Delgamuukw Trial Transcripts

[British Columbia Court of Appeal 1992-06-23] British Columbia. Supreme Court Jun 23, 1992

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 2110  Submissions by Mr. Macaulay  1 Vancouver, B.C.  2 June 23, 1992  3  4 CORAM:  Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A.  5  6 THE REGISTRAR:  In the Court of Appeal for British Columbia,  7 Tuesday, June 23rd, 1992.  Delgamuukw versus Her  8 Majesty the Queen at bar, my lords.  9 TAGGART, J.A.:   Mr. MacAulay?  10 MR. MACAULAY:   My lords, I have speaking notes this time that  11 will cover my brief submission on remedies.  12 TAGGART, J.A.:   Thank you.  13 MR. MACAULAY:   The subject of remedies has been dealt with much  14 more extensively by amicus curiae in its argument and I  15 don't propose to repeat it.  The submissions I make are  16 in the context of the obvious situation that this is a  17 test case of the first importance, that a treaty  18 commission is about to be appointed by the two  19 governments and the aboriginal peoples and that  20 underlines the importance of general principles that we  21 will submit this court should enunciate in its  22 judgment.  23 Now, the appellants and the province, and I'm out  24 of my notes now, seek a postponement for two years with  25 respect to judgment on some of the issues that have  26 been raised on this appeal and have been fully argued,  27 or will be fully argued, by the appellants in reply.  28 They say that the court should remain seized of these  29 issues.  The clear implication of these submissions is  30 that this division of the court should remain seized of  31 the issues.  32 They say also they want to be at liberty to return  33 and make further submissions on the postponed issues if  34 they are unable to negotiate a settlement in the  35 two-year interval.  36 The Court of Appeal Act provides that a majority  37 of this division -- the judgment of a majority of this  38 division is the judgment of the court.  And the scheme  39 of the act, and particularly section 13, shows that  40 this division of the court is indeed seized of the  41 matters raised on this appeal, so long as a quorum  42 remains.  Even if one or more of the justices of this  43 division is no longer able to act after the two-year  44 interval, the remaining justices, constituting a  45 majority of the division, must give the judgment of the  46 court.  And that's provided for by section 13(6).  47 We submit that the parties, and we are a party, 2111  Submissions by Mr. Macaulay  1 are entitled to have the appeal heard and dealt with by  2 all five judges of the division, but the proposed  3 postponement for two years makes that an iffy  4 proposition.  It can't be assumed that all five will  5 be --  6 WALLACE, J.A.:   That's hardly an "if", unless some unusual thing  7 occurs.  8 LAMBERT, J.A.:   Unhappily, Mr. Justice Wallace must retire in  9 the middle of next year.  I thought I should say that.  10 He's too modest to say it.  11 MR. MACAULAY:   There is a possibility that there may not be a  12 quorum, as well.  The statute provides for that.  That  13 means there has to be a hearing again de novo.  14 But my point is the parties are entitled to this  15 division's decision on the issues.  16 The court has broad powers, particularly under  17 section 9 of the act, and it may have jurisdiction to  18 accede to the appellants' and the province's proposal,  19 but to do so would constitute a very significant  20 departure from the practice of the court.  And such a  21 departure shouldn't be undertaken except for the most  22 compelling reasons.  We say that the appellants and the  23 province haven't shown those compelling reasons.  24 The justification for the postponement is said to  25 be the enhanced prospects of success in negotiating  2 6 between the appellants and the two governments; the law  27 is vague or unsettled, it's somehow better.  That's a  28 very unusual and iffy proposition at best.  29 Usually negotiations between parties in  30 circumstances like this remain easier if the  31 fundamental rules of law relevant to the subject matter  32 of the negotiations have been settled.  Otherwise the  33 parties may be inclined to cling tenaciously to  34 propositions that prove in the end to be mistaken.  35 If I can give an illustration, the province clung  36 for over a hundred years to the notion that there was  37 no such thing as aboriginal rights, they never  38 existed.  That happens to have changed, but it's an  39 example of the tenacity of ideas -- mistaken ideas that  40 parties have concerning the law and concerning their  41 rights.  42 The negotiations, even if they are successful,  43 won't be binding on any stranger to the negotiations,  44 whether they be aboriginal groups, other aboriginal  45 groups or non-Indian interests.  At best the terms of  46 any agreement, if it succeeded, will be a model that  47 might be followed by others. 2112  Submissions by Mr. Macaulay  1 Now, assuming that these negotiations are  2 successful and there is an application made, according  3 to this proposal, two years from now or sooner if an  4 agreement is made earlier, to this division for a  5 declaratory order, the court can't make a declaration  6 in accordance with the terms of that agreement unless  7 it happens that the statement of the fundamental legal  8 principles of aboriginal rights is in accordance with  9 what the court considers to be the law.  On such an  10 application not only the parties but the present  11 intervenors and perhaps others will want to be heard.  12 In the circumstances it is likely that after two  13 years there will be a further hearing, for the reasons  14 I have just mentioned.  And even if the final order  15 then is narrowly confined to the appellants' rights,  16 such an order will necessarily affect third parties,  17 including some of the intervenors.  18 The proposed postponement of the judgment on such  19 fundamental issues as the principles of extinguishment  20 and the general nature and incidents of aboriginal  21 rights is just partial because they want -- they urge  22 this court to deal with the Calder XIII, the colonial  23 instruments that the Chief Justice held extinguished  24 aboriginal rights.  And they agree that the nature of  25 aboriginal rights should be canvassed to the extent  26 that there is an assertion that these involve ownership  27 and/or jurisdiction.  28 The result of the proposed postponement will be  29 uncertainty regarding important and fundamental aspects  30 of aboriginal rights law.  31 The court will find it difficult to avoid deciding  32 these postponed issues in its discussion of the facts,  33 the evidence, the law and other considerations that are  34 relevant to ownership and jurisdiction and relevant to  35 the Calder XIII issue.  36 The court will have to deal with some postponed  37 issues in addressing the fishing and hunting appeals  38 that are now before the court and are awaiting  39 decision, Vanderpeet, Alphonse and Dick in particular.  40 The problem of skirting some issues is all the  41 greater where these issues are interrelated and can't  42 easily be separated.  And I use as an example the  43 nature of aboriginal rights and its connection with  44 whether there has been extinguishment or diminution.  45 These are concepts that are intertwined.  46 Unless this court decides these issues in this  47 case or on the hunting and fishing appeals, the lower 2113  Submissions by Mr. Macaulay  1 courts won't have the guidance of this court when they  2 deal with the same issues.  They are already raised in  3 Moses Martin, which is scheduled to resume on August  4 31st unless there is -- I should mention there is a --  5 the province has applied for a two-month adjournment,  6 but the hearing of the trial will resume soon.  7 LAMBERT, J.A.:   Is that the case we call Meares Island?  8 MR. MACAULAY:   Yes.  And no doubt they will have to be addressed  9 by provincial court judges during the two-year interval  10 in the ordinary course of life.  11 The Attorney General of Canada submits that on the  12 grounds of public policy this court should address the  13 issues raised on this appeal to the fullest extent  14 possible, given the limitations imposed by the  15 evidence, such limitations as are imposed by, say, the  16 overlap problem.  17 I'm turning now to the argument, the written  18 argument of amicus.  That's in Part XIV of the amicus  19 factum.  At paragraphs 23 to 27 they seem to assert  20 that declaratory relief is not appropriate because  21 there is no contradictor.  Well, I thought we should  22 deal with that.  23 The provincial Crown has an interest in opposing  24 the declarations sought by the appellants -- that is,  25 ownership and jurisdiction -- and it does oppose it.  26 In disposing of that issue a declaration of the general  27 nature of the rights would be appropriate.  28 Such a declaration would set the rules and serve as the  29 basis on which the lower courts would adjudicate on  30 specific claims, not only in this case but in other  31 cases, because in this case, unless there is agreement,  32 the Supreme Court will be grappling with the claims of  33 each of the 51 hereditary chiefs.  That's not to say  34 there are only 51 claims.  There are 71 claims,  35 because some chiefs represent or are authorized to  36 represent several different houses and those houses are  37 separate kingdoms.  38 In that sense the appellants and the province's  39 rights will have been determined and the most important  40 issues between them will have been settled; that is,  41 the questions of ownership and jurisdiction.  42 It is not suggested by the Attorney General of  43 Canada that such a declaration be founded on any  44 consent of the parties, and I'm referring there to  45 something said in the amicus brief at paragraph 29 of  46 Part XIV.  47 There is another aspect of the amicus brief, the 2114  Submissions by Mr. Macaulay  1 last part, paragraphs 75 to 198 deal with the de facto  2 doctrine.  We adopt that and will leave it to amicus to  3 make their submissions on the de facto doctrine.  4 We submit that the issues which ought to be  5 addressed, given the submissions, keeping in mind not  6 only the issues raised on the pleadings and the Notice  7 of Appeal, in the arguments, but on the basis of the  8 submissions already made and submissions we expect in  9 reply, the following should be dealt with:  The general  10 nature and incidents of these appellants' aboriginal  11 rights.  I say "general nature" because the aboriginal  12 rights of the Chief Delgamuukw, the first named  13 appellant, can't be finally determined on this appeal  14 because of the character of the evidence.  I believe  15 the Delgamuukw hunting ground, as it is designated, is  16 in either the Kitwancool or the Nishga overlap.  17 And there are other reasons.  There were no internal  18 boundaries -- no appeal from the trial judge's judgment  19 on the question of internal boundaries.  But the court  20 can pronounce on whether they encompassed ownership or  21 jurisdiction, of course, whether they are proprietary,  22 whether the appellants have exclusive rights of  23 possession in some places and non-exclusive rights,  24 aboriginal rights in others, or both or neither.  25 And secondly, the court should give judgment on  26 the question whether the province or the colony before  27 it had the power to extinguish or diminish or modify  28 the appellants' aboriginal rights before April 1982.  29 That's the date on which the Constitution Act, section  30 35 of that act, came into effect.  And the court should  31 decide that if such power of extinguishment did exist,  32 the means by which extinguishment, diminishment or  33 modification could be effected.  34 Again, we don't say that the court has to go so  35 far as to say, in the case of Delgamuukw, this  36 aboriginal right was extinguished in that area or that  37 aboriginal right was extinguished in that area.  The  38 evidence, such as it is, doesn't seem to enable the  39 court to go that far.  40 Those are properly the subject of negotiations, if  41 possible, and a reference to the lower courts, to the  42 Supreme Court.  43 I've taken my 15 minutes.  Those are my  44 submissions.  45 TAGGART, J.A.:   Thank you, Mr. MacAulay.  46 MR. MACAULAY:   Oh, yes, I should mention, I am told by the  47 directing staff here that these speaking notes should 2115  Discussion  1 be in volume 2 of our factum at the back of Appendix  2 C.  A new tab will be provided and we will call it "D"  3 in order to identify it, if you see any need ever to  4 call it up again.  5 TAGGART, J.A.:   Thank you, Mr. MacAulay.  Mr. Lowes, I wonder if  6 it would be helpful if we take a five-minute break so  7 you can get yourself organized?  8 MR. LOWES:   Yes, my lords.  9 THE REGISTRAR:  Order in court.  Court is adjourned for a  10 five-minute recess.  11  12 BRIEF RECESS  13  14 THE REGISTRAR:  Order in court.  15 MR. GRANT:   My lords, before my friend starts and to avoid  16 interrupting him, I understand from my learned friend  17 that he intends to make reference to facts which were  18 not in evidence at trial which are referred to in his  19 factum and which he says were part of the supporting  20 affidavit.  21 If your lordships recall, on April 29 at the time  22 that this intervenor applied, they also applied to  23 introduce new evidence, which the appellants strongly  24 opposed and subsequently the province opposed.  25 It came up later when they filed their factum and  26 Mr. Rush again asked if they intended to introduce  27 evidence other than the evidence at trial, and once  28 again, your lordship Mr. Justice Taggart assured  29 counsel, all counsel, that if they intended to  30 introduce new evidence, that an application would have  31 to be brought.  32 The only issue I'm raising and to give my friend  33 notice of is that we do object to their reliance on  34 this extraneous material that they refer to in their  35 factum and which is not evidence at trial, was not  36 evidence that was dealt with at all by any of the  37 parties.  38 My friend has assured me that the brown book, his  39 reference book, only contains trial exhibits or  40 extracts from them, and of course that is completely in  41 keeping.  But in order to avoid interrupting my friend  42 when he starts, that was my understanding, that was the  43 appellants' understanding, that my friend should not  44 refer to other evidence even though he has made  45 reference to it in his factum.  46 TAGGART, J.A.:   All right.  Thank you, Mr. Grant.  That is  47 something we'll have to deal with when it arises in its 2116  Submissions by Mr. Lowes  1 specific form.  2 MR. GRANT:  Thank you.  3 TAGGART, J.A.:  Mr. Lowes?  4 MR. LOWES:   Thank you, my lords.  5 My lords, my submissions follow quite smoothly on  6 to those of Mr. MacAulay because the bulk of my  7 submission is going to be taken up with showing your  8 lordships some of the exhibits which illustrate the  9 difficulty in deciding with any specificity the  10 questions of extinguishment of aboriginal rights or the  11 nature and scope of the aboriginal rights in any  12 particular part of the claim area.  That is going to be  13 the function of the brown book.  14 My lords, I have passed up some speaking notes,  15 and because of the time I will be sticking to those  16 notes essentially to the letter and will be referring  17 to my factum only briefly.  18 I'll go through very quickly, my lords, the  19 preliminarys, because what I really want to do is take  20 your lordships into some of the exhibits.  21 My lords, as representatives of the private  22 interests using the lands and resources throughout  23 British Columbia, including many in the claim area,  24 this intervenor is particularly concerned with each and  25 every issue raised in the appeal.  26 However, given the time constraints and the proper  27 role of an intervenor, it is neither possible nor  28 appropriate to address all of those issues.  29 I do set out, my lords, however, at paragraph 3 of  30 my speaking notes, the position of the intervenor on  31 what I've called the basic substantive issues, and that  32 is essentially that the appellants do not have a right  33 of ownership or a right of exclusive occupation to the  34 claim area; that the appellants do not have a right of  35 governance in the claim area or governance over  36 individual members of the communities residing there,  37 except to the extent that those rights arise under  38 legislation and, in particular, the Indian Act.  39 I say, my lords, that the aboriginal rights or  40 rights of the appellants were confined to the  41 non-exclusive utilization of occupied Crown lands for  42 subsistence purposes.  43 And at "d.", my lords, and this is an important  44 point, I say that these aboriginal rights are solely a  45 product of the common law of England as it developed in  46 the particular historical, political and social context  47 of British Columbia over the last 150 years or so. 2117  Submissions by Mr. Lowes  1 I say, my lords, that the aboriginal rights were  2 extinguished as a result of the cumulative effect of  3 the colonial legislative and administrative action  4 which was taken for the purpose of providing for the  5 orderly settlement of the colony and the enjoyment of  6 its resources while at the same time reserving specific  7 areas -- and here I'm talking about Indian reserves --  8 for the exclusive occupation and use of aboriginal  9 people.  10 In a nutshell, my lords, this intervenor supports  11 the conclusion of the learned trial judge and the  12 findings of fact and law upon which that conclusion was  13 reached.  14 My lords, in addition to the foregoing, two major  15 issues arose for the first time in the appeal.  The  16 first was substantive and the second remedial.  17 The substantive issue, my lords, was whether or  18 not provincial legislation after Confederation could  19 and did extinguish aboriginal rights.  Again, my lords,  20 I say it's neither possible nor appropriate for me to  21 make a full submission on this issue.  22 However, it is our position that prior to the  23 coming into force of section 35(1), British Columbia  24 had the authority to extinguish aboriginal rights where  25 the intention to do so met the "clear and plain" test,  26 which, it is submitted, includes the notion of  27 extinguishment by necessary implication, and secondly,  28 that the legislation met the ordinary tests for vires;  29 namely, that its pith and substance fit within the  30 class of subjects set out in section 92 of the BNA Act  31 and that it is not subject to the doctrine of  32 paramountcy.  Here, my lords, I'm basically adopting  33 the argument of Alcan.  34 I say, my lords, that after the coming into force  35 of the Constitution Act, provincial legislation can  36 extinguish aboriginal rights so long as it meets those  37 tests and, in addition, any additional test which is  38 imposed by section 35(1) of the Constitution Act, which  39 test, my lords, has not yet, except in the case of  40 Sparrow, been worked out.  It certainly hasn't been  41 worked out in the context of other than priority to the  42 fishery.  43 The remedial issues, my lords, arise as a result  44 of the revised position of the province.  It is  45 particularly with respect to those remedial issues that  46 I say that this intervenor can provide a unique  47 perspective.  Hence, it is particularly with respect to 2118  Submissions by Mr. Lowes  1 those issues that these submissions are primarily  2 directed.  3 My lords, I have looked at the relief in two  4 stages.  First is the primary relief and then there is  5 the alternative relief.  Here I am referring to the  6 relief in effect as set out in the factum of the  7 province.  8 My lords, the appellants and the province jointly  9 request the court to make make general declarations  10 with respect to the appellants' rights, to refer the  11 delineation of those rights to "the parties" -- and  12 I've put "the parties" in quotes because the parties,  13 presumably, are the provincial government, the  14 appellants and perhaps Canada -- and adjourn this  15 appeal for a period of approximately two years in order  16 to negotiate.  And I've taken this wording from the  17 province's factum and its position paper, the precise  18 location, scope, content and consequences" of the  19 rights declared.  20 Now, my lords, in my factum at paragraphs 72  21 through 92 I argue that such relief hopelessly confuses  22 aboriginal rights with treaty rights and the function  23 of the judiciary with the function of the government of  24 the day.  Mr. MacAulay essentially made the same point  25 earlier this morning, and that is if the object of the  26 exercise is to define the location, scope, content and  27 consequences of aboriginal rights, my lords, I say that  28 is a judicial function and cannot be delegated to a  29 non-judicial body.  And since -- well, I develop that  30 point here, my lords.  31 I would ask your lordships to read sections 72 to  32 92 of my factum.  33 They also ask, my lords, both the appellants and  34 the provincial government ask the court to declare that  35 a temporary transition period exist during which the  36 parties attempt to resolve the appellants' claims.  As  37 I understand the submission, my lords, the function of  38 the transition period is one of some controversy.  39 The province in its submissions referred the court  40 to a number of cases in which the transition period  41 represented, in a sense, a period of grace -- I think  42 this is the de facto doctrine -- during which  43 legislation which has been found unconstitutional  44 remains in force in order to allow time for  45 rectification of the constitutional problem.  46 My lords, reference to these cases implies that  47 the province would, during the transitional period, 2119  Submissions by Mr. Lowes  1 continue with the granting and renewal of various  2 tenures in the claim area.  I don't recall hearing the  3 province telling your lordships that such would be the  4 case.  5 HUTCHEON, J.A.:   They were opposed to any form of injunction,  6 the province, during the transition period.  7 MR. LOWES:   Yes, but I didn't hear them say, my lord --  8 HUTCHEON, J.A.:   What they would do.  9 MR. LOWES:   -- what they would do during the two years.  And I'm  10 specifically dealing here with rights of renewal under  11 the existing tenures.  12 My lords, the appellants, in their revised claim  13 for relief, see the transition period as one during  14 which there would be a moritorium on the granting of  15 tenure and presumably the renewal of tenure during that  16 period.  17 My lords, as set out in my factum at paragraphs  18 102 to 106 -- and the word here in my speaking notes is  19 the "number".  That word should be the "members".  The  20 members of this intervenor are highly dependent upon  21 the security of their tenure in order to make the  22 investment of capital and human resources necessary to  23 do business in the real world in which they live and  2 4 compete.  25 So I say, my lords, that whether the transition  26 period is that as defined by the respondents or that  27 defined by the appellants, it provides for a state of  28 uncertainty in which it is virtually impossible to make  29 serious and important decisions with respect to  30 activities in the area affected.  You can't simply sit  31 by in your office for two years and wait to see what  32 the state of the law is going to be two years down the  33 line, especially when -- and this is the point I make  34 in my factum, my lords -- especially when you do not  35 have the confidence that the rights are going to be  36 determined by a court of law, and you have no status or  37 standing in the negotiations which determine those  38 rights.  39 So we can neither rely on the court to look after  40 the private rights under this scheme, nor can we rely  41 on the political forum and the representation of the  42 interests in the political forum.  43 This is a private group who is making decisions  44 which are going to affect seriously the private  45 interests in the area.  46 My lords, in its alternative claim British  47 Columbia requests that the court declare that the 2120  Submissions by Mr. Lowes  1 appellants' aboriginal rights have been extinguished by  2 any pre-1982 grant in fee simple to a third party; and  3 secondly, to declare that aboriginal rights have been  4 extinguished by any pre-1982 grants of lesser  5 interests -- and this is of particular concern -- and  6 other Crown instruments which are completely  7 inconsistent with the continued exercise of aboriginal  8 rights.  9 This position, my lords, is similar to that set  10 forth by Canada.  And most of my submissions -- most of  11 my reference to the evidence will be directed towards  12 showing your lordships, or trying to show your  13 lordships, some of the issues and the complexities  14 which arise in trying to apply that test.  15 My lords, as I say, my function from this point  16 through the balance of my submission will be  17 essentially that of providing your lordships with data  18 which I submit is not only relevant but is critical to  19 your lordships' determination of this appeal.  And the  20 data, my lords, will be of two sorts.  21 The first will be basic statistical information  22 providing your lordships with an order of magnitude  23 impression of the importance of its natural resources  24 to the economic and social life of British Columbia.  25 And I won't be making submissions on that, but that is  26 the kind of material, my lords, I take it, that Mr.  27 Grant is objecting to.  And I will make brief reference  28 to it at the close of my submissions.  29 The second kind of data, my lords, is information  30 with respect to the numbers and types of lesser  31 interests which must be taken into account if the  32 question of extinguishment -- and I should add thereto  33 if the question of nature, location, scope, content and  34 application -- is to be dealt with in the context of an  35 acre by acre minute balancing of interests.  36 Now, my lords, as to the material under the first  37 category -- that is, the economic material -- my  38 purpose is to persuade your lordships that British  39 Columbia's natural resources are at the heart of the  40 economic and social life of the province -- and I  41 submit with respect that that shouldn't be difficult to  42 do -- and that the slightest tinkering with, let alone  43 overturn of, the present regime will have a serious  44 impact on virtually all British Columbians.  45 My lords, my purpose in making the point is not to  46 raise in terrorem argument but, rather, to assist your  47 lordships in defining a particular context in which to 2121  Submissions by Mr. Lowes  1 apply the fundamental principles of the common law on  2 the substantive issues; in other words, to paint a  3 social and economic picture of the province against  4 which your lordships can test the reasonableness and  5 the practicality of some of the propositions which have  6 been advanced by the parties on the basis of theory and  7 on the basis of authority.  