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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-08] British Columbia. Supreme Court Jun 8, 1990

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 2801?  Submissions by Mr. Plant  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  THE  THE  MR.  THE  MR. GRANT  THE COURT  THE  MR.  Vancouver, B.C.  June 8, 1990.  REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this 8th day of June, 1990.  Delgamuukw  versus Her Majesty the Queen at bar, my lord.  COURT:  Mr. Plant, may I speak to Mr. Grant for a moment?  PLANT:  Yes.  COURT:  Mr. Grant, I am informed and I see from this memo  that the diskettes that your side was good enough to  furnish to me seem to be missing some parts from your  outline of argument.  And it may be that these parts  were deleted deliberately, although I didn't think you  had dropped any parts completely.  Can I give you just  a list of what seems to be missing?  Yes.  There was certain replacement pages.  Basically I don't think any of this covers it, just  looking at this note.  But there was some parts  basically, I'm not certain if Mr. Rush provided them  at the time of the diskettes, where, for example,  inadmissible reference of document by Mr. Mills was  replaced by admissible evidence.  Well, it will be helpful if you would let me know  whether I should have those on the diskettes.  You can  ignore the part where they want new diskettes.  That  isn't necessary.  Simply an understanding of whether  we should be looking for something that doesn't seem  to be there, or whether we have a complete set now.  It appears that something is wrong because I don't  think any of these are intended to be excluded.  It  would have been commented on by your lordship.  COURT:  Thank you.  Mr. Plant.  PLANT:  I propose to begin in part IX, Section 5, the  submissions on limitations.  And I should say that in  the book which your lordship has there is a revised  version of that submission.  I should also say that in  making the revisions one or two of the paragraphs,  well, maybe as many as four or five were deleted from  the earlier version.  And rather than upset the order  of tabs in the yellow book, I have avoided  interrupting the paragraph numbers.  So if you try and  read the section in strict paragraph numerical order,  you will find that there is some sections missing.  But that was to avoid having to re-constitute the  yellow binder.  COURT:  Thank you.  PLANT:  And, my lord, beginning in the first paragraph,  MR. GRANT  THE  MR. 28019  Submissions by Mr. Plant  argument in this and the following section of the  argument will be directed to the consequences of the  inordinate delay in the commencement of this action.  As I say, delay may have evidentiary significance.  And as Professor Sharpe has written on his textbook on  injunctions:  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  THE COURT  MR. PLANT  "It is often said that a reasonable person is  unlikely to sleep on a well-founded claim."  But delay may also bring into play statutory and  equitable bars to relief in the form of limitations  statutes and the equitable defence of laches,  acquiescence and estoppel.  In the case at bar, delay  in this sense becomes relevant only if it is  determined that, after Confederation, the Plaintiffs  continued to have an enforceable interest of the sort  claimed in land and resources outside reserves.  And, my lord, I wish to part from the written text  for a moment.  The limitation defence is admittedly  technical.  It is raised against the proprietary claim  of ownership and jurisdiction to defend the Crown's  title to the public lands of the Province in the claim  area, and the integrity of the grants, licences and  leases that it has made to third parties.  Whether  this defence would be raised to a non-proprietary  claim is not in question as no such claim is made.  But whereas here the claim is to deprive the Province  of public lands managed for the benefit of all, then  the Province is obliged to raise such defenses and to  resist all attempts to impugn the integrity of its  title.  :  Well, I have a little trouble with that, Mr. Plant,  because I am still uncertain about whether there is  something less than a proprietary claim being made.  :  Well, I understand your lordship's concern.  But the  position of the Province is that there is no such  claim.  That's been the position that we've advanced  from the outset of argument.  Well, from the outset of  the action.  And whether your lordship finds such a  claim involves a construction of the pleadings, which  I say the pleadings do not bear, and an interpretation  of the Plaintiffs' argument which I say just doesn't  bear scrutiny.  The claim -- in particular, the claim  to ownership is a claim to ownership in the fullest 28020  Submissions by Mr. Plant  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  possible proprietary sense of the term.  The sole  limitation on the Plaintiffs' right of ownership is  said to be the limitation of non-alienability.  And I  say that for purposes of whether or not the claim is  properly characterized is proprietary, that limitation  really has no bearing.  THE COURT:  Do you want a few moments?  MR. PLANT:  I think I will be all right in ten seconds.  But I mean -- I should say that your lordship's  question is one that I'm under no illusions about.  I  appreciate that your lordship has the concern.  But I  don't think that we could make the point much more  plainly than we have in our endeavour to -- both to  understand the claim as pleaded, and to understand the  claim as it has been argued and proven, for that  matter.  Turning to the limitations defence, my lord, which  is on the next page of my argument, the submission is  that the Plaintiffs' action is barred by the  Limitation Act and its predecessor statutes.  And here I might remind your lordship, again I am  departing from the text, that limitations legislation  has three policies.  The first is that long dormant  claims have more of cruelty than of justice in them.  And I am taking this from Halsbury's fourth edition,  volume 28, paragraph 605.  And as I say, it is not in  the written text.  Firstly, that long dormant claims  have more of cruelty than of justice in them.  Secondly, that a defendant may have lost the evidence  to disprove a stale claim.  And, thirdly, the reason  behind limitations legislation is that persons with  good causes of action as a matter of policy should  pursue them with reasonable diligence.  Now, with those policy considerations in mind, the  submission with respect to the application of  limitations legislation to this case has a two-fold  aspect which I summarize in paragraph 5 with my  written submission.  The first is that I say that the  Plaintiffs' action is properly characterized as an  action for the recovery of land within the meaning of  the Statute of Limitations, that's the predecessor to  the 1975 Act, my lord, and as such was barred no later  than April 1947, twenty years after the Senate and  House of Commons adopted the Special Joint Committee 28021  Submissions by Mr. Plant  1 Report which concluded that no claim had been  2 established to the lands of British Columbia based on  3 aboriginal title.  4  5 Secondly, and alternatively, with respect to the  6 claim to a declaration to entitlement to damages, I  7 submit that the claim lies only in respect of such  8 acts of trespass, as that term is used in the Act, as  9 may have occurred within two years prior to the  10 issuance of the writ on October 23, 1984, and only if  11 such trespass was actionable.  In other words, only if  12 the Plaintiffs' claimed possessory right was not  13 otherwise extinguished or barred.  14  15 The first of those propositions is the one I want  16 to turn to now.  And in elaborating on that  17 submission, I want to ask your lordship to look in  18 the -- one of the grey binders of authorities which  19 has a blue label.  It should be on your desk.  This is  20 Volume 1 of the Province's supplementary authorities.  21 THE COURT:  Yes.  22 MR. PLANT:  And the Statute of Limitations is at tab 28, almost  23 at the end of the book.  And starting with Section 16,  24 your lordship should note, and it is set out at  25 paragraph 6 of my submission, that the provisions of  26 Section 16 of the Statute of Limitations, first  27 enacted in England in 1824, came into force in British  28 Columbia upon the reception of English law and  29 remained in force until they were repealed in 1975.  30  31 Now, it is Section 16 that I wish to start with.  32 And really what I want to do is to read those portions  33 of the section which bear on the submission as  34 follows:  35  36 "No person shall ... bring an action to recover  37 any land  ... but within twenty years next  38 after the time at which the right  ... to bring  39 such action shall have first accrued to some  40 person through whom he claims; or if such right  41 shall not have accrued to any person through  42 whom he claims, then within twenty years next  43 after the time at which the right  ... to bring  44 such action shall have first accrued to the  45 person making or bringing the same."  46  47 Now, in Section 17 the question of when the right 28022  Submissions by Mr. Plant  1 of action accrues is dealt with.  And again extracting  2 the salient provisions, it reads, and these are set  3 out in my submission:  4  5 "In the construction of this Part of this Act,  6 the right  ... to bring an action to recover  7 any land ... shall be deemed to have first  8 accrued at such time as hereinafter mentioned,  9 that is to say:-  10 When the person claiming such land ..., or some  11 person through whom he claims, shall, in  12 respect of the estate or interest claimed, have  13 been in possession  ... and shall while  14 entitled thereto have been dispossessed, or  15 have discontinued such possession, then such  16 right shall be deemed to have first accrued at  17 the time of such dispossession or  18 discontinuance of possession."  