the Crown, so as to set aside all  44 local interfering of particular Provinces,  45 which has been one great cause of the  46 distracted state of Indian Affairs in general  47 and it is judged expedient in the execution of 267?  Submissions by Ms. Mandell  1 this plan that North America should be divided  2 into two districts each having one Chief Agent  3 or Superintendent the first difficulty which  4 occurs in the consideration of the Plan, is how  5 to ascertain the limits of each district."  6  7 And so our submission is that when you look at the  8 plan now that the Province relies on, we say that its  9 object was clearly stated which was the regulation of  10 Indian Affairs.  11 And, My Lords, I am not going to take you to it,  12 but I have set out from my speaking notes in pages 13  13 to 19 the evidence which was before the trial judge  14 regarding this plan, the 1764 plan which the Province  15 made reference in reliance on.  16 And, finally, my lord, if I could address the  17 Labrador Boundary case, although my friend qualifies  18 his reliance on the case, we say that the Labrador  19 Boundary case in its decision about the Indians with  2 0 with whom we are connected and who lived under our  21 connection, in that aspect of the decision the case is  22 clearly wrong.  It has been discredited or commented  23 upon as such by the authors.  24 I have set out at tab 46, although I won't take  25 you to it, I would ask your lordships to make note of  26 it beside paragraph 46, page 19.  This is a summary,  27 two-page summary of the Labrador Boundary case by Dr.  28 Slattery.  And in the Labrador Boundary case the Privy  29 Council said that the Indians who were encompassed by  30 the phrase "included only the Six Nations", that is  31 the Iroquois confederacy because they were Indians  32 with whom the British were connected and also did not  33 include the Indians who were against the British  34 during the war with France.  So, in other words,  35 French allies would not have been included within that  36 phrase.  37 And as Dr. Slattery points out, this is not  38 anywhere -- first of all, there is historical  39 inaccuracies about the description itself inside the  40 case.  But also the conclusion which the Privy Council  41 reach doesn't accord with the authorities.  And, in  42 fact, in our submission it contradicts the Province's  43 theory which is that the Indians with whom we are  44 connected extend to those tribes who occupied lands to  45 the east of the Mississippi.  46 My Lords, I have no more time, and I will leave  47 the rest of this with you.  I would just like to say 2679  Submissions by Mr. Paterson  1 this is the last time that I will be speaking to you  2 in these appeals.  And I would like to tell your  3 lordships that I appreciated the opportunity of  4 talking to you over this last year.  5 TAGGART, J.A.:  Thank you, Ms. Mandell.  6 MR. PATERSON:  My Lords, I will be speaking to speaking notes  7 which you should find at tab 8 of the speaking note  8 brief.  And I suppose these could best be  9 characterized as unfinished business in some ways.  I  10 am going to address some questions that have been  11 asked, and I will also attempt, so far as I am able,  12 to speak to the question addressed by Mr. Justice  13 Lambert to Mr. Jackson this morning.  14 The first point at the beginning of these speaking  15 notes is in response to a question asked of me Tuesday  16 to which I didn't have a very good answer.  Mr.  17 Justice Taggart asked if I knew whether the Guerin  18 case had been applied in respect of common law  19 interest to lands and if there had been a further case  20 considering that.  And the response I gave at the time  21 was the only case I could refer to is Sparrow, which  22 of course referred to common law fisheries.  23 And after that day's session my friend Mr. Pape  24 for the Carrier Sekani Tribal Council drew my  25 attention to the Pasco decision, which is a decision  26 of the Court of Appeal.  And I will just draw your  27 attention to the points that are highlighted on page  28 2:  29  30 "To summarize:  land on a reserve, and rights  31 which adhere to the reserve (such as fishing  32 rights), are held for the use and benefit in  33 common of members of the band.  Trespass is a  34 wrong done to persons in possession -- those  35 persons who are entitled to the use and  36 enjoyment of the rights."  37  38 And then carrying down to the next paragraph:  39  40 "Similar considerations apply to the action in  41 trespass based upon common law aboriginal  42 rights."  43  44 And Guerin there is relied upon as an authority for  45 that proposition.  46 I now take you directly into the response.  I  47 tackled part of the answer on Tuesday.  I gave the 2680  Submissions by Mr. Paterson  1 court some indication of our thinking on this matter.  2 I can't say that what we have here takes us a great  3 deal further, but I am going to attempt, at least, to  4 clearly articulate our position on this.  The question  5 that was asked was what was the effect -- as I  6 understand it, what was the effect of the cumulative  7 impact of four separate matters.  8 And the first was the reception of the allodial  9 title by the Crown at the time of the assertion of  10 sovereignty.  And the second was the declaration of  11 the Crown's interest in fee in the ordinance or  12 Proclamation which we are referring to as Colonial  13 Instrument II.  The third is the actual granting of  14 titles under that instrument.  And the fourth is use  15 of lands by a grantee in a manner inconsistent with  16 the exercise of the continued aboriginal rights.  And  17 carrying that question a bit further, the question  18 posed:  what was the effect of all of this with the  19 decision of powers of upon Confederation.  20 I would like to dispose of the first and last of  21 those four items at the outset.  And with respect to  22 the first, the question of the reception of the  23 allodial title at the time of the assertion of  24 sovereignty, we say that this has no effect at all and  25 can be left out of the equation.  We say that this has  26 been decided by Guerin that a change in sovereignty  27 does not, in general, affect the presumptive title of  28 the inhabitants.  And there has been no reason offered  29 in this litigation why anything other than the general  30 rule would apply to British Columbia.  Indeed, the  31 Supreme Court of Canada addressed that rule in a case  32 that arose from this jurisdiction.  33 In respect of the last matter, that is the  34 question of the exercise of a grant in a manner  35 inconsistent by a grantee, we say that that cannot  36 have the effect of extinguishing aboriginal title.  37 The Crown may well authorize an interference with the  38 exercise of an aboriginal right.  And I believe that  39 question was, in fact, addressed at some length by Mr.  40 Arvay that the Crown may authorize an interference.  41 But we say that extinguishment is exclusively the  42 Province of the Crown and is not something that can be  43 delegated to a third party.  Either the legislation  44 distinguishes aboriginal title, in which case there is  45 nothing by the third party to do, or it doesn't, in  46 which case the act of the third party itself would be  47 insufficient to extinguish. 2681  Submissions by Mr. Paterson  1 Alternatively, I think you would have to find a  2 clear delegation of the power to extinguish to a third  3 party in the legislation of the grantee.  And that  4 nothing in the legislation does that.  5 LAMBERT, J.A.:  In relation to hunting rights my understanding  6 is that Bartleman decides that land can be owned in  7 fee simple, but hunting rights would not be  8 extinguished if they were still unoccupied lands.  But  9 the question of extinguishing those hunting rights  10 depends on whether the owner puts up a fence around  11 his land, puts up "no trespassing", "no hunting" signs  12 and things like that.  So at least in relation to the  13 hunting rights, there is a parallel example under the  14 treaty of how an effective extinguishment could take  15 place through the actions of the owner of the fee  16 simple.  17 MR. PATERSON:  I would read Bartleman, with respect, slightly  18 differently than that.  And that is that I would say  19 that putting up the fence would interfere with the  20 exercise of the aboriginal rights so long as the fence  21 were there.  And if the fence were taken down and the  22 lands again ceased to be occupied then the treaty  23 rights would again be exerciseable.  And that's the  24 distinction that I would make.  25 On that basis, My Lords, we submit that the  26 question falls to be determined on the basis of the  27 declaration of Colonial Instrument II and on the  28 grants issue pursuant to that.  29 And before getting into the confederation question  30 I wanted to address, and I raised to your lordships  31 the other day the question about different  32 Proclamations applying to Vancouver Island and also  33 the question of the repealing.  I would like to just  34 address the context in which I think Colonial  35 Instrument II has to be construed.  36 And the first is that at paragraph 10 the Royal  37 Proclamation we say constrained the future exercise of  38 the Crown's prerogative power in respect of granting  39 title to land.  That the Crown bound itself to  40 recognizing aboriginal title as a burden on the land,  41 and to obtaining consent of the Indians.  42 And paragraph 11, if the Royal Proclamation did  43 not apply, we submit that the governor of the colony  44 was not vested with the power to extinguish aboriginal  45 title through the passing of Proclamations or  4 6 ordinances to that effect.  And we have made  47 submissions to you on that question. 2682  Submissions by Mr. Paterson  1 We say that, in fact, the aboriginal title having  2 survived the assertion of sovereignty, you must then  3 go to the Sparrow test and see in legislation or, in  4 this particular case ordinances and Proclamations,  5 whether or not there is a clear and plain expression  6 of the sovereign will to extinguish aboriginal title.  7 And we say that that cannot be found in those  8 instruments.  9 The Instrument II, we say, cannot be construed as  10 enlarging the Crown's interest beyond what it was at  11 the time of the sovereignty.  "The King does not  12 convey to himself", the Supreme Court noted in the  13 Higbie case.  The ownership of the allodial title  14 which the Crown assumed at the time of sovereignty  15 comprehends the title in fee which is the ordinary  16 grant made from the Crown to subjects.  So that we say  17 the declaration added nothing to the interest of the  18 Crown in that sense.  19 The second point is that the instrument in  20 question never applied to the lands on Vancouver  21 Island.  It was limited to the Mainland.  Now, if  22 significance is attached to the declaration of fee in  23 Colonial Instrument II, then it follows that a  24 different regime was and, indeed, is in place if that  25 declaration is deemed to have some continuing force  26 on Vancouver Island than the regime which exists on  27 the rest of the Province.  This would result in the  28 conclusion that insofar as we are concerned with the  29 extinguishment of aboriginal title, a different  30 legislative intention existed, and as a matter of law  31 continues to exist in relation to both Vancouver  32 Island and British Columbia.  We simply say that that  33 is an unreasonable way of constructing the effect of  34 the legislation carrying through 1870 and so forth in  35 the circumstances.  36 And I now turn to the 1870 Ordinance which  37 repealed both the Vancouver Island legislation and the  38 ordinance II 2.  And that 1870 Ordinance was a  39 consolidation of all of those previous, the Calder 1  40 through whatever it is, 12, I guess.  And was a  41 consolidation of replacing them and establishing an  42 uniform law for application throughout the entire  43 colony.  44 There is no declaration of fee in the 1870  45 Ordinance such as appears in Calder 2.  If the  46 declaration of Colonial Instrument II is seen as  47 somehow enlarging the right of the Crown or 2683  Submissions by Mr. Paterson  1 extinguishing rights of aboriginal peoples.  It is  2 submitted that this was itself repealed by Colonial  3 Instrument XIII.  In other words, we say that some  4 sense has to be made out of the fact that that  5 ordinance was intended to make the laws uniform  6 through the Province.  And that you cannot simply  7 infer into it that which appears in Colonial  8 Instrument II in respect of the Mainland which itself  9 is the foundation for a further inference of an  10 intention to extinguish aboriginal title on the making  11 of a grant.  12 The 1870 Proclamation did not include provisions  13 extended such an antecedent declaration to Vancouver  14 Island and cannot be read as including a clear and  15 plain intention to extinguish or permit the  16 extinguishment of aboriginal title or ownership on  17 Vancouver Island.  Consistent with the principle of  18 uniformity, it is submitted that it cannot be read as  19 including or incorporating a power to extinguish title  20 assuming such power was created by one of the  21 instruments it repealed.  22 Then I turn in the 1870 Ordinance there is a  23 continuing -- there is a preservation of rights  24 provision in the very section that constitutes the  25 repealing section.  And it sets out -- it says the  26 following are repealed and it lists them.  And then it  27 goes on to say:  28  29 "...but such repeal shall not prejudice or  30 affect any rights acquired, or payments due, or  31 forfeitures or penalties incurred prior to the  32 passing of this Ordinance in respect of any  33 Land in this Colony."  34  35 And the question arose in my mind, at least, as to  36 whether this might be a saving provision in respect of  37 whatever the Crown might have acquired under Ordinance  38 II, assuming that argument has some force.  39 And we say it can't be construed that way for the  40 following reasons.  First, aboriginal title is not an  41 interest in land acquired by the Crown.  It is an  42 interest in land which, in the phrase the Chief  43 Justice Dickson used in Guerin  "disappears in the  44 process of release".  When aboriginal goes, it goes.  45 It doesn't pass to somebody else.  So it is not an  46 interest acquired within the meaning of that section.  47 Secondly, even on the construction which the 2684  Submissions by Mr. Paterson  1 Province would give to Colonial Instrument II, that  2 section does not constitute an acquisition of  3 something by the Crown, but it constitutes legislative  4 empowerment granting the power to colonial officials  5 to extinguish or cause the extinguishment of  6 aboriginal title through the making of an inconsistent  7 grant.  That power does not purport to be continued by  8 the 1870 Ordinance.  Indeed, it appears to be repealed  9 by it.  10 And finally, as I mentioned earlier, the King does  11 not "convey" to himself.  That section cannot be read  12 as a conveyance.  The only relevant instrument --  13 HUTCHEON, J.A.:  Excuse me a moment.  On the top of page 7.  14 MR. PATERSON:  Yes.  15 HUTCHEON, J.A.:  You say an interest within the meaning of  16 section.  What section are we talking about?  17 MR. PATERSON:  I am talking about the section set out at 16.  18 And that should be a right within the meaning of a  19 section.  20 HUTCHEON, J.A.:  A right rather than an interest?  21 MR. PATERSON:  That's right, my lord.  22 HUTCHEON, J.A.:  It is not a right —  23 MR. PATERSON:  There is an error there.  That should be a right  24 within a meaning of -- a right acquired or that sort  25 of thing.  26 So we say that with the repeal of these  27 provisions, the only relevant instrument which  28 survived to Confederation was this 1870 Ordinance  29 known as Colonial Instrument XIII, which we say and  30 have made submissions to you that this instrument  31 which consolidated the land law and established a  32 Province wide or colony wide registration system and  33 so forth, we say that it has been held by this Court  34 in the Uukw decision that establishment of a legal  35 registry system could not be construed as affecting  36 the aboriginal title, that title not being  37 contemplated by the Torrens system.  If the instrument  38 on its terms, did not extinguish aboriginal rights,  39 then again the affect of Confederation need not be  40 considered.  Those rights would have carried through  41 Confederation and we would have to look to  42 post-confederation federal legislation.  43 My Lords, I led you through -- I am being advised  44 by my colleagues that I am encroaching on other  45 people's time, so I am going to try and proceed as  46 quickly as I can.  