8 And secondly, my lords, and perhaps more  9 importantly, I wish to assist your lordships in the  10 exercise of your discretion in the matter of remedies.  11 Now, my lords, with respect to the second category  12 of material; that is, the nature and the extent of the  13 lesser interests in the claim area, the points which I  14 want to make are two-fold.  Firstly, my lords, I submit  15 that such material provides a complete answer to any  16 claim by the appellants to ownership, rights of  17 government or exclusive aboriginal rights outside the  18 reserve boundaries.  Secondly, my lords, I submit that  19 the material demonstrates the inappropriateness of the  20 relief sought by the appellants, the province and to  21 some extent by Canada, in that as a matter of  22 substance, the completely inconsistent test is  23 inappropriate to the British Columbian situation, and  24 secondly, my lords, as a matter of process, the acre by  25 acre approach is, I say, an invitation to decades of  26 uncertainty.  27 My lords, when looking at this material I ask your  28 lordships to keep in mind the following two questions.  29 And these questions, my lords, of course, are  30 predicated on your lordships finding that the trial  31 judge was in error in concluding that aboriginal rights  32 were extinguished on a province-wide basis by the  33 colonial legislation.  And as I said at the outset, our  34 primary position is that his lordship was not in error  35 on that point.  36 But I ask your lordships to keep in mind the  37 following two questions.  The first is:  What is the  38 test to be applied to determine whether the aboriginal  39 and non-aboriginal uses are consistent?  And the second  40 is, and this is just as important:  What tribunal,  41 acting according to what process, is to resolve  42 disputed claims?  43 My lords, it is my submission that, having gone  44 through the material, your lordships must come to the  45 conclusion, with respect -- and again I say in the  46 event that you find that the trial judge was wrong in  47 his conclusions as to extinguishment, you must come to 2122  Submissions by Mr. Lowes  1 the conclusions, my lords, that this court must remit  2 any further questions with respect to extinguishment to  3 the trial judge rather than leave it to the parties or  4 some other tribunal.  5 I'll deal first, my lords, with the second  6 category of data because it is a little bit more  7 complex, and that is the information as to the nature  8 and extent of lesser interests which I argue are --  9 which, it is argued, are to be balanced against the  10 aboriginal interest in order to determine, and again I  11 should say not only the issue of extinguishment, but to  12 determine the issue of the nature, scope, location and  13 application of aboriginal rights.  14 And, my lords, I submit that this data should  15 convince your lordships that if there is to be a  16 balancing of competing interests in the judicial forum,  17 the test should be a functional one rather than an  18 absolute one, and I should ask your lordships to write  19 in rather than an abstract and absolute one.  That is,  20 it is very difficult to define a test in the abstract  21 as to what inconsistency is appropriate to these  22 various issues.  23 What I mean by a functional test, my lords, I mean  24 one that takes into account the nature of the British  25 Columbian economy and society -- and that is resource  26 based -- and secondly, provides for the evolution of  27 that economy and society for the benefit of all British  28 Columbians, including aboriginal British Columbians,  29 but I should say not especially aboriginal British  30 Columbians.  31 I hope also, my lords, that the data will convince  32 your lordships that it is neither appropriate nor  33 practical to engage in such balancing except in the  34 judicial forum if we are talking about a legal  35 question.  I am not here talking about negotiations of  36 a new treaty or a new series of rights, particularly,  37 my lords, in that the balancing should be done in the  38 context of the instant case, what balancing must be  39 done, because -- and I set out three reasons.  40 First, my lords, the question of the nature,  41 content, scope, existence, location and application of  42 aboriginal rights are questions of law and they can  43 only be dealt with by a court of law.  And probably  44 secondly I say they raise serious and important issues  45 of private rights and constitutional issues which  46 necessitate due process, including rights of appeal for  47 those interests which are affected. 2123  Submissions by Mr. Lowes  1 What I mean mean here by "due process", my lords,  2 is essentially representation, either representation  3 through the confidence in the fact that the case is  4 being dealt with by a duly constituted court of law or  5 representation in the political process, but not a  6 process which provides neither such representation.  7 And I say "probably", my lords, because we are dealing  8 with constitutional issues.  These issues can probably  9 only be heard by a section 96 court.  10 I won't go into that, but I just leave it there.  11 That is one of the problems.  12 The third reason, my lords, and this is the reason  13 why I say that it should go back to the trial judge, is  14 that in order to avoid inconsistency and a hopeless  15 "patchwork quilt" of aboriginal rights, any specific  16 application -- and what I am referring to there is any  17 specific application of the principles -- must be part  18 of a consistent and coherent scheme applied equally and  19 equitably to all British Columbians.  20 My lords, one can conceive of a situation in which  21 the aboriginal rights in area A are different from the  22 aboriginal rights in area B.  But what I'm getting at  23 here is we cannot have a process whereby the difference  24 between the aboriginal rights in area A and the  25 aboriginal rights in area B don't result from factual  26 distinctions which create a different application of  27 the same principles but result in the application of  28 different principles.  29 In other words, what I am saying here is it's easy  30 to say, "Well, let's just paint with a broad brush.  We  31 will make some broad declarations and then we will get  32 down on the ground and see how they apply."   Well, my  33 lords, what I'm saying is it's not that easy, because  34 the scope, the content, the nature of the  35 inconsistency, the test to be applied with respect to  36 an inconsistency, all involve serious questions of  37 law.  And those questions must be determined, as are  38 all questions of law, by a coherent scheme which is  39 applicable province wide.  40 Now, my lords, I now turn to the data, and that's  41 this brown book.  What I'll do, my lords, is I'll  42 explain the methodology and I'll take you through three  43 or four examples.  I think your lordships will get the  44 picture of what we tried to do here and the book will  45 provide you, I hope, with a handy reference tool when  46 you come to consider what the test is for determining  47 extinguishment, nature, scope, content and locations. 2124  Submissions by Mr. Lowes  1 My lords, this is at paragraph 32 of my speaking  2 notes.  And I should say, my lords, that my speaking  3 notes are very closely related to the material in the  4 document.  So your lordships can feel confident that if  5 you follow the speaking notes, you will be able to  6 understand the point that I make after I've made one or  7 two demonstrations, I think.  8 My lords, given the volume of the evidence and the  9 nature and extent of the public and private interests  10 in the claim area, I have by necessity adopted the  11 method of providing your lordships a small sample of  12 the material from which you can extrapolate --  13 extrapolate from the sample to the claim area as a  14 whole, extrapolate from the claim area as a whole to  15 the province as a whole, in determining the principles  16 and the approach that your lordships want to take with  17 the major fundamental issues, both substantive and  18 remedial.  19 My lords, that is, I've attempted to introduce  20 your lordships to the tip of the iceberg and in so  21 doing provide you with a feel for the size of the  22 iceberg and the nature of the iceberg.  23 I will be asking your lordships to refer to two  24 things, one more than another.  The first, and you need  25 not turn to it now, is the overlay map, the Judge's  26 Series, which is Exhibit 1243 in the case.  I  27 understand your lordships each have a copy.  In fact  28 not only do I understand that, but I have arranged for  29 the overlays to which I will be referring to be put on  30 your individual copies in the order in which my  31 speaking notes deal with them so that, at the end of  32 the day, if -- I don't mean at the end of today, but at  33 some convenient time -- if your lordships have 15 or 20  34 minutes, you will be able to flip through the overlays  35 and they will be in exactly the order that I have  36 referred to them in my speaking notes and in the order  37 to which they are referred in the brown book.  38 I hope, simply because these things are cumbersome  39 and for time, that we will be able to make do simply  40 with the one that we have here and it will show your  41 lordships the point that I wish to make.  42 LAMBERT, J.A.:   These overlays are not in evidence and they come  43 in as an aide-memoire?  44 MR. LOWES:   They are in evidence.  45 LAMBERT, J.A.:   Oh, they are in evidence.  46 MR. LOWES:   Yes.  Everything in this document is in evidence and  47 this is in evidence. 2125  Submissions by Mr. Lowes  1 LAMBERT, J.A.:   Thank you.  2 MR. LOWES:   Maybe my friend can tell me which, as I come to it.  3 I think they all have exhibit -- well, I'm sure they  4 do.  5 Yes.  They all have exhibit numbers, my lords, and  6 the exhibit numbers are referred to and I'll show you  7 where they are referred to.  8 The second thing, my lords, that I would ask you  9 to look at other than the overlay map is this brown  10 volume, which we have called "Selected Evidence of  11 Resource Tenures and Other Interests in the Claim  12 Area."  13 Now, my lords, this volume is essentially  14 organized as follows.  In front of tab 1 is a table of  15 contents and I will give your lordships a loose table  16 of contents so that you don't have to flip back and  17 forth.  And on that table of contents -- that table of  18 contents sets out what is in the volume, the order that  19 it is in the volume and gives the exhibit number for  2 0 the various documents.  21 Now, tab 1, my lords -- if I could turn your  22 lordships to tab 1 you'll see the principle that we  23 have operated under.  You'll see that tab 1 contains an  24 excerpt from the base map; that is, Exhibit 1243, and  25 an overlay of the same excerpt showing the house  26 territories.  So it's an excerpt, my lords, from the  27 base map and an excerpt from the very first overlay,  28 which is an overlay showing the house territories on  29 the base map.  30 Now, each of tabs 2 through 13, and I'll take your  31 lordships through as many as I can in the time, but  32 each of -- and this is described in detail, my lords,  33 in the speaking notes -- in fact, I'm reading directly  34 from my speaking notes -- contains material with  35 respect to a specific type of lesser interest.  36 For example, tab 2 deals with registered traplines  and  37 tab 3 with guide outfitters, licences and so on and so  38 forth.  39 Generally speaking, my lords, the material under  40 each tab contains an excerpt from the base map, the  41 same excerpt as is under tab 1, and the overlay which  42 is under tab 1, that is, the house territories, and  43 then a further overlay showing the particular interest;  44 for example, guide outfitters' licences or the  45 traplines.  46 The tab also includes, my lords, the relevant  47 legislation under which the interest is created or 2126  Submissions by Mr. Lowes  1 which describes the interest, an example of the  2 instrument creating the interest; for example, a  3 grazing lease or a tree farm licence or a guide  4 outfitter's licence, and in some cases, my lords,  5 additional material, and most of that additional  6 material is comprised of more detailed maps.  There are  7 some photographs and so forth.  8 My lords, at this point and in that context I  9 should emphasize that because these maps and exhibits  10 were prepared in the course of -- or for this  11 litigation, they are current as of 1984.  It must be  12 recognized, as you'll see from some of the interests,  13 that the situation may have changed even during the  14 course of this litigation, which is some eight years  15 later -- some eight years.  16 Now, my lords, the volume of materials in the  17 brown book is essentially a distillation of what was  18 termed at trial the "alienations project".  And the  19 source of material for the binder is the several thick  20 volumes of documents and legislation -- that should be  21 documents and "maps" -- which were exhibited at trial  22 as part of the alienations evidence.  That project, my  23 lord, the alienations evidence, involved a detailed  24 examination of the extent to which proprietary  25 interests had been granted and administrative authority  26 had been asserted in the claim area.  27 My lords, that evidence was led at trial to  2 8 support the argument which was made by the province  29 that the Crown in the right of the province had  30 asserted dominion of such a nature and to such an  31 extent as to deny totally the exclusive rights asserted  32 by the appellants.  33 Now, my lords, as you will be aware, it was  34 unnecessary, given his conclusions with respect to the  35 effect of pre-Confederation legislation, for the trial  36 judge to deal extensively with the evidence.  But, my  37 lords, he did refer to it in his judgment, and I won't  38 take your lordships to it, but it's at pages 395 and  39 396, and I set out the extract from the judgment in my  40 notes.  41 I think I would like to read it, my lords.  He  42 said:  43  44 "In addition the Province, by its  45 'alienations project,' introduced a large  46 collection of documents which together with the  47 earlier documents mentioned record pervasive 2127  Submissions by Mr. Lowes  1 colonial and provincial Crown presence in the  2 territory up to the date of the writ.  3 All of this documentation demonstrates  4 colonial and provincial dominion over the  5 territory before and since Confederation by  6 such diverse governmental and administrative  7 activities as surveying, grants of land, leases  8 and other tenures, land registries, schools and  9 hospitals, rights of way for highways, power  10 and pipelines, grants in fee simple, forestry,  11 mining and guide outfitting permits, various  12 public works, the creation and governance of  13 villages and municipalities, water and other  14 placer rights and licences, trapline  15 registration for all or almost all of the  16 territory --"  17  18 And I underline that, my lords, because, as I say, that  19 gives you an idea of the size of the iceberg:  20  21 "-- fish and game regulation and  22 conservation --"  23  24 And I ask you to underline this, too, my lords:  25  26 "-- and a host of other legislatively  27 authorized intrusions into the life and  28 geography of the territory."  29  30 Well, my lords, those whom I represent are people who  31 depend on those legislatively authorized intrusions for  32 their living, as do many many other British  33 Columbians.  34  35 "Some of this material, of course, related only  36 to post-Confederation British Columbia."  37  38 My lords, again in my speaking notes, although  39 tendered for a different purpose, this evidence, my  40 lords, is extremely important to the intervenor in that  41 it demonstrates the extent to which the province has  42 created tenures and interests upon which the resource  43 industries depend.  44 As I say, all of the documentation contained  45 within tabs 2 to 13 were exhibited at trial, with the  46 exception of the overlays.  When I say "overlays" I  47 mean these little overlays, and "the map", what I mean 2128  Submissions by Mr. Lowes  1 is the little map.  2 What we have done my lords is to simply cut a  3 chunk out of 1243, both the base map and the overlay,  4 and the chunk that we have cut out is eight and a half  5 by 11.  That isolates, my lords, a specific area of  6 about 15 to 20 per cent of the general claim area.  7 My lords, the area that we have selected is --  8 and I want to show you this -- is in the southeast  9 corner of the claim area.  It is at the bottom right  10 hand -- eight and a half by 11 slice out of the bottom  11 right-hand portion.  I can provide for your lordships  12 copies to be marked in the same way as this one so that  13 you'll see how the area relates to the claim area, if  14 you need to.  15 The selected area, as I say, my lords, is in the  16 southeast corner of the claim area just south of the  17 town of Houston.  18 My lords, not only have a have I -- in order to  19 provide you with a simple example from which you can  20 extrapolate, not only have I tried to confine the  21 interests to those that are found in that area, but  22 I've also, where possible, tried to concentrate on a  23 specific claim territory, that of Namox, which is a  24 territory of approximately 155 square miles.  25 If your lordships will look at the map and overlay  26 under tab 1, and it's about in the centre, in the  27 centre here, there are two Namoxes.  If you look at the  28 top third of the map, you'll see that there is a Namox  29 about four inches in -- or, sorry, about three inches  30 in to the left and then there is another one that's to  31 the left and a little farther towards the bottom.  It  32 says "Namox".  It's kind of a yellow colour.  That's  33 the area that we have tried to focus, where possible,  34 on.  35 WALLACE, J.A.:   Which, the latter part or the former?  36 MR. LOWES:   It's the western part of it, the western Namox  37 rather than the eastern Namox.  38 MR. GRANT:   To assist the court and my friends, that would be  39 the Gooseley territory, of which mention was made by  40 the appellants and the respondents.  41 MR. LOWES:   That certainly assists me.  Again, if your lordships  42 so desire, I can provide that your maps be so marked so  43 that that stands out.  44 My lords, we have also attempted, for the sake of  45 -- my lords, given the diversity of the distribution of  46 the lesser interests in the claim area, it is  47 impossible to choose a typical area, and I don't 2129  Submissions by Mr. Lowes  1 pretend that this is a typical area.  2 What we have tried to do is choose one which can  3 be said to be a fair illustration of the points I wish  4 to make.  It's an area, my lords, in which there is no  5 major urban centre, so we are not talking about a town  6 or a city here.  It does not have the highest  7 concentration of any one interest.  What I mean by that  8 is that it doesn't have the highest concentration of  9 the number of any one interest, with one exception,  10 which I'll describe in a moment, nor does it have the  11 highest concentration of interests generally.  It's  12 been chosen, my lords, for the diversity of interests  13 which are in this small area so that your lordships can  14 get a feel for the various contexts in which the issue  15 of inconsistency might arise.  16 I should point out, my lords, in fairness, that  17 the area does include the location of the Equity Silver  18 Mine, which I am informed is the largest silver mine in  19 Canada.  Although the presence of such a mine is not  20 typical in the area, it does provide a scenario -- and  21 I will be concentrating on that scenario -- for showing  22 you the impact of present and potential inconsistent  23 uses, in case I don't get a chance.  24 But your lordships will see that, for example, the  25 Equity Silver Mine attracts a significant number of  26 water licences.  It attracts a private road.  It  27 attracts a gravel pit which is licensed under the  28 Forest Act.  There are all kinds of public -- or all  29 kinds of interests that surround the operation of that  30 particular facility.  That's why we picked it.  31 Again, my lords, in choosing the overlays to which  32 I refer we have concentrated on those which show  33 private interests; for example, grazing permits, or  34 those which slow the extent of the development of  35 infrastructure necessary for the enjoyment of those  36 private interests; for example, forest service roads.  37 If I could take your lordships to tab 14, you  38 should see, if I am lucky, a description of the total  39 number of overlays that go with Exhibit 1243.  40 My lords, I have not included all of those  41 overlays.  The ones that I've included, and perhaps you  42 could check them off, are those that are described, and  43 I'll read from the top, no. 2, no. 4, no. 8, no. 9, no.  44 10, no. 11, no. 12, no. 13, 17, 21, 31, 32, 35, 37, 51,  45 58, 60, 67 and 69.  46 LAMBERT, J.A.:   I got — sorry, 58, 68, 69?  47 MR. LOWES:   Sorry, 58, 60, licences of occupation, 67 and 69. 2130  Submissions by Mr. Lowes  1 What I've left out, my lords, is the overlays which  2 show significant activity of a purely public nature,  3 such as incorporated municipalities, provincial parks,  4 which, of course, are clearly relevant to your  5 lordships' consideration.  6 I quickly take your lordships through the volume.  7 What time would your lordships like to break, 11:15 or  8 now?  9 TAGGART, J.A.:   You're due to complete at twelve.  Why don't we  10 take a break at five to twelve?  That will give you  11 time to change over.  We will go right through until  12 about five to twelve, if you like, and that will give  13 five minutes for a change-over and Mr. Pape can begin.  14 MR. LOWES:   I'll try and give you longer than five minutes.  I  15 think I will be able to.  16 WALLACE, J.A.:   I notice you have Exhibit 1247 listed there.  I  17 thought the number was 1243.  18 MR. LOWES:   I think it's the number on many of the overlays, my  19 lord.  1243 is the base map.  20 WALLACE, J.A.:   I see.  21 MR. LOWES:   All of the exhibit numbers are on the table of  22 contents and I am advised that they are all exhibit  23 numbers.  24 WALLACE, J.A.:   They are overlays to 1243?  25 MR. LOWES:   Yes.  Now, if I could then, my lords, take you back  2 6 to tab 1, which I've shown you, which simply shows you  27 the base map and the overlay of the house territories,  28 the important point, my lords, that I wish to show  29 throughout here is the interrelationship of the  30 resource industries and aboriginal claims, but also, my  31 lords, that the non-aboriginal interests are not  32 necessarily confined to the claim area of any  33 particular house.  Indeed, they generally aren't, and  34 generally spill over the internal boundaries and bear  35 no relationship to the territories.  36 Tab 2, as I said, my lords, are -- if you look at  37 the overlay at tab 2 they are registered traplines,  38 and, my lords, when you look at your copy of the  39 judges' map you will see the grid that you can see in  40 this trapline.  You'll see that the registered  41 traplines cover the entire claim area to the same  42 extent that they cover this specific area.  In other  43 words, they cover the whole thing.  44 I'll quickly go through the rest of the tab, my  45 lords, and I won't read these documents but I will just  46 introduce you to them.  There is a trapline -- there is  47 the Wildlife Act provision, which provides for 2131  Submissions by Mr. Lowes  1 registered traplines.  There is an example of a  2 trapline registration and the example of an application  3 for registration of a trapline and a description of the  4 area to which it applies.  And, my lords, it applies in  5 the area a little bit north of the Namox -- the  6 particular claim area.  7 My lords, at tab 3 I have the same kind of  8 organization dealing with guide outfitters' licences.  9 Again you'll see at tab 3 that the guide outfitters'  10 licences cover the entire selected area, and when you  11 look at your judges' map you'll see that the same  12 situation pertains throughout the entire claim area.  13 The claim area is totally covered to the same extent as  14 is the selected area.  15 Then, my lords, I have included the relevant  16 provisions of the Wildlife Act and behind that, my  17 lords, there is a list of 34 guide outfitters'  18 licences.  Those 34, my lord, are not in the selected  19 area.  They are throughout the whole claim area.  20 I should say, my lords, the terminology that I've  21 used in my speaking notes, in case your lordships want  22 to review it, I've called the eight and a half by 11  23 area the "selected area".  So if I refer to the  24 selected area I'm talking about the small map.  If I  25 talk about the claim area, I'm talking about the big  26 map, the whole thing.  27 Behind the list, my lords -- oh, perhaps I can  28 just stop here, my lords.  This will give you a -- when  29 I talked about extrapolation, my lords, and the  30 alienations project, I've asked the clerk to bring into  31 court the whole of Exhibit 55-D.  You'll see that under  32 our tab 3 we have three pages represented out of a  33 great big book, which I'm instructed deals with the  34 guide outfitters' licences in a similar way in the  35 whole area.  36 If your lordships were a jury I would have brought  37 in the biggest group of documents.  I didn't.  I just  38 chose one which is manageable.  This is the book that  39 is referred to as Exhibit 55-D.  It just gives -- I  40 just want your lordships to have a sense of the scale  41 of the alienations project.  What I've given you in  42 three pages can be multiplied by however many pages are  43 in that book.  44 Behind the list, my lords, is a copy of a guide  45 outfitter's licence covering the Namox claim.  This is  46 the licence, my lord, of Mr. Shepert.  If your  47 lordships will go back to the overlay at tab 3, you'll 2132  Submissions by Mr. Lowes  1 see Mr. Shepert's licence.  It's under Mr. Barnett's.  2 There is Barnett at the top left-hand corner and then  3 Shepert is 34.  You'll see, my lords, if you put that  4 overlay in its proper place, you'll see that that  5 particular guide outfitters' licence covers not only --  6 it not only goes into Namox's territory but into four  7 other adjacent house claim areas.  My lords, that is an  8 example of what I was calling spillover, and that's a  9 further complication, my lords, with respect to the  10 task of balancing aboriginal and non-aboriginal  11 interests.  12 The problem is that we may have a situation in  13 which a portion of a claim area or a portion of a  14 territory which is not subject to one particular  15 licence, Mr. Shepert's licence, may be subject to  16 another licence.  