19  20 Now, the next section is what is the meaning of  21 land for the purpose of Part 2 of the Statute of  22 Limitations.  And the defence of land is found in  23 section 15.  And I will read from the statute itself:  24  25 "The words and the expressions hereinafter  26 mentioned with in their ordinary signification  27 have a more confined or a different meaning  28 shall, in this part of this Act, except where  29 the nature of the provision or the context of  30 this Part of this Act shall construe, such  31 construction shall be interpreted as follows.  32 That is to say..."  33  34 And here I am going to extract even more ruthlessly  35 than I did in the written submission.  36  37 "Land shall extend to all corporeal  38 hereditaments whatsoever, and also to any share  39 estate or interest in them, whether freehold or  40 copyhold, or held according to any other  41 tenure."  42  43 Now, my lord, in paragraph 9 I say that the  44 construction of these provisions, taken together,  45 leads to the conclusion that an action to recover land  46 was required to be brought within 20 years from the  47 time the right to bring such action first accrued, and 28023  Submissions by Mr. Plant  1 that the right to bring an action to recover land  2 accrues from the moment that the Plaintiffs, or their  3 predecessors in title, having been entitled to  4 possession, were either dispossessed or discontinued  5 their possession.  6  7 Now, there are two other provisions of the statute  8 I draw to your lordship's attention at this point.  9 They will become relevant later.  The first is section  10 25, and that provides:  11  12 "No continual or other claim upon or near any  13 land shall preserve any right of making an  14 entry or distress, or of bringing an action."  15  16 And then the other provision, Section 41 reads as  17 follows:  18  19 "At the determination of the period limited by  20 this Act to any person for making an entry or  21 distress or bringing any writ or other action  22 or suit, the right and title of such person to  23 the land for the recovery whereof, such action  24 or suit might have been made or brought within  25 such period shall be extinguished."  26  27 Now, I want to turn back to paragraph 10.  The  28 effect of Section 41, though, my lord, is that after  29 the limitation period expires, not only does the right  30 to bring the action expire, but the title also is  31 extinguished.  32  33 Now, in paragraph 10 I say, my lord, that the  34 Statute of Limitations did not apply to all causes of  35 action, but only to those actions which were either  36 expressly within its terms or which could be included  37 by analogy.  And I have there made reference to two  38 pages from the Law Reform Commission Report of 1974  39 where that proposition appears.  And I won't take your  40 lordship to those now.  41  42 Moving on to what is perhaps the first critical  43 point here, paragraph 11 of my submission, I say while  44 the Plaintiffs at bar seek declaratory relief the  45 action in substance is for the recovery of land within  46 the meaning of the statute.  And the references here,  47 my lord, are to authorities where the courts have had 28024  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  THE  COURT  10  MR.  PLANT  11  12  13  THE  COURT  14  MR.  PLANT  15  THE  COURT  16  MR.  PLANT  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  THE  COURT  36  MR.  PLANT  37  38  39  40  41  42  43  44  45  46  MR.  GRANT  47  MR.  PLANT  to consider what it means for purposes of applying  limitations legislation to commence an action for the  recovery of land.  The first of these materials is in  the yellow book, my lord.  And it is at a tab that  accompanies this paragraph in the argument which would  be 5-11.  And this is an extract from Preston and  Newsom's text on the Limitations of Actions.  Does  your lordship have that at the top?  No.  Perhaps your lordship should be at IX, 5-11 because  in my book we are about a third of the way through the  book.  Well, I can find that.  Yes, I have that.  Does your lordship have that?  Yes.  It is the one-page extract.  Under heading B,  Actions to Recover Land.  "An action to recover land was thus described  by Lord Justice Buckly in which Williams v.  Thomas."  And these are his words:  "The expression  ... does not mean regain  something which the plaintiff previously had  and lost, but means 'obtain any land by  judgment of the court'; yet it is not limited  to 'obtain possession of any land by judgment  of the court'."  And then carrying on about seven or eight lines down,  the sentence that begins "An action for a declaration  of title."  Does your lordship have that?  :  Yes.  "An action for a declaration of title is  similarly one to recover land."  And then there are two case references, one from the  Irish reports.  And that judgment does little more  than apply the decision of the Court of Appeal in  Walters v. Webb.  And I do want to ask your lordship  to look at that judgment.  And that should be in the  binder of authorities at tab 15.  :  Do you mean supplementary?  :  Excuse me, supplementary authorities. 28025  Submissions by Mr. Plant  1 THE COURT:  Yes.  2 MR. PLANT:  Now, my lord, this was a case where the lord of the  3 manor had seized copyholds.  There is a Latin legal  4 French expression there that means or calls into play  5 a principle that allowed the lord of the manor to  6 seize a copyhold tenure until the heirs of the tenure  7 came forward to claim it.  And in this case, the  8 plaintiff was that heir.  And the lands had been  9 seized in or before the year 1831.  And in 1868 the  10 plaintiff offered to pay the various fines and fees  11 which would be necessary to bring the tenure into good  12 standing.  And he demanded to be admitted.  13  14 Now, down about halfway through the bottom of the  15 first paragraph the argument for the tenant includes  16 this sentence here:  17  18 "The Defendants rely on 3 & 4 Will."  19  20 Does your lordship have that?  21 THE COURT:  Yes.  22 MR. PLANT:  And that is the statute of 1824 which is the  23 antecedent of the Statute of Limitations provisions  24 that I have referred your lordship to.  And the  25 counsel go on to say that while the defendants rely on  26 those provisions, this is not a suit to recover land  27 or rent, but merely to compel the lord to do his duty  28 and admit the plaintiff.  And over the page to the  29 judgment of Lord Hatherley, about six or seven lines  30 down the first paragraph, the sentencing beginning:  31 "The question then is."  32 THE COURT:  Yes.  33 MR. PLANT:  34 "The question, then, is whether this bill can  35 be maintained, having regard to the 2nd and 3rd  36 sections of the Statute of Limitations.  Now  37 the Plaintiff's claim is clearly barred by  38 those sections unless he is right in saying  39 that this is not a proceeding to recover land."  40  41 And turning over the page to the page 533 of the  42 judgment, the full paragraph beginning halfway down:  43  44 "The only other question is, whether this is an  45 action for the recovery of land?  I think it  46 was put by the Lord Justice during the course  47 of the argument in a way which is unanswerable, 28026  Submissions by Mr. Plant  1 that this bill is in effect simply to compel  2 the lord to admit a right of entry in the  3 person who files the bill.  The admittance is  4 no doubt necessary if he should choose to  5 proceed in ejectment against third persons, but  6 as regards the lord, whom we must suppose now  7 to be in possession, the bill is an attempt to  8 compel the person in possession of the land to  9 acknowledge that the claimant has a right of  10 entry by admitting him and placing him on the  11 Court rolls.  It seems to be trifling to say  12 that this is not a proceeding for the recovery  13 of land.  It may not be a step through which  14 the land may be incidentally recovered, but it  15 is one step which may immediately and instantly  16 give to this claimant that which he has been  17 deprived of by the statute, namely the right of  18 entry on the land.  That being so, I think the  19 Vice-chancellor has come to a right conclusion  20 in holding that the statute is a bar to a suit  21 of this kind."  22  23 And that's really the end of the reference to that  24 case, my lord.  25  26 The other case which is also in the supplementary  27 binder, grey binder, is a judgment of the Supreme  28 Court of Canada in Canadian Pacific Railroad v. Turta.  29 And that is at tab 3.  Does your lordship have that in  30 the grey binder?  31 THE COURT:  Tab 3.  Yes, I think so.  Yes.  32 MR. PLANT:  Now, I have only included the extract from this  33 otherwise fairly long judgment, the extracts that  34 pertain to this point.  And this is a case where there  35 had been an error made in the registry with respect to  36 the description of a party's interest in lands.  And  37 an issue arose as to whether or not the claim was  38 statute barred under the provisions of the Alberta  39 Limitations Act which are the same so far as is  40 material.  And it is from the judgment of Mr. Justice  41 Estey speaking for four of the judges in the majority  42 that I want to read.  And that is in the last  43 paragraph on page 449 of the judgment which is about  44 halfway through the extract.  449?  449.  Yes.  4 5 THE COURT  4 6 MR. PLANT  4 7    THE COURT 28027  Submissions by Mr. Plant  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  "The appellants'  MR. PLANT:  The bottom of the page:  submission"?  THE COURT:  Yes.  MR. PLANT:  "... that, as this action was not brought  within a period of six years, it is barred by  the provision of s. 5(1)(j) of the Statute of  Limitations ... that is to say another  provision  ... it cannot be maintained.  