I led you through, and I have set  47 it out in somewhat more detail the construction of 2685  Submissions by Mr. Paterson  1 section 129 and how we would say it would apply to  2 continued laws, and those laws would be continued as  3 federal laws.  4 My lord Mr. Justice Lambert asked the question  5 about:  well, the law being continued as an  6 administrative provision, perhaps, or carrying with it  7 implications and not being fully repealed by a federal  8 repeal.  And I am not able to direct you to a case on  9 point, but it seemed to me a proper analogy here would  10 be the Natural Parents case where the court in that  11 case read down the language for all purposes that it  12 found in a provincial statute.  13 And it seems to me we should ask ourselves:  what  14 would be the case if the Adoption Act was, in fact,  15 pre-Confederation legislation in British Columbia  16 which was continued by section 129?  That  17 pre-Confederation legislation, without a division of  18 powers, could well be construed in those circumstances  19 as having deprived the Indian child in question of  20 status as an Indian for legal purposes.  But once we  21 hit 1871, then I say the reasoning in the Natural  22 Parents case would apply.  And that legislation could  23 no longer be construed as having an effect as granting  24 as an incident of the action of the provincial Crown  25 something which could only be done by the federal  2 6 Crown.  27 And I say that the question would be essentially  28 the same if the legislation had said -- for example,  29 if we look at the Colonial Instruments, if the  30 legislation had said:  And the granting of title shall  31 extinguish the unextinguished aboriginal interest  32 herein, then once you reach Confederation you would  33 have to repeal or deem that section to no longer be of  34 force.  35 In particular, after the 1874 repeal the  36 legislation was inconsistent.  So I say that the  37 effect of section 129 was to, in fact, move away from  38 the Province, both in terms of its executive powers  39 and also in terms of its legislative powers, the  40 ability to extinguish aboriginal title either directly  41 or administratatively through the exercise of its  42 powers.  43 My Lords, I won't take you through the rest of it  44 this.  I have some notes which I prepared.  I was  45 hoping I would get a moment to get through them, but I  4 6 won't.  47 In replying to the surreply document which was 2686  Submissions by Mr. Paterson  1 delivered to us on Monday as directed by the courts,  2 and we have made some submissions in respect of those  3 matters which I would recommend to your lordships.  4 My lord, I just want to very quickly address, as  5 well, the question that you raised this morning of Mr.  6 Jackson.  I am not -- and I do it with some hesitancy  7 because I am not sure I understood the direction you  8 were going.  But as I understood your question, it  9 was:  how would the claims in respect of the  10 aboriginal interest in lands differ in terms of what  11 we say is the constitutional scope of the power of the  12 federal government if 91(24) comprehended a power over  13 Indians.  Is that --  14 LAMBERT, J.A.:  Well, my recollection of what 91(24) says is  15 "Indians, and lands reserved for the Indians."  16 MR. PATERSON:  That's correct.  17 LAMBERT, J.A.:  Full stop, or whatever punctuation is at the  18 end.  And then that section had 92 says "matters  19 coming within the classes of subjects".  2 0 MR. PATERSON:  Yes.  21 LAMBERT, J.A.:  It is possible to say there are two classes of  22 subjects in 91(24).  One is Indians and the other is  23 lands reserved for the Indians.  You have made an  24 entire argument about the legislative sterilization of  25 the British Columbia legislature because of 91(24) in  26 relation to core matters on Indian lands.  2 7 MR. PATERSON:  Yes.  28 LAMBERT, J.A.:  And you've made that argument and Ms. Mandell  29 made the argument entirely constructed on the words  30 "and lands reserved for the Indians".  But it is  31 quite -- it is arguable, it seems to me, that lands  32 reserved for the Indians do not have the meaning that  33 you're contending for.  But nonetheless, it seemed to  34 me that the whole argument about legislative  35 sterilization could stand if it was thought that the  36 Indians' claims to land came within the class of  37 subject Indians, even if they didn't come within the  38 class of subjects, lands reserved for the Indians.  39 And that's my question.  40 MR. PATERSON:  I understand your question now.  I agree with  41 that.  And I'll put it this way, and it may be that  42 there has been an excessive focus on the question of  43 lands reserved.  For our purposes, the principal  44 difference in terms of, you know, in a practical sense  45 of finding whether something affects Indians or lands  46 reserved for Indians in that kind of sense goes to --  47 goes to the question of practical sense of whether or 2687  Submissions by Mr. Paterson  1 not it is incorporated under section 88.  And so apart  2 from section 88, perhaps nobody would be focusing very  3 carefully on the difference.  4 The way I would address the question is starting  5 by analogy if there was no reference to lands reserved  6 for the Indians, what would section 91(24) comprehend  7 in that sense?  And I think that 91(24) would  8 comprehend Indian rights over and in respect of lands.  9 I think that it was in the contemplation of the  10 drafters of the constitution, as it were, when the  11 original division was made that the Indian problem, if  12 we could put it that way, and the problem concerning  13 Indian lands was going to be a major preoccupation for  14 the development of Canada.  It was only two years  15 after Confederation that a revolt broke out in  16 Manitoba.  17 So I think that the jurisdiction in respect of  18 Indians would mean as, for example, has been construed  19 in cases like Dick and so on, as things which go to  20 their Indianness.  Things which are essential for  21 their continuation and preservation as societies in  22 relation to the lands from which they came and so  23 forth.  And so I think Indians in that sense, if you  24 asked a question which was asked in a question like  25 Dick, would the taking of their lands go to their  26 Indianness, I think you would get the same answer as  27 the taking of their hunting or fishing rights and that  28 sort of thing.  And in that sense I think that the  2 9 Indians can comprehend that.  30 In a practical sense, I think the reason why there  31 are two phrasea in 91(24) and why both limbs were put  32 in that section is to make it clear to any court  33 following that the import of the section was that  34 Parliament was having a power in rem over lands and  35 not just a power in relation to persons.  It was to  36 make clear that 91(24) was not, for example, analagous  37 to the power in relation to aliens, that it  38 comprehended something a bit more than that.  39 And if you wanted to give separate effect and see  40 91(24) as including two classes of subject, then you  41 would say that the power over Indians affects those  42 things which are rights in personam, if we can put it  43 that way, and lands reserved for Indians would protect  44 and address those which are rights in rem.  45 And if you find, as we've submitted, and this has  46 been our submission, that the Indian rights to lands  47 are in rem and constitute an ownership or a 26?  Submissions by Mr. Grant  1 proprietary interest, then they would fall under  2 91(24) lands reserved for the Indians.  And if you  3 find that there are rights in personam that you are  4 not prepared to address as proprietary or ownership or  5 rights in rem, then you may very well find that those  6 same rights and the exercise of them is protected  7 under the first head of 91(24).  8 As I say, for practical purposes the difference  9 seems to come more in terms of section 88 and the  10 impact of that.  But that is a bit of a different  11 question.  Thank you, My Lords.  12 MR. GRANT:  My Lords, I will be speaking to you with respect to  13 tab 9, 10 and 11 in the speaking notes.  And I believe  14 you have 9 and 10.  After the break this afternoon I  15 will speak to the other tab.  There is a reference  16 book at tab 9 that I will be referring you to.  And I  17 believe I have given them to Madam Registrar, but I  18 haven't -- I am not sure if she has passed them up to  19 you.  She indicates she has.  I will be referring to  20 them later just in a couple of references.  21 Now, My Lords, this submission in reply on the  22 facts focuses on this -- today, this morning and this  23 afternoon, we will be dealing with the facts and the  24 challenge by Canada and the Amicus to those facts.  25 What I would like to direct your attention to first is  26 the very vigorous, and I say extremely vigorous attack  27 by Canada and the Amicus on the anthropology.  And the  28 first question that comes to mind is why?  Why was I  29 believe one to one and a half days of Canada's  30 argument and the principal Amicus argument challenging  31 the anthropology?  And, of course, they both focused  32 on Dr. Daly.  And Canada then said the same argument  33 applies to the others.  34 Well, it is not because -- it is not just for an  35 academic reason.  It goes to the very question raised  36 by your lordship, Mr. Justice Macfarlane.  And that  37 is:  Is the territory over which the Appellants have  38 these rights that we say, is it just the village and  39 village areas, or does it go beyond the villages?  40 And the Chief Justice's findings at page 384 said  41 that:  "They exercise their ownership and jurisdiction  42 in the areas of the villages but not in the  43 territories beyond."  And there is a debate about how  44 big those areas of the villages are.  45 Now, what we submit is that when you call in aid,  46 as it is appropriate for a court to do, the expertise  47 of anthropology, the answer will be a resounding yes. 2689  Submissions by Mr. Grant  1 The rights of the Appellants, of the Gitksan and  2 Wet'suwet'en people, are beyond the villages.  3 Now, Canada in argument, I am at page 1 of the  4 speaking notes, described Dr. Daly's evidence as "so  5 far removed from any kind of reality that has ever  6 been recorded, that it was of no assistance to" the  7 trial judge, and that it was "sheer nonsense".  Now,  8 Mr. Macaulay also admitted that "when it comes to  9 anthropologists he had a tin ear".  10 The Appellants have dealt with much of this attack  11 in our factum.  I take you to the issues to which  12 anthropological evidence is directed.  13 Canada says, at page 2, the point is twofold:  to  14 demonstrate continuity in the exercise of aboriginal  15 rights, and to permit inferences about what was  16 happening pre-contact.  17 Now, this court's judgment in Pasco points to the  18 inquiry directed at finding, among aboriginal peoples  19 at the assertion of sovereignty:  20  21 "...a recognition of the claimed rights,  22 sufficiently defined..."  23  24 Now, that's a recognition within their own system:  25  26 "...to permit their recognition by the common  27 law upon its advent in the territory."  28  29 And I refer you to Amodu Tijani, "the study of a  30 particular community and its useages", and to the Mabo  31 case where Mr. Justice Brennon for three judges in the  32 majority called "the traditional laws acknowledged by  33 and the traditional customs observed by the indigenous  34 inhabitants of the territory".  35 Now, Canada identified the major issue between  36 itself and the Appellants to which anthropological  37 evidence is relevant as the extent, geographically and  38 legally, of what Canada admits was a Gitksan and  39 Wet'suwet'en social organization, and in particular a  40 system for land use, allocation and control regulated  41 by the feast.  And I submit, my lord, that's an  42 important concession.  And it is important to show its  43 limits as well as its scope.  Canada does recognize in  44 their argument that there was a social organization  45 for land use, allocation and control, regulated by the  46 feast at those references cited at tab 7.  47 What Canada does not acknowledge is that that went 2690  Submissions by Mr. Grant  1 very far beyond the villages.  And this, of course, is  2 where your Lordship Mr. Justice Macfarlane raised that  3 the central issue dividing Canada from the Appellants  4 is one of rights to use and control beyond the  5 villages.  6 Now, I submit, My Lords, that there can be little  7 doubt that the anthropological evidence tendered by  8 the Appellants addresses the issue directly, as a  9 matter of both historical and contemporary fact.  We  10 have argued in our factum that if this evidence is  11 accepted it established that the Gitksan and  12 Wet'suwet'en societies have had the following central  13 features:  institutionalized ownership and management  14 of large, widespread territories; institutionalized  15 political authority over themselves; and commerce in  16 primary and manufactured products, both within the  17 territories, and beyond their boundaries.  18 And I say, my lord, that those conclusions are not  19 solely based on the anthropological -- the three  20 anthropological witnesses critiqued by the trial  21 judge.  They are based on such material as George  22 Macdonald's map, which I believe reference book 12A  23 refers to in argument.  And as I will point out to  24 you, by persons that Canada relies on like John Adams.  25 It is not an unique theory.  It is well accepted in  26 the world of anthropology and the study of the  27 northwest coast groups.  28 But Canada says, at page 4, in terms of the  29 handling, the court's handling of anthropological  30 evidence, Canada makes this suggestion:  31  32 "Anthropology as a body of information is  33 almost antithetical to legal evidence.  Its  34 very nature is to explain something from  35 someone else's point of view.  It isn't merely  36 to describe it in a factual way, that isn't  37 what it's about."  38  39 And I would like to take you to paragraph 15.  The  40 Appellants submit that, where the relevant legal  41 inquiry is into the community and its useages, and  42 where the trial judge does not belong to the  43 community, and in that sense aboriginal rights cases  44 like the ones you've heard over the last 12 months are  45 unique because usually the issues your lordships deal  46 with are from our society, our community.  You don't  47 have to go and study another society to understand the 2691  Submissions by Mr. Grant  1 issues.  But that's the situation here.  The  2 Appellants' perceptions are at the very heart of the  3 matter.  And where the time depth or cultural  4 differences are such as to make it difficult for the  5 trial judge to understand the community,  6 anthropological opinions are indispensable.  7 Now, Mr. Brody dealt with this in his opinion  8 report.  And I have bolded portions of his quotes.  9 But he says:  "In order to apply" -- "The word  10 'jurisdiction'" in the second paragraph:  11  12 "The word 'jurisdiction' is loaded with western  13 legalistic connotations.  In order to apply it  14 elsewhere requires the best available  15 understanding of Indian economic and cultural  16 systems."  17  18 And I encourage your lordships to consider the Brody  19 opinion report and review it.  20 At paragraph 17 I refer you to that,  21 anthropological evidence is expert opinion evidence.  22 The function of anthropologists is to draw inferences  23 as to the "particular community and its useages",  24 according to the methods of their discipline, which a  25 trial judge is incapable of, or would have difficulty,  26 drawing alone.  27 We then challenge this thesis the Kenny "The  28 Expert in Court" thesis that keeps being raised and  29 has been raised on argument here and in the lower  30 court by Canada.  And that is certainly not the law  31 here in light of Lavallee.  32 Now, I would like to take you, though, to  33 Milirrpum where Mr. Justice Blackburn -- now, of  34 course, in Milirrpum the final finding of Justice  35 Blackburn was relying on the Terranullius document in  36 Australia, which, of course, has been overturned.  But  37 in the course of his careful judgment he did consider  38 and it was a challenge to admissibility of  39 anthropology.  But he went on to talk about what it  40 was about and overruled the objections.  41  42 "A particular matter upon which the defendants  43 pressed their objection to the admission of  44 expert evidence, was the question whether a  45 relationship between a given clan and a given  46 piece of land existed at a time before any  47 evidence based on personal experience could be 2692  Submissions by Mr. Grant  1 given of it, particularily in 1788, when the  2 subject land became part of New South Whales.  3 ... In my opinion both the experts were  4 qualified by their experience in anthropology,  5 and in particular their knowledge of the  6 Australian aboriginal, to express an opinion on  7 the permanence of a social group and of its  8 relationship to a particular piece of land, and  9 therefore on the likelihood that such a  10 relationship existed in 1788."  