Those licences may not necessarily  17 give rise to the same inconsistency with respect to  18 aboriginal rights.  Again the questions are:  What test  19 do you apply?  And secondly, who applies it and in what  2 0 forum?  21 My lords, this problem isn't unique to this  22 particular interest; that is, guide outfitters'  23 licences.  I think it's fair to say that as a general  24 proposition the non-aboriginal, lesser interests have  25 no relationship either to the external or internal  26 boundaries in this claim and no particular relationship  27 to the claimants of the house claims areas.  28 My lords, at tab 4 —  29 HUTCHEON, J.A.:   Does that type of licence have to be taken out  30 each year, the outfitters' licence?  31 TAGGART, J.A.:   I notice that Mr. Shepert's was said to expire  32 in 1985.  I assume it was issued in 1984.  33 MR. LOWES:  I don't know the answer to that question, my lords.  34 Perhaps one of my friends can help you.  I'm not close  35 enough to the evidence to answer it.  I will provide --  36 it's in the legislation, my lords, section 59; a period  37 not exceeding seven years.  38 LAMBERT, J.A.:   Well, if you look at the list of them, some of  39 them say "Certificate No. 142", for example, and others  40 of them say "Annual Licence No. 00562".  Maybe the  41 certificates cover the seven-year period and the annual  42 licences cover an annual period.  There is a  43 distinction made between whether you hold a certificate  44 or whether you hold an annual licence.  45 MACFARLANE, J.A.:   They are for different periods.  46 MR. LOWES:   My lord, I am advised by my colleagues for Canada  47 that there are different certificates with different 2133  Submissions by Mr. Lowes  1 periods dealing with different aspects of the  2 business.  I don't know if that's related to animals or  3 whether it's related to areas, but that's what I'm  4 instructed, that they are not of one sort.  They are  5 specifically designated to deal with a specific  6 business.  7 Again, my lords, that's an example of not being  8 able to deal with the question of inconsistencies in  9 the abstract, when you have that kind of flexibility  10 with respect to the tenure.  11 My lords, I won't necessarily take you through --  12 well, I would like to show you this.  The next overlay  13 on the big map are grazing permits.  What I wanted to  14 show you there, my lords, is that the grazing permits  15 are heavily located in the selected area, which is an  16 agricultural area.  I'm distinguishing it from the  17 northern part of the area in which are there are none.  18 These are the kinds of interests that are particularly  19 concentrated around one part of the claim area.  20 My lords, I won't take you in any detail through  21 tab 4.  It's the same principle that I've used in 2 and  22 3.1 have included again the legislation and a copy of  23 the permit.  Again I have described in some detail in  24 my speaking notes what I have included under the tab.  25 My lords, at tab 5 the overlay relates to highways  26 and roads in the selected area.  Your lordships will  27 see from the overlay the intense granting of those  28 kinds of interests.  And, my lords, although it's not  29 easy to see in the selected area, you will have on your  30 judges' copies, because they are coloured -- you will  31 be able to distinguish between the public highways and  32 the private roads.  33 Now, here's, my lords, an instance where I'm not  34 referring to private interests, as such, but to the  35 infrastructure which is necessary to support them.  My  36 lords, there is significant logging activity in the  37 area, the selected area, and, of course, in the claim  38 area as a whole, and those are necessary to service  39 that activity.  40 Under the tab -- and I won't take your lordships  41 to them -- are simply some photographs of some of the  42 traffic that uses those roads, including an ore  43 concentrate truck that brings ore from the Equity Mine  44 and, of course, you all know what a logging truck looks  45 like.  All that activity, my lords, takes place within  46 the Namox territory.  I should say, my lords, that the  47 main highway, Highway 16, goes right through the middle 2134  Submissions by Mr. Lowes  1 of the claims area in a north-south direction.  2 My lords, I would like to spend a little more time  3 on the next tab, which is 6, which is mineral tenures.  4 And you'll see from the Judge's Series that mining  5 tenures, which are the pink ones, are located  6 throughout the whole of the claim area.  In other  7 words, they are scattered throughout the whole of the  8 claim area.  They don't cover the whole claim area but  9 there are individual areas throughout the entire claim  10 area.  11 And on the small map, my lords, you will see, if  12 you look at Namox, the specific area that we have  13 picked.  Namox, you'll see the indication of the tenure  14 that's basically the southwest -- southeast corner of  15 the Namox area.  That's the Equity Mine site.  16 My lords, it is of special note that I've  17 included, as I say, the portions of the Mineral Act and  18 the regulations under the act.  It's important to point  19 out here, my lords, that the rights granted pursuant to  20 the Mineral Act and regulations are exclusive rights.  21 LAMBERT, J.A.:   Not exclusive rights to occupation of the land,  22 exclusive rights to take the minerals.  23 MR. LOWES:  Yes, that's what I meant, my lords, that the purpose  24 for which the licence has been granted is only -- is  25 only allowed to be carried out by one person in that  26 area.  27 LAMBERT, J.A.:   Yes.  28 MR. LOWES:   That's what I meant by "exclusive".  29 Now, if you look, my lords, at tab -- we are at  30 tab 6.  If you look at the -- there is a little plastic  31 thing, pocket near the end of the tab and in that is a  32 map.  I won't take your lordships to that map, but that  33 map is a detailed map that shows the mining tenures  34 associated with the Equity Mine.  If you want to see  35 the extent to which the tenure is -- I don't know if --  36 I don't know that yours is highlighted, my lords, but  37 you'll see this highly -- this area here at the top  38 right-hand corner, there is a high concentration of all  39 kinds of interests on this map.  If you look, my lords,  40 you'll see at the far right-hand corner, the westerly  41 side you'll see mining lease no. 1 and mining lease no.  42 6.  That is the Equity Mine.  43 My lords, following that pocket with the map is a  44 photograph, a colour photograph of the Equity Mine  45 site.  I simply put that in there so that your  46 lordships can see the scale of the non-aboriginal use  47 in part of the country which -- and I'm not saying he 2135  Submissions by Mr. Lowes  1 was wrong in doing so -- which the Chief Justice  2 defined as relatively vast and empty.  My point there,  3 my lords, is that even in a vast and empty part of this  4 province there is significant activity at present.  5 And, of course, one hopes that there will be  6 significant activity in the future.  7 Oh, yes.  At paragraph 72, my lords, of my  8 speaking notes I say that the Equity Silver Mine  9 employs approximately 155 people.  A description of the  10 mine and its operations is given at Volume 56 of the  11 transcript.  My lords, those portions of the transcript  12 are found at tab 15 of the document brief and I won't  13 take you through them.  But if you want to read what  14 some of the oral evidence was describing some of the  15 activity of the mine, it is at that tab.  I believe  16 that evidence was given in cross-examination by one of  17 the appellants' witnesses, so it's from the aboriginal  18 perspective.  19 At tab 7, my lords, and I won't take you through  20 that, it's rights-of-way and licences of occupation.  I  21 simply describe them, my lords, and go through my  22 notes.  The rights-of-way are essentially for the  23 pursuances of hydro and natural gas utilites, which are  24 concentrated, of course, along the transportation  25 corridors.  Licences of occupation, my lords, are a  26 much more flexible instrument and are designed to meet  27 specific requirements.  For example, my lords, the  28 licence of occupation that I've included in tab 7 is  29 providing a licence to enter on to Crown lands in order  30 to maintain and operate a boat launching facility,  31 which I am instructed is attached to a resort.  That's  32 at Takysie Lake near the southern boundary of the land  33 claim area.  34 Tab 8, my lords, deals with water licences, and I  35 don't recommend that your lordships rely on the small  36 map to deal with that because those licences are shown  37 as small black dots.  The small black dots on your  38 judges' map are small enough, let alone trying to find  39 the small black dots on the small version.  40 My lords, the material that I've set out includes  41 a list of water licences in the area, and again of  42 particular interest, my lords, are those issued in  43 favour of Equity Silver Mine, which again show the  44 tie-in between what you might call the private interest  45 and then the infrastructure.  46 I should say, my lords, I would like to point out  47 one thing.  On your Judge's Series the blue squares, 2136  Submissions by Mr. Lowes  1 I'm instructed, indicate areas for which detailed maps  2 have been drawn up indicating the water licences.  Now,  3 I haven't put in any of those -- have I?  Well, I have.  4 I put in two, I gather.  Yes.  You'll see examples of  5 those, my lords, in the maps in the little pockets  6 under 8.  And those maps, my lord, show the licences  7 which pertain to the Equity Silver Mine, again showing  8 the tie-in.  9 I wish I had a couple of days.  10 My lords, tab 9 shows surveyed district lots and  11 again, my lords, that's part of infrastructure, of  12 course, those lots having been surveyed and under which  13 title are granted lesser interests.  I would like to  14 refer your lordships to -- there is a list.  It's  15 about -- it's exactly four pages into tab 9.  It's a  16 list of nine pages, from page 91 to 99.  And, my lords,  17 those are the Crown licences.  That's a list of the  18 Crown licences issued, or leases issued in the entire  19 claim area.  20 My lords, the point that I want to make here --  21 the particular point that I want to make here, there is  22 a copy of a lease that we have got in here.  The point  23 that I want to make here is that many, many of these  24 leases contain rights of renewal and some, indeed,  25 contain options to purchase.  The example that we have  26 got in here contains an option to purchase.  Of course,  27 my lords, it's a matter of acute concern to the holders  28 of these leases whether their rights of renewal or,  29 indeed, their options to purchase are going to survive  30 a declaration with respect to aboriginal rights, the  31 neat question being that if there is a partial  32 extinguishment or a diminution, or, indeed, even if the  33 existence of a lease defines the scope or the  34 application of the specific right, what happens when  35 the lease is due for renewal in three or four years?  36 Does the nature of the aboriginal right change because  37 the lease has ended?  And is that issue to be decided  38 the same way in a case where there is a right of  39 renewal as it is in a case where there is no such right  40 of renewal?  41 Again, my lords, I don't purport to have an answer  42 here but the two questions are:  What is the test and  43 who applies it?  And that's really the thrust of my  44 submission here.  45 Yes.  The point here, my lords, that I make at  46 paragraph 83, I simply wish to reiterate that any  47 balancing of competing aboriginal and non-aboriginal 2137  Submissions by Mr. Lowes  1 interests must take into account not only geographical  2 factors but incorporate the time dimension, the  3 dimension of time with respect to each tenure.  4 LAMBERT, J.A.:   Mr. Lowes, you really inserted a thought at the  5 end of paragraph 82 of your speaking notes about what  6 it was and who decided it, or --  7 MR. LOWES:   No, my lord, that's the general -- at the beginning  8 of my speaking notes I've asked your lordships to ask  9 those two questions with respect to every tab and every  10 kind of interest.  I say at the beginning of my notes,  11 and I repeat that, that that is the question that comes  12 up with respect to each kind of interest.  What is the  13 test for inconsistency?  If there is to be a test  14 either on the issue of extinguishment or the issue of  15 the scope or the location, et cetera, what is the test  16 for the inconsistency?  And secondly, who applies the  17 test?  18 I can refer your lordships to that paragraph, I  19 think, shortly.  But if I could do that --  20 LAMBERT, J.A.:   When it is convenient.  21 MR. LOWES:  -- in due course, yes.  But I do make that point in a  22 general sense, my lord, at the beginning of the  23 speaking notes.  24 LAMBERT, J.A.:   Yes.  All right, that's fine.  25 MR. LOWES:   If I didn't get that point across, I'm in real  26 trouble.  My lords, that really is the thrust of my  27 concern with respect to remedies.  28 LAMBERT, J.A.:   I hope that I'll understand all your points when  29 I go through them again with the benefit of the  30 transcript and your speaking notes and the brown book,  31 so you mustn't be dismayed if I seem to have missed  32 something now.  33 MR. LOWES:   I'm just happy to hear, your lordship, that you will  34 be going through the notes again, because I have  35 basically, in writing my speaking notes, I have written  36 them and put the book together so that one can be read  37 and the book can be followed along, as well as the map.  38 LAMBERT, J.A.:   Yes.  39 MACFARLANE, J.A.:  No doubt at enormous expense.  40 MR. LOWES:   What is it that Andrew Marvell said?  "Had we but  41 world enough, and time ..."  42 MACFARLANE, J.A.:   I just want you to remember that I retire at  43 age 75.  44 MR. LOWES:   I don't expect your lordships to read the book.  The  45 only point that I -- I don't expect your lordships to  46 read the book, simply to open it and say, "This has to  47 go back to the trial judge." 2138  Submissions by Mr. Lowes  1 Tab 10, my lords, and I won't take you through it,  2 relates to forest service roads and project sites.  3 Again, my lords, these are a matter of infrastructure  4 which is necessary for the effective utilization of  5 natural resources by private interests.  6 Now, tab 11, my lords, is divided into a number of  7 sub-tabs.  I'm only going to take you to one document,  8 which is a key document and it will help you understand  9 all of the sub-tabs.  And that is a document found at  10 tab 11-5.  Your lordships will see under that tab there  11 is a -- there is the Forest Act, portions of the Forest  12 Act.  Immediately behind that there is a blank page and  13 immediately behind that there is the memorandum that I  14 refer to.  15 TAGGART, J.A.:   What are we looking for, Mr. Lowes?  16 MR. LOWES:   It's a memorandum, my lord, from Mr. Harding to Mr.  17 Prelypchan.  It's February 27, 1986.  It's a two-page  18 memo.  19 WALLACE, J.A.:   It's marked "3" at the top of it.  20 MR. LOWES:   Tab 11-5, my lords.  It's just through the Forest  21 Act.  Then there is a blank page, then there is the  22 memo.  My lords that memorandum sets out a description  23 of each of the various kinds of -- or each of the --  24 describes the forest service terminologies that were  25 used in preparing the overlays.  And those are timber  26 supply area, and it describes what is meant by a timber  27 supply area; provincial forest, describes what is meant  28 by a provincial forest; public sustained yield unit,  29 tree farm licence, chart area, grazing permit, timber  30 sale licence, special use permit, woodlot licence.  31 And, my lords, if you look at paragraph 88 of my  32 speaking notes, you will see how those various  33 terminologies are related to the sub-tab numbers.  For  34 example, 11-1 is the timber supply area, 11-2 is the  35 public sustained yield units.  So what I've done is  36 I've broken down, under tab 11, broken down the timber  37 harvesting interest into sub-categories, those  38 sub-categories being the categories described in the  3 9 memorandum.  40 And, my lords, I say that because what I'm going  41 to do, my lords, is simply tell you that each of the  42 sub-tabs is dealt with with the same specificity that  43 I've dealt with each of the tabs in my speaking notes.  44 So I won't take you through these sub-tabs.  45 If I could then simply go, my lords, to paragraph  46 103 of my speaking notes, and I'll be able to finish  47 and give your lordships a longer break than -- 103 2139  Submissions by Mr. Lowes  1 refers to tab 12.  I won't take you to tab 12, but tab  2 12 deals with coal tenures.  3 Tab 13 deals with railways and there are two  4 railways, my lords, in the area.  One is the CNR, which  5 is this one in blue and it runs up the claim area.  The  6 other is an extension of the B.C. Railway, which is  7 essentially a service line up in the -- well, in the  8 northeastern half of the area.  9 Now, what is of interest, my lords, of especial  10 interest, and I won't take you to them but I've  11 included the material under that tab, tab 12, is that  12 -- I'm sorry, tab 13, is that the CNR actually owns the  13 property, or the property and related properties with  14 respect to the railway.  It's not a lesser interest.  15 It's ownership of --  16 LAMBERT, J.A.:   Fee simple.  17 MR. LOWES:   Fee simple, I suppose, yes.  18 I've also -- and the Dease Lake extension of the  19 B.C. Rail is on a right-of-way and we have included the  20 Order in Council designating the right of way in the  21 material.  22 Just quickly, then, my lords, with respect to the  23 other tabs, tab 14, which you've already been referred  24 to, encloses the list of the overlays.  Tab 15 is an  25 excerpt from the trial transcript.  Tab 16 is part of  26 the argument of Canada, which dealt with the questions  27 of alienation and resource interests, alienation  28 evidence, and it may be of some assistance to your  29 lordships when it comes to extrapolating from this  30 volume to a wider picture.  31 Tab 17 is part of Canada's written argument on the  32 same subject.  I say this at paragraph 112, my lords:  33 Canada's argument as contained in tabs 15 and 16 was  34 directed towards supporting, as they did today, what I  35 call the "patchwork" theory of extinguishment.  This is  36 not a theory that I'm advancing but the argument, in my  37 submission, taken together with this material, supports  38 this intervener's position that there is a very complex  39 interrelationship between resource and other interests  40 throughout the land use claims area, especially when  41 the time dimension is tied in.  42 It's clear that, whether we are talking about  43 defining and implementing aboriginal rights or whether  44 we are talking about extinguishment, firstly there is a  45 necessity to avoid a test which creates a patchwork  46 quilt.  And secondly, as I say, the only way that that  47 can be done is to have the decision in this case made 2140  Submissions by Mr. Lowes  1 at a level of detail which is consistent with the  2 ability of the judge to do it.  And I say that it is  3 not appropriate for declarations to be made that are  4 more general than they need be and that, to the extent  5 that specific decisions can be made, they should be  6 made in this case.  I say, my lords, that the patchwork  7 theory is an invitation to uncertainty.  8 Now, my lords, the second -- and I'll be very  9 quick here -- the second type of material I wish to  10 refer to, and this is the material that Mr. Grant  11 doesn't want me to, and I won't take you to it, my  12 lords, it's similar material to the economic material  13 that I referred to in the context of one of the fishing  14 cases.  I think it was NTC.  Indeed, it is made up of  15 virtually an identical report.  16 The material that I referred to in the NTC case  17 and especially relied upon was a Price Waterhouse  18 report on the fishing industry and its economic  19 impact.  Well, Mr. Sumanic's affidavit, my lords, which  20 I filed in support of the application to participate in  21 these proceedings, exhibits a similar report, Price  22 Waterhouse report for the mining industry and one for  23 the forest industry.  Mr. Sumanic also deposes -- and I  24 must admit he deposes on information and belief -- as  25 to certain economic data with respect to the other  26 intervenors.  27 My lords, I'll just leave it at that.  I have not  28 drawn a separate written submission with respect to  29 your lordships' ability to receive that material.  I  30 will and it will be virtually -- it will be identical,  31 except it will refer to different material, to the one  32 that I filed in the fishing case.  I gather from your  33 lordships that the practice here is simply to leave  34 that decision until the balance of the case.  I won't  35 make those submissions now.  36 I'm saying, my lords, that it provides the  37 necessary context -- it provides constitutional facts  38 which you need in order to determine the issues in this  39 case.  40 TAGGART, J.A.:   It falls into the category, Mr. Lowes, of what  41 we have been doing throughout all of these appeals.  42 MR. LOWES:   Yes.  43 TAGGART, J.A.:   I think we have yet to come to grips with the  44 applications for leave to introduce new evidence.  Some  45 have been filed by parties, some by intervenors.  To  46 some of them there are responses and objections, to  47 some there are none.  But what we have done so far is 2141  Submissions by Mr. Lowes  1 simply to hear out the parties on the basis of all the  2 material and then we will come to grips with whether we  3 should admit that or not admit it in the course of  4 doing our reasons for judgment in each appeal.  I think  5 that process ought to be adopted here, if my  6 colleagues --  7 MR. LOWES:   Yes.  As your lordships will recall, the practice  8 that was developed in the previous appeals was that  9 oral submissions really weren't made on that point, but  10 written submissions were handed up at the same time  11 that the documents were tendered.  12 TAGGART, J.A.:   I think if there is a response to be made by the  13 appellants or by the respondents, then that can be done  14 in writing, as well.  In that way we can have the  15 material before us and we understand the purpose of it.  16 As to its admissibility, that remains to be decided.  17 MR. GRANT:   If I could just make two very quick points, one is  18 that my understanding -- my friend has just indicated  19 he's referring to Price Waterhouse studies in the  20 mining industry and the forest industry.  To my  21 recollection, the appellants haven't seen this.  This  22 is a different situation.  Or are you saying it was  23 appended to the affidavit?  24 MR. LOWES:   It was appended to the affidavit.  It's Exhibits A  25 and B to the affidavit.  26 TAGGART, J.A.:   This was the affidavit filed on your application  27 for leave to intervene?  28 MR. LOWES:   Yes, and I would ask your lordships to make that  29 note at paragraph 26 of my factum, where, as my friend  30 said, I confess that this isn't evidence in the case.  31 If you look at paragraph 26 of my factum, if you would  32 just note there that the reference is to the affidavit  33 of Kim Sumanic, S-u-m-a-n-i-c, sworn --  well, I've got  34 a copy here that doesn't have the date -- that was  35 filed on my application to intervene.  36 MR. GRANT:   If I can just -- just to raise the point so the  37 court has it right here, in my friend's speaking notes  38 at paragraph 72 he makes reference to a transcript  39 which is appended, but the only fact he really sets out  40 is the employment of 155 people.  41 I just want you to note that that is not in that  42 evidence and to my recollection is not in evidence as  43 to the number of employees.  Of course, then it goes to  44 what time is he speaking about, and that information is  45 not in the transcript reference that he referred to.  46 MR. LOWES:  I won't rely on that 155.  It employs a lot of  47 people. 2142  Submissions by Mr. Lowes  1 MR. GRANT:  And then just the reference on statistical studies of  2 the Chief Justice of the survey on anthropology that  3 was referred to earlier, where he said it couldn't be  4 useed unless it was proved scientifically, I would have  5 you note that in dealing with these specific points  6 where my friend says it's only statistics, well, the  7 trial judge had to deal with that.  And he quite  8 rightly said you can't rely on it.  9 TAGGART, J.A.:   Well, then, we will leave it, Mr. Lowes, that  10 you are to follow the usual application for leave to  11 adduce this additional evidence, and the appellants and  12 the respondents have the right, of course, to file  13 responses stating their position with respect to it.  14 MR. LOWES:  My lords, there is one more item of business.  I  15 wanted to hand you up one more -- his lordship Mr.  16 Justice Lambert, during the course of submissions by  17 Alcan, asked counsel some questions with respect, in  18 particular, to the Multiple Access Limited v.  19 McCutcheon case.  20 My lords, I would like to provide you with  21 speaking notes on that -- a written submission on that,  22 which I will adopt as being part of my oral  23 submissions.  I confess I didn't prepare it, Alcan did,  24 but it seemed to me that, in terms of just being fair  25 at the time, I would take the time and provide those.  26 TAGGART, J.A.:   And you've provided copies of this material,  27 have you, to your friends?  2 8 MR. LOWES:   Yes.  29 TAGGART, J.A.:   All right.  30 MR. GOUGE:  May I just say, my lords, that the cross-reference to  31 my factum is paragraph 28.  32 TAGGART, J.A.:   At paragraph 28 of your factum?  33 MR. GOUGE:  Yes, my lord.  34 MR. LOWES:   My lords, just one more piece of business and I can  35 give you five more minutes --  36 THE COURT:   All contributions gratefully received.  37 MR. LOWES:   My lords, there are two, and if my friends have no  38 objection and if your lordships have no objection --  39 if it's going to be controversial I won't push it --  40 but, my lords, there are two other groups who wish to  41 be part of this intervenor.  There is no material  42 before you.  One is the B.C. Cattlemen's Association  43 and the other is the B.C. Chamber of Commerce.  44 Now, with respect to the Cattlemen's Association,  45 they thought that they had instructed me and they in  46 fact hadn't.  With respect to the Chamber of Commerce,  47 it was a question of coming at the last minute.  As I 2143  Submissions by Mr. Pape  1 indicated, my lords, if there is no serious objection  2 from the point of view of either substance or process,  3 I would ask that those parties be included on the  4 intervenor.  I will make no submission on it.  I don't  5 push it.  They would just like to be represented.  