In  support of this contention the appellants rely  upon observations of Sir George Jessel in  Gledhill v. Hunter, and applied to provisions  of The Lands Titles Act in Alberta  ... in the  three cases which are referred to there.  In these cases and actually for a declaration  of title without a claim for possession was  held not to be an action for recovery of land.  A reference to the pleadings in this case  discloses that the respondent Anton Turta asks  for a declaration that he has 'been in lawful  possession' of the petroleum."  Carrying on to the next paragraph:  "It will, therefore, be observed that in this  action both the ownership and the possession of  the petroleum in the said quarter section was  in issue.  This is, therefore, an action for  the recovery of land and is brought within the  period of ten years permitted by s. 18 of the  said Statute of Limitations."  And that's the conclusion of that extract.  But if  your lordship goes back to the yellow book, in the  same tab I have a reference from the Plaintiffs'  argument from volume 337 of the transcript.  This was  their argument on the last day of argument.  :  Yes.  :  What I want to say here, my lord, is that these  cases that I have referred your lordship to clearly  indicate that it is not always necessary to couple a  declaration of rights of ownership with an actual  action for ejectment, as it were, or a claim of  possession.  But in this case, it is clear that the  Plaintiffs have come within the meaning of the -- or  the ambit of the statute, however that's interpreted.  THE COURT  MR. PLANT 2802?  Submissions by Mr. Plant  1 And it is the declaration that is set out in line  2 15 that makes the point inclusively in my favour where  3 I say that the plaintiffs say that they seek:  4  5 "A Declaration that the Plaintiffs have a right  6 of ownership over the Territory, which extends  7 to the full exclusive  ... ownership ...  8 enjoyment and possession of the Territory."  9  10 And it is the addition of the right of possession  11 which is of interest here, my lord.  12  13 "... possession of the Territory and all its  14 resources including the right to harvest,  15 manage and conserve the land and natural  16 resources."  17  18 So the Plaintiffs' action, in my submission, goes  19 far beyond any action for a bare declaration of  20 rights.  It extends to, in substance and here in form,  21 to the recovery of the land itself.  And for that  22 reason, I say that it falls within the ambit of the  23 statute.  24  25 Now, there is a slightly different point made in  26 paragraph 12 of my submission, my lord.  And that  27 refers to the basic principle that courts will not  28 grant declaratory relief if the declaration sought is  29 incapable of having any practical effect.  And I have  30 given your lordship a reference to the Solosky case  31 there, but the point is uncontroversial.  Its  32 application may be, however, and my submission is  33 that, if an action to recover land would not lie, that  34 is to say if it was statute barred, then I say that an  35 action for a declaration of ownership ought not to  36 issue.  Now, that leaves aside or leaves behind me, if  37 you will, the question of the application of the  38 statute to this cause of action.  39  40 And now I wish to turn to another aspect of this  41 question in paragraph 13 where I say that determining  42 the date at which the Plaintiffs were dispossessed,  43 and dispossession is the key trigger, for purposes of  44 the operation of the statute is obviously a question  45 of fact which, if it is not to be examined on a  46 parcel-by-parcel basis, necessarily requires a  47 determination of the point on the historical continuum 28029  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  THE  COURT  25  26  MR.  PLANT  27  28  THE  COURT  29  MR.  PLANT  30  31  32  THE  COURT  33  MR.  PLANT  34  35  36  37  38  39  40  41  THE  COURT  42  MR.  PLANT  43  44  45  46  THE  COURT  47  MR.  PLANT  where the Crown's assertion of an absolute possessory  right over the whole of the claim area, and subsequent  denial of the Plaintiffs' rights, would have been  clear to any informed person.  In my submission, acts of dispossession of Indians  within the claim area began prior to Confederation  with such activities as the construction of the  Collins Overland Telegraph.  And it could accordingly be argued that time began  to run for the Plaintiffs from Colonial days.  To so  argue, however, would be to ignore the real  possibility that the Plaintiffs did not appreciate the  significance of acts of dispossession from the point  of view of the survival of their cause of action.  However, my lord, to admit this possibility is not  to concede its legal relevance because in the Statute  of Limitations there was no postponement provision.  The statute comes into play is the part of that Act  which deals with actions for the recovery of land  comes into play upon the fact of dispossession.  :  Well, what happens to the Section 16 when it was  repealed in 1975?  :  In section 14(1) of the 1975 Act, section 14(1)  being -- does your lordship have the grey book?  :  Yes.  :  The 1975 Act is the last tab of the book.  Section  14(1) will be the second to last page in the book  itself.  :  Yes.  :  Section 14(1) provides under the heading  Transitional Provisions:  "Nothing in this Act revives any cause of  action that is statute barred on July 1, 1975."  In my submission, the cause of action was barred long  before the statute of 1975.  :  Yes.  :  Now I turn to paragraph 17 of my submission to the  reason why the admittedly somewhat arbitrary date of  April 1927 has been chosen.  As I say, that by 1927,  if not earlier --  :  Where are you, Mr. Plant?  :  Paragraph 17 of my submission. 28030  Submissions by Mr. Plant  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  THE COURT:  Yes, thank you.  Yes.  MR. PLANT:  By April 1927, if not earlier, a number of events  had occurred from which it may be concluded without  hesitation that the Indians in the Claim Area had  been, and were being, dispossessed of the lands they  now claim.  On the next page I summarize some of these  events.  And there is material accompanying some of  these references in the yellow book.  But for the most  part, they are practically matters of judicial notice  at this point in the proceeding.  The first is that reserves had been allotted and  confirmed within the Claim Area.  The second is that by 1927 agricultural settlement  was well underway in the Bulkley Valley.  The third is that the railroad had brought new  settlers and villages in Hazelton, Smithers, Telkwa  and elsewhere.  The fourth is claims to aboriginal title by way of  petition had been advanced by Indians throughout  British Columbia to the knowledge of, and in some  cases on behalf of, Indians in the Claim Area.  And  some of the references there, my lord, are to  petitions made by persons where bands of the  representatives of the various Gitksan villages  participated.  Fifthly, to put this into context, the claims made  on behalf of Indians had been consistently denied by  the Province, which continued to act in a manner  consistent with such denial.  Sixth, actions on the part of the Province which  were inconsistent with a possessory right in the  Plaintiffs that was not subject to provincial  legislative authority included the enactment and  implementation of a trapline registration regime.  And, my lord, you may recall that in Exhibit  993-41 which is one included in the bundle of exhibits  that I have made reference to there.  And it is the  only -- in the yellow book I have just included  993-41.  That is a summary of the implementation of  the trapline registration scheme written in the 1940s. 28031  Submissions by Mr. Plant  1 And the regime was enacted in 1925 and implementation  2 began in 1926.  And the last day of argument I  3 referred your lordship to some trapline registrations  4 from these early days that had been signed by or made  5 on behalf of ancestors of the Plaintiffs.  And there  6 were, of course, also traplines registered in the  7 claim areas to non-Indians.  8  9 Point seven or rather, (g), Indians in the Claim  10 Area had been advised, encouraged and represented by  11 missionaries, politicians and lawyers with respect to  12 their claims.  And that was the subject of submissions  13 by Mr. Willms.  14  15 The next point, acts of ejectment arising out of  16 lands acquired under the South African War Land Grant  17 had been threatened.  And my colleague Mr. Goldie will  18 be speaking to that later today, I hope.  19  20 And lastly, a joint committee of the Senate and  21 House of Commons, responding to a petition presented  22 by a group representing Indians including those in the  23 Claim Area, had investigated the claim of aboriginal  24 title and rejected it.  25  26 In summary, my lord, taking all of these events,  27 and there are clearly others, into account, by April  28 1927 a legal regime which, to the knowledge of the  29 native inhabitants of the claim area, denied the  30 Indian claim to ownership, and gave effect to that  31 denial, was well and firmly established.  32  33 The limitations clock had begun to run, yet the  34 Indians did not sue to vindicate their alleged rights.  35  36 Accordingly, in my submission, pursuant to Section  37 16 of the Statute of Limitations, the Plaintiffs'  38 right to recover possession of land within the claim  39 area was barred and, by virtue of Section 41,  40 extinguished no later than April 1947.  That being 20  41 years after this date that I have selected for the  42 purpose of argument.  43  44 Now, in paragraph 21 I refer to the evidence and  45 the argument that your lordship has heard with respect  46 to protests by natives within the Claim Area.  