11  12 My Lords, that's exactly the point to which the  13 Appellants called expert anthropological evidence.  It  14 is exactly the issue.  It is the issue that the kind  15 of evidence accepted in Sparrow and Calder and all the  16 other cases.  And it is not just -- in Milirrpum  17 Justice Blackburn recognizes the significance of it.  18 Now, Canada attempts to refute Calder as a good  19 example of the danger relying on anthropological  20 evidence respecting legal issues.  21 But we say on page 8 that the trial judge is not,  22 as Canada suggests, obliged to choose between facts  23 and opinions.  24 Canada would have you eliminate anthropological  25 evidence where lay evidence is available, and in any  26 event to confine it to "objective observable  2 7 phenomena":  28  29 "Anthropologists ...Canada says... can assist  30 the court with an opinion upon or explanation  31 of objectively observable facts where the  32 Appellants' own evidence on their culture and  33 history is not available."  34  35 In other words, the fact that the Appellants called  36 lay witnesses upon whom the experts relied their own  37 evidence in court, they say:  well, then, you can't  38 call the anthropologists.  39 Now, I would like to take you to one of the two  40 references.  And this is at tab 20 of the reference  41 book to the Milirrpum case.  It is after the second  42 brown sheet at tab 20.  43 TAGGART, J.A.:  Which —  44 MR. GRANT:  The reference book is tab 9, the reference book of  45 Appellants speaking notes, my lord.  Because this goes  46 to what anthropology is all about.  And Justice  47 Blackburn in considering it considered how it could 2693  Submissions by Mr. Grant  1 help him in a way that unfortunately the trial judge  2 concluded he didn't need.  At page 161.  3 LAMBERT, J.A.:  Can you give us the tab again in the book?  4 MR. GRANT:  Oh, I'm sorry, my lord.  It is tab 20.  And it is  5 the third brown sheet in and the second sheet of the  6 case.  At page 161 the paragraph three-quarters of the  7 way down, "My ruling".  He says:  8  9 "My ruling is based on accepting that there is  10 a valid field of study and knowledge called  11 anthropology..."  12  13 And I want to refer you to the fact that Canada in  14 their argument suggested if one can call it a  15 discipline.  16  17 "...which deals with social organization of  18 primitive peoples (the definition will serve  19 well enough for the purpose in hand)."  20  21 And he wasn't trying to make a pejorative statement  22 there.  23  24 "The process of investigation in the field of  25 anthropology manifestly includes communicating  26 with human beings and considering what they  27 say.  The anthropologist should be able to give  28 his opinion, based on his investigation by  29 processes normal to his field of study, just as  30 any other expert does.  To rule out any  31 conclusion based to any extent upon hearsay --  32 the statements of other persons -- would be to  33 make a distinction, for the purposes of the law  34 of evidence, between a field of knowledge not  35 involving the behavior of human beings (say  36 chemistry) and a field of knowledge directly  37 concerned with the behavior of human beings,  38 such as anthropology.  A chemist can give an  39 account of the behaviour of inanimate  40 substances in reaction, but an anthropologist  41 must limit his evidence to that based on what  42 he has seen the aboriginals doing, and not what  43 they have said to him. "  44  45 In other words -- and the trial judge did not adopt  46 that principle because the trial judge, and Canada at  47 trial and here, has said the participant observation 2694  Submissions by Mr. Grant  1 of Dr. Daly is a basis to make his conclusions -- it's  2 fatal to his conclusions were the words of the trial  3 judge.  And yet Mr. Justice Blackburn recognizes that  4 it is a completely artificial distinction when the  5 field of expertise is to deal with human beings to say  6 they cannot -- that evidence should be rejected.  7 Now, I take you to the Lavallee comments where the  8 court cautioned at paragraph 27, I am back in my  9 speaking notes, My Lords, against judges and juries  10 who are "their own experts on human behavior", when  11 they "may not have sufficient knowledge of or  12 experience with human behavior to draw an appropriate  13 inference from the facts before them".  14 And the Appellants submit that these  15 considerations apply in particular force to the  16 opinions of anthropologists in a case where the court  17 has to try and understand the behavior in question --  18 the social organization of the Gitksan and  19 Wet'suwet'en -- across both a profound cultural  20 divide, and from a distance of 200 years or more.  As  21 Bruce Trigger, the noted anthropologist wrote, an  22 implicit approach relying on the experience of every  23 day life:  24  25 "...does not provide an adequate basis for  26 understanding behavior of people in earlier  27 times or in cultures radically different from  2 8 our own."  29  30 In other words, My Lords, it is not good enough, with  31 all respect, for the trial judge to say he did not  32 need anthropology.  And that was fatal when he  33 rejected, or found he didn't need it, to the points  34 about the widespread exercise of ownership and  35 jurisdiction by the Appellants over the territory.  36 If I can take you to paragraph 35, I say that our  37 simple point is that anthropological opinions in this  38 case are admissible, and that is not contested, and  39 entitled to considerable weight, and that is  40 contested.  The vast majority of facts on which they  41 are founded were proven in evidence, and they are  42 listed there.  43 The real dispute in the case is about the  44 inference to be drawn from the evidence, and the  45 appropriateness of the trial judge's approach to  46 weighing it.  47 As your lordship Mr. Justice Hutcheon said, and 2695  Submissions by Mr. Grant  1 this is where anthropological opinions should have  2 been an important part of the answer to the question  3 asked of Canada:  4  5 "What does the trial judge use?   ... If he has  6 to come to some conclusion is he in a better  7 position than the anthropologist?"  8  9 And your quotation to -- your question to Canada is  10 there.  What we say, my lord, is that in fact,  11 although Canada suggested that he had all of this  12 weighty material before him, he rarely identified the  13 bases for his sweeping anthropological conclusions.  14 For example, no witness and no evidence put forward by  15 any party denied that the Appellants' ancestors had  16 institutions and instead attributed their behaviour to  17 "survival instincts", yet that is precisely what the  18 trial judge found.  19 We submit at paragraph 41, and this is the issue  20 for your lordships on anthropology because there  21 certainly must be some guidance to the lower courts on  22 this point, that his lordship's question points out  23 the importance at this stage of judicial consideration  24 of aboriginal rights of this court doing two things.  25 First, setting generally-applicable standards for the  26 courts below in evaluating and using anthropological  27 evidence; and, second, carefully scrutinizing the  28 particular reasons offered by the trial judge in this  29 case for rejecting some or all of the anthropological  30 evidence (as both unnecessary and entitled to no  31 weight) for conformity to those general standards.  32 And I would like to now take you briefly to the  33 trial judge's evaluation of anthropological evidence  34 in general.  In paragraph 42 I say that your lordship  35 Mr. Justice Lambert asked whether the trial judge saw  36 anthropological evidence in general as comparatively  37 unimportant, and whether his statement that "the  38 anthropologists add little to the important questions  39 that must be decided in case", applied to all  40 anthropologists.  Canada said this, after some  41 discussion, that his comments only applied to Dr.  42 Daly, Dr. Mills and Mr. Brody, notwithstanding that in  43 its factum, Canada says that the statement was one  44 made "generally about anthropologists".  45 And their statement in their factum is the correct  46 statement, in our view.  Because if you look at the  47 trial judge's dealings with "history" where I bolded 2696  Submissions by Mr. Grant  1 it under his general category of history, he says:  2  3 "I cannot hope to do justice,"  4  5 This is halfway down the quote, my lords:  6  7 "...to these rich and fascinating histories.  8 Some of them are remarkably well documented."  9  10 And here is is the emphasis:  11  12 "Others, unfortunately, exist only in the  13 memory of plaintiffs, and some of them have  14 received some scholarly attention.  I intend no  15 disrespect to the fascinating work of Morice,  16 Barbeau, Beynon, Duff and others, but much  17 remains to be done in order to prove or  18 disprove the authenticity of their  19 conclusions."  20  21 And then he refers to archaeology.  22 When the trial judge first treated those works as  23 unproven, and later said that he was "able to make the  24 required important findings about the history of these  25 people, sufficient for this case without this  26 (anthropological) evidence", he was rejecting  27 anthropological evidence in general.  Certainly he was  28 rejecting it as useful in establishing the  29 propositions for which it was tendered: that from a  30 long time before the advent of European influence, the  31 Gitksan and Wet'suwet'en societies have had  32 institutionalized ownership and management of large,  33 widespread territories.  And that proposition, My  34 Lords, is central to their history.  That proposition  35 is central to this case because the challenge is -- if  36 we can -- if you do find rights limited to their  37 villages and then we have no problems.  And it is sort  38 of the alternative argument of the Respondents to  39 their legal argument on diminution of rights or  40 adverse dominion.  If you are going to find large  41 rights, put them in a very small place like 45 square  42 miles of reserves.  43 Now, I refer you at paragraph 45 to the broad  44 scope the trial judge attached to the "history" which  45 is apparent in his reasons.  46 I want to point out that we don't -- we are not  47 suggesting that anthropologists and ethnographers who 2697  Submissions by Mr. Grant  1 studied the Gitksan and Wet'suwet'en are not mentioned  2 in the judgment.  But their opinions on the central  3 factual issue in the case -- the nature and geographic  4 extent of the Appellants' system of land use,  5 allocation and control -- are misstated or ignored.  6 And we submit that the trial judge, contrary to an  7 expectation of your lordship Mr. Justice Lambert, did  8 not rely on the anthropological literature referred to  9 in making findings about the history of the Gitksan  10 and Wet'suwet'en.  Rather, he ignored or rejected all  11 of it.  12 And I refer there to the Barbeau and Duff's  13 opinions where the trial judge found them as unproven.  14 We've provided the writings or the index of exhibits  15 of Wilson Duff's materials, the reference to Drucker  16 only once.  And I am not going to read paragraph 52.  17 But you will see that we have endeavoured to collect  18 every single reference by the trial judge to an  19 anthropologist in paragraph 52.  20 And I will only take you to the last reference  21 because it is rather interesting.  He said:  22 "Goldman, Steward, Kobrinski, Jenness, Robinson and  23 Father Morice" -- as "a strong but not unanimous body  24 of anthropological opinion ...  that the social and  25 economic organizations of these peoples was likely a  26 response to the fur trade".  The trial judge says that  27 he has "already mentioned" and "already discussed"  28 this "body of anthropological opinion", but in fact he  2 9 did not mention it anywhere else in the judgment.  He  30 did reach a similar conclusion that the society  31 changed as a result of the fur trade in his reasons.  32 But furthermore, he was mistaken in attributing this  33 opinion to at least Jenness and Morice who did not, in  34 our submission, come to that conclusion.  35 LAMBERT, J.A.:  Well, he does say it is a strong and not  36 unanimous body, so I suppose he says that he is taking  37 into account others are contrary, others of those are  38 contrary.  39 MR. GRANT:  No.  That's right.  There are others contrary, and  4 0 he knew that.  41 LAMBERT, J.A.:  Yes.  42 MR. GRANT:  But even Jenness and Morice -- because, you see, the  43 Respondents put forward this litany and said:  all of  44 these people say this.  And their expert Dr. Robinson  45 kept referring to this litany.  And, with respect,  46 when you look at these scholars which, of course,  47 there was a large body of material, when you look at 269?  Submissions by Mr. Grant  1 them I can only assume that possibly the trial judge  2 relied upon what Dr. Robinson said.  3 But when you look at what the scholars actually  4 said, Jenness and Morice don't even say that point,  5 but they were included in that litany.  But the trial  6 judge appears to refer that he discussed it.  But he  7 really never discussed that anthropological evidence.  8 The other point is that he never referred to Adams.  9 I'm sorry, my lord, I see the time.  10 TAGGART, J.A.:  Yes.  I think perhaps we should adjourn now for  11 lunch. 2 o'clock.  12 THE REGISTRAR:  Order in court.  Court stands adjourned until 2  13 o'clock.  14 I hereby certify the foregoing to  15 be a true and accurate transcript  16 of the proceedings transcribed to  17 the best of my skill and ability.  18  19  20  21  22    23 Lisa Reid,  24 Official Reporter,  25 UNITED REPORTING SERVICE LTD.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 2699  Submissions by Mr. Grant  Submissions by Mr. Grant  1 NOON RECESS  2 TAGGART, J.A.:  Yes, Mr. Grant.  3 MR. GRANT:  Thank you, my lord.  I was in tab 9 at page 19,  4 referring to the statement of the trial judge.  And I  5 just want to point out that in the litany of the -- of  6 these anthropologists that kept being repeated by the  7 respondents at trial, Goldman studied the  8 Algacho-Carrier.  Now, the significance of that is  9 that that is substantially south near the -- I always  10 confuse Bella Bella and Bella Coola, my lords.  But in  11 that area and just inland.  And it's on the --  12 basically it's on the route of Mackenzie.  13 MACFARLANE, J.A.:  Which area?  14 MR. GRANT:  I apologize, my lord.  The route of Mackenzie in  15 1873.  So it's completely different than the  16 Wet'suwet'en, because that was the route that  17 Alexander Mackenzie himself went on.  And as, of  18 course, you know, Mackenzie never came into any of the  19 territory that we're talking about in this action and  20 wasn't in our submission even near.  21 Paragraph 53, Canada argued strenously, and I am  22 going to come to Mr. Adams because I think he's  23 significant on this distant territories point, but  24 Canada suggested that he was a reputable alternative  25 to Dr. Daly and they endeavored in argument, in oral  26 argument to contrast Daly and Adams.  In response to a  27 question from your lordship Mr. Justice Hutcheon, I  2 8 want to say that the trial judge never mentioned Adams  29 at all.  He never mentions him in any way from our  30 review of the judgment.  31 Now, Canada argues that the immensity of the  32 subject and the immensity of the material brought to  33 bear on the resolution of the issues as a reason to  34 defer to the trial judge on questions which involve  35 considerations of anthropological evidence.  But, and  36 I am at 55, and I think this is significant, the trial  37 judge did not make use of these supposed advantages.  38 He did not avail himself of the assistance from the  39 anthropologists and their writings which was available  40 to him.  In fact the trial judge said:  41  42 "I heard so much evidence, and I was given so  43 much literature,"  44  45 and surely this applies to the anthropology,  46  47 "that it is impossible to do more than extract 2700  Submissions by Mr. Grant  Submissions by Mr. Grant  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  from it an impression of what was going on in  the Babine territory before and during trader  Brown's time there."  In other words, my lords, the trial judge's finding  about no territories far from the villages pre-Brown  is an impression.  It's sort of an overriding  impression.  And I am going to--  WALLACE, J.A.:  It's an impression he extracted from all of the  evidence.  What's wrong with that?  MR. GRANT:  It's an impression he extracted, but it's not an  impression based on an analysis, for example, of the  anthropology, and that's the point here, my lord.  The  anthropology which he said I don't need it.  WALLACE, J.A.:  Well, that's your original point.  