6 MR. GRANT:   For the appellants, my lords, I didn't know until  7 this moment that my friend -- he never gave any advance  8 notice of this to the appellants.  I would like the  9 opportunity to speak to my clients about it.  We may  10 not oppose it, but --  11 TAGGART, J.A.:   Two more among how many?  12 MR. LOWES:  Fourteen or 15.  13 TAGGART, J.A.:   You and Mr. Grant discuss that and let us know  14 later whether you are in agreement or not.  15 MR. LOWES:   My lords, those are my submissions.  16 TAGGART, J.A.:   All right.  17 MR. LOWES:   Thank you, my lords, for the extra time.  18 TAGGART, J.A.:   Thank you, Mr. Lowes, for completing so  19 promptly.  It's very helpful.  20 We will adjourn until twelve o'clock, when we will  21 hear Mr. Pape.  22 THE REGISTRAR:  Order in court.  Court stands adjourned for the  23 morning recess.  24  25 MORNING RECESS  26  27 THE REGISTRAR:  Order in court.  28 MR. PAPE:   My lords, you should have before you the factum.  The  29 correct factum was labelled "(Amended) Factum of the  30 Intervenor, Carrier Sekani Tribal Council".  I have  31 handed up speaking notes and references and I will be  32 asking your lordships to go back and forth between the  33 speaking notes and the factum.  34 I have also handed you a revised table of  35 authorities which you could slip in the back of the  36 factum.  It has proper tab references for all of the  37 cases and it has page references where these cases are  38 referred to in either the factum or the speaking  39 notes.  So I won't be making references to tab numbers  40 and so on as I go through and I won't be asking you to  41 turn to cases, because I have tried to excerpt, with  42 perhaps one exception this afternoon, all the case  43 material that I will be asking you to read.  44 Just a couple of brief comments, my lords, in the  45 introduction.  Generally speaking, after these comments  46 everything that I hope is of substance and importance  47 is really in writing; just this by way of introduction. 2144  Submissions by Mr. Pape  1 During the course of this appeal I have heard on a  2 number of occasions your lordships say to counsel that  3 you are concerned that the classic cases on aboriginal  4 rights don't take us far enough or don't directly guide  5 the court in answering the questions before you on this  6 appeal.  With respect, I agree.  7 There are a number of reasons why this case  8 doesn't fall to be determined solely on the basis of  9 the principles from other cases, and I'll just mention  10 three of them.  11 The first, of course, is that the rights asked for  12 here are about rights generally, whereas usually the  13 rights are very specific, both activity specific and  14 context specific.  15 Second, of course, what's terribly different about  16 this case is that you are asked to make declarations  17 about general aboriginal rights that are going to be  18 exercised in British Columbia.  And British Columbia,  19 of course, is so anomalous in Canada because all of the  20 Crown's obligations to safeguard aboriginal interests  21 have been ignored during all stages of the development  22 of the province.  23 The third thing that makes this case so unique is  24 that it's a case to be dealt with ten years after the  25 inclusion of section 35 in the Constitution Act.  Of  26 course, no other country in the common law world has  27 given constitutional protection in and of itself to  28 aboriginal rights, and so the cases can only take you  29 so far.  30 The result of these special factors is that you  31 are really called upon to give an operational  32 definition of these constitutionally protected rights.  33 You have to define how legally, not politically -- and  34 I appreciate your lordships have said that a number of  35 times and I agree with your lordships -- your job is to  36 decide legally how these unique rights of Indian people  37 are accommodated and fit within their country's  38 constitutional and legal framework and how they are  39 accommodated within the rights and interests of others.  40 My submissions are directed entirely to those  41 questions and I acknowledge the special context.  42 There are three broad themes that I ask you to be  43 mindful of and they run all through my submissions.  44 The first one is a methodology concern, a legal  45 process concern, really, and it's this, that the  46 methods of legal analysis that have stood our courts so  47 well in developing the common law are the methods of 2145  Submissions by Mr. Pape  1 legal analysis that will work for your lordships.  And  2 that means that the starting point is always first  3 principles in a constitutional rights case like this.  4 And we find those, of course, in the cases and the  5 scholarly articles and then those have to be developed  6 and applied using traditional, conventional tools of  7 legal and constitutional analysis.  I submit that that  8 is what I will certainly try to do in my submissions.  9 The second thing is this:  I submit with great  10 respect that the overwhelming emphasis on  11 extinguishment which has pervaded all of the appeals  12 which your lordships have heard this year, and that  13 emphasis has been at the instance of the two  14 governments, it's inappropriate emphasis and it's  15 ultimately not helpful to your lordships.  16 The real issue for your lordships is not  17 extinguishment.  It's how aboriginal rights are legally  18 accommodated within Canadian society.  19 My third theme is this, that the aboriginal -- let  20 me say it this way.  The issues in this case will  21 impact differently on the different parties --  22 profoundly differently.  I submit, as a matter of fact  23 and of law, that the aboriginal rights which are the  24 subject of this case will be determinative of the  25 future for B.C.'s aboriginal peoples.  But, on the  26 other hand, the impact of these rights will not be on  27 anything like the same scale for other people.  2 8 And I say that with full acknowledgement of  2 9 everything that Mr. Lowes just went through with you  30 and I am going to deal with that as we go.  But I say  31 that you are going to -- you know that giving effect to  32 aboriginal rights in British Columbia will without  33 doubt require both governments and some third parties  34 to do some things they would prefer not to do.  No  35 question of that.  36 But, on the other hand, aboriginal rights and  37 giving them a proper operational force so as to ensure  38 their just accommodation in this society will not  39 threaten and will not challenge the underpinnings of  40 this province, its socioeconomic fabric, its legal  41 fabric and so on.  42 I won't take you to the facts.  I will just tell  43 you what's in the facts because I can do it faster than  44 taking you to them.  45 The Carrier Sekani Tribal Council intervened here  46 in response to Alcan being added.  However, it's clear,  47 your lordships know this and the tribal council does 2146  Submissions by Mr. Pape  1 not ask you to decide any lis between Alcan or the  2 tribal council or the Carrier people in this appeal.  3 Alcan asked you in their factum to be mindful of  4 their water licence and their corporate circumstances  5 as they perceive them when you decide the general law  6 issues.  The tribal council asks you in the same way to  7 be mindful of their circumstances as they perceive them  8 and how Mean's interests impact on them and on their  9 aboriginal rights.  10 And what's explained in the facts is this, that  11 the Carriers are neighbours of the appellants.  The  12 Carriers' homeland is in the Nechako River watershed.  13 Mean's water licence, which was granted by the  14 province in the early fifties, gives them a right to  15 divert water which would naturally flow east into the  16 Nechako and instead, after diverting it, to send it in  17 a westerly direction to Kemano where it is used to  18 produce hydroelectric power in Mean's privately owned  19 generator.  20 This large scale diversion of the Nechako has been  21 going on since the 1950s.  It has already caused  22 substantial adverse impact on the Carrier peoples,  23 including impacts on their fisheries, other wildlife  24 species and on their lands, including their reserves.  25 Alcan now plans to greatly increase the quantity of  26 water diverted from the Nechako to Kemano and this  27 additional water licence will allow them to do so.  28 They want to do that so they can produce and sell more  29 hydroelectric power.  Their plans, if carried out, will  30 reduce the Nechako to about 12 per cent of its natural  31 flows.  The Carriers believe that will permanently  32 impair the exercise of their aboriginal rights.  33 No one knows this, of course.  There has been no  34 environmental impact assessment.  35 The Carriers' land claim based on aboriginal title  36 has been accepted by Canada for negotiation since  37 1983.  You've heard about such claims.  The appellants  38 have one as well.  But the process of negotiation, of  39 course, is yet to begin.  But as one aspect of their  40 modern treaty, the Carrier people intend to negotiate  41 for a regime which would rehabilitate and properly  42 manage the Nechako so that the river will be managed in  43 the future in a way which will ensure the Indian  44 people's future in their traditional territory.  45 Of course, all the issues before you in a general  46 way would impact on all those things.  47 I'll ask you to begin by turning to page 6 of the 2147  Submissions by Mr. Pape  1 factum, where I will take you through on an overview  2 basis the submissions I will make.  3 Paragraph 13:  The tribal council makes the  4 following submissions.  One, the aboriginal title  5 guarantees the material basis for each Indian people's  6 future in their homeland.  The core of that legal  7 interest is not absolute and it's not unlimited.  I've  8 defined it in the speaking notes and you'll come to it  9 in paragraph 15A, but I'll tell you now that the  10 definition I've been so arrogant to try out is this,  11 that I say aboriginal title protects or reflects those  12 rights and proprietary interests which an aboriginal  13 people can rely on as a matter of legal right to secure  14 their future as a distinct people in their own  15 homeland.  16 My submission will be that there is a generic  17 core, a generic quality to aboriginal title.  That's  18 what most of my submissions are about, but that title  19 in particular cases will take its form through the  20 procedures which define how the Indian people will  21 co-exist with the majority population.  And its form  22 will depend on the circumstances of each aboriginal  23 people in their territory.  24 Let me just, before I do the rest, ask you to turn  25 to page 8 and look at point (x), because these two go  26 together and they are really where I'm going to spend  27 most of my time.  28 Aboriginal title extends to all the lands and  29 resources in each Indian people's homeland.  But how  30 that title impacts on any particular area or resource  31 -- or third party interest -- must be determined on a  32 case by case basis.  That stands to be determined in  33 the context of the three alternative mechanisms for  34 defining the accommodation between aboriginal title and  35 third party interests: treaty making, which you know  36 about; cooperative arrangements between the parties  37 directly involved, which no one has discussed, or  38 litigation.  39 I'll be dealing with those things for most of my  40 time; that is, the nature of these rights, how they  41 take their particular form and so on.  42 If I could go back to page 6 and explain the other  43 submissions, aboriginal title is held by First Nations  44 on behalf of their members.  It's a distinct public law  45 title which co-exists with that of the Crown.  46 By section 109, the province's ownership of lands  47 and resources is subject to, diminished by, qualified 2148  Submissions by Mr. Pape  1 by unextinguished aboriginal title.  The Indian people  2 are the owners notionally of this third category of  3 public property.  4 This is the first of a series of constitutional  5 arguments why I say, for constitutional reasons, the  6 province could not extinguish aboriginal title.  7 Because aboriginal title is an extra-provincial  8 interest in the constitutional sense, no head of power  9 within section 92 authorizes the province to abrogate  10 or extinguish it.  11 Any third party interest in lands and resources  12 granted by the province is itself subject to  13 unextinguished aboriginal title.  14 Provincial law could also not extinguish  15 aboriginal title because such a law would come within  16 Parliament's exclusive jurisdiction under section  17 91(24).  I say section 109 qualifies the province's  18 power from section 92 and section 91(24) creates an  19 exclusive head of power in Parliament with respect to  20 aboriginal title, and the two things are  21 complementary.  They fit together.  They don't clash.  22 Then on the section 88 issue, section 88 cannot  23 referentially incorporate an extinguishment statute  24 because of the clear and plain intention.  25 I'll also make an argument based on statutory  26 interpretation, that provincial laws do not purport to  27 extinguish aboriginal title.  And one of the reasons  28 underlying all that is the peculiar history of this  2 9 province where government has never acknowledged such  30 rights and where the common law has been unclear that  31 these rights existed or what their legal force was.  I  32 say in those circumstances, as a matter of statutory  33 interpretation, in order to find clear and plain  34 intention you're going to have to find express  35 statutory authorization to extinguish aboriginal  36 rights.  37 Then in the next sections I deal with the  38 accommodation theory.  I say aboriginal title and third  39 party interests do not invalidate or extinguish each  40 other.  The proper inquiry concerns the terms on which  41 they co-exist as legal rights.  The branch of the Crown  42 with jurisdiction to affect aboriginal title has a  43 fiduciary obligation to protect the Indian interest  44 from being impaired.  Third parties have also got  45 obligations to not interfere with aboriginal title, and  46 their obligation is sound in tort, for the most part.  47 Let me deal, then, with the nature of aboriginal 2149  Submissions by Mr. Pape  1 title.  It begins at paragraph 14 in the factum and I'm  2 going to address three different questions.  3 First, the source of aboriginal rights, what have  4 come to be called Judge Lambert's questions.  Second,  5 what is the legal substance of the rights, the the  6 generic core of the rights protected by aboriginal  7 title?  And third, an operational concept of how these  8 are defined, how they impact on specific areas, over  9 third parties, et cetera.  10 Let me start with the source of aboriginal  11 rights.  The respondents have all said something  12 similar to your lordships, which is that the source of  13 aboriginal rights is in the laws of the aboriginal  14 peoples.  And therefore they have asked the court to  15 examine aboriginal customs, institutions, laws and so  16 on at some time in the past to see whether any  17 particular contemporary interest or activity is  18 protected as an aboriginal right.  19 I submit this approach is analytically flawed  20 although, of course, in many cases it will lead to a  21 correct result.  22 Now, I've argued in the earlier appeals several  23 reasons why it's flawed.  I've said, for example, that  24 it amounts to a frozen rights theory.  It's flawed  25 because it would lead to a patchwork of different  26 fundamental constitutional rights of different  27 aboriginal peoples and because those different rights  28 would be determined largely on the basis of the  29 evidence which aboriginal people could muster, which in  30 most cases would be the very incomplete and uneven  31 historical record that the colonizers themselves offer.  32 Just a little example of that, if our submission  33 is right that there is an aboriginal title, an aspect  34 of self-regulation of power, common law, the power of  35 self-regulation, not full legislative power; common law  36 power of self-regulation, let's just think about how  37 that would be proved.  38 In one case we have an explorer's record who went  39 and spent three weeks visiting with an Indian people.  40 He was there during fishing season.  He saw how they  41 arranged themselves, how they had built fishing traps  42 and weirs and how they had this elaborate system for  43 conducting their own fishing.  So the court would say,  44 "Aha, there it is, the power of self-regulation right  45 in their own laws."  46 And take another people not very far away, no  47 doubt, who were never visited in the early stages or 2150  Submissions by Mr. Pape  1 who were visited by two drunk explorers who went by,  2 didn't spend any time, weren't comfortable with Indians  3 and said, We saw them fishing and from what we could  4 see, it was chaos.  We asked them who fished where and  5 who fished when and no one could tell us.  They  6 obviously had no coherent system.  They are just out of  7 the trees, these Indians."  8 And let's say those Indian people had been heavily  9 impacted by the plagues which befell the Indians in the  10 18th and 19th centuries.  Let's say that later, when  11 encroachment really hit their territory, they were  12 badly damaged in society, so they can't present to you  13 any coherent evidence of their ancient past and how  14 they in fact managed their fishery.  So what do you  15 say?  "Oh, those people.  They couldn't prove it.  They  16 don't have a right of self-regulation."  17 So these Indian people here who have managed to  18 hang on despite all of that, they will be regulated by  19 Parliament, and the other Indian people, they will be  20 regulated by themselves?  It doesn't make any sense.  21 But today I want to offer your lordships a more  22 analytical reason why the approach is wrong. It's  23 fundamentally wrong.  And I'd ask you to look at what I  24 say.  What I say in paragraph 14 is that aboriginal  25 rights form part of Canada's constitutional law.  They  26 define the unique relationship between Indian people  2 7 and the Crown.  28 I want to take you through paragraphs 14A through  29 H in the speaking notes, if you would.  I say first  30 generally, methodologically, that these rights must be  31 construed by the same type of purposive analysis used  32 in other constitutional rights cases.  I adopt  33 paragraphs from the Alliance of Tribal Councils' factum  34 in NTC Smokehouse, and I also mention some things when  35 I get to the Mahe case on the methodology of a  36 purposive analysis, if your lordships are generally  37 familiar with that.  38 Now, I'm at 14B, when construing aboriginal title,  39 the court's jurisdiction is to give effect to Canada's  40 law of aboriginal rights, not to construe or enforce  41 the laws or customs of the aboriginal nations.  42 Canada's aboriginal rights law grew from English  43 colonialism.  Its purpose has always been to establish  44 or adjust the legal relationships between the  45 colonizers and the indigenous inhabitants of the  46 territories which the Crown wished to exploit.  47 English law recognized the pre-existing legal 2151  Submissions by Mr. Pape  1 position of the aboriginal nations and affirmed that  2 position as a bundle of continuing legal rights and  3 interests which would be protected within the new legal  4 system to be based on the Crown's sovereignty.  5 I might say this is -- the English Imperial common  6 law is in stark contrast to its Spanish counterpart,  7 which rationalized the colonizer's rights to extinguish  8 the indigenous peoples and their interests.  But my  9 friends the respondents don't seem to be aware of the  10 distinction.  11 From the perspective of the colonizers, the  12 "pre-existing legal position" of the aboriginal peoples  13 was that they were independent nations whose economy  14 and way of life were based in their occupancy and  15 profitable possession of their own territories.  That's  16 the legal position which both Imperial law and the  17 neighbouring aboriginal nations acknowledged had legal  18 force.  19 That's the pre-existing legal position for which  20 continuity was promised.  A central purpose of  21 aboriginal rights law was to assure the continuity of  22 the aboriginal people as an independent nation whose  23 identity, economy, way of life and so on are based in  24 their occupancy and profitable possession of their own  25 territory, because that assurance wasn't just for the  26 Indian people.  It wasn't just a matter of justice.  27 That assurance facilitated peaceful settlement and  28 mercantile activity by the colonizers.  That promise  29 was the basis upon which Canada was settled.  So when  30 it is asserted that any particular activity or interest  31 is protected by aboriginal rights law, I say the court  32 should look at that activity or interest, consider it  33 in the context of the aboriginal people's circumstances  34 and decide whether that activity or interest has  35 aspects which are reasonably connected to the law's  36 purpose.  37 I've given your lordships a copy of this recent  38 Supreme Court of Canada decision, United States of  39 America versus PSAC.  It's a case about sovereign  4 0 immunity and whether the employees at the American  41 military base at Argenta could be certified by the  42 Canada Labour Board under the Canada code.  And I don't  43 offer to it to you for any argument about sovereign  44 immunity in relation to aboriginal rights, but the  45 discussion by Mr. Justice La Forest for the majority is  46 very, very interesting.  It's a very interesting  47 approach to looking at -- taking an activity, putting 2152  Submissions by Mr. Pape  1 it in total context and looking at it's different  2 aspects, and I recommend it to your lordships.  3 Now, this analysis of aboriginal rights does not  4 require finding that a contemporary activity or  5 interest corresponds to an ancient law or custom of the  6 aboriginal people.  It was not the purpose of the  7 Imperial legal doctrine of aboriginal rights to  8 preserve the legal arrangements which existed within  9 the aboriginal nations at any particular time, or of  10 the corresponding rights of the individual Indians  11 under those legal arrangements.  12 The decision in Southern Rhodesia focused on the  13 need to find that an aboriginal tribe was a "people"  14 who were territorial in the sense that the colonizers  15 could and should treat with them.  There are obiter  16 suggestions in Baker Lake to the contrary that support  17 the respondents.  And I say that those obiter comments  18 should not be followed and that the decision in Bear  19 Island suggests that is aboriginal rights are based in  20 territoriality and do not involve a cultural means  21 test.  22 I have also cited here the decision of Mr. Justice  23 Toohey in the Mabo case, the recent case that we've all  24 just received.  I want to commend it to your lordships  25 and I want to mention to your lordships one particular  26 thing, which is that at pages 173-4 he discusses the  27 fact that the claims there were based on three  28 different legal propositions.  One was the kind of  29 Imperial law notion, Imperial common law notion of  30 aboriginal and native title that my whole argument is  31 based on.  32 But he mentions two other legal foundations for  33 the claim and both of them are based in English  34 domestic common law.   One is the concept of cultural  35 rights based on custom, customary cultural rights.  And  36 the other is the notion of a right of possession based  37 on English domestic common law's concept of rights of  38 possession.  And that notion is discussed in Justice  39 Toohey's decision and it's developed in Professor  40 McNeil's book.  41 Both of those English domestic common law legal  42 arguments are the type of arguments that in fact my  43 friends the respondents are making.  And that's, I  44 submit, where there is a great deal of confusion here.  45 I suggest your lordships might want to consider that,  46 that the doctrine of aboriginal title that this case is  47 founded on, as I understand the appellants, and 2153  Submissions by Mr. Pape  1 certainly what my arguments are founded on is based on  2 a different doctrine entirely.  It's a sui generis  3 doctrine.  It's common law and it's not the same as the  4 others.  I leave that with you.  5 Finally, I say this at 14H.  There has been a  6 recent suggestion by the province and their new  7 position that aboriginal rights law protects aboriginal  8 differences.  And I say it's ill conceived.  I say  9 aboriginal rights law is not in any sense an aspect of  10 Canadian multiculturalism.  Certainly a historic view  11 wouldn't allow you to think that Imperial England was  12 tolerant of cultural difference, but to its credit,  13 Imperial common law was prepared to respect the  14 continuity of the national and territorial rights of  15 the aboriginal peoples, notwithstanding the fact that  16 they were neither Christians nor agriculturalists.  17 I say to you that aboriginal rights must be  18 exotic, or it just doesn't work.  Again, take an  19 example.  Take an example of the whole question of the  20 relationship of people to land and resources.  You  21 know, you have heard it, that aboriginal people have a  22 stewardship concept.  They view themselves as part of  23 the land.  24 Of course, that is not what the common law  25 tradition is, which views land more as a commodity on  26 its own which can be exploited and even destroyed.  But  27 we know that our own legal thinking is developed.  28 Thinking about sustainable development and so on is  29 becoming part of what we accept as the basic concept of  30 good government.  31 What would happen if, gradually over the next 15  32 or 20 years, Canadian common law develops to the point  33 where our law actually recognizes generally some right  34 of citizens to preserve their own ecology for future  35 generations?  That's certainly not part of the law now,  36 but what if it develops like that?  What will happen to  37 the Indians?  Will they then lose the component of  38 environmental protection which should come to them  39 because it is in fact fundamentally related to their  40 continuity as a people, because their concept of  41 stewardship and sustainable development will no longer  42 be exotic?  With respect, it doesn't make sense.  43 Aboriginal rights are there for an aboriginal people  44 because they have their source in their occupancy  45 historically, their pre-existing position.  46 TAGGART, J.A.:  Would this be a convenient time?  47 MR. PAPE:   My lords, I'm behind, but I'll pick it up after 2154  Submissions by Mr. Pape  1 lunch.  2 TAGGART, J.A.:   Two o'clock.  3 THE REGISTRAR:  Order in court.  Court stands adjourned for the  4 noon recess.  5  6 NOON RECESS  7  8  9 I hereby certify the foregoing to  10 be a true and accurate transcript  11 of the proceedings herein, to  12 the best of my skill and ability.  