And I  47 say that for the purpose of preserving a cause of 28032  Submissions by Mr. Plant  action under the Statute of Limitations, protest is  legally irrelevant because Section 25 provides, and I  have already referred your lordship to this, that:  "No continual or other claim upon or near any  land shall preserve any right of  ... bringing  an action."  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  THE COURT  MR. PLANT  Now, I want to turn to another issue.  And that is  the issue under heading D here, The Indian Act and  Capacity to Sue.  And really the proposition I want to  enlarge upon here is that there was never any legal  disability to commence this action.  I say it is clear  that Indians are not and never have been precluded  from bringing actions to assert rights in land.  In 1876 Parliament enacted in the Indian Act, a  section which provided as follows.  And I just pause  to note that the extract from the statute is in the  yellow book, but it is reproduced here in full.  "Indians and non-treaty Indians shall have the  right to sue for debts due to them or in  respect of any tort or wrong inflicted upon  them, or to compel the performance of  obligations contracted with them."  And that provision remained in force until the  enactment of the current Indian Act in 1951.  Now, in  Douglas v. Mill Creek Lumber Co. there was an argument  made --  :  Is it still in force?  :  Not in its present form, my lord, to my knowledge.  There are, however, in the present Act provisions with  respect to certificates of possession and lands on  Indian reserves.  And it's been held in the cases that  I have identified at the top of the next page in my  submission that Indian bands and their members -- I am  really just reading from the bottom of page 12 here,  that Indian band and their members can claim against,  to bring action against non-Indians and also against  fellow band members for wrongful occupation or  possession of reserve lands.  But the Douglas v. Mill Creek Lumber Co. case is a  case I want to make reference to.  And that is in the  supplementary authorities binder at tab 6, my lord. 28033  Submissions by Mr. Plant  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  THE COURT  MR. PLANT  THE COURT  And perhaps I can take your lordship to that just to  enlarge a little bit on the passage that is extracted  in my argument.  This is an action for Woodmen's  Liens.  And a number of the claimants were Indians  living in the Capilano Reserve.  And objection was  taken to their entitlement to liens.  And Mr. Justice  Martin deals with that objection at the bottom of page  808 in the paragraph:  "There remains one general  obj ection"?  :  Yes.  "There reamins one general objection to the  claims of all the plaintiffs, that as they  admittedly are unenfranchised Indians, from the  said Capilano Reserve, they cannot maintain  these actions.  And it is submitted that though  sec. 103 of the Indian Act confers upon Indians  'the right to sue for debts due to them, or in  respect of any tort or wrong inflicted upon  them, or to compel the performance of  obligations contracted with them,' yet it does  not extend to the obtaining of a lien upon  property which belonged to some person other  than the one who employed them to work.  But  this is a misconception of the situation  because the lien was conferred by sec. 3 of the  Woodmen's Lien for Wages Act, and though  Indians are wards of the Crown yet they are  also citizens of Canada and entitled, unless  prevented by legislation, to enjoy civil rights  in common with their fellow citizens, whether  such rights are acquired at common law or by  statute.  No one would contend that an Indian  was not entitled to a possessory lien at common  law for the value of his work upon an article  given to him to repair, such as a fish net, and  I see no difference in principle between that  lien and the statutory lien upon logs got out  of the woods by his labour."  Now, the judgment of Mr. Justice Galliher begins at  the bottom of the page.  And he also rejects this  argument on the following page, page 810.  I won't  read all the paragraphs, but about halfway down the  page, the two paragraphs beginning:  "That  unenfranchised Indians"?  :  Yes. 28034  Submissions by Mr. Plant  1 MR. PLANT:  2 "...  cannot claim a lien...",  3  4 and so on, that there refers to a submission made by  5 the defendants which Mr. Justice Galliher said he  6 cannot assent to.  7  8 Now, that takes me back to my submission,  9 paragraph 26 where I say that the current Indian Act  10 provisions concerning trespass to Indian reserves have  11 been interpreted so as to permit Indian bands and  12 their members to claim against non-Indians for  13 wrongful occupation or possession of reserve lands.  14 And there are a number of cases in this area, my lord,  15 and I have referred to three of them.  Those three are  16 all in the grey supplementary binder of authorities.  17 If your lordship wants to make a note, the Custer case  18 is at tab 4.  The first Joe v. Findlay case is at tab  19 9, and the second is at tab 10.  And where I say that  20 the rights that I am speaking about here echo the  21 provisions of the colonial "Indian Reserve Ordinance"  22 of 1869, I am referring to Exhibit 1174-12.  And that  23 was the ordinance which gave Stipendiary Magistrates  24 the power to make orders ejecting trespassers from  25 Indian reserves.  26  27 And I say that if an Indian band -- if an Indian  28 or a band can bring actions to recover possession of  29 lands in a reserve, they can equally bring actions to  30 recover possession of lands outside reserves.  31  32 Accordingly, in my submission, at all times the  33 Plaintiffs and their predecessors have been entitled  34 to assert in the courts any right in the Claim Area.  35  36 Now, that takes me to the 1927 amendment to the  37 Indian Act which is set out at the top of the next  38 page.  And the enactment has been photocopied or the  39 relevant portions have been photocopied in the tab in  40 the yellow book, but the section appears in full in my  41 argument.  And it was enacted as Section 149A of the  42 Act.  And it provided as follows:  43  44 "Every person who, without the consent of the  45 Superintendent General expressed in writing,  46 receives, obtains, solicits or requests from  47 any Indian any payment or contribution or 28035  Submissions by Mr. Plant  1 promise of any payment or providing money for  2 the prosecution of any claim which the tribe or  3 band of Indians to which such Indian belongs,  4 or of which he is a member, has or is  5 represented to have for the recovery of any  6 claim or money for the benefit of the said  7 tribe or band, shall be guilty of an  8 offence  ...",  9  10 and so on.  So every person who receives, obtains and  11 solicits or requests payment or promise of payment for  12 the prosecution of a claim without the consent of the  13 Superintendent General commits an offence.  And that  14 provision which was assented to on March 31, 1927,  15 prior to the publication of the Joint Committee  16 Report, remained in force until 1951.  17  18 In my submission, my lord, the purpose of the  19 provision was not to discourage claims, but rather was  20 to prevent exploitation of the Indians.  The purpose  21 of the amendment was explained in the House of Commons  22 by the minister, the Honourable Charles Stewart, when  23 the bill was enacted.  24  25 And I do want to ask your lordship to go to the  26 yellow book to the extract from the Debates of the  27 House of Commons that place this provision in its  28 historical context.  This will be at the tab in the  29 yellow book, my lord, at tab 5-31.  Now, the extract  30 that I am interested in starts at page 4 of the page  31 numbering in the tab in the lower right-hand corner.  32 In the lower right-hand side of that page above Mr.  33 McPherson's name it says:  "On section 9..."  Does  34 your lordship have that?  35 THE COURT:  Yes.  36 MR. PLANT:  "Receiving money for the prosecution of a claim."  37 And then Mr. McPherson says this:  38  39 "Mr. Chairman, there might perhaps be occasions  40 where the minister would not want this section  41 to be enforced.  I can personally recall two or  42 three incidents where a considerable sum of  43 money was obtained for the Indians of Manitoba  44 from the American government.  We have a  45 situation there that is perhaps unique in that  46 a large band of Sioux Indians came over from  47 the States immediately after the Custer 28036  Submissions by Mr. Plant  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  THE COURT  MR. PLANT  THE COURT  MR. GRANT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  massacre and settled near Portage la Prairie.  I know that during the past two years they have  received from $3,000 to $10,000 from the  American government.  I do not know what legal  charges were made for obtaining payment of that  money, but I do know that the money was secured  through the assistance of solicitors.  Under  this clause those solicitor would be  prosecuted.  I do not think that is quite  right, nor do I think it necessary that a  solicitor in such a case should have to apply  to the Superintendent General for permission to  act. "  Was Mr. McPherson a lawyer?  Beg your pardon?  Was Mr. McPherson a lawyer?  Solicitor.  That is one of the very few pieces of information I  don't have.  I 'm sure he was.  Defending the honour of his calling, my lord.  Yes.  Mr. Stewart, the member for Edmonton:  "Mr. Chairman, that is exactly why we want this  clause -- in order that we may exercise some  supervision over persons who make private  bargains with Indians bands for the purpose of  collecting claims, whether legitimate or  imaginary.  I do not like to mention names, but  a case has come to my notice ... and so on ...  