MR. GRANT:  Yes.  WALLACE, J.A.:  But the fact that he says I can do no more than  extract from this mass of material an impression, the  alternative would be to extract, I suppose, the  specific references, a multitude of them, and then  form an impression.  MR. GRANT:  But -- well, the point is, is that -- and he does  refer, for example, to Drs. Ray and to the Brown  material in the historical.  And there is more than an  impression there.  But what he gets clouded by, and I  am going to come back to it, is the Provincial  respondent's expert.  And there is crucial points for  the analysis and a crucial point for the analysis that  we say the judge didn't make and it has to be more  than an impression, is that the Gitksan and the  Wet'suwet'en had territories far beyond the villages.  That's the crucial point here.  At the pre-contact  time or pre-sovereignty time, pre-assertion of  sovereignty.  And I point out that because of that,  the sequence of that goes on on that page in my  argument.  If I can just refer you to page 21 and what we do  here in the speaking notes is we respond to Mr.  Justice Hutcheon's question about whether the trial  judge was "weighing" the anthropologists' evidence  when his first comment was that dealing "almost  exclusively with chiefs" was "fatal to the credibility  and reliability of their conclusions."  And we analyse in these speaking notes not as a  repeat of the Factum, but in response to how Canada  relies upon the trial judge's finding we respond to  the different points raised by Canada.  But I just 2701  Submissions by Mr. Grant  Submissions by Mr. Grant  1 want to say, and I am not going to take you through  2 all of those points, because they are carefully  3 analysed, but I do ask you to carefully consider this  4 part of our submission in reply.  But I do want to  5 take you to paragraph 63.  Canada does not identify --  6 they suggest there is a particular conclusion that the  7 judge found the reliance on chiefs' evidence was fatal  8 for it, but they don't identify that conclusion which  9 was affected by reliance on chiefs, but not by the  10 balance of the trial judge's reasons for rejecting  11 anthropological evidence.  It's impossible to tell  12 from the judgment what specific opinions the trial  13 judge thought were fatally wounded by the  14 anthropologists' reliance on information from chiefs.  15 And I say, we say there is nothing partial or  16 equivocal about his use of the words "fatal" and  17 "conclusions."  He does not appear to confine his  18 comments to some part of the anthropologists' opinion.  19 This is a thesis that Canada has amounted in argument  20 here to defend those comments, but there is really no  21 basis for it.  22 Now, I refer you at paragraphs 65 to 67 to Heather  23 Harris' evidence and I only say, my lords, to look at  24 that and I ask you in considering the anthropology to  25 consider her report as well.  Canada mounted a large  26 attack on Dr. Daly as not doing statistical analysis.  27 Now, Ms. Harris did not do statistical analysis by  28 using computer modelling, but she did count numbers.  29 She counted the number of marriages which was an  30 answer to Mr. Justice Lambert's question earlier on.  31 It's all in her report.  She counted things like  32 adoptions and different aspects of her report.  33 Now, at 69 I refer to the cross-examination of Ms.  34 Harris, that she -- and this -- Ms. Harris was married  35 to a Gitksan person.  Now, Canada -- Ms. Koenigsberg  36 has pointed out to me that, of course, was not what  37 she was directing her attention to, but she was  38 directing her attention to crossing the line of  39 observing for the purpose of making a report to make a  40 cultural intelligible to participating in the very  41 core of the endeavor.  And she called that, in the  42 page references there, she referred to that type of  43 conduct among anthropologists as possibly "going  44 native."  45 Now, I refer to the balance and I just want to  46 take you to paragraph 74, this is again the reliance  47 on the chiefs' evidence.  Now, Canada -- neither 2702  Submissions by Mr. Grant  Submissions by Mr. Grant  1 Canada nor the trial judge, and the trial judge wasn't  2 directed to any such point, point to any  3 anthropological work or opinion which suggests that  4 gathering information principally from chiefs is  5 methodologically objectionable for an anthropologist.  6 Nor does Canada engage the appellants' observations in  7 their Factum on that point that Barbeau and Duff  8 relied heavily on information from chiefs as well.  9 And I want to say as did Beynan, William Beynan in  10 those materials that have been directed to you, as did  11 Adams, John Adams.  And you've been referred to that  12 by Canada.  13 If I can take you to paragraph -- and as I say  14 this argument deals with each of these points and I  15 don't have to read it all to you.  But if I can take  16 you to paragraph 90 and this goes to Daly and Adams  17 and I referred just ahead of that to how Canada relies  18 so much to Adams and Canada attacked Dr. Daly in the  19 argument here, saying he disagreed entirely with  20 Adams' observations 20 years earlier and completely  21 discounted Dr. Adams' works.  And we say that is quite  22 frankly wrong.  He did not completely - paragraph 92 -  23 disregard or discount Adams' works.  And we have  24 quoted what Dr. Daly himself says.  25  26 "I don't totally discredit his work.  He is a  27 colleague and there are items of value in it,  28 but he -- it seems to me he began his  29 systemization sort of at the moment he got off  30 the plane... .It comes through from the  31 reading of his results."  32  33 Now, I then want to take you to paragraph 26 and refer  34 you here to the reference binder.  35 HUTCHEON, J.A. :  Paragraph?  What paragraph?  36 MR. GRANT:  96.  I am sorry.  I said 26.  96.  And I'd like to  37 take you for a moment to the reference book if I can  38 at tab 96, because I think it -- it's sort of -- it  39 becomes a sort of a thesis, as your lordship Mr.  40 Justice Wallace suggested maybe one could do nothing  41 but get an impression, but let's look at what Dr.  42 Adams says.  Let's take a little look at it which I  43 don't think Canada -- I am sorry, Ms. Koenigsberg took  44 into the preface.  But there is some comments I have  45 extracted and of course, Canada has given you all of  46 the preface in their argument and I think they have  47 read it all, and the Amicus has quoted it and put it 2703  Submissions by Mr. Grant  Submissions by Mr. Grant  1 in their material.  At tab 96, after the first brown  2 sheet, page 7.  This is what Mr. Adams or Dr. Adams  3 said.  The second last paragraph.  Referring to the  4 Gitksan, this is not the Wet'suwet'en.  5  6 "These villages tracts of hunting territory are  7 subdivided into parts belonging to different  8 'native' —  "  9  10 Sorry, my lords, do you have that?  11 TAGGART, J.A.:  What page is that?  12 MR. GRANT:  Page seven.  It's at tab 96, page 7.  13 TAGGART, J.A.:  96, page 7.  14 MR. GRANT:  The second page in right after the title page.  15 TAGGART, J.A.:  Okay.  16 MR. GRANT:  The paragraph at the bottom on the right.  17  18 "The village tracts of hunting territory are  19 subdivided into parts belonging to different  20 native 'Houses' which are matrilineally  21 organized corporate groups."  22  23 You can compare that with Dr. Daly and there is no  24 difference.  25  26 "They own resources in only one village.  Only  27 the Houses which own such tracts are said to  28 'belong' to the village.  In addition to owning  29 hunting territory, each House owns berry  30 grounds and one or more fishing spots in or  31 near the village."  32  33 Now, I say that the evidence of the fishing spots,  34 what he must be referring to there is the proximity of  35 those to the villages he's talking about, which the  36 evidence indicates many of them are proximate to  37 Gitwangak and Gitsegukla and Hazelton.  38 Now, then going to page 9 at the bottom he  39 refers -- and this will come to the next point about  40 the traplines.  41  42 "...  lines are registered to individual  43 owners,"  44  45 And then he ties thems into the houses in the bottom  46 there.  But if you turn to page eleven you will see  47 his relief map of approximate area of Gitksan hunting 2704  Submissions by Mr. Grant  Submissions by Mr. Grant  1 grounds.  And it's hard to read in this photocopy, but  2 it's fascinating, my lords, because, and I say this is  3 my unscientific non-cartographic measurement, and my  4 colleagues.  It's between ten and 15,000 square miles.  5 It includes Bowser Lake up in the northwest.  It  6 includes the headwaters of the Skeena, the headwaters  7 of the Nass.  Now, this is the objective  8 anthropologist referred to by Canada.  His conclusions  9 support and corroborate what we say in terms of the  10 distant territories.  And if the map is not  11 significant, going to page 104, I'd just like to refer  12 you to this comment.  He says -- which is on the next  13 page:  14  15 "When the membership of a House expands, it is  16 ordinarily impossible for it to acquire more  17 territory at the expense of its neighbours  18 because of the layout of the terrain.  19 Traplines — "  20  21 And this is interesting distinction he makes.  22  23 "Traplines run along river courses and House  24 territory tends to consist of a whole valley  25 together with the streams which flow into it up  26 to their sources near the tops of the  27 mountainous ridges which surround the valleys.  28 Such terrain is considered by Gitksan to be an  29 integral unit, best held by only a single  30 House.  Though the expire Gitksan region  31 comprises many sectors which do not  32 conveniently isolate themselves this way, this  33 model is consciously recognized and affirmed by  34 Gitksan in discussions of their territorial  35 rights.  The perpetuity of the Houses thus  36 finds a basis in the natural distribution of  37 terrain which the Gitksan occupy."  38  39 What he is saying in 19 -- from his work in 1960s and  40 there is many other comments in his report, but these  41 are not inconsistent with Dr. Daly.  In fact, they are  42 completely consistent with Dr. Daly.  43 Now, I just want to take you to the other side of  44 the problem of anthropology.  And you saw the trial  45 judge's analysis, that we've explained it and Canada's  46 relied on it about Daly, Mills and Brody.  But on the  47 other hand, Canada has agreed with us that the trial 2705  Submissions by Mr. Grant  Submissions by Mr. Grant  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  judge accepted some of Dr. Robinson's evidence about  what was going on before the Hudson's Bay Company  arrived without even mentioning her by name.  I am  back at my speaking notes, my lord, page 34.  This  reinforces the appellants' point that her evidence, to  the extent it informed the judge's views, was not  subjected to the same or any scrutiny.  And I refer  you to her own quotes that she was permitted without  comment from the trial judge and this is from her own  correspondence and exhibits to "marshal an army of  support" for a made-to-order theory in favour of the  legal position of her client, the Province.  And  before commencing her work in March '86 she said to  the Province:  "My task is to develop theories showing that  significant changes occurred in Gitksan and  Wet'suet'en [sic] socioeconomies during the  late pre-historic and early historic eras, and  these are the result of both indirect and  direct European influence."  And when you read her report that she prepared and  delivered over a year or two later and you see her  evidence, you will see that lo and behold her task was  accomplished.  She did develop such theories.  I'd like to take you very quickly to tab 11, if I  may, and this goes to the lack of reliability on the  appellants' collective memory.  It's the next -- or  tab 10, I am sorry, in the speaking notes.  Mr.  Macaulay said about Ksun at paragraph two:  "... if a major fishery -- after all, that was  the centre of their lives until pretty  recently, -- is totally forgotten, so far  forgotten never to have been mentioned when  particular questions were asked about it, then  that goes to the reliability of recall of those  people if it's totally forgotten."  HUTCHEON, J.A.:  Is it tab 11?  MR. GRANT:  I am sorry, it should be -- the reply to Canada's  argument on reliability of collected memory.  HUTCHEON, J.A.:  I have it at tab 11.  TAGGART, J.A.:  So do I.  MR. GRANT:  Okay.  Then probably what I will come to next will  be at tab 11.  I will just leave it where it is if you 2706  Submissions by Mr. Grant  Submissions by Mr. Grant  1 don't mind.  Mr. Macaulay was wrong that the fishery  2 was forgotten.  He must have misunderstood the  3 appellants' evidence.  The fishery at that location  4 was mapped by Mr. Morrell and referred to by Mr.  5 Richard Benson in evidence and it indicated the  6 fishing sites at that location are used to the present  7 day.  8 And at page two and following I refer to all of  9 that material and I take you to paragraph -- I ask you  10 to look at this because I refer to the specific  11 evidence.  And my lords, if you have -- and you can  12 just make a note of this.  If you look at overlay 62  13 and this evidence establishes as I refer in paragraph  14 21, there is a group of reserves, all little circles.  15 One's called Sidina on the Skeena River.  That's Ksun.  16 And the evidence of Loring, the evidence of the  17 witnesses refers to it.  But the trouble is that Mr.  18 Macaulay misunderstood what that map was all about and  19 that's in your map atlas.  You see the yellow sticky I  20 put there, that's the location of Ksun.  It's on  21 your -- in your small map atlas as well.  It's -- Mr.  22 Morrell was mapping fishing sites.  And I refer you to  23 paragraph 24 where the Duff files -- I am referring, I  24 am sorry, to the sticky on the far right on that map.  25 I am referring to paragraph 24 where Duff transcribed  26 Barbeau's Reminiscences of his 1920 trip to Kisgegas  27 where Barbeau refers to stopping at Ksun.  And then  28 Barbeau, on the next page, lists the fishing places in  29 the canyon by order of Houses.  The other side and  30 this side.  And I have listed there for you those same  31 fishing sites on the -- on the Morrell map.  Barbeau  32 like Morrell labelled fishing sites.  And the fishing  33 camp is where a group of people were who had several  34 lodges.  35 Now, the next point is Dam Olp, at page 12,  36 paragraph 33 of my speaking notes.  Now, what's really  37 fascinating about Dam Olp, when you look at -- Mr.  38 Macaulay says none of the appellants have referred to  39 it.  And it's not labelled.  That's quite true.  But  40 on the word list the Gitksan name for Babine Lake is  41 Dam Git Gwoimt, people of the spring.  Now, the only  42 thing we can do to figure this out is when you -- and  43 you don't have to take your maps out now, but look at  44 the base map of Mr. Macaulay's.  And when you go 35  45 miles east/northeast of Hazelton and the mileage is  46 out, but if you go here, he's -- Loring talks about  47 lower Dam Olp, upper Dam Olp.  There is nothing -- no 2707  Submissions by Mr. Grant  Submissions by Mr. Grant  1 lake that's of greater than six miles east/northeast.  2 But the trail he would have used is marked.  It's the  3 Babine Trail and is marked, goes along the Suskwa  4 River, and it crosses over a very low height of land  5 into the Babine watershed and lo and behold he comes  6 out to the Babine villages there.  He then says in a  7 later trip that he goes downstream or down the lake or  8 up the lake and he goes -- and it's referred to in my  9 notes, and that would take him to the other reserve  10 and the other camp.  And Mr. Macaulay refers to this  11 and says, well, there is Hagwilget people there.  12 Well, yes, the evidence established that the Hagwilget  13 and the Babine worked closely together and at the  14 times of years he was there, there were Wet'suwet'en.  15 My lords, it's the only place if he was going at all  16 in that direction he says he was going, and I hope --  17 I am sure Mr. Loring knew his directions, the only  18 place he could have been going to was Babine.  And  19 it's not named by the Gitksan because it's outside the  20 territory.  21 The final point on this is the winter villages.  22 And I just referred on those maps to the two villages.  23 One is Luu Andilgan.  And it's referred to by Loring.  24 And my friend Mr. Macaulay refers to it at  25 paragraph -- I refer to it at paragraph 45 of the  26 argument and Mr. Macaulay refers to it there as well.  27 And that is actually labelled on the fishing sites  28 map.  It's 30 miles from Hazelton up the Kispiox River  29 and he refers to it as winter camp and it's actually  30 labelled as the place of Geel, a fishing site.  