13  14  15  16    17 Dianne Olsen,  18 Official Reporter,  19 UNITED REPORTING SERVICE LTD.  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 2155  Submission by Mr. Pape  1 PROCEEDINGS RECONVENED AT 2 P.M.  2  3 THE REGISTRAR:  Order in court.  4 TAGGART, J.A.:  Yes, Mr. Pape.  5 MR. PAPE:  My lord, I'm at page 4 of the speaking notes, my  6 lord, a third of the way down.  It says sub (2).  And  7 I'll just explain how this is structured because I'm  8 going to have to move through this more like a  9 signpost than a book today.  What I say here too is  10 the second issue on this nature of aboriginal title  11 question is "The substance of Aboriginal Title" and I  12 say "See paragraphs," et cetera, and I list them all.  13 And what I'm going to ask your lordships to do is I'm  14 going to make brief submissions on these issues and  15 highlight one or two paragraphs perhaps in these  16 sections, but otherwise I'm going to have to just  17 leave it all with you.  And so the argument is made on  18 that basis and I trust that if it appears useful or  19 relevant your lordships will consider these paragraphs  20 from the Pape speaking note in due course.  21 Now, as to number (2) "The Substance of Aboriginal  22 Title."  As I said earlier, I agree with Mr. Jackson's  23 submission which he made on behalf of the appellants  24 that there are certain generic incidents of aboriginal  25 rights on title.  And that's what we say -- that's  26 what we're dealing with here in our submission.  And  27 in 15A I have set out what we say aboriginal title  28 represents.  29 Now, in paragraph 18 of the factum I say in a  30 general sense aboriginal rights take their specific  31 form from the customs, laws and circumstances of  32 particular Indian peoples.  But in their substance,  33 all aboriginal titles share fundamental incidents  34 which reflect the purposes and general principles of  35 this part of our constitutional law.  36 And then I say in 19 that they're not frozen  37 rights, of course, as the Crown's title isn't.  38 And that in 20 that it's a future-oriented concept  39 and that that's consistent with the leading cases.  40 And especially the use that the Canadian cases have  41 made of the American cases as to the purpose of  42 aboriginal title.  43 I say in 21 that we're not -- we don't run from  44 the characterization of these rights as usufructuary  45 and in fact that they do from the point of view of the  46 Indian people represent a powerful and substantial  47 interest in their homeland. 2156  Submission by Mr. Pape  1 The only other paragraph in this section that I  2 want to mention to your lordships is one of the  3 paragraphs -- well, no, there's -- yes, a paragraph  4 that's found in the speaking notes a couple of pages  5 on and it's paragraph 30 sub A it's where I discuss  6 the concept of the right of self-government that we  7 say is entailed in aboriginal title.  I take it your  8 lordships have figured out what I've done is I've  9 referenced all these paragraphs in speaking notes to  10 numbered paragraphs in the factum.  And in paragraph  11 30 I had argued that aboriginal title entails the  12 right of self-government, much like the right of  13 management and self-regulation in the way that I  14 argued for it in the Nikal case.  15 Now, in 30A I address an issue that has been  16 raised here which is really the question what does  17 that mean constitutionally.  And what I explain  18 essentially is that substantively it's a power of  19 self-government, self-management in relation to the  20 proprietary special rights of the Indian people.  It's  21 not unlike -- or it's analogous to the proprietary  22 legislative powers that the province have under  23 section 92.  On the other hand, from a constitutional  24 point of view it's not a power, a legislative power  25 recognized in the constitution as are the powers of  26 the federal and provincial governments through  27 sections 91 and 92.  It's a common law,  28 self-regulation power.  So it doesn't have the same  29 constitutional status as the legislative powers of the  30 province and federal government.  But on the other  31 hand, that doesn't mean that it's nothing and it  32 doesn't mean that it's not exercisable.  And what I  33 say is that where that power is properly in exercise  34 of where it's connected to the aboriginal title and  35 rights, and it reflects the historic recognition of  36 the Indian peoples as nations with the limits and  37 strengths that that concept entails, then their laws  38 should be enforceable.  Probably not directly,  39 probably with the help of the courts, but they should  40 be enforceable when they don't meet up with  41 inconsistent laws from the province or the federal  42 government.  When they do meet up against inconsistent  43 laws now that section 35 is in the constitution, then  44 the concept of fiduciary obligation will come into  45 play and if the inconsistent law that has occupied the  46 field that could properly be occupied by an aboriginal  47 government, if that federal or provincial law is 2157  Submission by Mr. Pape  1 inconsistent with the fiduciary obligation, then it  2 should fall and the court should assist to give power  3 to the aboriginal law or self-regulatory power.  Now,  4 we're in a changing period here.  Obviously the  5 political process is considering going the next step  6 and in fact giving a different level of recognition to  7 the self-government power.  The constitution isn't  8 finished developing in that sense but in the present  9 state I say that this is a powerful aspect of  10 aboriginal rights and title and in some cases will  11 have meaning.  It's got its limits, as I say.  12 Now, that's all I want to say about the substance  13 of the interests.  The real question then is down at  14 the bottom of page 4, how does it get its operational  15 definition, how does it impact on particular areas.  16 And the reason that that has to be understood is  17 because of what we say about these interests which is  18 they take their form in particular circumstances.  19 And I say at paragraph 23 that aboriginal rights  20 are not absolute or unlimited.  Imperial common law  21 assumed that both aboriginal people and settlers could  22 be accommodated.  What the law has been concerned with  23 is mechanisms for ensuring that accommodation would be  24 a just one.  25 And in paragraphs 26 through 29 I give two  26 examples of what this means because this is very, very  27 important in our submissions for your lordships to  28 understand.  You know that treaty rights are retained  29 aboriginal rights.  In my submission what I do in 26  30 through 29 is give two examples.  In the Stevens  31 treaties, the treaties in Washington and Oregon, a  32 portion of the Indian people's fishing rights were  33 retained and that's explained in paragraph 26.  And  34 then in -- when the court had to construe those in  35 contemporary terms it decided that what was retained  36 was the right to take up to 50 percent of each run as  37 required to support the tribes.  And it was also a  38 right to co-manage the fishery and regulate their own  39 members fishing.  So that's an example of how  40 aboriginal rights became specifically defined in  41 relation to those fisheries.  42 Similarly, in the McLeod Lake case, a case in this  43 province, of course, where the Indian people came to  44 court and said in essence we're going to attempt to  45 sign on to Treaty 8, we say we have a right to do  46 that.  Treaty 8 has a formula for securing a certain  47 quantum of reserve lands for the exclusive rights of 2158  Submission by Mr. Pape  1 residency and economic development of the Indian  2 people.  We say that our population gives us a right  3 to a certain quantum of reserve right.  Our concern is  4 that the forestry companies are gobbling up our  5 territory at such a rate that there won't be enough  6 left for us.  We want an injunction to stop forestry.  7 Madam Justice MacLoughlin said that's too broad,  8 you've got to bring it down.  The territory is too  9 huge, your right isn't anywhere near that big.  They  10 came to back to court after having said "All right, we  11 want our reserve in this portion of the territory" and  12 she found that some thousand acres I think of that  13 portion was already being logged.  She defined that as  14 the status quo and she gave them an injunction against  15 further logging in the rest of the area that they had  16 selected for their reserve.  Now, there is a perfect  17 example of how the court intervened to ensure that  18 encroachment by third parties would not go so far as  19 to preclude the possibility of the Indian people  20 having their accommodation secured for.  And I say  21 that's the basic principle.  And in litigation  22 situations more often than not when Indian people come  23 to court it's in order to preserve enough of the  24 status quo so that their position can be secured.  25 Now, I won't take you through paragraphs 29A  26 through C.  They're in the speaking notes, but they --  27 they refer to the Mahe case and I ask your lordships  28 to look at that case with great detail for two  29 purposes.  First, that case has the best example of a  30 historic purpose of analysis that I've seen in the  31 constitutional cases looking at new contemporary  32 collective rights.  There is a long discussion and  33 I've excerpted it at paragraphs 29A and B showing that  34 the court understood the purpose of the addition of  35 section 23 to the Charter and the long historical  36 situation that it was based upon and the remedial  37 purposes of putting in section 23.  And then they then  38 gave a purpose of analysis which -- the issue in the  39 case was whether parents in French language schools  40 have a right of management and control in those  41 schools because the majority school boards wouldn't  42 give them sufficient control to satisfy them.  And the  43 court said, yes, section 23 entails that right.  And  44 of course there is nothing, there is nothing in the  45 text of section 23 that suggests any right of  46 management or control.  The court took that from a  47 purpose of analysis.  But then they go on having found 2159  Submission by Mr. Pape  1 that generic right, that's part of the minority  2 language right, they then went on to say "but we are  3 not going to define how that has its form in  4 particular cases."  And in 29C I excerpt a number of  5 portions of the judgment where the court is saying in  6 a number of different cases for a number of different  7 issues that will arise how that right will take its  8 form will depend on the circumstances.  Hopefully the  9 parties will work it out, hopefully the government  10 will do the right thing.  If the government won't do  11 the right thing, then the parties will be back here  12 and will deal in more definite terms how that right  13 has to take its form in particular circumstances in  14 order to satisfy the purpose of the constitutional  15 right.  And I say that case is on all fours with the  16 approach your lordships should take to this issue of  17 aboriginal title.  18 That takes me to -- that's all I wish to say  19 about the nature of aboriginal title, my lords.  The  20 other sections that mention some other general  21 characteristics of these rights they are in the factum  22 in the other paragraphs mentioned and I leave them  23 with you.  24 What's clear is that there's some -- and I say it  25 in paragraph 35, is that the particular facts and  26 circumstances of each nation will in fact be  27 determinative of a number of important issues.  Scope  28 of the territory, whether there are overlapping  29 interests with the form of the political emanation of  30 the First Nation which the Crown must deal with and so  31 on and so on, the rules of membership in the First  32 Nation, so very, very important issues.  Those are  33 going to be based on the facts and circumstances and  34 customs of the individual people.  But otherwise I say  35 we're dealing with a generic concept.  36 Now, the next issue that I touch in the factum is  37 the question of blanket extinguishment by colonial  38 enactments.  I haven't addressed it in this factum.  39 It's in paragraphs 36 and 37.  I refer you back to the  40 second factum that this intervenor filed in the  41 Alphonse and Dick case.  And I would remind your  42 lordships that I still believe that that factum has  43 the most thorough discussion of the consequent  44 legislative intention of any of the factums that have  45 been presented to your lordships during all the these  46 appeals.  And I say with great respect that there is  47 still a great deal of confusion in the arguments -- 2160  Submission by Mr. Pape  1 there's certainly a great deal of difference in the  2 kind of arguments being made before your lordships  3 about this issue of intention and that we're still  4 getting arguments made by the respondents that I say  5 are wrong in law that reflect the concept of  6 subjective intention by legislators and after all what  7 could they have had in mind if not that sort of --  8 that sort of argument which are fundamentally wrong  9 and which are not the idea of legislative intention  10 which has to be the underpinning of any finding by  11 your lordship of the requisite intention to extinguish  12 or whatever.  I leave all that with you but it comes  13 up again of course in the issue of provincial  14 extinguishment.  Now, the point being that if it's  15 not -- if you can't find the reference point in the  16 statutes, then it's not there.  17 Now, on the issue of provincial competence, the  18 first argument is at the top of page 10 of the  19 speaking notes, that section 109 imposes -- the basic  20 position here is that the province has never had  21 competence to enact a law which would either  22 expressly, directly, purportedly, indirectly in any  23 way have the effect of extinguishing aboriginal title.  24 I say "Section 109 imposes a constitutional  25 qualification on the province's title to lands and  26 resources - provincial title is subject to  27 unextinguished aboriginal title."  Now, of course,  28 that's a position that is developed in St. Catherine's  29 and so on.  30 The point that's important, my lords, is addressed  31 in paragraphs 40 and 41 in the factum which is that  32 the powers that the province relies on to make grants  33 of interests, sections 92(5) and (13) are proprietary.  34 Of course Mr. Taylor told you 92(a) is different.  It  35 comes in at the same time as section 35 but even it  36 is.  So that proprietary powers are limited, of  37 course, as I say in paragraph 41 by the extent of the  38 province's interest.  And so if you find, as I say you  39 must, that unextinguished aboriginal title is an  40 interest within the contemplation of section 109 which  41 qualifies the province's title then that is not part  42 of the property interest about which the province can  43 legislate under those sections.  And that's the basic  44 argument in this section and it's made, as I say, in  45 40 and 41.  The discussion of St. Catherine's is in  46 the paragraphs 43 through 45.  And in the A.G. Canada  47 v. Ontario case discussed in 45.  And the important 2161  Submission by Mr. Pape  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  LAMBERT,  MR. PAPE  LAMBERT,  MR. PAPE:  thing is that -- in essence -- well, let me just tell  you this.  What I've done also, in paragraphs 46A and  so on all the way through 46F I have given you some  cases which discuss the term "subject to", what  happens in a grant or conveyance or so on or a will  when "subject to" language is used.  And of course it  means that title under discussion is qualified.  What  I say is that when you put all this together, when you  read section 109 especially in the context of cases  like the ones cited in St. Catherine's and the Privy  Council cases is that what you see is section 109  amounts to a constitutional reservation of the unique  Indian interests that we've been discussing, the core  interests.  That's what it really is.  It's reserved  on the province's title by section 109.  That makes  our constitution unique, of course.  There's nothing  like that in the American constitution or in the  Australian one and so on.  J.A.:  In paragraph 43, Mr. Pape, there's a quotation  from St. Catherine's starting line 29.  Are you with  me?  Yes, my lord.  J.A:  "It appears to [their Lordships] to be sufficient  for the purposes of this case that there has been  all along vested in the Crown a substantial and  paramount estate, underlying the Indian title."  Now, those words "underlying the Indian title" seem to  be potentially ambiguous; that is, it could mean more  fundamental, that the Crown title is more fundamental  than the Indian title.  And that the Indian -- the  Indian title is just a form of subsidiary interest in  land.  Or it could mean the other thing, of course,  that when it says "underlying the Indian title" that  the Indian title is the truly fundamental title and  that the Crown's interest is taken subject to the  Indian interest that predated it.  And those two  concepts both seem to me to potentially come out of  that wording.  I take it from your interpretation of  this paragraph that you are saying that the Indian  title is the fundamental title and when the Crown  takes at the time of sovereignty, assertion of  sovereignty, it takes subject to that Indian title.  Yes, but they -- yes, I do, of course, but they may  both be fundamental titles in a certain sense.  I'm 2162  Submission by Mr. Pape  1 not sure that in the end jockeying to see which is  2 under the other gets us very far, but the real  3 question is what is the terms of the relationship  4 between the two titles.  One of the arguments I've  5 developed here is that we have to get a conception in  6 our mind, a characterization in our mind of this  7 Indian title.  It's the only kind of title we have in  8 our law that's a truly collective title, otherwise  9 it's a philosopher's individual title.  It's a  10 collective title.  So do we think of it as sort of  11 like a club, a co-op, or something else?  I say it's  12 more like a public law title of the Indian nations.  13 It's analogous in many ways to the Crown's title.  14 It's a title which the Indian nation has, as the Crown  15 does, from which the Indian nation can give grants or  16 recognize interests in its people just as the Crown  17 does for its citizens.  In some ways they are  18 parallel.  Certainly the Indian title is prior.  And  19 the Imperial common law rule was that since its  20 continuity would be respected and the way that was  21 given effect was the Crown's title would be understood  22 to be subject to it.  That's what the American cases  23 do.  They say the Crown's title and any grants it  24 makes are subject to the Indian title.  In a way that  25 means the two titles live together.  I don't know  26 which is on top of the other.  You get into bad  27 analogies or metaphors but they have to live together  28 and the law tells us the relationship.  Neither can  29 crush the other, neither can oust the other.  I mean I  30 think that to be candid if the Indian's wanted their  31 title to oust the imperialist's title, the colonial  32 title, it would have had to go to war and say "Leave"  33 and they didn't.  And, similarly, if the Crown had  34 said the Indian title will not be recognized at all,  35 then the Indians would just have been steamrolled and  36 the law would have reflected that and it wasn't.  So  37 they have to live together.  And I think that's what  38 treaty making is.  It's a working out of the  39 relationship between these two public law titles,  40 including the issue of how all the rights that come  41 from the two will relate to each other.  42 LAMBERT, J.A.:  Well, I had understood that there was a  43 submission that the -- the sovereignty, when  44 sovereignty is asserted in let's say 1842 is the --  45 1846 is the date that the radical title comes in then  46 as an aspect of sovereignty and the sovereignty which  47 permits extinguishment by clear and plain intention is 2163  Submission by Mr. Pape  1 the same sovereignty that gives the radical title and  2 the radical title slips in as the most fundamental  3 title and the Indian title is subject to it, that's  4 one theory, and the other theory is the theory in the  5 American cases.  6 MR. PAPE:  Well, I don't know, my lord.  It seems to me that you  7 haven't adequately -- haven't finished stating the  8 first theory because the Crown -- the sovereignty  9 which the Crown asserts isn't an absolute sovereignty,  10 it's a sovereignty under which the Crown could  11 extinguish the rights of Indian people as they could  12 have any subject, but the Crown limits its power.  The  13 same sovereignty has the concept of the Crown's  14 fiduciary obligation uniquely to Indian people.  So  15 that in fact it's qualified the Crown sovereignty with  16 respect to Indian people.  Now, it all can be  17 overridden until 1982 by parliamentary supremacy, I  18 grant you.  It's a very complex doctrine.  It's not a  19 doctrine of authoritarian, it's not Stalin's doctrine,  20 it's a much more qualified doctrine.  That's how I  21 understood it.  Now, we're in the sovereign's courts,  22 we're not in the Indian people's courts.  And I think  23 it's unquestionable and the cases have said it, that  24 we are in the sovereign courts, the sovereign concept  25 of the doctrine of discovery is the fundamental law.  26 And it means that the doctrine of parliamentary  27 supremacy and all the rest of it prevails.  But for me  28 the important thing is that the doctrine of  29 parliamentary supremacy was limited by the law of  30 aboriginal rights.  It's a limit on that doctrine.  31 It's a unique limit.  Nobody else's rights are  32 protected in the same way.  What it says that doctrine  33 is, colonialism will only encroach so far.  That's how  34 I understand it.  And so it's a very special kind of  35 title.  It's recognizing the Indian title was there  36 first and it will survive.  And in order to have it  37 survive then the doctrine of consent, working out the  38 future of the Indian people on the basis of mutally  39 agreed terms of accommodation and so on, conditioning  40 the sovereign's power by the doctrine of fiduciary  41 obligation, all of those come in to make that aspect  42 of our law.  43 LAMBERT, J.A.:  Thank you.  44 MR. PAPE:  Now, I've developed a section in paragraphs 48 and 49  45 and 53 where I discuss whether the Indian interest is  46 properly characterized as equitable or legal and I'm  47 not sure your lordships have to decide that.  It's an 2164  Submission by Mr. Pape  1 issue that I don't think affects the extinguishment  2 question, but it may affect remedies ultimately.  I  3 say that the title has aspects of both and the cases  4 as I explain in paragraph 47 have said that section  5 109 preserves or reserves the interests from both  6 aspects, both the fiduciary obligation aspect and the  7 legal prior title aspect.  8 That takes me to page 12 in the middle of the page  9 where I say at sub (2)  "the interest protected by  10 aboriginal title is not owned by either the federal or  11 provincial governments; that interest - which is  12 inalienable except to the Crown - is a sui generis  13 category of public property interest, which is  14 notionally 'owned' by the Indian peoples who are  15 competent to surrender it."  Now, I know there is a  16 question in the case about whether they own it, you  17 know, whether there's an interest to transfer and so  18 on.  But prior to surrender or extinguishment I don't  19 see how an interest that is inalienable only to the  20 Crown could be thought of as anything but an interest  21 that is notionally at least owned, otherwise how could  22 it be alienated.  It's not talked about as an interest  23 which is extinguishable only by the Crown.  And so  24 again we have to understand these things in a  25 particular way.  26 I've done a discussion in paragraph 50A of the  27 relationship between the aboriginal peoples as owners  28 and their individual members as grantees in effect.  29 And I think this court in Pasco had a good discussion  30 of that concept that understood that the law with  31 respect to Indian nations or Indian people and their  32 ownership of land has to be looked at as public law  33 not through the terminology or the conceptual  34 framework of your club law or company law.  35 Now, that takes me to paragraph -- the paragraph  36 in the middle of page 13 of the speaking notes, sub  37 (3) pursuant to its powers as a proprietor of lands  38 and resources, the province is not competent to  39 unburden its own title by extinguishing the aboriginal  40 title or nor is it competent to make laws which would  41 govern or regulate aboriginal title.  And this is  42 developed in those paragraphs that are listed there.  43 I say in paragraph 56 that it's well settled, that  44 provincial law can't affect the ownership of lands or  45 interests owned by the Crown in right of Canada.  46 And in 57 I discuss the Upper Churchill Water case  47 where it's clear that a province can't affect the 2165  Submission by Mr. Pape  1 ownership of an interest which is subject to the  2 legislative competence of a different province.  In  3 effect, what those cases together decide is that the  4 province's proprietary powers are limited by what it  5 owns and it's that simple.  Now, as I discuss in a  6 little more detail in the paragraphs in the speaking  7 notes under this heading, that's not unrelated to the  8 fact that the province can't have the power to affect  9 someone else's proprietary interests because in fact  10 the constitution expressly gives the power to that  11 other body, either the other province or the federal  12 government, to protect those proprietary interests.  13 So again the constitution is not fighting itself, it's  14 easily understood as internally consistent.  15 Now, Mr. -- I'm at page 15 now in the middle of  16 the page.  Mr. Taylor said in his argument that he  17 thought that this whole argument we developed on 109  18 was developed in order to urge on your lordships an  19 enclave theory.  The enclave theory of course means  20 that there could be a class of public property which  21 could not be touched either directly or indirectly by  22 provincial laws.  And I say in sub (4) there that this  23 is not an enclave theory.  We don't say that it's --  24 these are insulated from being incidentally affected;  25 rather, it's the basis for an argument that the  26 province can't do certain things that it could do with  27 property it owns and of course it's related to why the  28 federal government has certain legislative powers in  29 relation to aboriginal title.  30 Then I go at sub (5) at the bottom of page 15 to  31 say that when you put all this together what has to  32 flow is that when the province makes a grant to a  33 third party the grant is subject to the unextinguished  34 aboriginal title which the province's own grant was  35 subject to.  