a very large claim which we think is owing by  the American government to a band of Indians in  Ontario..."  Carrying on down the paragraph:  "I could cite a dozen other inferences in which  representation were made to Indians with  respect to certain claims, for the collection  of which the Indians agreed to pay substantial  remuneration.  My hon. friend from Vancouver  Centre would not have to go very far to cite  one case --  MR. STEVENS:  Hear, hear.  MR. STEWART:  — in which for years the British 28037  Submissions by Mr. Plant  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  Columbia Indians have been paying certain  persons for their services in connection with  claims which it had been represented could be  enforced.  I think those Indians have claims --  at all events from consideration.  But from one  ends of Canada to another it is becoming a  common practice to represent to the Indians  that they have certain rights, and those making  the representation usually manage to get the  Indians to enter into a contract providing  substantial remuneration for their advisers.  We think it is to the advantage of the Indians  that these contracts should be scrutinized by  the department in order to protect them from  exploitation."  Now, I say in paragraph 32 of my submission, my  lord, it follows both from the language of the  enactment and from the circumstances which I have just  referred to that this enactment provided no legal  impediment to the assertion of claims.  And, perhaps  more importantly, there is no evidence before your  lordship, not any evidence that the provision had the  effect of preventing or discouraging the Plaintiffs or  their ancestors from commencing an action.  Now, my lord, I am not sure --  THE COURT:  We will take a short break at 11:30.  And if this is  a convenient time to do it, we can do it now.  MR. PLANT:  It might be, yes.  THE COURT:  All right.  Thank you.  THE REGISTRAR:  Order in court.  Court stands adjourned.  (PROCEEDINGS ADJOURNED AT 11:30)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Lisa Franko,  Official Reporter,  UNITED REPORTING SERVICE LTD. 2803?  Submissions by Mr. Plant  1 (PROCEEDINGS RESUMED PURSUANT TO SHORT RECESS)  2  3 THE COURT:  Mr. Plant.  4 MR. PLANT:  My lord, I was concluding at page 15 of that section  5 of the argument, and before I turned to the -- or  6 subsection of the argument.  Before I turn to page 16  7 I wanted to re-emphasize the point that 1927 has not  8 been selected as the pre-determined fixed and only  9 date, but it's rather a point on the historical  10 spectrum past which there could be no doubt of the  11 fact of dispossession, and the likelihood, indeed the  12 inevitability that such dispossession would continue.  13 So it's something like a point of no return.  14 Now, that takes me to the very brief submission on  15 the 1975 Limitations Act, and I've already made that.  16 THE COURT:  Yes.  17 MR. PLANT:  And then over to the next page, the claim for  18 entitlement to damages, I say that for reasons  19 analogous to those submitted, which I advanced in  20 relation to the claim for possession and ownership of  21 land, I submit that the claim for a declaration of  22 entitlement to damages is, in substance, a claim for  23 damages in tresspass.  That is a claim for active  24 interference with a continuing possessory right in  25 land.  26 And that, in my submission, the Limitation Act  27 bars any such claims in respect of acts of  28 appropriation and use occurring prior to October 23,  29 1982, that is to say, two years before the action was  30 commenced.  And there are two subsections or  31 subparagraphs of section 3(1) from the 1975 act that  32 I've referred to there.  As I recall (b) -- I won't  33 take your lordship to it, but (b) is the trespass  34 provision, and (a) is actions for damages to property.  35 And your lordship may recall that Mr. Earl Muldoe  36 in his closing statement which, and I'll give you a  37 transcript reference, transcript 338, page 26464 said  38 that -- said this.  He said:  "We must be compensated  39 for loss of the land's present integrity."  Well, that  40 may be a claim for damages in respect of injury to  41 property, but I should emphasize that there is no such  42 claim, in my submission, made in the pleadings.  Even  43 if there were, however, it would be caught by the two  44 year limitation period.  45 Now, I wish to turn to the constitutional  46 question, and this really flows from the submissions  47 that I made last week about section 88 of the Indian 28039  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  THE  COURT  23  MR.  PLANT  24  25  26  27  28  29  THE  COURT  30  31  32  MR.  PLANT  33  34  THE  COURT  35  MR.  PLANT  36  THE  COURT  37  MR.  PLANT  38  39  40  41  42  THE  COURT  43  MR.  PLANT  44  45  THE  COURT  46  MR.  PLANT  47  THE  COURT  Act.  I submit that the Statute of Limitations,  including section 41, that is to say the  extinguishment of title section, is valid provincial  legislation pursuant to head 13 of section 92 of the  Constitution Act, 1867, as legislation in relation to  property and civil rights in the province.  The plaintiffs' claim to ownership and  jurisdiction is -- and this is perhaps sounding like a  familiar tune -- is to be distinguished from claims to  aboriginal title.  And as a matter of interest I here  refer to the Bear Island case in my submissions.  In  that judgment the trial -- in that case the trial  judge upheld the limitations defence.  But your  lordship may wish to make a note that in the Ontario  act the definition of land is somewhat different, and  his lordship's analysis of the reasons why the Ontario  Limitations Act applied to a claim of aboriginal title  flow from the fact that the statute in Ontario defines  land to include incorporeal hereditaments as well as  corporeal hereditaments, but that's really a matter  of --  What does incorporeal hereditaments mean, a lease?  And incorporeal hereditament is like a chose in  action or a patent or a copyright.  And he finds that  aboriginal title, the personal usufructuary right  aboriginal title is an incorporeal hereditament thus  caught by the Statute of Limitations by that expanded  definition.  Yeah. I would have thought a Calder type aboriginal  right would be a corporeal right, being an interest in  land.  I think perhaps the best thing to do is to commend  your lordship to Mr. Justice Steele's --  Yes.  -- Reasons.  All right.  And then to say that your lordship may or may not be  correct.  I haven't given that much thought, again for  the reason that I'm concerned and respond to an action  which I say quite clearly is an action that seeks  recovery of a corporeal hereditament.  That being title?  That being title to and ownership to land, to real  property.  Well, my --  Tangible property.  Well, my land law is very, very sketchy at this 28040  Submissions by Mr. Plant  1  2  3  4  5  MR.  PLANT  6  THE  COURT  7  MR.  PLANT  8  9  10  THE  COURT  11  MR.  PLANT  12  13  THE  COURT  14  15  MR.  PLANT  16  17  THE  COURT  18  MR.  PLANT  19  20  21  22  23  24  THE  COURT  25  26  MR.  PLANT  27  THE  COURT  28  MR.  PLANT  29  30  31  32  33  34  35  36  37  38  39  MR.  GRANT  40  41  42  43  44  45  46  47  time.  Not a lot more sketchy than it ever was, but I  thought that a corporeal hereditament included any  interest in land, but I'm not sure about that.  I'll  have to -- I'll have to look it up.  That's fine.  I'll give that some thought too, my lord.  All right.  Jowett's definition of corporeal property is  property which has a physical existence such as land  or goods.  Yeah.  I don't have Jowett's definition of incorporeal  property.  All right.  The distinction may be between ownership  and some lesser state.  Yes.  When I think of incorporeal hereditaments I  think of rights.  Yes.  And patents and copyrights, a chose in action are  the kinds of things that come to mind with my equally  limited -- well, perhaps even much more limited  knowledge of land law.  Those are the kind of things  that come to mind when I think of incorporeal  hereditaments.  What does Lord Jowett say about the definition of an  hereditament?  That I don't have before me, my lord.  All right.  I was more concerned to try and recall what a  copyhold was arising out the Walters and Webb case.  I  will over the lunch hour get some assistance from Lord  Jowett on that point.  Which is a digression, my lord,  and perhaps an unnecessary one.  In paragraph 41 of my submission I say that there  was no limitations defence apparently raised in Calder  or Baker Lake.  In Guerin a defence was rejected, but not because  the act didn't apply, but rather because there had  been fraudulent concealment of the cause of action.  I just on the exchange since my friend's going on,  on the Bear Island if he could clarify for me, because  the terminology in 41 suggests to me that my friend is  not relying on Justice Steele's decision in Bear  Island for limitation purposes, and I'm asking if  that's correct, or if my friend is relying on that and  saying that that's applicable in the case at bar.  And  also if he is relying on it does he -- is he going to  comment on the impact of Sparrow on that -- on that 28041  Submissions by Mr. Plant  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  aspect of Bear Island?  Just so I can understand my  friend's position.  MR. PLANT:  Well, I'm not relying on it, because the claims in  the two cases are different.  THE COURT:  All right.  You're not relying on either Bear Island  or anything in Sparrow?  MR. PLANT:  No.  Well, I'm not relying on Bear Island because  the nature of the right asserted in Bear Island was a  different right from that asserted in the case at bar.  THE COURT:  Because they were claiming a lesser state of  ownership?  MR. PLANT:  Yes.  THE COURT:  Thank you.  MR. GRANT:  Thank you.  