At  31 paragraph 51 he refers to Anlagasademdeex 50 miles of  32 up the Skeena from Hazelton.  This is the site on the  33 Morrell/Marsden map, which is an exhibit, of a  34 fishing -- of a village weir.  And it was a known  35 village site; Mr. Fred Wale gave evidence about it.  36 I submit in conclusion, my lords, that with  37 respect to Mr. Macaulay's argument that the failure to  38 mention Ksun and these other places shows there is no  39 collective memory with respect is completely wrong.  40 It was in evidence.  I have referred you to the  41 evidence.  And Mr. Macaulay misunderstood the intent  42 of that map when he thought it must have been talking  43 about fishing villages or villages and not just  44 fishing sites.  45 Now, I have at the last tab, which I take it, it  46 says "What came first?  House territories or trapline  47 registrations."  I have -- this is a submission in 270?  Submissions by Mr. Grant  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. GRANT  LAMBERT,  MR. GRANT  LAMBERT,  MR. GRANT  TAGGART,  MR. GRANT  TAGGART,  MR. GRANT  response to Mr. Justice Lambert's question.  J.A.:  This is under tab 10.  We have it.  :  It's under tab 10.  And I am not going to go through  that.  I am not going to go through that submission.  It answers the question, but I do want to say, my  lord, to Mr. Justice Lambert on the first page, I  say -- you ask:  "My other question is, can you tell from the  names of the people to whom the traplines have  been historically allocated whether they are  connected to the houses that now claim the  internal areas which coincide with the  traplines."  My understanding of that question, my lord, was that  you wanted to know that at the time the registrations  were first sought, were they connected to house  groups.  That's what my understanding was.  Were they  connected to people whose territory's in that area at  that time.  J.A.:  I was interested in both initially and  continuously.  But --  :  Okay.  Well, if you're interested -- Canada has  answered the 1985 question or '84 question.  J.A.:  Yes.  :  But my understanding was historically.  And the  material is in -- is in the exhibits, the trapline  material.  I  -- with leave of the Court, we would  undertake to answer that first question or provide the  Court with an answer to that question, but I did not  have the table of concordance done because I wanted to  get clarification after answering Canada's question,  but we could file that with you, with the Court based  on those two exhibits just to show the concordance.  I  would ask leave to do that.  J.A.:  In essence, Mr. Grant, you really wanted  clarification of the question what was involved and  you now want to submit amplified responses to the  question.  That is to say, an amplification of what  appears on tab 10.  Am I correct in that?  :  As you may recall a few days ago Canada provided a  listing.  J.A.:  Yes.  :  A contemporary listing and I had understood the  question as historical and now Mr. Justice Lambert's  clarified it as both, and I had thought Canada was 2709  Submissions by Mr. Grant  Submissions by Mr. Grant  1 going to do it historically, so we would like to  2 provide a similar listing basically historically at  3 the time the registration applied.  Again, just a  4 listing.  5 LAMBERT, J.A.:  Mr. Wolf said that it hadn't proved possible on  6 an examination of the records to do it historically.  7 What I had said was it might be revealing - I couldn't  8 tell until the work had been done - as to the  9 relationship between the traplines and the territories  10 from 1920 to the present time.  And of course, it was  11 a great amount of work and I don't want to ask people  12 to go to more work than they feel is wise in the  13 circumstances, but Mr. Wolf said that they couldn't do  14 it for the earlier times because the trapline records  15 weren't well enough maintained in the early days and  16 didn't have proper maps with them.  If they had a map  17 at all it was a kind of rough sketch.  18 MR. GRANT:  A sketch.  19 LAMBERT, J.A.:  So he said that Canada couldn't do it.  I still  20 think it's an interesting question, but it may well be  21 that the time involved in exploring it is not worth  22 the results that would flow.  But if you -- if you  23 think it would be worthwhile to prepare something for  24 1920 or for any time historically, then I would very  25 much like to look at it.  2 6 MR. GRANT:  Right.  27 LAMBERT, J.A.:  But Canada should have a chance to respond.  If  28 you file something like that it should be on the basis  29 that Canada can have ten days after your material is  30 filed to file in response.  31 MR. GRANT:  I have no difficulty with that, my lord.  32 LAMBERT, J.A.:  Very well.  33 MR. GRANT:  My lords, just before sitting down, this is my last  34 opportunity on these appeals to speak to you and on  35 this appeal, and I just wanted to raise with you what  36 I see is the difficulty when the trial judge dealt  37 with this evidence.  I submit, my lords, that there  38 were two handicaps that we, as counsel, and that the  39 trial judge and that the Court generally has.  One is  40 general and one is particular.  The handicap of the  41 general is the question that in our society there has  42 not been -- history has not been looked at of this  43 continent from the side of the Indian people.  And in  44 a recent book published for the 500th aniversary by  45 Ronald Wright, he wrote a book called "Stolen  46 Continents" and he talks about that very issue that  47 the history has been invisible.  And it's interesting 2710  Submissions by Mr. Grant  Submissions by Mr. Grant  1 what he says about his own experience when he was  2 growing up in England.  He said he became bored with  3 the history of Greece and Roman Britain before 1850  4 and then he said:  5  6 "Even a school boy could see that the cultures  7 of South, Central and North America had been  8 casually and ignorantly dismissed by western  9 historiography.  Ancient American was  10 criticized for lacking things that Europe had,  11 things deemed epitomes of human progress.  The  12 plough and the wheel were favourites; another  13 was writing.  It never occurred to Eurocentric  14 historians that ploughs and wheels were not  15 much use without draft animals such as oxen and  16 horse, neither of which existed in the Americas  17 before Columbus.  Far from marvelling that  18 civilization arose there despite these  19 handicaps, historians took the absense of  20 plough and wheel as proof than ancient  21 Americans could not truly have been civilized."  22  23 And that really what he is saying here in this book  24 and he goes on and studies from Canada the Iroquois  25 all the way to the Incas, he goes on to analyse the  26 history from the Indian perspective and the aboriginal  27 perspective.  And that I say is a general problem that  2 8 we have and have to try to overcome in dealing with  29 aboriginal rights issues.  We have to try to  30 understand, as I said in argument on the Manitoba  31 Justice Inquiry, try to understand from the aboriginal  32 perspective.  And fortunately things are better than  33 they were 20 years ago.  The particular problem is  34 that the Court never had an opportunity to participate  35 in the feast.  And I just want to say that that would  36 have assisted, I submit, the Court, because you cannot  37 attend a feast without seeing the power of the  38 people's own government, how it works on control of  39 their land.  40 The real task Mr. Jackson and Ms. Mandell have  41 raised for the Court.  The Court in the Mabo decision  42 notwithstanding the written submissions we will make  43 and we don't agree with all of it, but the real  44 intellectual issue as Mr. Jackson said this morning,  45 was to overcome the terra nullius doctrine in  4 6 Australia.  That was the insurmountable impediment to  47 aboriginal peoples in Australia whose rights were 2711  Submissions by Mr. Rush  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  TAGGART,  MR. RUSH  completely non-recognized.  And this Court has the  same, I submit, task before it to really change the  trend in this province and to recognize  non-extinguishment in any of its cloaks, the cloaks of  complete extinguishment or the cloak of this new  version of Canada and B.C.  I just want to say from having worked with the  appellants for these several years, that I submit that  the appellants did not come to this Court or the trial  Court to get recognition that they can hunt moose and  berries on unoccupied Crown lands.  They don't really  have to do that.  And this trial and this huge appeal  would not have been mounted for such a reason.  Nor  did they come to this Court to get a right to govern  themselves in their own villages.  They don't really  have to do that.  What they have come to you to this  Court for is a recognition of the law, the European  law, I mean the Anglo-Canadian law now, the common  law, that is directed to Canada and British Columbia  which says to them, the Court says to them:  Enough.  You can no longer hide by these other legal excuses  and you can no longer avoid the question that was  tried to be put before the Privy Council in 1910.  You  cannot keep stealing the land and resources of the  First Nations of this Province until you negotiate  with them.  Now, there is not a declaration of  negotiation.  There is -- the only thing you can do is  recognize the rights.  I ask you don't be misled by  the talk of Treaty Commission.  The Gitksan and  Wet'suwet'en have heard this language for the last  hundred years.  There has been governments that have  been generous and governments that have been  parsimonius.  So I ask the Court to apply the laws as argued by  the appellants so that the government will be  compelled to negotiate if they want the issue of the  territory and resources to be resolved.  And also to  recognize that the people -- it is not a creation, but  the people do have territories far beyond the villages  and I thank you for the opportunity to make the  submissions that I have been able to make to the  Court.  J.A.:  Thank you, Mr. Grant.  Mr. Rush.  I will conclude for the appellants.  I am going to  direct your lordships' attention to four subject  areas.  The first will be the appellants' argument on  the Amicus' Submission on Remedies.  Secondly, it will 2712  Submissions by Mr. Rush  Submissions by Mr. Grant  1 be in respect of Canada's argument on the overlap.  2 LAMBERT, J.A.:  You are going a little too fast for me, Mr.  3 Rush.  4 MR. RUSH:  The first will be the Amicus' Submission on Remedies.  5 LAMBERT, J.A.:  Yes.  6 MR. RUSH:  And secondly, with respect to the overlap.  Third,  7 Canada's argument on the facts and finally, the  8 Amicus' argument on the facts.  What you will need is  9 only the speaking notes binder.  I am not going to  10 take you to references.  What I need is in the  11 speaking notes.  And if you will place that in front  12 of you and open the binder to tab five.  I will make  13 my submissions for the appellants on the Amicus' view  14 of remedies.  And I take you in tab five to page  15 seven, and at page seven, paragraph 19.  And this  16 deals with the test for overturning the trial judge's  17 finding.  It was argued by Mr. Willms - I am now at  18 tab -- at paragraph 19 - that the appellants'  19 declarations in paragraphs 2(a) and 3(a) require the  20 overturning of findings of fact by the Chief Justice  21 without meeting the test of palpable or overriding  22 error.  The proposition advanced by the Amicus is  23 this, is the test, and it's only the test.  And we say  24 that the Amicus simply ignores, bypasses the test set  25 out by the Supreme Court in Geffen.  And the  26 appellants say that these tests are completely  27 compatible in the circumstances of this case.  And if  28 I leave you with no other point it is this point, that  29 the test for overturning factual findings by a trial  30 judge set out in Geffen can be understood as an  31 instance of the operation of the palpable and  32 overriding error test.  And so we say that it was a  33 palpable and overriding error for the trial judge to  34 fail to appreciate or disregard relevant evidence.  35 And at 20, the appellants have shown in this  36 appeal that the record at trial, including the reasons  37 for judgment, "disclose a lack of appreciation of  38 relevant evidence and more particularly the complete  39 disregard of such evidence."  In circumstances such as  40 those argued for by the appellants, as a matter of  41 law, we say it falls to this Court to intercede.  And  42 we say in particular response to the Amicus here, that  43 if the trial judge has erred, as we say he has, in his  44 appreciation of relevant evidence, then this Court  45 must intervene even if it requires reversing him on a  46 substantial body of his factual findings.  47 The appellants have shown throughout their 2713  Submissions by Mr. Rush  Submissions by Mr. Grant  1 argument how the Chief Justice misinterpreted and  2 wholly ignored evidence before him.  I take you to  3 the -- to one example here and that is his blanket  4 rejection of the anthropological evidence without  5 referring to the specific reasons for doing so.  6 Now, my lords, I point out in paragraph 22, that  7 in further written submissions to be filed by the  8 appellants on the test for overturning findings of  9 fact which this Court has invited, we will submit on  10 this issue in greater detail.  11 At 23, paragraph 23, the Amicus similarly submits,  12 in its paragraph 36, that declarations in relation to  13 paragraph 2(a) and 3(a) of the appellants' relief can  14 only be granted if the Court is satisfied that a  15 palpable and overriding error was committed by the  16 trial judge in his findings.  Now, once again, the  17 Amicus casts this test as if this sole issue  18 concerning the appellants' claim to ownership or to a  19 proprietary land interest relates to findings of fact.  20 It doesn't.  The appellants have argued that first and  21 foremost the trial judge's errors are legal errors.  22 His finding that the appellants' rights are not  23 proprietary in nature is a legal error.  His "very  24 long time before" sovereignty test is a legal error.  25 The trial judge's approach to the facts we say was  26 conditioned on these and other legal errors.  He made  27 legal errors on his assessment of the facts.  And  28 again, by way of example, I point to the fact that he  29 ignored the evidence such as Plate 13, the Historical  30 Atlas, Dr. Ray's evidence on the fur trade influence  31 and the 1910 MacDougall map.  The applicable test for  32 evaluating the evidence in the circumstances of this  33 case is failure to appreciate or disregard relevant  34 evidence.  And this is what we say his lordship did.  35 Now, turning to another point, at paragraph 24,  36 Mr. Willms suggested in his oral submissions that the  37 trial judge had actually made factual findings in  38 relation to the appellants' ownership claims  39 notwithstanding his extinguishment findings.  And he  40 took this from the trial judge's comment in his  41 findings.  And I there set it out, my lords, and I ask  42 you to look at the bolded portion.  And my comment  43 about this is at page ten, paragraph 25.  Because  44 here, we say, that the trial judge found as a matter  45 of fact that the appellants had proved their ownership  46 and jurisdiction as a matter of aboriginal rights in  47 the areas of the villages.  He went to to say, and I 2714  Submissions by Mr. Rush  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  HUTCHEON,  MR. RUSH:  HUTCHEON,  MR. RUSH:  HUTCHEON,  MR. RUSH:  HUTCHEON,  MR. RUSH:  HUTCHEON,  MR. RUSH:  HUTCHEON,  MR. RUSH:  add this, but he did not make and would not make the  same finding with respect to the rest of the  territory.  And that's in the passage I've cited.  Now, my lords, this finding is premised we say on  the legal assumption that there was a pre-existing  legal and jurisdictional vacuum in the appellants'  territory prior to 1846.  And we say as a legal  finding this is manifestly wrong.  The appellants sui  generis law applied as a pre-existing right and we say  their ownership system applied.  Now, I take you down, my lords, to the third line  of paragraph 26 as the point that I want to emphasize.  We say as a matter of fact it is established that the  appellants' ancestors in their villages owned and had  jurisdiction over the land of the villages.  Established fact.  And I say this is accepted,  accepted by the trial judge, and we've worked on that  premise in this proceeding.  However, the trial judge  was wrong to then find that with regard to the rest of  the territory - outside the village sites - as a  matter of both law and fact, there was no organization  of ownership and jurisdiction of the appellants.  Now, I ask the question, in paragraph 27, how can  it be that as a matter of fact the appellants'  ancestors owned and governed themselves inside their  villages, but when they stepped outside those villages  they didn't?  