It's really a theory that's based on two  36 very simple concepts.  One, in part, that this is a  37 constitutional reservation and qualification on the  38 province's title and the province could not by its  39 only legislation remove that qualification.  And,  40 secondly, it's based in the Nemo dat theory, the  41 province can't give a greater interest to someone than  42 it has itself.  And that's developed in those  43 paragraphs that are listed and I won't discuss that  44 any further.  45 Now, that takes me to 91(24) issues.  And what I  46 say in that section is set out in the speaking notes,  47 and I'm just going to go through the speaking notes on 2166  Submission by Mr. Pape  1 this section, and just ask you again to refer to the  2 sections in the -- in the factum that are listed here.  3 There have been a great deal of discussions in this  4 court about the 91(24) power, it's relation to  5 aboriginal title and rights and so on.  And the notion  6 of what can be done by otherwise valid provincial laws  7 and so on and how far they can have an effect.  I say  8 that a lot of the submissions you've heard and, with  9 respect, the submission made by Alcan is simply wrong.  10 And I'll start at the bottom of page 16.  "There  11 has always been a constitutional doctrine, based on  12 the division of powers, that otherwise valid  13 provincial laws may not apply to govern matters  14 falling within subjects assigned to the exclusive  15 jurisdiction of Parliament.  The doctrine was not  16 altered in any way by the changes made to the  17 Constitution Act in 1982.  It is thoroughly and  18 authoritatively discussed in Bell Canada."  And I ask  19 your lordships to read that case.  There is no  20 textbook article, there is no textbook or article that  21 is more updated than that.  That is a decision of a  22 large bench of the Supreme Court of Canada.  It sets  23 out the law on these division of powers issues more  24 clearly than anything else.  It corrects the textbooks  25 and so on.  And it's very, very hard in its reasoning  26 that case, I submit.  It's in many ways the legacy  27 that Mr. Justice Beetz leaves the country as a  28 constitutional scholar and as the author of most of  29 the big constitutional law theories for the court  30 about the nature of federalism that began in 1867.  31 Now, what's developed is that constitutionally most  32 matters fall exclusively within either a subject  33 assigned to Parliament or the provincial legislatures,  34 but not to both.  And he develops that at great  35 length.  36 Now, I won't take you through these paragraphs but  37 what I tell you in 61B is that this confusion about  38 terminology that we've had here in the court is even  39 dealt with in the case.  There has been a suggestion,  40 for example, that the term "reading down" is a limited  41 term.  There's, you know, Professor Hogg's book has  42 been cited to you to say, well, it's just a rule of  43 construction.  A law has to have its full effect,  44 that's what it's saying and so on, but what you see in  45 the cases I give you in 61B is that the Supreme Court  46 of Canada itself has twice used terminology "reading  47 down" when what they're talking about is the doctrine 2167  Submission by Mr. Pape  1 of constitutionally limiting the application of  2 provincial statutes.  And they use ultra vires  3 terminology and reading down terminology and so on  4 interchangeably.  And in both Derrickson and Dick  5 itself "reading down" was used as the terminology.  6 It's all the same doctrine.  It's the doctrine that  7 says that the constitution prevails and laws can't  8 have unconstitutional effects.  9 And so what I explain in these paragraphs is that  10 the task of the court is to find out what is the  11 subject matter, what is the matter about which any law  12 either is intended to enact, to govern, or which would  13 have an effect of governing.  And then the court has  14 to decide whether that matter falls within a subject  15 assigned to parliament or to the provinces.  16 Again Mr. Justice Beetz takes great care in Bell  17 Canada, and I explain it in 61C, to show that in fact  18 the express language of section 91 is that if a matter  19 is found in 91 it's deemed not to fall in 92.  And on  20 that basis he goes on and explains that the double  21 aspect theory is very limited in its application.  And  22 he has a discussion of how in fact that has very  23 strict application.  24 Now, then I'm at the top of page 20 of the  25 speaking notes.  I say that -- and I've got two  26 different arguments for this, that aboriginal title is  27 a matter within the subjects assigned to parliament by  28 91(24).  And I say first that that follows from a  29 simple analysis of 91(24) and the nature of aboriginal  30 title.  It protects uniquely Indian rights and  31 interests and is the legal foundation for the  32 collective future of those people.  33 Whether you look at Indians or lands reserved, on  34 the theory that I have it's 109, the constitutional  35 reservation, no matter how you look at it this is not  36 a subject that could fall outside of 91(24).  And I've  37 developed that argument in paragraph 62A and in 62A  38 you have the argument on this issue from the Federal  39 Court of Appeal and Smith.  40 But then over on 22 of the speaking notes I give  41 you another argument which I say is absolutely  42 determinative on this question.  And I don't believe  43 it's been discussed in the courts, or at least not  44 much.  And that is that any doubts about this is  45 settled by the decision in Roberts which says that the  46 law of aboriginal title is a body of federal common  47 law.  And I develop that in these paragraphs 63A 2168  Submission by Mr. Pape  1 through C.  Now, in 63A I simply give you a portion of  2 Madam Justice Wilson's judgment for the court where  3 she explains that aboriginal title is a body of  4 federal common law.  And in the large paragraph on  5 page 23 there she explains how many aspects of the law  6 of aboriginal title fall within federal common law.  7 And in 63B I explain the significance of this.  And  8 that is that a body of common law is designated  9 federal to reflect the constitutional position that  10 parliament has exclusive legislative authority to  11 govern the matter.  And that is found in a reference  12 from Laskin's text which is cited with approval in  13 Professor Hogg's text where Professor Laskin explained  14 in the text that common law will be either federal or  15 provincial, depending on which legislative body would  16 have jurisdiction to make laws to overrule it or to  17 change it.  So it follows then that this is federal --  18 from it being federal common law that it's a matter  19 within parliament's exclusive jurisdiction.  20 Then in paragraph 63C I take this the rest of the  21 way and give you the Bisaillon v. Keable case in which  22 there is a discussion of federal common law and its  23 impact or its relationship to provincial statutory  24 law.  And in that case, of course, the issue was  25 whether a provincially appointed inquiry could force a  26 police officer to reveal his informant contrary to the  27 common law rule that has grown up limiting the  28 circumstances in which police informants would have to  29 be named in the courts.  And what -- this is again  30 Justice Beetz, I believe, writing for the court and he  31 does a full description -- sorry, discussion of why  32 they classify the secrecy rule as being an aspect of  33 federal law.  And it's very much like the discussion  34 in Roberts about title.  It applies on all fours.  35 That's in the first paragraph.  Then he goes on and  36 says that federal common law is paramount to  37 provincial statute law because of the basic rules  38 about paramountcy and that you don't have to have  39 federal statute law in order to be -- to secure the  40 paramountcy of federal common law.  He says that very  41 clearly.  And I say that that has a huge impact on  42 this case and on the issues before you because I  43 believe it's been generally discussed.  And I agree  44 with the submissions and I know the appellants have  45 made them, and I agree with them.  But the consent  46 rule is something between a constitutional convention  47 and an aspect of the common law title.  It's subject 2169  Submission by Mr. Pape  1 to repeal, of course, and override by statute.  But  2 it's part of the federal common law aboriginal title  3 rules.  And I say what that means when you look at the  4 Keable case is that the province would not be  5 competent to act contrary to or to repeal the consent  6 rule which is an aspect of the federal common law of  7 aboriginal title.  8 I'm at the bottom of page 24.  "It follows that  9 it would be ultra vires for a province to purport to  10 enact laws governing" and even more clearly, to enact  11 laws extinguishing aboriginal title.  "It follows that  12 an otherwise valid provincial law could not apply to  13 extinguish or govern aboriginal title.  That  14 constitutional position is unique to Canada."  As I  15 say, it just isn't there for the Australian aborigines  16 or the New Zealand Maoris or any other aboriginal  17 peoples, including in the United States.  Division of  18 power issues are different in the American law.  19 So then I go on at sub (5) on page 25 to say  20 there's even another argument, that the impairment  21 rule, which is developed of course in the companies  22 cases, is discussed in Bell Canada.  And what you'll  23 see in Bell Canada in these paragraphs here, 68A and B  24 that the court has a very low standard for what  25 impairment would mean of an interest which was outside  26 provincial jurisdiction.  And I submit that the actual  27 extinguishment of title would fall afoul of that rule  28 as it's discussed in that case.  I leave those with  29 you, the analogies to the Winner case and the  30 Campbell Bennett case and so on.  They're well-known  31 cases and they're argued in the factum and in here.  32 I want to go on on page 26.  Then there's another  33 issue that's discussed in Bell Canada that again I say  34 is very important.  In Bell Canada they had a major  35 discussion of course in the AllTrans case which is a  36 decision of this court which -- and it's very relevant  37 here because, of course, in AllTrans you were dealing  38 with part of the Workers' Compensation Act and the  39 fact that there was both a safety and a preventive  40 scheme and a compensation scheme.  And this court  41 concluded that the schemes were part of a whole.  And  42 since the compensation scheme applies by long judicial  43 tradition to federal undertaking, then the worker --  44 the safety and health prevention scheme must apply as  45 well because it's in fact related to the other.  And  46 the court says in Bell Canada that that's wrong, it's  47 just wrong.  That if no matter how interconnected a 2170  Submission by Mr. Pape  1 legislative scheme is, if a part of that scheme in its  2 application to a federal matter would run afoul of the  3 rules and would be ultra vires, then the application  4 of the -- the law must be severed for constitutional  5 purposes and part of it can apply, whatever can apply  6 constitutionally, and the part that can't apply  7 constitutionally can't apply.  And that's what flows  8 from the nature of our constitution.  And I say again  9 that will have great application when you come to look  10 at provincial laws and whether you might, for example,  11 extinguish and clearly and plainly extinguish, for  12 example, common law rights in water.  And then the  13 question comes, well, could they also extinguish the  14 common law rights in water that are associated with  15 aboriginal title.  And I say it couldn't.  It would  16 have to be -- its application would have to stop at  17 that point.  And if the province  18 purported to do what they did apparently in the 1921  19 amendment that Mr. Gouge showed you and expressly  20 purport to extinguish aboriginal title rights in  21 water, they would be wrong again.  And they couldn't  22 do it, either expressly or indirectly or by necessary  23 effect or anything.  It just can't be done.  And  24 that's what the court says in Bell Canada.  25 Now, that takes me to sub (7) on 26 which is that  26 there is this complicated issue about incidental  27 effects and there is no question that valid provincial  28 laws that incidentally affect the enjoyment of  29 aboriginal title.  And this court looked at a couple  30 of examples, again not aboriginal title, but it's a  31 helpful starting point in Napoleon.  There was, of  32 course, safety laws that were for safety purposes that  33 restricted treaty hunting rights.  And the courts  34 dealt with a number of cases on highway traffic rules  35 and how they apply on reserves.  But there's limits I  36 say at the top of page 27.  I say that provincial  37 grants to third parties can be looked at as statutory  38 authorization to third parties to do things which may  39 validly affect the enjoyment of aboriginal title.  4 0 That's what we have.  Part of what Mr. Lowes was  41 showing you was the incredible extent, the thorough  42 extent to which there is encroachment by third parties  43 pursuant to Crown grants on the territories of the  44 aboriginal peoples.  To the extent I say that those do  45 not infringe on, impair the core, the enjoyment of the  46 core of that aboriginal title, they're valid.  And  47 they may -- they may cause some effect, cause some 2171  Submission by Mr. Pape  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. PAPE:  HUTCHEON,  MR. PAPE:  restriction, that a line will have to be drawn at some  point. And if that interest was so thorough going, so  total, that in fact it had the effect of extinguishing  the whole of the aboriginal -- the core of the  aboriginal title interest, it wouldn't be valid and it  couldn't have that effect.  J.A.:  When you say the core, are you talking about  geographically then?  Well, I'm talking about this notional concept I  developed before.  That it's that bundle of rights and  interests which they can rely on.  J.A. :  I see .  Which we don't really know until we work it out in  concrete terms.  And nor could they substantially  impair the ability of the Indian people to exercise  the core of those rights and interests.  So it's a  question of how far it can go is what it almost comes  down to in geographical or notional or economic or  social terms.  And that's -- I mean that's what I'm  going to get into after the break is how these rights  really do get defined and whether that's in fact, as I  say it is, quite a practicable possibility.  But I say  this, and this is the end of this constitutional  section, when the province insists to you, as they do,  and the federal Crown insists to you that provincial  laws and grants have gone so far as to extinguish a  portion of the title I say they leave you no choice,  they're inviting you to conclude that to that extent  those laws are ultra vires because they can't do it.  And you won't find a source for that in the American  cases because it's not their law.  And you won't find  it in the Australian cases because it's not their law,  although all those cases always say it has to be done  by competent legislation and so on.  In this country  the arrangement of legislative powers is different.  Maybe I should just do section 88 before the break  because it's very brief.  I don't believe section 88  gives you any substantial difficulty in this case for  the three reasons that I've outlined here, and I'll  leave the paragraphs with you.  But, first of all, the  plain and -- the clear and plain intention of the rule  really destroys any possibility for the province to  rely on section 88.  There's a big discussion of this  in the Dick case, about the meaning of the law of  general application.  And I appreciate that in this  court with my help the dissenting judgment was not  entirely correct.  I mean we all read Kruger and 2172  Submission by Mr. Pape  1 Manuel to mean what we thought it meant about where  2 the line is between a law of general application and  3 another law.  It turned out when we got to the Supreme  4 Court of Canada the Supreme Court of Canada said that  5 wasn't right, it didn't mean what we thought it said.  6 But the court in Dick does define where the line is  7 and that there is a line between a law of general  8 application.  And I have given you those paragraphs in  9 the factum from 70 to 73 and in 73A I've given you the  10 quotes from Dick.  And I submit when you read them  11 there is no way, there is no way that a law that  12 satisfied the requisite intention test could be a law  13 of general application.  It would fail the test that  14 is set out in the Dick case.  15 The second question, of course, about section 88  16 is even if it did referentially incorporate an  17 extinguishment law and even if it was a law of general  18 application, our laws of general application  19 incorporate it to apply to lands reserved for Indians,  20 for only to Indians.  21 Again I've done a discussion in the factum in the  22 paragraphs I've listed here on 28 about why I say that  23 there's nothing in the statute to indicate that it  24 would apply -- that it's meant to apply to land  25 reserved for Indians.  And, in fact, when you do an  26 analysis of the Indian Act and how it always clearly  27 indicates what various sections are meant to apply to  28 it, that it's very clear that if section 88 was  29 legislatively intended to referentially incorporate  30 for purposes of application to land reserved for  31 Indians, it would say so.  Because they say so in all  32 the other sections of the Act, they make it pretty  33 clear.  That muddled as the Act is it's usually clear  34 about what the subject matter of any provision is.  35 And finally I say at the bottom of 28 that section  36 88 itself doesn't manifest the requisite clear and  37 plain intention to referentially incorporate  38 provincial laws in order to extinguish title.  So on  39 all grounds I say section 88 isn't really your problem  40 here.  41 Now, what I'm going to do is discuss -- for the  42 rest of my time what I want to discuss is this whole  43 theory of extinguishment by provincial grants.  And  44 the first thesis is that none of the statutory schemes  45 under which these grants are made manifest any  46 intention to extinguish aboriginal title.  And,  47 therefore, there's no difficulty in reconciling the 2173  Submission by Mr. Pape  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,  clear and plain intention requirement with the  constitutional position.  In other words, to put it  simply, as bad as the historical record is British  Columbia has traditionally ignored aboriginal title.  It has never purported to try and extinguish it.  I then develop a theory that says how do we -- I  mean the court has to have a theory then of what is  the legal relationship between these grants and  aboriginal title.  And especially what is the court to  do with the fact that in some cases the grants have an  effect on the enjoyment of aboriginal rights and  title.  And I say the proper theory is not an  extinguishment theory but a theory of statutory  authorization to interfere with the rights of others.  And I develop in here an analysis that says that the  best way to think about these grants is to see them as  statutory authorizations to carry on activities.  And  that's true of a fee simple grant but it's especially  true of resource tenures.  And then I go on for the  rest of the factum and I'll develop my suggestion to  the court of how in fact these third party tenures,  third party interests are to in fact be reconciled  with the Indian title interests.  And that's what I  will do for the rest of my time.  J.A.:  All right.  We'll take a break, five minutes.  THE REGISTRAR:  Order in court.  AFTERNOON RECESS  TAGGART, J.A.:  Mr. Pape, just before you begin, and this is  perhaps primarily for the benefit of Amicus, you have  raised in the course of your presentation to the  present time the section 109 approach to the interest  in land and the ability of the province to extinguish  that by provincial legislation or other means.  And  it's a subject that -- and coupled to that, as an  aspect of that, you introduced us to the -- Roberts, I  believe it was, and the concept of federal common law.  MR. PAPE:  Yes.  TAGGART, J.A.:  Now these are two matters, and we've had a good  exposition from you of that.  I think I have a vaguely  general idea of what it is you're driving at.  Much  more will flow from reading the authorities that  you've given us and re-reading what you've said.  We're concerned.  This is something that might well  have been of interest to the Crown federal, I don't  know.  It must certainly be of interest, I take it, to 2174  Submission by Mr. Pape  1 the Crown provincial, but I don't know where they're  2 going in relation to subjects of that kind when one  3 looks at the issues they wish us to deal with and the  4 issues they do not wish us to deal with, so I don't  5 know whether they're going to come to grips with those  6 submissions.  To some extent, but to a limited extent  7 only, we got into the constitutional divisions of  8 powers, if you like, to use a general phrase, when Mr.  9 Gouge was arguing on behalf of Alcan.  You have taken  10 a somewhat different approach than he did.  His was  11 the old standard build up the powers through the Privy  12 Council decisions and make them applicable today.  But  13 I'm wondering if we've got anybody really putting up  14 an argument on the other side of the issues that you  15 have raised, and especially those revolving around the  16 concept of section 109 and its ability to limit the  17 interest in land that the province can deal with and  18 as a coordinate of that the federal common law  19 concept.  20 MR. TAYLOR:  My lord, I'm prepared to speak to that.  The  21 province is intending to deal with those issues as we  22 indicated in the reply, the date for reply, and that's  23 all wrapped up in the extinguishment argument.  24 THE COURT:  Are you going to deal with them by saying "me too"  25 or are you going to deal with them by saying "Well,  26 it's almost right but this is better" or are you going  27 to deal with them by saying "Don't buy that"?  28 MR. TAYLOR:  With respect to 109 and the federal common law I  29 think I will adopt Mr. Pape's terminology to say it's  30 plainly wrong and that's how we will be dealing with  31 it.  32 HUTCHEON, J.A.:  I'm sorry, I didn't quite get that.  33 MR. TAYLOR:  We disagree —  34 HUTCHEON, J.A.:  Oh, okay.  35 MR. TAYLOR:  — with Mr. Pape's position with respect to both  36 the 109 interest and its effect.  37 HUTCHEON, J.A.:  Yes.  38 MR. TAYLOR:  And the allegation that there is a separate body, a  39 federal common body.  40 MR. JACKSON:  My lord, just to complete the record, the  41 appellants would point out that both the issue of 109  42 and the issue of federal common law were argued at  43 trial and are specifically addressed in the  44 appellants' reply factum.  45 TAGGART, J.A.:  I appreciate that.  I was looking for somebody  46 who was going to give us the other hundred and eighty  47 degrees of the circle.  Mr. Gouge. 2175  Submission by Mr. Pape  1 MR. GOUGE:  Your lordships will understand that if Mr. Pape and  2 I were the protagonists on this appeal I would have a  3 good deal to say in reply.  4 TAGGART, J.A.:  I understand that.  Well, the Amicus can take  5 these discussions under advisement as well in case  6 they feel it is desirable to make some submission with  7 respect to those aspects.  8 MR. PAPE:  Well, I'm disappointed that Mr. Taylor has held his  9 argument back.  I came to listen to the province's  10 argument.  He said in the course of his agrument that  11 he was going to address that issue, he didn't.  I'm  12 sorry that I didn't have an opportunity to make my  13 argument in the context of what he has to say because  14 I don't see how, given that the whole fundamental  15 premise that the province's argument is that the  16 province had competence to extinguish, I don't see how  17 they could leave that, especially given that they had  18 notice of the position of the other parties.  However,  19 that's for your lordships.  20 I'm at page --  21 LAMBERT, J.A.:  Could I ask just one thing by way of a  22 clarification about your section 109 argument.  To the  23 extent that it rests on section 109, then it affects  24 any aboriginal right that's land based, but perhaps  25 not an aboriginal right that's not land based or  26 related to that.  I'm not quite sure whether I  27 understand your position to be that properly  28 understood all aboriginal rights are land based or  29 whether it is that, yes, this argument doesn't apply  30 to some things that could be thought of as being  31 aboriginal rights.  32 MR. PAPE:  That's the sort of question that counsel for Indian  33 people never like to be asked, my lord, because out of  34 an abundance of caution no one wants to say that it's  35 all or nothing.  My own view is that properly  36 understood most Indian rights flow from the  37 pre-existing position of the Indians as being people  38 who were in occupation of the territory and most  39 rights flow from and are connected to that, including  40 those rights which tend to take their form as personal  41 rights and individual people and quasi-governmental  42 powers and self-regulatory powers and so on.  There  43 may be some rights that properly understood could be  44 exercised and would be understood as being totally in  45 isolation from the position of the aboriginal people  46 as a people with territoriality.  But I think that the  47 submission Mr. Jackson made to you in answer to some 2176  Submission by Mr. Pape  1 of your questions in which he stressed the aspect of  2 aboriginal people as a people and their  3 territoriality.  And I distinguished that from the  4 concept of an ethnic group and people's culture and  5 the cultural attributes which go with ethnicity and  6 which may be separable from land.  Certainly there may  7 be some things in that other side but I don't think  8 that's what this case is about, those kinds of things,  9 and so I don't think we should rule it out.  I do  10 think that the 109 qualification pertains to all  11 rights and interests that flow from the position of  12 the Indian people in their territories, all of the  13 proprietary aspects.  14 And on that I don't see how at this stage in  15 Canadian jurisprudence one can really say that Indian  16 rights of the important type, all the usufructuary  17 rights, for example, I don't see how anyone can say  18 that they shouldn't be characterized as interest in  19 land.  All the law in usufructs, the Tener case and so  20 on, is so clear.  The discussion in Guerin, both --  21 both judgments in Guerin are so clear that what's  22 being talked about is an interest in land.  