MR. PLANT:  Perhaps — well, I'll move on, because I think  that's sufficient answer to my friend's question.  There's a case called Pawis and The Queen which I  refer to, and then I say that the judgments in the  Derrickson case, that's the Family Relations Act case,  and the Paul and Smith cases insofar as they pertain  to the application for provincial limitations  legislation with respect -- well, provincial  legislation generally with respect to the possession  of Indian reserve lands, are distinguishable from the  case at bar.  And the further point that I suppose must be made  here is in relation to the limitations answer to the  damage claim, and this is not set out in my written  submissions, but my submission here, and I'll be  coming back to this when I deal with the Crown  Proceeding Act, is that there is no constitutional  issue arising with respect to the damages claimed,  which is really, as I suggested, a claim in trespass.  If there's a finding that the province lacked -- lacks  a possessory interest in the land claim area so that  its actions have been wrongful, then I say that the  section 3 of the Limitation Act applies to limit the  claim for damages, and that such a statutory bar does  not affect Indians qua Indian.  That is an argument  that is directed, and directed to and limited to the  damages claim which is a subsidary cause of action to  the main claim, my lord.  Now, there are in the next two pages some  submissions in answer to the plaintiffs' argument  under this heading.  And I say firstly in paragraph  45, the plaintiffs advance a number of submissions  with respect to the application of provincial 28042  Submissions by Mr. Plant  1 limitations legislation and the Crown Proceeding Act.  2 The first of these arguments is set out in  3 paragraph 46:  4  5 "That all the declarations sought in this  6 action are declarations which are  7 constitutional in both substance and form.  8 Therefore, the province cannot, either through  9 its Crown Proceeding Act or Limitations Act,  10 preclude this court from granting such  11 declarations."  12  13 In my submission this argument confuses  14 limitations legislation with Crown immunity.  The  15 Limitation Act has nothing to do with Crown immunity;  16 it is a statute directed at preventing litigation of  17 stale claims by and against anybody.  18 The second point is the plaintiffs' reliance on  19 the B.C. Power Corporation case as authority for the  20 proposition which they put in these terms:  "That  21 neither the Provincial Crown nor the Federal Crown can  22 pass legislation which results in the Crown being  23 immune to challenges that their actions or statutes  24 are ultra vires."  I say, with respect, that the  25 province has nowhere argued that the province is  26 immune to challenges that its actions or statutes are  27 ultra vires.  The position that we take is this:  28 Firstly, that with respect to the action for damages  29 for acts occurring prior to August 1, 1974, the action  30 fails for want of a fiat.  And I'll be dealing with  31 that later in my submissions today, my lord.  But  32 additionally that claim is also statute-barred under  33 the Limitation Act.  But that's not an immunity bar,  34 that's an action or an enactment directed at limiting  35 the prosecution of stale claims.  36 Secondly, since the plaintiffs' claim is properly  37 characterized as an action for the recovery of land,  38 not an action for a declaration that specified  39 statutes are ultra vires, I say the plaintiffs' claim  40 can be and is barred by the Statute of Limitations.  41 Again, that's not immunity, that's a question of  42 waiting too long.  Crown immunity is a quite different  43 thing, and it's not raised here as against the  44 plaintiffs with respect to the main claim, that is the  45 claim for ownership and jurisdiction.  46 Now, the plaintiffs also argue that equitable  47 principles may preclude reliance on statutory 28043  Submissions by Mr. Plant  1 limitation periods.  And they have cited a number of  2 cases, and these cases fall into two categories.  3 The first is the well-known category where a  4 defendant has by agreement said that he would not  5 pursue a cause of action or has otherwise induced a  6 plaintiff to postpone proceedings for the defendant's  7 benefit.  8 And, secondly, the second category of cases cited  9 by them are cases involving a statutorily conferred  10 discretion to permit amendments to be made to add  11 parties after the expiry of limitation periods.  12 In my submission, neither of these categories of  13 cases assists the plaintiffs.  There's no evidence  14 that the province ever induced the plaintiffs to  15 postpone commencing this action at any time after  16 1927.  And as to the cases involving adding parties  17 that is a statutory, not an equitable discretion.  18 Those cases really involve the construction of the  19 particular provisions of the Limitation Act for rules  20 of court that apply to the facts before the courts.  21 Now, another argument that the plaintiffs make,  22 and I'm now in paragraph 51, my lord, is reliance upon  23 the common law rule of discoverability with respect to  24 limitations.  And, in my submission, it cannot in the  25 circumstances of this case reasonably be contended  26 that as of 1927 the plaintiffs and their predecessors  27 were neither aware of the assertion of ownership and  28 jurisdiction on the part of the province in a manner  29 inconsistent with their claimed rights, nor that, with  30 reasonable diligence such facts could not have been  31 discovered.  32 This is really not a case that brings the  33 discoverability rule into play.  It's not a question  34 of buying a house and finding out ten years later that  35 the foundations are faulty.  By 1927 it was clear to  36 everyone that there were -- there was a competing  37 claim in respect of the claim area.  38 Now, the plaintiffs then have an argument which  39 flows from the postponement provisions in the 1975  40 Limitation Act.  And I say in paragraph 53 in my  41 submission that those provisions have no application  42 to a cause of action which was extinguished before  43 that act came into force.  And I might say in this  44 regard, my lord, that the Kamloops and Neilson  45 decision really again is a case decided on the  46 interpretation of the language of the statute that is  47 before the court, and does not assist your lordship in 28044  Submissions by Mr. Plant  1 this case.  2 Finally to conclude here, I say the evidence is  3 that as of 1927 the plaintiffs had not only sought  4 advice, but had obtained legal representation.  5 Complexity and novelty of a cause of action, in my  6 submission, offer no excuse for failure to commence  7 the litigation within the time prescribed by law.  If  8 the litigants were permitted to wait indefinitely for  9 the law to change or develop in their favour then  10 there would be no certainty in the legal system.  And  11 finally, my lord, it's difficult to reconcile the  12 plaintiffs' position on this issue, that is that they  13 should be allowed to wait for the law to develop in  14 their favour with their submission that the principles  15 upon which they rely are, and since 1763 have been  16 well established rules of the common law.  17 Now, that concludes my submissions on limitations  18 and takes me to the next section of argument which is  19 the argument on equitable defences.  And I have  20 another revision here which should replace the  21 existing section.  22 THE COURT:  In its entirety?  2 3    MR. PLANT:  Yes, my lord.  24 My lord, whether or not the plaintiffs' claims are  25 barred by the Limitations Act or the Statute of  26 Limitations I say that their claims are barred by the  27 equitable defences of laches, estoppel, acquiescence  2 8 and undue delay.  29 Now, there appears to be no issue between the  30 plaintiffs and us on the question whether it is a  31 matter of law, equitable defences are available in the  32 case at bar.  The plaintiffs' argument really focuses  33 on an analysis of the principles of estoppel and  34 acquiescence and an extensive review of the historical  35 evidence.  36 The next proposition is obvious, that the remedy  37 sought by the plaintiffs with the exception of the  38 Prayer for Lis Pendens are declaratory.  39 And turning over the page, declaratory relief is  40 discretionary in nature.  When the court's discretion  41 is invoked, the conduct of the plaintiff is relevant  42 and equitable principles may be taken into  43 consideration.  And the next quotation is from the  44 book by Professor Zamir, extracts from which appear in  45 the yellow book.  The author of that text says this:  46  47 "This discretion is employed, as discretion was 28045  Submissions by Mr. Plant  1 originally employed in respect of all equitable  2 remedies, primarily to do justice in the  3 particular case before the court.  It is wide  4 enough to allow the court to take into account  5 virtually all objections and defences possible  6 in equitable proceedings."  7  8 And I won't take your lordship through the various  9 materials that I've referred to in support of the  10 proposition that equitable principles come to bear on  11 a determination of whether to grant a declaration, but  12 I will turn the page over to paragraph 5 where I say  13 that the defences pleaded, that is to say the defence  14 that is the subject of this submission, have distinct  15 origins yet contain a unifying principle.  The court  16 will be slow to assist those who have slept on their  17 rights, particularly where the defendant can show  18 prejudice.  Again quoting from Professor Sharpe where  19 he says:  20  21 "Consideration of delay is an aspect of the  22 more general principle which takes into account  23 the injustice of awarding relief against a  24 party who will be prejudiced on account of the  25 change of position related to acts or omissions  26 of the party seeking relief."  