Nobody else was there.  Only the  appellants' ancestors.  And what does the trial judge  mean when he refers to the areas outside the villages?  Does he mean ten metres?  Does he mean ten miles?  We  don't know.  He doesn't help us.  J.A.:  Where did the 20 miles come from?  My lord, that was taken from a passing comment made  by a witness at trial that one could walk 20 miles in  a day.  J.A.:  I see.  And that was considered to be the full extent of the  reach of the --  J.A.:  But the trial judge didn't use that or did he?  He did use that.  J.A. :  He did use that?  Yes.  J.A.:  Well, I don't understand when you say we don't  know what he MEANT.  Well, my lords --  J.A.:  I am lost.  I say that there is no principle, it's no principle 2715  Submissions by Mr. Rush  Submissions by Mr. Grant  1 to determine the geographic extent of the appellants'  2 territory based on how far somebody could walk in a  3 day.  With respect I say that the answer to the  4 question is in the territorial system described by the  5 appellants at trial.  It's only in the appellants'  6 evidence that you find the principles of their land  7 tenure system which provides the answer to this  8 question.  9 Now, my lords, I take you now to the next point  10 that I want to make and that's at page 16, and I shift  11 gears here to discuss for the moment the de facto  12 doctrine.  It's at paragraph 45.  The Amicus argued,  13 at paragraph 45, that the de facto doctrine applies to  14 the remedies sought by the appellants.  And in this  15 paragraph I have set out their argument and I have  16 three points that I wish to make in response to this.  17 The first is at 46.  The Amicus' argument on the de  18 facto doctrine proceeds on a faulty premise about the  19 nature of the remedies which the appellants seek,  20 namely, that the appellants seek to have provincial  21 laws declared invalid in this litigation.  This is not  22 so.  The appellants do not claim here that the laws of  23 the province are invalid.  The appellants say that the  24 provincial law must operate constitutionally.  It  25 cannot operate so as to extinguish the aboriginal  26 rights of the appellants.  Nor can provincial law  27 operate to impair or disable aboriginal rights except  28 pursuant to constitutionally-recognized principles.  29 Any permissible infringement would be determined by  30 subsequent case-by-case analysis.  And as we have  31 submitted this morning in Mr. Jackson's submissions,  32 we say that the province can grant tenures pursuant to  33 valid provincial laws, but to the extent that those  34 tenures are irreconcilably inconsistent with the  35 appellants' aboriginal rights, the grant may not be  36 exercisable.  37 My second point is at 49, and this is directed  38 specifically at the nature of the de facto doctrine.  39 On the submissions advanced by the Amicus "[t]he de  40 facto doctrine is engaged when the Court determines  41 that an official act was performed without authority."  42 And at 51, I make reference to the Manitoba Language  43 Reference case and the cases on which it relies in  44 which our submission it makes it clear that the  45 doctrine applies where there is a gap in the  46 legitimate governing powers or process.  And we -- I  47 direct your attention to the indented passage and 2716  Submissions by Mr. Rush  Submissions by Mr. Grant  1 particularly to these comments:  2  3 "Thus, the de facto doctrine will save those  4 rights, obligations and effects which have  5 arisen out of actions performed pursuant to  6 invalid acts ..."  7  8 I just ask you to underscore the word "actions."  9 And I direct your attention now over the page to  10 paragraph 54 where it's our proposition that the de  11 facto officer doctrine - and that's what this doctrine  12 is about, it's the de facto officer doctrine - does  13 not validate illegalities themselves, but only the  14 consequences of acting in good faith in disregard of  15 those illegalities.  And I cite the passage upon which  16 we take that -- from which we take that from Manitoba  17 Language Reference.  18 I make the point, in paragraph 55, that the  19 doctrine does not apply where the governing authority  20 was valid but the grants made by it were not.  21 Otherwise the grant that was made in the St.  22 Catherine's Milling case would have been saved by the  23 doctrine.  24 Now, I take you, my lords, over to page 22,  25 paragraph 63, for my concluding points.  And at the  26 top of 22 I say that Mr. Willms argued in his  27 paragraph 106 on the strength of the de facto doctrine  28 and the state necessity doctrine, that if the  29 appellants' declarations are granted the validity of  30 Crown grants will come into question and will create  31 uncertainty.  In his oral argument, Mr. Willms made a  32 little more of this by calling your lordships'  33 attention to "chaos" and "anarchy" that would result  34 "as to the effect of all instruments which have been  35 granted in the territory."  And he says, then, that a  36 transition period is required to protect those  37 interests.  Well, I say that the Supreme Court  38 recognized that the doctrine of state necessity and  39 its role in preserving the legal consequences of  40 unconstitutional laws, but only for the limited  41 purpose of according temporary validity to those laws.  42 And I draw your attention to the portion that I have  43 set out here, the fifth line down:  44  45 "But even more fundamental that this  46 distinction is the fact that all of these cases  47 require that the laws saved by the application 2717  Submissions by Mr. Rush  Submissions by Mr. Grant  1 if the doctrine not impair the rights of the  2 citizens guaranteed by the Constitution.  In  3 the present case, the laws in question do  4 impair these rights."  5  6 Now, in the case at bar, referring to the whole of  7 this passage, there is no constitutional attack on the  8 laws of the province.  Insurrectionary governments so  9 far as I am aware are not in issue.  And at the top of  10 23, the rights of the appellants, guaranteed by  11 section 35, are impaired by actions taken by  12 government officers.  13 More importantly, my lords, we say that the onus  14 is on the Province to demonstrate necessity and it has  15 not done so.  It must provide a convincing  16 demonstration.  Speculation, such as that indulged in  17 by Mr. Willms, about the consequences of the exercise  18 of the appellants' aboriginal rights is simply not  19 sufficient to invoke the necessity doctrine.  20 Now, in his oral submissions, Mr. Willms argued  21 that if this Court declares the appellants have  22 aboriginal rights to land within section 35, that will  23 invalidate provincial laws because those laws do not  24 recognize that title.  And we say that this argument  25 exaggerates the effect of the declarations sought.  26 This theory is concerned with inconsistency at a  27 general level, and it assumes that legislative schemes  28 which do not reflect recognition and affirmation of  29 aboriginal rights cannot be reconciled with it or that  30 inconsistency will result in every case from the  31 application of such laws.  32 The appellants do not argue such a position.  No  33 laws are impunged by the appellants.  The appellants  34 do not assert that all provincial laws would  35 automatically be unconstitutional if their remedies  36 were granted.  37 And we say, at paragraph 70, that the decision in  38 Sparrow demonstrates relationship between a finding of  39 rights within section 35 and laws which may be  40 implicated.  In that case the Fisheries Act was  41 generally inconsistent with the recognition and  42 affirmation of aboriginal rights under section 35.  43 The Act provided for no fishing as a matter of  44 aboriginal right and only allowed food fishing by  45 permit.  But the Court did not strike down the  46 Fisheries Act, even though Canada argued that it was a  47 unified statutory scheme that was completely 271?  Submissions by Mr. Rush  Submissions by Mr. Grant  1 inconsistent with aboriginal rights.  2 The Court in Sparrow, instead, was concerned with  3 operational inconsistency - whether the regime  4 developed and applied pursuant to the statute was  5 inconsistent with the exercise of existing aboriginal  6 rights.  7 That does not mean that all or portions of some  8 legislation might not be challengeable under section  9 35 providing those were clearly inconsistent with  10 section 35 and could not have any other effect.  In  11 most cases relevant legislation will likely only be  12 limited in application.  13 Because the justification procedure was not  14 examined at trial does not mean that there cannot be a  15 declaration of section 35 rights.  It means only that  16 no particular law can be tested for inconsistency with  17 section 35 by that procedure, and this assumes that  18 the justification test is an appropriate one for  19 provincial land legislation.  As Mr. Jackson has  20 argued, we propose other principles be applied.  The  21 appellants have submitted the proper procedure for the  22 reconciliation of inconsistent laws and their section  23 35 rights in their Revised Submission on Remedies.  24 Now, that concludes, my lords, what I have to say  25 about the Amicus' Submission on Remedies and I want to  26 now take you to tab 12 and I want to reply for a  27 moment on Canada's argument on the overlap.  I am not  28 going to ask you to turn this up.  But I want to  29 illustrate the one point, if you will, from this map  30 which purportedly shows the overlaps of the  31 appellants' territory.  And if you are with me at tab  32 12, my lords, and I am at paragraph one.  Canada  33 relied extensively on overlapping "claims" as a  34 foundation to dispute the reputation of the external  35 boundary of the appellants.  And they rely on the fact  36 that adverse claims have been made is sufficient, they  37 say, to dilute the undisputed reputation of boundary  38 for which the appellants contend.  39 Canada filed an overlay to the Judge's or Canada's  40 Map Series as part of its argument.  This is what's on  41 this map now.  And I say this overlay is highly  42 misleading.  And it can be demonstrated by reviewing  43 some of the claims.  Now, I go to these claims not  44 solely for the purpose of demonstrating that this map  45 is not of much assistance, if any, but also to  46 demonstrate that the extent of the overlap suggested  47 to your lordships is not as characterized by Canada. 2719  Submissions by Mr. Rush  Submissions by Mr. Grant  1 And I have set out the overlaps of four of the  2 aboriginal peoples on the boundaries of the Gitksan  3 and Wet'suwet'en, but I intend to refer to only two  4 and I leave the others for your lordships to read.  5 At paragraph four, dealing with the  6 Carrier-Sekani, I make the comment that Canada  7 repeatedly argued that the Court should consider  8 Exhibit 101 as the basis for the claim of the  9 Carrier-Sekani at trial.  And this is directly  10 contrary to the evidence called at trial.  Prior to  11 the commencement of this action the Carrier-Sekani  12 claim, depicted on Exhibit 101, had been reduced to  13 four specific areas.  14 Mr. Sterritt testified that -- and I am on the top  15 of the next page which is lacking the number two.  16 Nonetheless, he says:  17  18 "... well, if you go by the original map"  19  20 which is Exhibit 101,  21  22 "that was issued by the Carrier-Sekani Tribal  23 Council, just about all of that has been  2 4 removed."  25  26 This is after the Burns Lake overlap feast in 1987  27 between these two nations.  And then he says at the  28 bottom in the bolding:  29  30 "... but in terms of what's -- what remains,  31 there is a, as I know it now, there is -- there  32 may be a smaller area in the northeast."  33  34 Perhaps more significantly is the evidence that was  35 referred to by Canada itself, paragraph six where  36 Edward John, the president of the Carrier-Sekani  37 Tribal Council, spoke on behalf of the Carrier-Sekani  38 Chiefs.  And this is what he said.  There can be in my  39 submission no other authoritative voice than Mr. John  40 in in respect.  The outstanding areas which they could  41 not agree to with the appellants were limited to four:  42 Thutade Lake, Cheslatta Lake, Francois Lake and  43 Whitesail Lake.  Canada acknowledged this in their  4 4 argument.  45 Now, my lords, Thutade Lake, if I can direct you  46 to this, is in the upper northeast portion.  It's  47 here.  Now, if I can just remind your lordships that 2720  Submissions by Mr. Rush  Submissions by Mr. Grant  1 the solid black line is the line of the claim.  The  2 dashed line here is purportedly the Carrier-Sekani  3 overlap.  If you take, as I am going to with this  4 black felt pen, and I hope Mr. Macaulay will forgive  5 me for marking on his map, and just at the best take  6 off the Thutade Lake area, we take off this area here,  7 my lords.  Thutade Lake is right there.  Now, if you  8 go to the other two points, Cheslatta Lake, Francois  9 Lake and Whitesail Lake, you are down here at the  10 bottom.  Here is the line and here is Whitesail,  11 Ootsa, and at the very best let's take all of Francois  12 Lake.  That's the line.  Now, assuming that you want  13 to go one step further and go beyond what Mr. John  14 said and say that there is some dispute about Bear  15 Lake -- well, here's Bear Lake, my lords, and let's  16 just put in that.  Now, I ask you to compare what in  17 the evidence Edward John and Mr. Sterritt said with  18 the dashed line of what is said to be the extent of  19 the Carrier-Sekani overlap, and there is absolutely no  20 comparison as the extent of the territories that are  21 touched.  22 My second point with respect to the Tahltan and  23 the Gitksan boundary, I am at paragraph 8.  This is --  24 the evidence of the Gitksan witnesses described a  25 settlement with the Tsetsaut which led to the  26 acquisition of the northern Gitksan territories of  27 Kliiyemlaxha and Geel.  It's up at the upper reaches  28 of the Skeena.  Now, these settlements occurred before  29 the arrival of the white man.  Now, my lords, what  30 we're told by this map is that the yellow line here  31 represents the Tahltan claim.  By a question - by  32 answer to a question put to him by his lordship at  33 paragraph ten, the Court said:  34  35 "   Mr. Sterritt, is it fair to say that the  36 boundary you fixed by whatever means was  37 also acceptable to the Tahltan people?  38 THE WITNESS:  That's my understanding."  39  40 And the boundary that was fixed, as your lordships  41 know, is the black boundary here.  There is no basis  42 on the evidence for a claim like this representing a  43 Tahltan overlap claim in the north of the territory.  44 I make similar points with respect to the Kitwancool  45 claim and with respect to the Nishga claim.  I am not  46 going to take you to them.  I ask you to read my  47 submissions.  And from there, my lords, I will pass to 2721  Submissions by Mr. Rush  Submissions by Mr. Grant  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  my third area of my argument and that is Canada's  argument on the facts.  TAGGART, J.A.:  Would it be appropriate to take five minutes,  Mr. Rush?  MR. RUSH:  It would, thank you, my lord.  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Laara Yardley,  Official Reporter,  UNITED REPORTING SERVICE LTD. 2722  Submissions by Mr. Rush  Submissions by Mr. Rush  1 (PROCEEDINGS RESUMED AT 3:15 P.M.)  2  3 TAGGART, J.A.:  Yes, Mr. Rush.  4 MR. RUSH:  I am at tab 13.  5 It says the appellants' reply to Canada's argument  6 on the facts.  And I say by way of opening, my lords,  7 that we conclude here our submissions in this appeal  8 in the same way that we began them, with the facts.  9 And our reply here is principally directed at Canada's  10 submissions.  Canada devoted much of its speaking time  11 attacking the facts and brought -- that were brought  12 to bear in this trial by the appelants.  And at  13 paragraph 1 I note that Canada says that the trial  14 judge's findings of fact are correct and strongly  15 supports them.  But the only evidence Canada is  16 prepared to refer to is an arbitrary selection of the  17 available historical documentary evidence, gathered by  18 non-Indians, limited almost entirely to the Hudson's  19 Bay records, missionary accounts, provincial  2 0 government reports and the Loring reports.  Even on  21 this partial record, Canada's account of the facts is  22 frequently incomplete, misleading or simply wrong.  23 At paragraph 2 I say that to judge from the  24 statement of facts in Canada's revised factum, there  25 is no need whatsoever to address the opinion reports  26 of the historical geographers, Professors Ray and  27 Galois, the anthropologists Daly, Mills and Mr. Brody,  28 or the genealogist, Ms. Harris.  