As unique  23 as it may be, as different as it may be from the  24 interests of fee simple ownership or whatever, I don't  25 see how all these important rights, that all the  26 rights that have been the subject of all the cases  27 this year, I don't see how myself they can really be  28 thought of as personal in the sense that they do not  29 have a proprietary character or a territorial  30 character.  I just don't see it, frankly.  I know that  31 counsel out of an abundance of caution have argued  32 those cases the other way and I don't blame them for  33 doing so, but I don't see it.  I think the issue about  34 109 is a question about -- the important and difficult  35 question about 109 is one that the court has touched  36 on in several cases whether -- that is, whether there  37 is an interest, a 109 interest in British Columbia  38 outside the reserves were established by government.  39 I take it that there is, there must be.  Otherwise,  40 what are we doing here?  What have we been doing here  41 all along?  All the parties begin from the premise  42 that there was a common law position in their  43 traditional territories, the pre-existing position.  44 That's what Guerin discusses.  The question is whether  45 it ever got extinguished.  I know there's an argument  46 that it's smaller than the traditional cases say.  I  47 won't deal with that, the appellants can deal with 2177  Submission by Mr. Pape  1 that.  I mean the position is wrong, it's just  2 ill-founded.  There is no unique British Columbia  3 concept of territoriality.  But once we establish that  4 there is some interest that wasn't extinguished it  5 must be larger than the reserves.  The reserves never  6 purported to be the whole of it, to safeguard the  7 whole of it.  And that's in fact what the cases are  8 about.  The difficult question is to put a definition  9 on that right.  And the thing the court has struggled  10 with all through the year I think has been to struggle  11 with the question of the territorial scope of the  12 right and whether it is so large that it could  13 preclude any access to land or resources by third  14 parties or non-Indians and so on and so on.  You have  15 my position on that, that it's a notion, a notional  16 concept that has to be made particular in certain  17 cases and it clearly is based on an assumption of the  18 possibility of accommodation, and everything we know  19 legally and factually says that that's possible and  20 that the task hasn't been done.  21 I'd also say this on the 109 question, my lords,  22 and the federal, the 91(24) power, is that the issue  23 would be more difficult if -- or might be more  24 difficult if there was some law in front of you under  25 which the province had purported to extinguish these  26 uniquely Indian rights.  27 And I'm going to now go through a section to say  28 that on the proper understanding there's nothing in  29 those laws that purports to do that.  So you're not  30 really faced with a constitutional problem.  You don't  31 need to reach it.  It's just that it informs, you  32 know, the constitutional issue and the statutory issue  33 should inform each other.  34 LAMBERT, J.A.:  It represents an alternative argument, doesn't  35 it?  36 MR. PAPE:  Well, in a sense it is, my lord, although I -- again  37 I really don't think it's possible to understand these  38 issues in isolation.  But I suspect that one of the  39 reasons the province never purported to go all the way  40 is because it understood the constitutional position  41 and that as -- as reluctant as the federal government  42 has always been to do its duty and safeguard the  43 rights of the Indian people in British Columbia there  44 was a point at which they would have had to intervene  45 if the province had really tried to do what it would  46 have liked to.  They tried once in the 1880's, backed  47 off pretty quickly.  I don't know.  That's -- as has 2178  Submission by Mr. Pape  1 been said, "that's history, not law."  2 But the clear and plain intention issue with  3 respect to these provincial statutes is terribly  4 important.  I understood when I came to court on June  5 the 3rd and I heard Mr. Taylor make the province's  6 argument, as I took notes he said clearly on several  7 occasions that the province's argument for post-1871  8 extinguishment by means of grants to third parties is  9 based on the comments, the obiter comments which Mr.  10 Justice Mahoney made in Baker Lake to the effect that  11 if legislation authorized third party grants and those  12 were inconsistent with aboriginal rights, the  13 necessary implication would be that the sovereign had  14 intended to extinguish the rights.  I was  15 flabbergasted by the argument because that is clearly  16 the Judson theory in the Calder case, and that theory  17 was rejected in Sparrow.  18 I would like to discuss that in a little more  19 detail and it's in the paragraph I've written in the  20 speaking notes on page 29.  At 82A, starting there.  21 "Canadian jurisprudence has had to refine the law  22 regarding extinguishment, because of the introduction  23 of section 35.  Because existing aboriginal rights may  24 mpw prevail over otherwise valid statutory limitations  25 on the exercise of those rights, it has been become  26 necessary to distinguish between statutes which  27 extinguished such rights, and those which only  28 impaired their exercise.  29 That was not the case before 1982, when the rule  30 of Parliamentary supremacy meant that impairment,  31 abrogation and extinguishment all had virtually the  32 same meaning.  Hence the language of the decisions in  33 Sikyea and Baker Lake.  The pre-1982 position still  34 prevails in both the United States and Australia, and  35 that accounts for the different positions taken in  36 decisions in those countries."  And that is found in  37 the Mabo decision in all the reasons of the judges  38 except those of Judge Toohey.  39 "But the decision in Sparrow does not confuse  40 extinguishment with impairment.  It reflects the  41 thinking of the Supreme Court of Canada about  42 extinguishment in light of the introduction of section  43 35.  It is now settled that extinguishment and  44 authorized impairment are two different legal  45 concepts . "  46 The vulnerability of Indian rights before 1982  47 which was as a result of their common law status is 2179  Submission by Mr. Pape  1 mirrored by the position today of third party tenures,  2 such as mineral leases.  And therefore acts of the  3 Crown which impair the exercise of those tenures,  4 third party tenures, can be considered to have  5 notionally expropriated the interest, even although it  6 was not permanently or completely appropriated, as  7 would have been the case if there had been an actual  8 expropriation.  And that's shown by the reasoning in  9 the Tener case.  10 There are two judgments in Tener, concurring  11 judgment by Justice Wilson and the majority judgment  12 by Mr. Justice Estey.  And in Madam Justice Wilson's  13 judgment she says she's going to consider that the  14 impairment of Tener's profit a prendre was permanent,  15 but she says "for purposes of the litigation" she'll  16 take that view.  And the quote is set there in 82E.  17 And in the majority judgment, Justice Estey's  18 judgment, makes it clear that the court understood  19 that this was not necessarily a permanent impairment  20 and the quote is there but he clearly says there's a  21 possibility that the impairment would end, that the  22 state could change its policies or grant a permit or  23 whatever else.  And when it comes to compensation that  24 it in fact amounts to partial expropriation and that  25 possibility of change will have to be looked at.  26 And then in 82G I refer you to this court's  27 decision in Casamiro where Madam Justice Southin for  28 the court puts the issue as clearly as it could be.  29 She says  30  31 "The diminution of rights does not always amount  32 to a taking which as a matter of law is equivalent  33 to expropriation.  Whether in any given case the  34 acts done by the government are so equivalent is a  35 question of mixed fact and law.  Here, as I have  36 already said, the grants have been turned into  37 meaningless pieces of paper.  By legislative act  38 they could be turned back into pieces of paper  39 with meaning but no such legislative act has  40 occurred."  41  42 And so she is very clear, that the underlying right  43 was extinguished, it was impaired, it was stopped, it  44 was frustrated, whatever, and that something could  45 change that.  And that's right back to the theory of  46 extinguishment that's discussed in Sparrow by the  47 court when they discuss the different theories and 2180  Submission by Mr. Pape  1 they finally prefer the theory that says the  2 underlying right is there and it would come, you know,  3 and so on.  And I know that Sparrow was a case about a  4 regulatory statute and I know that we're dealing here  5 with something different, but I say that the concept  6 of statutory authorization will do the court good  7 service as a legal concept to explain what's happening  8 here as opposed to an expropriation analogy.  9 Now, what I've done in paragraphs 83 through 88  10 in the factum is suggest to your lordships that what  11 we often have in cases of aboriginal title in the  12 territory and other grant is the possibility that  13 these two rights are inconsistent, the one with each  14 other or in conflict.  And that the approach of the  15 court should be the general, faced with such a  16 situation where there are two rights with common law  17 status, to -- to first see how they can live together  18 and see where their conflicts are and then if there  19 are conflicts to decide which prevails over the other.  20 But that's in fact what the law has tended to do with  21 grants.  Now, in the most case those are all the  22 grants which flow from the Crown and here we're  23 talking about pre-existing rights meeting up with  24 grants from the Crown, but I see no reason why the two  25 shouldn't be looked at in the same way.  And I will  26 develop the theory a little more clearly, but I  27 suggest to your lordships that you look for example at  28 the cases that I've -- and the sources in paragraph 83  29 where it's clear that in our law we're very used to  30 having a layer of interests and tenures with respect  31 to the same land, never bothers us.  We never take the  32 view that even in the case of inconsistency that the  33 one extinguishes the other, we always look to see  34 which prevails.  And that's the issue for us here.  35 In the Peech and Best case you had a grant of a --  36 of a sports hunting profit of prawn and then later you  37 had a grant of a portion of the area to build stables  38 on and the sports hunter, the grantee of the profit of  39 prawn, felt that his rights were interfered with by  40 the second grant.  And the court never considered the  41 possibility that the second grant had extinguished the  42 first.  In fact, it found that the second interfered  43 with the first and it awarded compensation.  44 Then in another case it goes a different way but  45 takes the same approach, same reasoning, is Anderson  46 and Bostock where the court says that the first grant  47 in question was an invalid grant or didn't convey the 2181  Submission by Mr. Pape  1 interest that was claimed.  But again the issue is  2 never extinguishment, the issue is can they live  3 together and on what terms.  4 And I say that in paragraph 84 I urge on you to  5 consider the concept of statutory authorization to  6 interfere.  It's a concept from the law of nuisance,  7 of course.  It's out of tort law, but it has a great  8 use because in fact what you've got here is common law  9 usufructuary rights which are substantially interfered  10 with by the activities of third parties and those  11 activities of the third parties presumably have been  12 authorized by statute.  13 Now, then in paragraph 89 I say that when looking  14 for the clear and plain intention to extinguish in a  15 B.C. statute you have to take a special approach.  I  16 know there has been a discussion in the court, I've  17 heard some of it about whether clear and plain means  18 express.  It seems to me possible that in some cases  19 clear and plain wouldn't require express language --  20 would not require express language in some cases, just  21 a matter of legal logic.  But I say, with respect,  22 that in British Columbia circumstances probably  23 express language is required and that's because of  24 this peculiar circumstance that these sui generis  25 rights are not the kind of rights that have ever been  26 acknowledged in this province, by government or by the  27 laws of the province.  I mean as we'll see when we get  28 there the Land Titles Act has no reference to  29 aboriginal rights.  So it may be that since the law  30 generally contemplates those types of common law  31 rights which are known to domestic common law, that  32 when -- when the legislature wants to extinguish some  33 of those or expropriate some of those even without  34 compensation it need not expressly refer to those.  It  35 maybe can deal with them as a class of rights but  36 since we're dealing here with an entirely different  37 class of rights, sui generis, pre-existing, not  38 domestic common law rights, how should we know?  How  39 should we know that the British Columbia legislature  40 intends to expropriate those which they never  41 acknowledge and won't even discuss, how can we know  42 that that's what they intend unless they expressly  43 refer to them?  And if we can't know it, then it fails  44 the test that's discussed in Estabrooks and Mercure  45 and so on.  So B.C. may be a special circumstance.  46 Now, several --  47 TAGGART, J.A.:  Mr. Pape, I think it's important in this case, 2182  Submission by Mr. Pape  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  MR. PAPE  TAGGART,  MR. PAPE  TAGGART,  MR. PAPE  and it may perhaps not in this context, but I try to  keep the historical aspect into appropriate divisions.  By that I mean pre-confederation and post-  confederation because it seems to me the change at  confederation is significant.  Once B.C. comes in, it  adheres to the then constitution and ceases to be  subject to the wishes of the colonial officials.  But  during the colonial period too there is some aspect of  the conduct of the colonial officials; that is to say,  those in British Columbia that seems to me consistent  with what British Columbia did after confederation;  that is to say, there was a decision that they were  not going to buy the Indian title.  There is some  suggestion they didn't have the means.  There's also  some suggestion that they were not going to do it --  even if they had the means, they were not going to do  it.  They seem to have evolved a concept in  pre-confederation time of establishing what they  thought, whatever one may think of them today, they  thought were generous allocations of land for the  various Indian nations in the province.  So I think  that you -- if you're talking now about the  post-confederation time and if that's what this  argument is directed to, it makes -- it's coherent, I  understand that.  And if -- the point of this is am I  correct in that?  You are, my lord, it is an argument about the  post-1871 period.  J.A.:  That isn't to say you can drop the baggage that  you carry with you into confederation but --  I do want to make a submission on that, and I'm glad  you raised it for that purpose.  Some of the baggage  carried into confederation -- some of the baggage has  to be dropped at confederation because after  confederation the province doesn't have the same  constitutional powers that it had, that the colony  had.  J.A.:  That as you have already argued, for instance,  section 109.  Exactly.  And 91(24).  And so, you know, Section 10 I  think it is of the Terms of Union Act says that all  the terms of the BNA Act will prevail and regulate the  division of powers.  So that if -- and I don't except  it for a moment that the actions beforehand were  ambiguously clearly and plainly intending to  extinguish because they didn't make the kind of moves,  they didn't grant the kind of rights that made it 2183  Submission by Mr. Pape  1 impossible to still make treaties.  I mean even the  2 treaties on Vancouver Island were not made before any  3 particular activity had been done by the colonials and  4 so it -- I don't believe the pre-confederation  5 enactments meet the test, but even if one accepts that  6 they did and that what they were doing when they  7 granted a grant was saying "We'll grant you a grant  8 free from the Indian encumbrance," even if that's  9 right, then when they come into confederation that  10 statute might continue on the books and become a  11 statute of the province, but it can't have the same  12 force, it simply can't.  And then we're back into the  13 principles of severance that I discussed earlier.  14 So all the important grants are made post-1871.  15 Now, in paragraphs --  16 MACFARLANE, J.A.:  Could I stop you just for a minute, it won't  17 take very long.  I understood that an argument was  18 made earlier in the case that it wasn't necessary to  19 find an intention to extinguish aboriginal rights as  20 such if the -- if the nature of the act, say a grant  21 in fee simple, was such that you could infer that it  22 was intended to extinguish all interests whatsoever,  23 how do you deal with that?  24 MR. PAPE:  Well, I deal with that by saying that, you know, one  25 has to ask what were the -- as a matter of statutory  26 construction what were the interests that could be  27 understood to be contemplated by that?  Now, when our  28 own Land Titles Act is construed to be an act which  29 doesn't contemplate aboriginal title, I don't see how  30 registration under that act could contemplate wiping  31 out that title or giving rights superior to that  32 title, for example.  It's just not addressed in the  33 statute.  That's how I suggest it be dealt with.  34 Again it's not a unique statutory construction  35 problem.  Again a statute has to be construed if  36 possible to preserve constitutionality.  I mean that's  37 another approach to it.  38 MACFARLANE, J.A.:  I think that's another question.  39 MR. PAPE:  Right, I agree.  40 MACFARLANE, J.A.:  All right.  41 MR. PAPE:  I agree.  No, really the basic thing is that -- and  42 it may be as you say, Mr. Justice Taggart, before  43 confederation the colonial legislators were at least  44 willing to talk about aboriginal title.  And so it may  45 be --  46 TAGGART, J.A.:  They were anxious that something be done about  47 this at somebody else's expense; that is, other than 2184  Submission by Mr. Pape  1 theirs.  They were not going to pay for it.  2 MR. PAPE:  So it may be that in the days of the colony,  3 especially given the historical fact, one could think  4 that.  When one talks about interests, one might have  5 been including the aboriginal interest.  But I say  6 that's not so.  Certainly not in -- in  7 post-confederation times and certainly not in this  8 century in this province that those rights would be  9 contemplated.  And, as I say, I think this court's  10 decision in the Uukw case, which I will come to, is  11 very important there.  And there's another case I'm  12 going to come to which says that, for example, the  13 Land Registry system doesn't contemplate and has no  14 affect on federally owned property.  So again those  15 are just matters which are outside the scope of the  16 statute, outside the contemplation of the statute.  I  17 think that's the better approach.  18 In paragraph 90 I've -- in the factum and I've  19 referred you to a section of the Canadian Pacific  20 Railway Act which is a federal act, of course, in  21 which the government announced its intention to  22 extinguish Indian rights in a context of a grant to  23 third parties.  And what you'll see is what they say,  24 that the government will extinguish the Indian title  25 affecting the land which the government is going to  26 expropriate for the railway.  And I say that reflects  27 the constitutional position, which is two separate  28 steps are required.  First to -- to in effect deal  29 with the alienation of the land to the Crown.  And  30 then to pass the land unencumbered to third parties.  31 And we would expect to find, I say, those two steps in  32 any act which purported to extinguish aboriginal title  33 in the context of a grant to third parties.  And, of  34 course, we don't have that in any of these acts.  35 In paragraph 92 I deal with the Land Titles Act  36 and as you can see in section 23 sub. (1) sub. (a),  37 all grants are subject to conditions, provisos,  38 restrictions, exceptions and reservations in the  39 original grant from the Crown.  And I say that those,  40 of course, reflect the 109 reservation or that would  41 encompass the 109 reservation.  And the decisions that  42 I've referred to you in paragraphs 94A and 94B discuss  43 that.  44 LAMBERT, J.A.:  Can you say quite simply how the extinguishment  45 took place for the Canadian Pacific Railway?  46 MR. PAPE:  Well, I'm just looking at a brief now, my lord, on  47 the possibility that it never did. 2185  Submission by Mr. Pape  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  LAMBERT,  MR. PAPE:  LAMBERT,  MR. PAPE  LAMBERT,  TAGGART,  MR. PAPE  TAGGART,  MR. PAPE  J.A.:  Yes.  That's why I've said --  J.A.:  Well, it's very interesting because section 12  of the schedule obviously doesn't do it and from your  argument the grant wouldn't do it.  There's supposed  to be something in between.  Right.  Well, I don't know the whole historical  record yet but the problem is on my desk.  And that's  why the qualification is put there in brackets at the  end of paragraph 91.  And I don't know the answer.  I  think in some cases portions of reserves.  I think the  Governor-In-Council purported to grant portions of  some reserves to the railway.  I don't know what they  did in some other cases.  J.A.:  Yes.  Thank you.  J.A.:  Those are all the lands I presume, not just the  immediate right-of-way.  These are all the -- millions  of acres.  Again it varies.  It's a question I don't know.  The  issue that I'm looking at is much narrower.  It only  deals with a particular portion of a particular  right-of-way, so I don't know how it was done.  J.A.:  I'll have to retrace the Vancouver Island.  I certainly have never heard anyone suggest that it  was handled properly.  But, as I say, I haven't  explored it.  I think there are some other counsel  here who know far more about this than me.  That's not  one you should decide this time around, I think.  Anyway, the portion of the Uukw case that I  mentioned is cited in paragraph 95, and I think it's  an example of the limited scope that any particular  provincial statute might have.  And I say that that  applies to all such provincial statutes.  Now, in paragraph 96 I discuss Bartleman for a  moment.  And I want to make a brief submission on  that, I think it's very important.  In Bartleman, of  course, it was held that treaty hunting rights  continued and were operational on land that was owned  fee simple but wasn't occupied.  I submit that if the  province is right, that fee simple grants extinguish,  then Bartleman has to be overruled because that was  fee simple land.  And treaty hunting rights are as  vulnerable as aboriginal rights.  They are both mere  common law rights and both can be lost at the whim of  the sovereign or by clear and plain intention.  So if  a grant of fee simple extinguishes aboriginal hunting  rights, it must do so for treaty hunting rights. 2186  Submission by Mr. Pape  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  LAMBERT,  MR. PAPE  LAMBERT,  MR. PAPE  J.A.:  I understood Miss Koenigsberg's submission  yesterday to be that the grant of fee simple in some  cases must distinguish aboriginal title.  In other  cases, in other circumstances it may diminish or  modify aboriginal title.  And in other cases the grant  of the fee simple makes no difference to aboriginal  title.  I'm not -- I'm waiting for the transcript to  see if I really understood her submission.  But if  that were her position, then it's possible that  each -- each grant of fee simple would have to be  looked at in its circumstances and there then could be  consistency with the principle in Bartleman.  Well —  J.A.:  If the aboriginal right you're looking at is the  hunting right to hunt over unoccupied land, then the  question is is the land occupied not is it subject to  fee simple.  That's where I was going to is that -- and I didn't  hear Miss Koenigsberg's argument and I'm not aware of  it, but my submission is that the better way to  approach the issue is from the point of view of  statutory authorization.  And you should understand  what the grant to the fee simple is is an  authorization to the fee simple owner to use that land  in a range of ways.  It may flow from that that the  fee simple owner then does certain things which impair  the right.  The grant didn't impair the right, it was  an authorization.  And that's why I think that's a  better theory.  And that way then you look at the  facts.  And several things are possible.  One is that  he didn't do anything as in that case.  He didn't  build a fence and say no trespassing, so it didn't  interfere.  The other might be that he did build a  fence and he built a high rise but it wasn't important  hunting country anyway.  And, in fact, all the deer or  the elk, the fact they were over there and it was  irrelevant.  There's a whole range of possibility.  So  I mean from what you say I -- if that's what Miss  Koenigsberg said, I think she's right.  It's easy to  see how the grant of a quarter acre of a lot in  downtown Vancouver isn't going to allow someone to  hunt, not much of Vancouver does, but the grant of a  hundred thousand acres in the Cariboo for a ranch fee  simple might not have any impact at all.  So it's  better to see them not in terms of extinguishment but  in terms of authority to do things.  And then to take  the kind of approach that's taken in nuisance law and 2187  Submission by Mr. Pape  1 riparian rights law and so on, to ask whether any  2 particular activity was in fact authorized by it, was  3 it carried out properly, was it carried out with  4 minimal damage to the rights of others and so on.  All  5 those statutory authorization principles that are  6 found in the tort books and that I reference back in  7 paragraph 84.  8 Now, there's another aspect of all these grants  9 that I say suggests that they're not -- they're not  10 extinguishment grants.  And that is that all these  11 grants are in fact so far from being absolute.  I'm  12 talking here now about the legal characteristics of  13 the grants themselves, of the tenures themselves.  I  14 say in paragraph 99 that fee simple title which is, of  15 course, the most secure and highest form of interest  16 granted by the Crown is itself subject to many  17 other -- many qualifications that aren't found in the  18 Registry.  