27  28 Now, my lord, the classic statement concerning the  29 doctrine of laches is that of Sir Barnes Peacock in  30 the Lindsay Petroleum Company case, and I take your  31 lordship briefly through that.  I think I should read  32 this, because it is the basic proposition which is  33 quoted time and time again.  34  35 "Now the doctrine of laches in Courts of Equity  36 is not an arbitrary or a technical doctrine.  37 Where it would be practically unjust to give a  38 remedy either because the party has, by his  39 conduct, done that which might fairly be  40 regarded as equivalent to a waiver of it, or  41 ..."  42  43 And it's really this part that comes into play in  44 this case, my lord.  45  46 "... where by his conduct and neglect he has,  47 though perhaps not waiving that remedy, yet put 28046  Submissions by Mr. Plant  1 the other party in a situation in which it  2 would not be reasonable to place him if the  3 remedy were afterwards to be asserted, in  4 either of these cases, lapse of time and delay  5 are most material.  ... Two circumstances,  6 always important in such cases, are, the length  7 of the delay and the nature of the acts done  8 during the interval, which might affect either  9 party and cause a balance of justice or  10 injustice in taking the one course or the  11 other, so far as relates to the remedy."  12  13 Now, Lord Justice Fry's judgment in Willmott and  14 Barber is often referred to.  It's the classic  15 statement on acquiescence.  And the -- I want to take  16 your lordship to this, because I want to identify the  17 points of particular importance.  18  19 "It has been said that the acquiescence which  20 will deprive a man of his legal rights must  21 amount to fraud, and in my view that is an  22 abbreviated statement of a very true  23 proposition.  A man is not to be deprived of  24 his legal rights unless he has acted in such a  25 way as would make it fraudulent for him to set  26 up those rights.  What, then, are the elements  27 or requisites necessary to constitute fraud of  28 that description?   In the first place the  29 plaintiff ..."  30  31 And for plaintiff, my lord, you should substitute  32 the province.  33  34 "... must have made a mistake as to his legal  35 rights."  36  37 In other words, to reach this point in the  38 reasoning in the case, my lord, you will have found  39 that the province has made a mistake as to its  40 ownership of and jurisdiction over the claim area.  41  42 "Secondly, the plaintiff ..."  43  44 Again the province.  45  46 "... must have expended some money or must have  47 done some act (not necessarily upon the 28047  Submissions by Mr. Plant  1 defendant's land) ..."  2  3 That is not necessarily upon the plaintiffs' land.  4  5 "... on the faith of his mistaken belief.  6 Thirdly, the defendant ..."  7  8 And again substitute the plaintiffs.  9  10 "... the possessor of the legal right, must  11 know of the existence of his own right which is  12 inconsistent with the right claimed by the  13 plaintiff.  If he does not know of it he is in  14 the same position as the plaintiff, and the  15 doctrine of acquiescence is founded upon  16 conduct with the knowledge of your legal  17 rights.  Fourthly, the defendant ..."  18  19 Again the plaintiffs here, my lord.  20  21 "... the possessor of the legal right, must  22 know of the plaintiff's mistaken belief of his  23 rights.  If he is not, there is nothing which  24 calls upon him to assert his own rights.  25 Lastly, the defendant, the possessor of the  26 legal right, must have encouraged the plaintiff  27 in his expenditure of money or in the other  28 acts which he has done, either directly or ..."  29  30 And again I emphasize these words.  31  32 "... by abstaining from asserting his legal  33 right.  Where all these elements exist, there  34 is fraud of such a nature as will entitle the  35 court to restrain the possessor of the legal  36 right from exercising it, but, in my judgment,  37 nothing authority of this will do."  38  39 THE COURT:  What do you say the plaintiff has done that it would  40 not otherwise have done?  41 MR. GRANT:  What the plaintiffs have done?  42 THE COURT:  Yes.  Keeping in mind that they were denying their  43 claim, the right in the first place, and have  44 throughout.  45 MR. PLANT:  Well, what the plaintiffs have failed to do is to  46 sue.  Is to commence action.  That's the fact that I  47 say is significant.  In fact, it's really going to be 28048  Submissions by Mr. Plant  1  2  3  4  5  THE  COURT  6  7  MR.  PLANT  8  9  THE  COURT  10  11  12  13  14  MR.  PLANT  15  16  THE  COURT  17  18  19  MR.  PLANT  20  THE  COURT  21  MR.  PLANT  22  23  24  25  26  27  28  29  30  31  32  33  34  35  THE  COURT  36  MR.  GRANT  37  38  39  40  41  42  43  44  45  MR.  PLANT  46  47  THE  COURT  the point on which my submission turns.  It is their  failure to commence action that raises the equity,  coupled with the fact that the province in exercising  its sovereign authority --  As proceeded on the basis that the claim wouldn't be  made?  As proceeded on the basis that it does have such  sovereign authority.  Yes.  But what prejudice is that?  Keeping in mind  that if the claim had been made -- oh, I suppose  asserted is a better word.  It was denied and the  province wasn't going to pay any attention to it  anyway.  Well, I'm not sure -- I'm not sure I follow your  lordship.  Yes, you're right, because what you're saying is  that making the claim isn't good enough.  They have to  bring the action.  That's right.  Yes.  The parties join issue at the political level or by  way of correspondence or they stand on opposite sides  of the boundary line and stare each other in the eye  and say this land is mine, and no, it isn't, it's  mine.  And one party in the strength of his belief  proceeds; constructs buildings, builds roads and  provides facilities, does all of those things, confers  third party rights by alienating its rights to others,  and all the while the other party is saying oh, no,  this land is mine.  There is no doubt that there is  evidence that protests of a variety of forms have  taken place, but I say that sooner or later the party  that says no, you must stop doing that has to commence  action.  All right.  In this amendment in light of how my friend's  explained that, and that follows from the earlier  version, but does my friend take -- does he deal with  the reference, the provincial defendant's involvement  or non-involvement in the reference in the early part  of the century to the Privy Council on the very issue?  I mean, does he deal with that as part of how that  affects the equity defence he's raising or will he  explain that?  Does your lordship understand what my friend's  referring to?  No.  I don't remember a reference to the Privy 28049  Submissions by Mr. Plant  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  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  PLANT  COURT  PLANT  THE  MR.  Council.  MR. GRANT:  There wasn't a reference, that's the point.  But the  federal government, you recall at the creation of  McKenna-McBride the federal government and the  province were in discussion about a reference and the  province said don't take the reference.  You're talking about a reference first given to the  Exchequer Court?  Yes.  Which did not proceed.  That's right, it went  to the Exchequer Court.  I know what you mean.  The Indian Act, as I recall, was later amended to  permit actions like this action to be brought without  the need for provincial consent.  Yes.  Yes.  So that to the extent that my friend's point  operates at all it only operates in a very narrow time  frame.  And I'm content again to place the burden of  my submission on events which occurred after the  events that my friend is referring to.  COURT:  Yes.  They took place pre-1927?  PLANT:  Indeed, yes.  Now, there's a brief reference to the Bear Island  case again, but your lordship may know that Mr.  Justice Steele didn't offer any reasons why the claim  of aboriginal title in that case was barred in the  manner stated.  He just says that it was.  COURT:  And the Court of Appeal didn't deal with it?  PLANT:  No, my lord.  Now, turning to the evidence which is really going  to be an elaboration of the point that I've already  made in answer to your lordship's question, I say that  the twin elements of delay and prejudice essential to  each of these defences are demonstrably present in the  case at bar.  For over a century the province has  acted within the claim area consistently with its  sovereign authority.  This exercise of sovereign  authority was well-known to the Indians in the claim  area, as is evidenced by, among other things, the  historical material filed as part of the evidence of  Dr. Galois and Mr. Williams and the documents filed  pertaining to the South African War Land Grant Act and  counterclaim.  Nothing has prevented the plaintiffs from suing to  enforce their rights, and such a suit, in my  submission, is the only sure means of identifying  their rights.  THE  MR. 28050  Submissions by Mr. Plant  1 The significance of the evidence concerning  2 protests for present purposes is this:  It  3 demonstrates knowledge on the part of the plaintiffs'  4 ancestors that they were aware both of their own  5 rights and of the allegedly mistaken belief on the  6 part of the Crown of its rights over the claim area.  7 Beyond demonstrating the knowledge necessary to  8 found an argument based on laches and acquiescence, I  9 say that the fact of protest becomes legally  10 irrelevant.  If the protest is found in a claim of  11 rights, sooner or later the protester must take action  12 to vindicate such rights in the courts.  13 Yet until October, 1984 the plaintiffs did not  14 sue.  