29 To judge from their statement of facts there is no  30 need to deal with the appellants' own evidence about  31 their own societies and histories.  The evidence of  32 former indian agents Loring, Boys and Mclntyre is  33 preferred by them.  For Canada, the oral histories and  34 indeed the Indian voice are virtually silent.  Any  35 record of Indian assertions on their own behalf, which  36 is reflected in the historical documents, is wished  37 away as land claim rhetoric inspired by the  38 every-present and all-powerful missionary conspiracy.  39 Canada advances the do-it-yourself history and  40 anthropology of the counsel table, without a critical  41 examination of the sources and in complete disregard,  42 we say, of the inconvenient views of real historians  43 or anthropologists.  44 Canada agrees out with 40 out of 168 paragraphs of  45 the statement a facts in the appellants' factum, but  46 it completely fails to engage or deal with the  47 evidence and argument on factual matters on the 2723  Submissions by Mr. Rush  Submissions by Mr. Rush  1 balance of the appellants' factum.  And I particularly  2 ask your lordships to note the factual assertions and  3 defence of those facts, raised in tab 4 on the  4 ownership and self-government section, and in tab 5 of  5 the appellants' factum on the ownership system beyond  6 the villages.  7 What is surprising, my lords, in reading their  8 response, to emphasize the point, is there is no  9 rejoinder, there is no engagement on those facts.  10 Now, about the Hudson's Bay record.  In purported  11 defence of the trial judgment, Canada argues, and I  12 quote:  13  14 "We have no adequate record of the Gitksan or  15 Wet'suwet'en in the 1820s at all.  We have just  16 very brief encounters with them, particularly  17 with the Gitksan."  18  19 But that's not how the trial judge viewed the  20 situation, and he called those same records "a rich  21 source of historical information."  It was accepted by  22 Prof. Ray, and he accepted Prof. Ray's  23 characterization of them as the only solid description  24 existing of Gitksan, Babine and Wet'suwet'en social  25 political, territorial organization, the earliest  26 complete description that we have.  27 Now at paragraph 8, my lords, I direct your  28 attention in this reply to the significance of  29 conflict, because much was made of it in Mr.  30 Macaulay's submissions.  Canada argues that a high  31 incidence of killing and revenge disclosed in the  32 Hudson's Bay record shows that there was no ownership  33 or jurisdiction and no law.  Canada made a great deal  34 out of this.  But we have responded to it in the  35 following paragraphs, and I set them out there, my  36 lords, at paragraphs 9 right the way through to 12.  37 But importantly, and I take you to paragraph 12, and  38 it's the point I want to make here, that in his  39 evidence Prof. Ray also described the mechanisms in  40 place to minimize and settle conflicts by means of  41 feasting and compensation.  This was supported by  42 other evidence referred to in the appellants' factum  43 and reply factum.  And if you refer to paragraph 13,  44 this evidence concluded with the following exchange  45 between Prof. Ray and counsel, and I take you to Dr.  46 Ray's response:  47 2724  Submissions by Mr. Rush  Submissions by Mr. Rush  1 "I did discuss the whole purpose -- the whole  2 notion of treaty trade, I believe as a kind of  3 native diplomacy that was used to establish  4 trade contacts, negotiate rights of access, to  5 resolve disputes and settle these kinds of  6 conflicts.  So this is one of the ways they  7 solved them.  Now we've established the fact  8 that they are not always initially successful,  9 but ultimately that is usually the way they  10 were resolved."  11  12 Now, my lords, I add to this that contrary to  13 Canada's attempt to show the significance of this  14 evidence, in that the evidence of violence went to  15 show the absence of jurisdiction and laws.  I say that  16 this evidence of Dr. Ray, set out in 12 and 13 and  17 contained in the Hudson's Bay record, demonstrates  18 that a system with the means to peaceably resolve  19 conflict through institutions like the feast, is  20 indeed a system that has laws and is self-governing.  21 I take you to paragraph 16 on page six.  Canada  22 says that there is no mention in the Hudson's Bay  23 record of clan connections.  It is true that the Bay  24 records only use the term clan once.  But the records  25 clearly speak of a larger kinship organization than  26 the family or even the village.  Canada does not  27 address, my lords, much less refute, the demonstration  28 in the appellants' factum that the Gitksan and  29 Wet'suwet'en societies, reflected in the Bay records,  30 included the residence of several villages,  31 collectively organized, and described as peoples or  32 nations.  These are the words of William Brown.  33 My lords, I add to this, after paragraph 18, that  34 the trial judge does not pay any attention to this  35 type of evidence that's discernable from the judgment.  36 He doesn't say where the evidence went, he doesn't  37 tell us what he makes of the evidence.  38 Furthermore, and I am at 19, Canada does not  39 explain the trial judge's conclusions that the Gitksan  40 and Wet'suwet'en were distinct peoples for centuries  41 or millennia, and that "both plaintiff groups are  42 peoples with common clans, languages and customs."  It  43 is clear from the context that the latter references  44 includes pre-contact times.  The trial judge does not  45 explain how these findings can be reconciled with his  46 other observations about the appellants' ancestors  47 lacking institutions and acting instead on survival 2725  Submissions by Mr. Rush  Submissions by Mr. Rush  1 instincts.  Instead, my lords, and I add to paragraph  2 19, Canada wants you to accept that you're dealing  3 only with a traditional nuclear family, and they  4 attempt to show this in paragraph 20 by the so-called  5 census of 1839.  That, in our submission, doesn't take  6 them anywhere for the reasons that we set out in that  7 paragraph.  8 Now, over to 22.  Here we are dealing with the  9 extent of Gitksan and Wet'suwet'en lands.  And at  10 paragraph 22 our argument proceeds on this footing,  11 that Canada argues that, with a single exception, it's  12 impossible to tell from the Hudson's Bay records how  13 far beyond the villages the hunting grounds extended.  14 And there is no description of where the hunting  15 ground is.  It says that LeJacq's 1869 account is what  16 they say the first historical record of where their  17 hunting grounds were.  18 Now, my lords, in fact the Bay and other historical  19 records contain a number of references collected in  20 the appellants' factum, showing that the countries, to  21 use the Bay's term, involved were large, far-flung,  22 and bordered on those of other nations.  Again, the  23 Bay's term.  Canada does not refer to that evidence,  24 and neither did the trial judge.  25 Now, my lords, what the Bay records tell you is  26 that you're not dealing with a small village  27 territory, you're dealing with a very large territory.  2 8 And I remind you of some of the comments from these  29 records.  "Certain tracts of land to which they claim  30 an exclusive right."  "The country being parcelled out  31 among certain families whom it descends by  32 inheritance."  Those are but two quotes found in the  33 appellants' factum.  I again take you back to the  34 submissions that we made more than 30 days ago, there  35 is nothing equivocal if that evidence, my lords.  36 At paragraph 24 I note that Canada argues that in  37 the 1870s the Gitksan were not allowed down the Skeena  38 River to trade at the coast, and the Nisga'a took the  39 same hard line with them.  To the extent that this is  40 true, it illustrates the importance which Indian  41 nations attach to their territorial boundaries and  42 trading rights.  Other documentary reference to  43 national and tribal boundaries can be found in the  44 appellants' factum.  45 I take you to July of 1888, during the Skeena  46 uprising Magistrate Fitzstubbs wrote to the provincial  47 attorney-general and he said: 2726  Submissions by Mr. Rush  Submissions by Mr. Rush  1  2 "In dealing with the Indians here the great  3 difficulty is that there is not to be found one  4 who is in favour of the supremacy of any law  5 but their own."  6  7 And the next bolded portion:  8  9 "The consent of the Indians would be necessary  10 to peaceable occupation, which will not be  11 given until they are disabused of the  12 correctness of the belief almost an insisting  13 in respect of their possessory rights in the  14 land and this I think may require force."  15  16 Now, with respect to the trial judgment, or to the  17 trial judge, who dismissed comments of the appellants'  18 ancestors as mere political statements, here  19 Fitzstubbs certainly doesn't think he is dealing with  20 a political statement.  He doesn't see this as easy  21 politics.  22 At paragraph 26, Canada argues that Loring found  23 the southern part of the territory substantially  24 unoccupied by the Wet'suwet'en in 1905.  And  25 presumably this is an attempt to cast doubt on the  26 McDougall map of 1910.  But there is a great deal of  27 evidence cited in the appellants' factum, which  28 neither Canada nor the trial judge refers to, from  29 Loring and from others, that the areas south from  30 Moricetown to Francois Lake was Wet'suwet'en long  31 before 1905.  In 1918 Loring referred to O'Reilly's  32 failures in 1891, and he said:  33  34 "...originally, the Indians had holdings and  35 homes exclusive of the present reserves in a  36 sort of prescriptive right.  They were held in  37 succession from the time beyond all  38 remembrance.  These holdings were, in 1891,  39 that many in numbers and so remotely situated  40 at all dispersions of the compass to be dealt  41 with."  42  43 At paragraph 28 we say that in 1890 Loring wrote  44 that the Wet'suwet'en habitations and homes were on  45 the interior lakes.  In 1906, cabins at Ootsa Lake.  46 In 1907 he said they cannot do without the localities,  47 habitations and graves on the north shore of Burns 2727  Submissions by Mr. Rush  Submissions by Mr. Rush  1 Lake.  In 1917 he referred to Wet'suwet'en living on  2 Elwin Lake.  3 At paragraph 29 I draw your attention to comments  4 made by Father LeJacq in 1869.  He reported that all  5 the Indians fishing and hunting on the edge of  6 Francois Lake were Wet'suwet'en.  While in 1879 George  7 Dawson reported that there were no permanent villages  8 on Francois Lake, that part of the country belonged to  9 the  Wedzen Kwe, that is the Wet'suwet'en people, who  10 visited periodically.  11 My lords, Canada argues with respect to the 26  12 Wet'suwet'en people who addressed Stewart and Vowell  13 in 1909, that, and I quote:  14  15 "It's very difficult to make out who the alloted  16 26 claimants are, and it's sometimes difficult  17 to locate the precise area that they were  18 talking about."  19  20 Now, the map given to McDougall in 1910 shows the  21 many cabins, graves, camps, fishing and hunting  22 stations of the Wet'suwet'en in the Bulkley River  23 system, and the in Ootsa, Francois amd Burns Lake  24 area.  And I add to paragraph 31, my lords, that it's  25 plain from the reading of this map that there were  26 villages, winter villages, cabins who were themselves  27 interconnected.  And while anthropology will help, in  28 my submission common sense should tell us that this  29 was a connection that was based on organization,  30 social organization.  31 As for Canada's assertion that it is very difficult  32 to make out who the alloted the 26 claimants are, Mr.  33 Brody's opinion report identified many of these  34 dispossessed people by their English and Wet'suwet'en  35 names.  And I will take you through part of this, my  36 lords, because it's not only that they were  37 identified, but it's not hard to see where they were  38 from.  39  4 0 "The real names that white newcomers ignored  41 included, of course, hereditary chief names,  42 Round Lake Tommy..."  43  44 Well, he was from Round Lake,  45  46 "...for example was Wah Tah Kwets of the  47 Laksilyu or Small Frog Clan. The Tom brothers 272?  Submissions by Mr. Rush  Submissions by Mr. Rush  1 were also Laksilyu, and held the names of  2 Yahalee, Gowiican and Aldeesinaw.  Mathew Sam  3 of Topley held Woos, a high name of the  4 Gitumden.  Auguste Pete was Kweese, of the  5 Tsayu or Beaver Clan.  Johnnie David is Mugh  6 Lagh Legh, and his father, whose territory he  7 caretakes, was Smogelgem of the Laksamshu, or  8 Fireweed.  Belnai was Madeek,  Canyon Creek  9 William was Layo and later received Caspit, of  10 the Gilseyhu."  11  12 My lords, my point here is is that Canada never  13 mentions this evidence.  Nor, for that matter, does  14 the trial judge.  The evidence shows how widespread we  15 say the territories of the Wet'suwet'en were and who  16 the real people were out there on the land living in  17 those territories.  18 Now, I take you to paragraph 33.  Canada attributes  19 every suggestion that the appellants have aboriginal  20 rights to land first to the alleged "missionary  21 influence", and then to the equally sinister "lawyer  22 influence." The origins of the idea are traced to a  23 speech made by the governor-general, Lord Dufferin, in  24 Victoria in 1876.  This might be referred to, but is  25 not described, as the "governor-general influence."  26 Now, my lords, Canada has raised the missionary  27 conspiracy again, and I say that it doesn't take them  28 anywhere, and it certainly doesn't take them to where  29 they want to go.  They try to use it, I say, to debunk  30 the Kitwanga petition.  And I am going to take you to  31 that because I think we answer, in paragraph 34,  32 running right the way through to 46, how specious the  33 missionary influence theory really is.  34 So let me take you now to paragraph 47, page 18.  35 Because, in my submission, this is the real point of  36 their attack.  Canada argues that the 1884 Kitwanga  37 petition was the missionary and not the chiefs  38 speaking.  The chiefs couldn't speak for themselves is  39 the implication.  And that "this is Tomlinson and not  40 the Kitwangak."  In the first paragraph of its factum,  41 at paragraph 48, I note that Canada adopts the  42 following statement from the appellants' factum with  43 regard to the petition:  44  45 "On October 10, 1884 the Gitwangak chiefs  4 6 claimed the land from Andemane some 2 1/2 to 3  47 miles above our village [Gitwangak] on the 2729  Submissions by Mr. Rush  Submissions by Mr. Rush  1 Skeena River to a creek called Skequin-khaat,  2 which empties into the Skeena about two miles  3 below Lome Creek. We claim the ground on both  4 sides of the river, as well as the river within  5 these limits, and as all our hunting, fruit  6 gathering and fishing operations are carried  7 on in this district, we can truly say we are  8 occupying it."  9  10 Now, my lords, I say that in this historical record  11 of 1884 you have the statement of the Gitksan from the  12 village at Gitwangak, who not only describe the extent  13 of their territory claimed, but also point to the  14 territorial system that underpins it.  15 It's our submission at 49 that the appellants say  16 that we say that Canada is not entitled in oral  17 argument on the appeal to resile from what its stated  18 position is in its revised factum that the position is  19 that the petition represented evidence the views of  20 the Kitwanga chiefs.  21 At paragraph 50 I note that during Canada's  22 argument on the appeal Justice Hutcheon asked whether  23 the trial judge referred to the petition.  The trial  24 judge did refer to the petition, I say, without  25 questioning its authenticity or accuracy.  Apparently  26 he included it, however, in the class of political  27 statements which were completely, and the appellants  28 say wrongly, discounted as evidence of possession,  29 control or ownership of territory beyond the village  30 sites.  Now, apart from that comment, my lords, the  31 trial judge makes no other comment about the petition.  32 And I say he disregarded or misconceived the  33 importance of this document.  34 Now, Canada has raised the question of the  35 authenticity of the voice in the petition.  And we  36 have dealt with it in the paragraphs that follow from  37 paragraph 51 over to 54.  But I want to say at  38 paragraph 55, on page 20, that the territorial  39 description given in the petition precisely paralleled  40 the one the chiefs of Kitwanga gave to the reserve  41 commissioner, O'Reilly, when he came in 1891 and 1893,  42 and the one repeated to representatives of the  43 Department of Indian Affairs in 1922.  And I say it is  44 not a leap, it's not a great leap for your lordships  45 to take from this petition that the territorial lands  46 of the Gitwangak in place in 1846 were those described  47 by them in 1884. 