It's subject to other vested rights having  19 a higher priority.  It's subject to regulation by  20 statute.  It's subject to obligation or liability in  21 tort.  And it's subject ultimately to expropriation by  22 the Crown.  23 Resource tenures are particularly complex and  24 vulnerable.  At the end of paragraph 99 I've referred  25 you to an article by Dr. Thompson about resource  26 tenures.  It's a very interesting article.  I commend  27 it to your lordships.  And what he says in there is  28 that these third party resource tenures all involve  29 qualifications and uncertainties.  And he explains  30 that resource tenures have three elements to them.  31 They usually include a grant of a proprietary interest  32 which will have all the qualifications that that type  33 of proprietary interest has.  They usually have  34 contractual terms which then brings in those  35 qualifications.  And they're always statutory rights  36 and subject to statutory qualifications, including  37 regulations.  So that there's nothing about these  38 grants that suggests that you would think, a-hah, this  39 was a grant that was given so as to repress and put  40 out of the way any other potentially conflicting  41 grants -- sorry, any conflicting interests or rights.  42 And since those resource tenures don't automatically  43 obliterate, extinguish, get rid of other common law  44 rights, interest, et cetera, et cetera, why would one  45 presume that it does so for the Indian interest?  It  46 doesn't follow.  And so they should be looked at with  47 respect to Indian interests in the same way as others. 2188  Submission by Mr. Pape  1 And I've said in 101 that these resource tenures  2 are all subject to the cloud of regulation that hangs  3 over them.  4 In 101A I've given you an excerpt of the decision  5 in the initial interlocutory injunction decision in  6 the Alcan case where there was a dispute between Alcan  7 and the Minister of Fisheries over the release of  8 water.  And in Judge Berger's decision, as he then  9 was -- and I won't take you to it now, but he explains  10 that this was a contest between Alcan and the Minister  11 and the question was who had the power to decide how  12 much water would be discharged.  And he says there's a  13 statutory power in the Minister to regulate Mean's  14 dam and the discharge of water and so the Minister  15 prevailed, at least for interlocutory purposes.  And  16 then of course it never was dealt with because the  17 matter was the subject of a settlement after the  18 Indian people were excluded from the lawsuit.  So  19 these grants are all examples of the way that the  20 state, the province, the government and other  21 interests all continue to have a relationship to the  22 grantee.  23 Now, that brings me to paragraph 103 and in some  24 ways to what Mr. Lowes' submissions were about.  I  25 think what Mr. Lowes' submission showed is the scope  26 of encroachment that third party grants have had on  27 the territories of the aboriginal people.  I'm sure  28 there's some applicability of the portion of the  29 territory he showed to the general territory for the  30 appellants and there certainly is applicability of  31 this to other places just as he said.  That's the  32 basis for the anxiety of the Indian people in the last  33 20 years to have their aboriginal title right secured  34 before it's too late, before there's nothing left.  35 And if the provincial theory of extinguishment by  36 grants is correct, one can see through the overlays,  37 when one sees through them all, that in fact there's  38 very little left to negotiate about.  And, in fact,  39 the result of the province's extinguishment by grant  40 theory will be the same result as Chief Justice  41 McEachern found which is that the Indian people are at  42 the end of the line.  They will be permanently  43 marginalized as a matter of law.  And I say that  44 that's not correct.  That the law of aboriginal title  45 placed a limit on those interests as necessary to  46 ensure that there would be a future for the Indian  47 people and that's what the section 109 reservation 2189  Submission by Mr. Pape  1 means.  And I mean all that can be said for the  2 government's argument is that it's neat and tidy  3 because it leaves so little to be dealt with.  But  4 it's not the kind of neatness and tidiness that will  5 allow for the survival of the Indian people.  Now,  6 that's what I think, with respect, the issue is about.  7 And I say this in 103 and 4, when we're looking at the  8 question of extinguishment.  If aboriginal title was  9 extinguished, it could not be a source of any of the  10 qualifications on third parties which -- of the types  11 that are normally found in third parties.  That is, it  12 couldn't be the basis for a claim in tort against  13 interference, it couldn't be the basis for the  14 government to enact a law to protect portions of the  15 Indian interest and so on.  16 And I say "Provincial statutes granting third  17 party interests do not purport to immunize third  18 parties from qualifications reflecting aboriginal  19 title," and the court should not presume that that's  20 what they've done.  That's what the third parties seek  21 from you.  They seek a ruling that their interests are  22 immunized from aboriginal title.  And if third party  23 grants did extinguish aboriginal title, the Crown  24 would have no fiduciary obligations to the Indian  25 people with respect to those grants.  And the Crown  26 would therefore never be required to act in either its  27 legislative or administrative capacity to protect  28 aboriginal rights from impairment by third party  29 interests.  And I say you haven't got that kind of  30 statutory provision and you need it in order to  31 conclude that.  32 And I say that in fact the Crown continues to be  33 in a position -- in 105 I say the Crown continues to  34 be in a position to give effect to its fiduciary  35 obligation to protect the Indian interests.  The  36 Standard Investment case is set out in 105A and you  37 should look at it, but it's an example of a finding  38 that the fiduciary continues to have its duties as  39 long as he's in a position to exercise them.  And  40 that's the case with the Crown with respect to all  41 these third party tenures.  So just as the Crown could  42 decide for political reasons to introduce  43 environmental protection legislation which would set  44 limits on third party tenures or decide to increase  45 parks which set a limit on Mr. Tener's mineral lease,  46 the government for a combination of political and  47 fiduciary obligation reasons can set limits on third 2190  Submission by Mr. Pape  1 parties in order to ensure that aboriginal title is  2 not unduly impaired.  3 Now, that brings me to the question of the  4 relationship and how the relationship in fact gets  5 defined operationally between existing aboriginal  6 rights and third party tenures.  7 My lords, I'm going to have to leave an awful lot  8 of this with you.  Is it possible for us to sit a few  9 minutes longer or a bit earlier in the morning?  10 TAGGART, J.A.:  We've got another 5 minutes at least and I'd  11 just as soon give you a few extra minutes to finish  12 this off.  13 MR. PAPE:  Well, I'll try then quickly, my lord.  14 I say in 106 that the American position is that  15 grants are -- are subject to the Indian right of  16 occupancy or possession.  And in 106A I've given you  17 an excerpt from the Buttz case to explain that.  I say  18 the same is true in British Columbia.  19 And what I say in 108, 9 and 10 is that in fact  20 although the province has historically tried to ignore  21 aboriginal title, Indians haven't been extinguished  22 and neither have their rights.  And that these grants  23 have been made to third parties without acknowledging  24 or protecting the Indian interest.  That this  25 extinguishment argument is the analogue of the federal  26 government's "political trust" argument that it made  27 in Guerin and it was rejected.  The province is really  28 now saying that Indian interests have been  29 extinguished by third party grants and therefore those  30 grants and the problems they cause for Indian people  31 have no legal or constitutional dimension.  I say  32 they're asking you to not be involved.  And I say,  33 with respect, that Mr. Justice Seaton and Mr. Justice  34 Lambert in their reasons in Meares said what should be  35 said about that now, which is that -- and I know this  36 was said in a somewhat more particular context but I  37 think it's apropos, they said  38  39 "...There is a problem about tenure that has not  40 been attended to in the past.  We are being asked  41 to ignore the problem as others have ignored it.  42 I am not willing to do that."  43  44 So I say that there is a way of understanding the  45 legal relationship between these interests and it  46 should be done in a way which gives effect to the  47 purpose of the law of aboriginal rights and then to 2191  Submission by Mr. Pape  1 the purpose, that is strong remedial purpose in  2 section 35.  3 And in 111A excerpted for you the portion of  4 Sparrow where they really emphasize how strong a  5 mandate they say section 35 has given the court.  And  6 again I think that is analogous to the position that  7 the court took in Mahe.  8 Now, in 113 I suggest to you that really this  9 reconciliation or accommodation has to be found on the  10 basis of the principle that a just accommodation is  11 possible.  12 And then I say starting at 114, that there are  13 three different procedures, and these are truly unique  14 interests and they truly cannot be made particular and  15 specific as an isolated question of fact or law.  I  16 think the court all year has been asking what are the  17 limits on these aboriginal rights.  And I think in  18 many ways what Indian people have said and what I've  19 said certainly before and other counsel have said is  20 that the limits will emerge from the process.  And  21 because the key to all this is that the limits on the  22 Indian rights have to be found at the same time that  23 the limits are set on the rights of non-Indians and  24 third parties and that neither of those things can  25 happen in isolation.  And I submit that the assurance  26 that the common law gave to the Indian people was that  27 there would be limits on what the colonizers could do.  28 As I say, I submit that, with respect, that in a  29 big picture historical sense that's the price that the  30 Imperial colonies, the colonizers paid for the ability  31 to peacefully settle this continent, at least north of  32 the 49 parallel.  That's the price they agreed to pay.  33 And in many cases they tried to pay it when they made  34 treaties.  35 Now, I'd like to give you an example of why I say  36 that this concept of the title and how it gets made  37 specific has to happen in the process and can't be  38 figured out in isolation.  One of the issues -- I've  39 been involved quite a bit in the negotiations of the  40 land claims in the Yukon.  I've discussed this with  41 you, I'm not giving you any evidence about this, but  42 one of issues that arises is one that will arise here  43 over and over which is the elders said over and over  44 to their negotiators, you must find a way to protect  45 the animals and the water and the sources of the  46 waters of our homeland, and you've got to protect the  47 animals for our future.  Well, a number of devices 2192  Submission by Mr. Pape  1 emerged in the development of the modern treaties of  2 the Yukon or the treaties for the Yukon as to how such  3 things could be achieved.  One of the ways was large  4 portions of land to be called settlement land on which  5 aboriginal title would persist and in which the Indian  6 people would have a great deal of management, would  7 have management control and so on.  So in those bounds  8 they could do that.  An environmental protection  9 regime was developed, some quite sophisticated, pretty  10 tough minded, which would especially protect  11 settlement land, but that left the issue that there  12 were large portions of the Yukon which would still be  13 vulnerable to encroachment or damage.  And as it  14 emerged there wasn't going to be the possibility of  15 enough land as settlement land to take care of the  16 whole problem.  So in the course of the negotiations a  17 way had to be found to serve the interests of the  18 government and to serve the interests of the Indian  19 people in making the treaty.  And so a concept  20 developed that there would be special management zones  21 that would be identified and dealt with in processes  22 under the treaty provisions, whether they were parks  23 in some cases or river heritage sites or special  24 management protection areas, environment sanctuaries,  25 whatever, but that the concept of special  2 6 environmental management zones would be developed and  27 worked out in the course of the treaties which would  28 set limits on some activities in some particularly  29 vulnerable areas.  And when it was all done as  30 imperfect or whatever it is, on its way -- some of  31 these treaties are on their way to ratification --  32 what emerged was a number of tools which emerged as  33 aboriginal rights or retained treaty rights for the  34 protection of this Indian interest.  Now, as a matter  35 of theory one could have said beforehand, as I do,  36 that the Indians have a right to protect those parts  37 of the environment and the ecology which they rely on  38 and forever, but what meaning does that that vis-a-vis  39 government or vis-a-vis third parties until you  40 actually get on with working it out.  And so one could  41 come to court, for example, and try and stop a certain  42 thing or ask for declarations that that's a component  43 of the rights or that there's some aspect of the right  44 which gives the Indian people something to say about  45 environmental protection.  And that's the way the  46 court might be involved at some stage and then -- but  47 in the working out of it one could find a way to in 2193  Submission by Mr. Pape  1 fact develop the accommodation between the interests  2 of others and the interests of Indian people, because  3 that's what treaty making is, it's really interest  4 based to the solution.  It's not policy based, it's  5 interest based.  6 So those experiences convinced me that it's not  7 just rhetoric when we say that it's through the  8 process that the accommodation must be worked out,  9 that it's real, that the interest of the Indian people  10 and aboriginal title are made specific through the  11 process.  12 Now, there are three processes I submit.  One is  13 treaty making and of course everyone says and it's a  14 good thing that the parties are now all agreed that  15 treaty making is the fundamental tool.  But I  16 developed an argument in paragraph 118 and on that in  17 fact we should give attention to another concept as  18 well, because treaty making is a long process and is  19 not going to resolve all conflicts forever and that in  20 fact many issues with respect to aboriginal title and  21 the accommodation of the Indian interests in the  22 present and in the future and in the interests of  23 others, many of those things can be worked out on an  24 ad hoc basis or on a from time to time basis or on a  25 specific circumstance basis.  That may not be their  26 resolution forever but there are many accommodations  27 possible.  I say there are two kinds of actors in  2 8 that.  One is the Crown.  We all know, we've heard a  29 lot about the Crown and its fiduciary obligations.  I  30 developed those arguments in these paragraphs and I'm  31 not going to take you to them.  But certainly if my  32 arguments are right, the Crown has a powerful  33 fiduciary obligation to do these things, to make these  34 things possible.  And that that obligation will pass  35 to the provincial Crown or be borne by the provincial  36 court to the extent that the provincial Crown has  37 constitutional competence to effect the Indian  38 interests.  But I want to develop with you another  39 argument as well, which is that it's not possible to  40 have all these problems solved by government.  It's  41 not realistic.  It puts an unfair burden on the Indian  42 people and on government and it leaves the suggestion  43 that somehow private third party tenure holders or  44 third party interests are just out there to do what  45 they can and they can go along unrestrained, ripping  4 6 and -- and tearing and doing what they want and have  47 no public law responsibilities.  And I say it's a 2194  Submission by Mr. Pape  1 wrong concept.  That, in fact, they have grants or  2 rights which are subject to the Indian interests, not  3 unlike the qualifications that they have with respect  4 to other interest holders and that there's an  5 obligation on third parties to live within the limits  6 of their rights and their interests.  And that the  7 court should consider this and should develop this as  8 an aspects of tort law.  That just as a fee simple  9 owner has to confine liquids that he holds on his  10 property and -- and all the rules that we know in tort  11 about how one has to exercise one's own rights with  12 respect for and subject to the rights of others they  13 should apply to third parties with respect to the  14 Indian interests.  15 And I submit that that's a body of tort law.  In  16 some cases I believe it will actually be an equitable  17 obligation because the circumstances of the taking by  18 the third party will in fact pass the Crown's  19 fiduciary obligation on, but in most cases it will be  20 at least an obligation in tort.  21 And I've discussed the idea of tort law is dynamic  22 in paragraph 126, but the practical consequence I say  23 of identifying this concept that third parties as well  24 as government have a responsibility to work out the  25 accommodation on the ground is that in fact many, many  26 issues will be resolved at least on a temporary basis.  27 And that we will begin to get the fabric of the  2 8 accommodation.  And that will take time and it won't  29 always be perfect and I'm not saying that third  30 parties have any place at the treaty table.  But  31 there's a great deal to do that isn't treaty too.  And  32 when none of that works, when treaties aren't there,  33 and when there aren't accommodations on the ground  34 then we get to litigation.  And I say that these are  35 legal rights that can in fact be judicially determined  36 in particular circumstances.  I believe the cases will  37 come either as in this one for general declarations,  38 which will then advance what various parties have to  39 do, or will come to protect against particular  40 problems and we'll get cases, everything from the  41 cases that you've heard this year to the McLeod Lake  42 case and others like that.  43 What's important in your lordships' case in this  44 appeal I say -- I want to say this -- it's not written  45 in the factum but I want to add this, this is not a  46 case, for example, where any particular law has been  47 impugned or where any particular third party interests 2195  Submission by Mr. Pape  1 has been impugned.  And I think it's very important  2 that that be understood because, with respect, there  3 has been a whole lot of discussion about remedies and  4 parties and the postponement of issues and the request  5 for a transition period, the application of a de facto  6 doctrine.  And let me say this, with respect, if the  7 parties to this litigation want to make an agreement  8 about any issues and how they will resolve them in any  9 form of dispute resolution with respect to those  10 issues that, of course, is always for the party in any  11 litigation.  But in general terms, in general terms an  12 action like this which seeks general declarations  13 about rights should not give the court reason to  14 believe that it must declare a transition period or  15 invoke the de facto doctrine, because there is no  16 call for such a freeze on justiciability of aboriginal  17 rights in this province.  Again, if that's to be done  18 in reference to something the parties have agreed,  19 well that's different, but in general this case no  20 more calls for the de facto doctrine than did Sparrow.  21 Now, that might be applicable and appropriate in some  22 further case where a particular law is impugned or a  23 particular set of interests are attacked, but that  24 would have to be found in the circumstances but not in  25 this case.  I urge your lordships not to do something  26 in general terms which will in effect eradicate or  27 erode, seriously erode the rights of others.  If  28 there's going to be remedies of a specific tailored  29 nature, let them be tailored to what the parties are  30 doing, but not because this case requires it.  There's  31 nothing about your lordships declaring that aboriginal  32 rights have not been extinguished and some of the  33 incidents of those rights.  There's nothing about that  34 that means that the province is going to be thrown  35 into panic.  It doesn't matter what the Vancouver Sun  36 says in its headline the next day.  The fact of the  37 matter is that there's nothing that calls for a freeze  38 on justiciability of rights.  39 Now, how would the courts approach litigation?  40 Well, I've suggested in paragraph 129 five stages of  41 the issues that have to be examined in any particular  42 context of the circumstances.  And the whole basis of  43 this theory is that -- is that just as extinguishment  44 isn't decided in the air and in general, neither is  45 inconsistency.  And so the first question is whether  46 there has been impairment and the next is whether it's  47 authorized by statute.  And the next question is 2196  Submission by Mr. Pape  1 whether that aspect of the statute or that impairment  2 was intra vires.  And of course if it's not, if you  3 get a no anywhere up to there, then you stop.  You  4 never reach section 35, for example.  You always do  5 division of power issues in this country before you  6 get to broad -- other forms of constitutional  7 protection like the Charter or section 35.  Only if  8 you find that there is impairment that it was  9 authorized by statute and that it was vires, the  10 statute was vires, only then would you reach section  11 35.  12 And then you would get to the question of remedy.  13 I have given you some general submissions on how you  14 would approach those questions.  In particular, the  15 question of whether any particular interference should  16 be considered substantial.  And again it will have to  17 be done on a case by case basis with respect to the  18 right, the aspect of the right that's at issue.  I  19 don't believe the court can develop such formulas now  20 in a case as general as this one.  But that's what  21 would emerge if we are all unlucky enough to have to  22 end up doing a great deal more of this kind of  23 litigation.  And I mean it may be some of the balance  24 of these rights may have to be defined by further  25 litigation.  I don't believe the willingness to  26 negotiate of recent vintage will solve all problems.  27 But I believe these are manageable issues.  They are  28 issues which the court can manage on a case by case  29 basis.  30 And I say in 134 that there will no doubt be some  31 cases where there are irreconcilable conflicts between  32 aboriginal title and third party tenure.  And in those  33 cases there will be issues of priority that have to be  34 decided.  And I say that you'll be guided or the  35 courts will ultimately need to be guided by the  36 principles.  The first are a set of sui generis  37 principles that apply to aboriginal rights because  38 these are pre-existing rights.  I say the principles  39 on allocation in Sparrow will generally prevail.  40 Again you do not have to decide all that now.  I  41 don't know how much you will want to decide, but I  42 give you this submission for what it's worth.  That in  43 a general sense, unless circumstances suggest  44 otherwise, that it's the Indian interests that should  45 prevail because it's a pre-existing right.  It has all  46 along been the subject of fiduciary obligations and  47 it's now constitutionally recognized and affirmed. 2197  Submission by Mr. Pape  1 Again what that means is not clear.  It may often mean  2 some limit on third parties.  It's very important to  3 understand that the qualification on third party  4 interest is a general one and will rarely fall on any  5 specific tenure holder.  And when it comes to it  6 finally in the ultimate, the courts will have to  7 define remedies.  I don't expect the court to ever  8 order that a priority in favour of Indian interests  9 would operate without regard for the equities of other  10 parties.  I say that the Crown will be involved in  11 such cases and the court's power to find equitable and  12 creative remedies.  I'm confident that will emerge.  13 So I don't believe that these rights present  14 insurmountable problems for the courts to the extent  15 that the courts have to play some role in setting some  16 limits or defining them.  17 Those are my submissions, my lord.  I want to add  18 one thing.  I ask that the court make an order for  19 costs to this intervenor.  I know that will depend on  20 the result and the value of the submission this party  21 has made to the court's deliberations.  In my  22 submission, the court should consider doing that out  23 of an appreciation of the circumstances of the Indian  24 people.  This particular intervenor has been involved  25 in these cases in order to advance the law and explain  26 the public interest and defend aboriginal rights and  27 title generally on a number of occasions this year.  28 It is certainly not in any financial position to have  29 done so.  It's up against governments and third  30 parties who have powerfully deep pockets and I submit  31 that just as in some other cases intervenors have been  32 granted funding.  In appreciation of the general  33 situation, that should be considered here.  And if  34 there should be an award of costs, it should be meant  35 to meet the costs of actual participation and not --  36 not symbolic costs.  And, therefore, the court should  37 consider costs on a solicitor-client basis.  Those  38 are my submissions.  39 TAGGART, J.A.:  Thank you, Mr. Pape.  We will adjourn now until  40 10 o'clock tomorrow morning at which time we will  41 begin with the presentation of the Amicus.  42 THE REGISTRAR:  Order in court.  Court stands adjourned until 10  43 o'clock tomorrow.  44  45 PROCEEDINGS ADJOURNED TO JANUARY 24, 1992, AT 10 A.M.  46  47 219?  1  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of  5 the proceedings herein to the best  6 of my skill and ability.  7  8  9  10 Jaromey Weel, RPR  11 Official Reporter  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

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