2730  Submissions by Mr. Rush  Submissions by Mr. Rush  1 And I say, my lords, that Dr. Galois said that  2 documents like the petition were shaped by whites but  3 their substance reflects Gitksan values and  4 institutions.  His comments on the petition and his  5 views on the historical significance of the events of  6 1888 were included in his report.  They were ignored  7 by Canada, they were never mentioned by the trial  8 judge, but ought to be accepted by this court.  9 Now, my lords, I am not going to deal with the  10 section entitled Acceptance of Reserves.  This section  11 refers to the supposed acceptance of the reserves by  12 the Gitksan and Wet'suwet'en.  Canada makes no  13 argument on these facts.  Argument made before the  14 trial judge that the acceptance of reserves  15 extinguished their title were dismissed.  16 Over to page 22 and at paragraph 60, I draw your  17 lordships' attention to the argument made by Canada  18 about the threat of extinguishment in 1888.  Here  19 Canada devotes 14 pages of its statement of facts to  20 the events of 1888 which are variously referred to as  21 the Kitwancool Jim Affair or the Skeena Uprising.  22 Again, no argument based on these facts is made in the  23 revised factum, but in oral submission on the appeal  24 Canada advanced for the first time the proposition  25 that these events constituted extinguishment of  26 Gitksan and Wet'suwet'en jurisdiction.  And I say  27 there is no support in law for that proposition.  This  28 can't be extinguishment in law, nor, for that matter,  29 in fact.  And I set out why in paragraph 61 running  30 right the way through to paragraph 64.  31 I am going to ask your lordships now to pass over  32 to paragraph 66.  And this deals with the  33 jurisdictional function of the feast.  And here I note  34 that Canada relies on the Hudson's Bay records and the  35 Loring reports in support of the proposition that the  36 feast not only had no legislative function, as found  37 by the trial judge, but that it had no jurisdictional  38 function of any kind except in the most limited sense  39 of that word.  And what you see in the following  40 paragraphs, what Canada concedes about the feast, and  41 our argument is at paragraph 70, and I will take you  42 to that, we say that on Canada's own argument, at  43 paragraph 70, the feast, at least before 1888, and  44 certainly at 1846, was performing the most important  45 political, legal and economic functions imaginable.  4 6 Who governed, who owned the land, and how the  47 relationships of the Gitksan and Wet'suwet'en and 2731  Submissions by Mr. Rush  Submissions by Mr. Rush  1 their neighbouring peoples were to be conducted.  2 Now I take you to paragraph 74.  This deals with  3 the matrilineal system of inheritance and the  4 arguments that Canada raised on this subject.  In its  5 revised factum, at paragraph 74, Canada says that  6 Loring noted "problems of matrilineal inheritance."  7 In its oral argument Canada claimed that during  8 Loring's tenure the matrilineal system came to an end.  9 Now, I add to this that the evidence is that the  10 matrilineal successorship system continued, and  11 continues to this day.  12 At paragraph 77, my lords, that I will take you to  13 now, page 29, I say that it is evident that Loring was  14 not more a reliable a reporter on the subject of  15 matrilineal succession than he was on the subject of  16 the continuation of the feast.  Canada's argument, and  17 the trial judge's conclusion, that Loring governed the  18 territory, depended solely on Loring's own claims.  19 Now, I would just like to pause here, my lords.  20 You may ask how Loring, on his own, from his chair in  21 Hazelton, could have extended a far-reaching control  22 over the whole of this territory.  Yet the chiefs, who  23 were owning the territory in the villages, when they  24 stepped out of the villages were acting only on  25 instinct.  It doesn't make sense.  How can it be that  26 Loring could have exerted this subtle and far-reaching  27 influence on the characterization of this society,  28 when the characterization of the society is that you  2 9 couldn't do that with them.  And I say that the  30 historical references suggest otherwise and completely  31 controvert this proposition.  And it is set out -- I  32 set these out in the subsequent paragraphs.  33 In our submission, my lords, at paragraph 79,  34 Loring was quite wrong about the persistence of two  35 central institutions of governments:  The feast and  36 the matrilineal succession.  This is not to suggest  37 that Loring and other legal and illegal interferences  38 with the appellants' institutions had no impact.  39 Certainly they did.  But I say that Loring's comments  40 have to be carefully scrutinized.  41 And I want to take you now, my lords, to paragraph  42 87, the bottom of page 31.  Mr. Boys was also an  43 indian agent, and in 1951 he too proclaimed that the  44 inheritance system was virtually non-existent.  And  45 was just as mistaken in '51 as Loring was in 1901 in  46 declaring that the Indian matrilineal system was dead.  47 Robert Atkinson was the district manager for the 2732  Submissions by Mr. Rush  Submissions by Mr. Rush  1 Hazelton office of the Department of Indian Affairs  2 from 1985 to 1987.  And he held a parallel position to  3 that of Mr. Loring.  He gave affidavit and viva voce  4 evidence at trial, and in his affidavit, after stating  5 that the practice of DIA, both before and during his  6 tenure, was to avoid, wherever possible, conflict  7 between tribal laws and the law under the Indian Act  8 with respect to wills and estates.  He said:  9  10 "I have attended Gitksan and Wet'suwet'en feasts  11 as well as Haida, Nisga'a and Coast Tsimshian  12 feasts, and am knowledgeable that the Gitksan  13 and Wet'suwet'en people passed chiefly names,  14 title to territory and authority over their  15 house groups from one person to the next  16 through matrilineal succession, which is  17 executed in the Gitksan and Wet'suwet'en feast  18 halls."  19  20 Canada supports the trial judge's finding that  21 during Loring's tenure traditional methods of dealing  22 with ownership and claims to ownership of fishing  23 stations, smokehouses, trapping and hunting grounds,  24 if any, were no longer employed.  Yet I note at  25 paragraph 89, my lords, Canada did not cross, did not  26 cross-examine Mr. Atkinson.  Neither Canada nor the  27 trial judge referred to his evidence.  28 Now finally, my lords, I want to pass over to our  29 submissions in reply to the amicus's submission on the  30 facts, and this is added as an additional speaking  31 note after tab 13.  So it should, in the orderly  32 course of affairs, follow page 32.  And if you're with  33 me there, I will refer you first to paragraph 1.  And  34 as I say, I am referring to amicus's submissions  35 principally on beaver territoriality and the fur trade  36 influence.  37 The amicus, at paragraph 1, I say, frames the  38 factual issues between itself and the appellants with  39 respect to the European fur trade as being whether or  40 not the beaver trapping territoriality that existed at  41 the time, and fed into the commercial fur trade, was a  42 product of the fur trade, and whether the fur trade  43 materially changed aboriginal life.  This  44 characterization at paragraph 2 has built into it a  45 number of assumptions.  And we set out the assumptions  46 there and we take issue with these assumptions in  47 paragraph 3, and I have set out how we do that.  But I 2733  Submissions by Mr. Rush  Submissions by Mr. Rush  1 will pass along to paragraph 4, which is our response.  2 And I say here that the trial judge created a new  3 test, one he called "a further requirement", to use  4 his words, and an additional test to the Baker Lake  5 tests, by which aboriginal rights arise out of  6 occupation or use of specific land for aboriginal  7 purposes for an indefinite or long, long time before  8 the assertion of sovereignty.  9 At paragraph 7 I note this, it was only this  10 legally unprecedented, and we say unprincipled, test,  11 which made the impact of the European fur trade  12 relevant to the trial judge's conclusions.  He found  13 that the fur trade converted a Gitksan and  14 Wet'suwet'en aboriginal life into something quite  15 different from what it had been, and accounted for the  16 fact that the appellants' ancestors spread out, he  17 said, from their villages to distant territories for  18 the purposes of commercial trapping.  He went so far  19 as to suggest without finding that the social and  20 economic organization of these peoples was likely a  21 response to the fur trade.  22 Now, we say at paragraph 8 that the test that makes  23 the fur trade relevant is wrong in law.  But we also  24 say that even if the test is correct, the appellants  25 met it.  The appellants say that they proved the  26 existence of their land-owning and self-governing  27 societies and their presence in their territories,  28 even those which the trial judge excluded, for a long  29 time prior to sovereignty.  And we show where that  30 argument is set out.  31 What I want to do is take you to paragraph 14.  32 And it moves to a slightly different point, a  33 variation on the theme.  The amicus attributes to  34 Prof. Ray evidence that from the perspective of the  35 Bay, when you read about working various lands, you  36 would read about working them for the beaver, and says  37 that Brown, when he got to Babine Lake, noticed that  38 it was beaver only.  Now, counsel for the appellants  39 are not aware of anything in either Prof. Ray's  40 evidence or in the Hudson's Bay records, written by or  41 about Brown, which would sustain either of these  42 suggestions.  Nor does there appear to be anything in  43 the reference materials provided by the amicus to  44 verify them.  And I ask your lordships, if you are in  45 doubt about this issue, to refer to Prof. Ray's  46 evidence and the transcript references that are there  47 set out. 2734  Submissions by Mr. Rush  Submissions by Mr. Rush  1 And at paragraph 16 I draw your attention to the  2 fact that Brown noticed, at Babine Lake in 1822, as  3 the appellants have repeatedly pointed out, what he  4 noticed was "heads of families, possessors of  5 particular tracts of country which they claim an  6 exclusive right to...certain tracts of country which  7 they claim an exclusive right to and will not allow  8 any other person to hunt upon them."  9 Prof. Ray inferred from these and other Hudson Bay  10 records that the Gitksan and Wet'suwet'en before  11 contact had, in his words, a fully-articulated  12 feasting system with house territories, family heads,  13 in which access to resources was regulated by a land  14 tenure system in which tracts of land were managed by  15 men of property, the lineage house heads.  And I say  16 because of his qualifications and his experience, no  17 other witness and no author of any treatise was in as  18 good a position as Prof. Ray to draw the appropriate  19 inferences from these records.  20 The amicus gives no account, at paragraph 18, and  21 the trial judge gave no account, of why this evidence  22 was rejected.  It came from records which the trial  23 judge called "a rich source of historical information"  24 which he had no hesitation in accepting.  It was the  25 independent evidence of an eminent expert on these  26 very records who had excellent qualifications and wide  27 experience.  And I say his evidence on these matters  28 should have been accepted by the trial judge.  29 Now, my lords, I will leave the balance of our  30 submissions here for you to refer to.  And I want to  31 conclude my submissions with the argument that we make  32 in the written reply factum, and I don't ask you to  33 turn that up, but I ask you to note that part one of  34 our written reply to the respondent's factum at  35 paragraphs one to three, I say in response to the then  36 province's statement of facts, apparently supported or  37 continued to be supported by the amicus, I say this:  38 that the then province's position, not the present  39 province's position, adopts the comment by the trial  40 judge that matters of justice are ones that the court  41 of law are frequently unable to respond to as these  42 are subjective considerations.  43 And at paragraph 2 of our submission there, I say  44 that the appellants reply that this is and ought to be  45 a case about justice.  The justice the appellants seek  46 in this court is not a subjective consideration, which  47 a court of law is unable to respond to, but I say the 2735  Submissions by Mr. Rush  Submissions by Mr. Rush  1 very justice according to law which courts of justice  2 are not only permitted to respond to but also bound to  3 apply.  4 And I say at paragraph 3 there, that the claim by  5 the appellants is for justice in respect of the land  6 that has belonged to them for centuries, justice in  7 respect of their inherent right to govern their land  8 and themselves, and justice to be recognized as the  9 truly distinctive people that they are.  10 And I want to take you back to the words that I  11 spoke at the beginning of this appeal in my brief  12 opening, because there I referred back to the opening  13 of the trial on May 11th of 1987.  And at that time I  14 told the trial judge, the appellants told the trial  15 judge, and I reminded your lordships of the following,  16 that the foundations of Gitksan and Wet'suwet'en  17 society are firmly entrenched in their own laws but in  18 the face of provincial and federal disrespect for  19 these laws, and the injustice this has brought, the  20 Gitksan and Wet'suwet'en have come to this court to  21 secure those foundations in Canadian law, law which  22 the provincial and federal governments can be  23 compelled to respect.  Only then will the Gitksan and  24 Wet'suwet'en be able to negotiate a just resolution of  25 their relationship with Canada, and this case is  26 therefore about a search for the legal pathways to  27 justice.  28 The trial judge responded, in his lordship's  29 judgment, in a way that was to find that the  30 appellants never had any laws, and to rule that any  31 aboriginal rights that they had were entirely  32 extinguished without their knowledge or consent more  33 than a century ago.  34 But as the trial judge pointed out, my lords, this  35 is a case about land, but not the land he spoke of.  36 The trial judge found that the appellants had rights  37 on land which they already controlled, their reserves.  38 To the lands outside of the villages, and I say, my  39 lords, that this is the nub of this case, the lands  40 outside of the villages, he found they had user  41 rights, like every other citizen of the province, but  42 only in exchange for extinguishment.  The appellants  43 were then penned into their meagre reserves.  Their  44 land was taken without their knowledge, without their  45 consent, and by a legal construct that is inexplicable  46 to them.  47 Now, the governments of this province have used 2736  Submissions by Mr. Rush  Submissions by Mr. Rush  1 first denial then every device to prevent a  2 recognition of the appellants' land rights.  And these  3 appellants, in my submission, have shown the trial  4 judge, and now your lordships, that they were really  5 on the land, really occupying it and possessing it,  6 and, yes, owning it and governing it, in their words,  7 and in our submissions, in their distinctive way.  8 They are not to be dismissed, and their evidence on  9 this is not to be dismissed as mere beliefs.  As we  10 said on Tuesday, there is a problem here, and why?  11 Put simply, because a great wrong has been done, and  12 it will take this court to do something about it, to  13 make the kind of declarations of right that will  14 compel the governments to act, to treat these  15 appellants in an honourable way, based on a  16 recognition that they have rights that mean something  17 and it means something on the ground.  18 And it will mean something, my lords, to these  19 people, if they can leave this courtroom with dignity  20 and knowing that the court's declarations will change  21 their everyday lives.  22 And I end by saying now what I said at the  23 beginning:  This appeal is a continuation of the  24 appellants' search for the legal pathways to justice,  25 and I ask you to show it to them.  2 6 Thank you.  27 TAGGART, J.A.:  Thank you, Mr. Rush.  We will adjourn now until  28 10 o'clock tomorrow morning.  29  30 (PROCEEDINGS ADJOURNED UNTIL 10 O'CLOCK A.M., FRIDAY,  31 JULY 3, 19 92)  32  33  34  35  36 I hereby certify the foregoing to be  37 a true and accurate transcript of the  38 proceedings herein to the best of my  39 skill and ability.  40  41  42  43  44 Wilf Roy  45 Official Reporter  46 United Reporting Service Ltd.  47

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