Now, there are three cases there, my lord, that  15 I think in the interests of proceeding on schedule I  16 won't take your lordship through.  I will ask your  17 lordship to go back to the extract from Willmott and  18 Barber at the bottom of page four and to see again  19 there that the Lord Justice Fry speaks at the bottom  20 of that passage of "abstaining from asserting his  21 legal right".  And in the three cases what you have is  22 the emergence of a principle that is similar to the  23 provision in section 25 of the Limitation Act.  The  24 idea that no continual claim will preserve a cause of  25 action.  And what the courts have done in those three  26 cases is that they adopted the Limitations Act  27 provision to the equitable context.  And I want to ask  28 your lordship to make a note with respect to the  29 Blundon and Storm case, that in my submission what the  30 court does in that case, if your lordship reads it  31 carefully, is that they find, this is the Supreme  32 Court of Canada, that that principle doesn't apply to  33 the particular facts of that case, but they don't  34 undermine what I would say is a principle that  35 standing by in the sense of complaining but not  36 commencing action is not enough.  Sooner or later the  37 protester has to vindicate his rights in the courts.  38 Now, paragraph 14, I say that the prejudice  39 created by the plaintiffs' delay is evident to anyone  40 who has visited the claim area or studied its history.  41 Year by year the presence of the Crown within the  42 claim area, and those who act under its authority, the  43 Crown's investment in lands, resources, administrative  44 services and the provision of social benefits has  45 increased.  And there is references that could be made  46 to the material comprising the province's alienations  47 mapping project, but I've taken your lordship through 28051  Submissions by Mr. Plant  1 that material last week.  The lands, the resources and  2 people of the claim area are governed today by laws  3 and regulations the validity and applicability of  4 which have been asserted continuously since  5 Confederation.  6 If the plaintiffs are granted the relief they  7 seek, all those who, to the obvious knowledge of the  8 plaintiffs, have relied on such laws, will find such  9 reliance to have been ill-founded.  Those who live  10 within the claim area will be without entitlement to  11 do so.  And I say in that regard, my lord, that the  12 concession made in paragraph 79 of the Statement of  13 Claim, which is limited to those who hold title in  14 fee-simple, is nothing more than an indulgence  15 conceived for the sake of political expediency, and it  16 confers no legal protection on anyone.  Because if  17 British Columbia never had the right to issue  18 fee-simple title to anyone in the land claim area it's  19 highly doubtful that those who hold -- well, that the  20 plaintiffs' waiver of claims against them would give  21 rights to those third parties under illegal  22 legislation.  There's an abandonment, but the basic  23 proposition, namely the inapplicability of provincial  24 land law which would undermine -- well, continues to  25 undermine their entitlement to be on the land.  26 Now, paragraph 16, I say that municipalities,  27 school boards, law enforcement agencies, fire  28 protection services and environmental protection and  29 conservation services constituted by provincial law  30 will be incapacitated and their services without legal  31 authority.  There would be no authority or duty to  32 maintain highways or powerlines.  And many other  33 consequences are easily imagined if the plaintiffs are  34 to obtain the relief which they seek.  35 Turning now to -- well, what I would do here is to  36 say that the argument here is focusing around the  37 importance of the public interest in weighing the  38 discretionary decision -- making the discretionary  39 decision whether or not to issue a declaration.  40 The Crown administers the resources of the  41 province on behalf of all of the residents of the  42 province.  Its ownership of public lands is not an  43 ownership for the gain of a few, it is for the benefit  44 of all, including the plaintiffs.  In that sense, this  45 defendant represents the people of British Columbia  46 and the loss experienced by the province through the  47 loss of the lands and resources in the claim area 28052  Submissions by Mr. Plant  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  THE COURT  MR. PLANT  THE COURT  MR. PLANT  affects the public interests in the broadest sense.  And before turning the page, my lord, I would say  that these -- just observe that the materials I've  referred to there are cases dealing with the  importance in this context of intervening third party  rights.  And I might also say, again this is not in  the written text, my point is not to say that you  ought not to grant judgment because this case has far  reaching consequences.  My point is that you ought not  to grant judgment because the plaintiffs have waited  too long to be entitled to relief which would affect  the public interest in this way.  And that leads me into the next paragraph of my  submission. The cases, by the way, and the extract  from Spry are all in the authorities --  In the grey books?  -- That have been provided to your lordship.  In the grey books?  Yes.  They're not in the supplementary binder.  I  think they're in the earlier set.  My lord, paragraph 18.  In my submission, the  prejudice in allowing the claim, both to the Crown and  to third parties, is incalculable.  And the delay in  bringing this action is without excuse or  justification.  The plaintiffs have waited too long to  be entitled to the relief claimed against the  province.  On the other hand, the prejudice to the  plaintiffs, if their action against the province is  dismissed, is less apparent.  In the first instance  this may be inferred from the fact of delay.  Secondly, and perhaps more importantly, Canada alone  has the power to negotiate with the plaintiffs, and  Canada is in the process of negotiating, having  accepted a comprehensive claim put forward by the  plaintiffs for that purpose.  And, my lord, it is a  single fact in this context that the plaintiffs have  sued a party that is constitutionally incapable of  settling the action.  It is submitted, however, that refusing to give --  well, carrying on with the basic proposition.  That  refusing to give effect to the equitable defences in  the case at bar would lead to the very result that  they are intended to prevent.  For over a century the  province has acted to its detriment while the  plaintiffs have not only enjoyed the benefit of  expenditures of public funds in relation to such 28053  Submissions by Mr. Plant  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  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  matters as highways, health care, municipal services  and so on, but if relief is granted will now reap the  additional benefit of compensation for infringement of  their alleged rights, the value of which will  presumably have increased as a result of the  plaintiffs' delay.  The plaintiffs have not indicated  that they expect to reimburse the province for such  expenditures, or that they do not expect to continue  to receive such services in the future.  On the  contrary, they do expect to receive such services.  As  is clear in my friend Mr. Grant's submission in answer  to questions from your lordship about the application  of the plaintiffs to the School Act and whether the  plaintiffs would have the right to pick and choose the  occasion on which children could be removed from the  school system.  Now, in the next section I propose to deal briefly  with some of the plaintiffs' submissions under this  heading, and my reference comes from Volume 7 of the  summary, but a similar submission was made in the  final argument and I don't -- I'm never confident  about whether I've got the right volume, but I think  it's Volume 7 page 540.  And the transcript reference  is 336 page 26250.  I'm sorry.  The number?  336, page 26250.  Three?  Sorry.  Volume 336.  Yes.  Page?  26250.  Thank you.  Under the heading "Legislated Inequities".  And the  basic submission has changed in form, but not in  substance.  The submission is this:  "Both the Provincial and Federal Crown have  passed legislation to prevent the Plaintiffs  from protecting their territories against  encroachment and from exercising and protecting  their ownership and jurisdiction."  And following that proposition the plaintiffs  refer to a variety of federal provincial legislation  under the headings which I've set out in my written  submission.  And I make this general answer, my lord, in  paragraph 23, that none of the legislation cited is 28054  Submissions by Mr. Plant  1 now in force.  Much of it, in hindsight, could not  2 today be depended on constitutional, moral or  3 political, or indeed any grounds.  But such a defence  4 is unnecessary, because the plaintiffs' attack on this  5 legislation in the case at bar is wholly misplaced.  6 The significance of these laws for the present case  7 can only be this:  To the extent that they have the  8 effect assumed by the plaintiffs in their submission,  9 it wholly contradicts their assertion that they or  10 their ancestors exercised de facto ownership or  11 jurisdiction over the claim area.  12 It's really another example of the series of  13 fundamental contradictions in the plaintiffs'  14 position.  Do they or don't they?  Do they exercise  15 jurisdiction or do they not?  If they do then the  16 legislation is, and the reference to it is surely  17 irrelevant.  18 I say it is equally significant in the context of  19 the present submission that as a matter of law none of  20 the legislation cited would have restrained the  21 plaintiffs or their ancestors at any time from  22 commencing an action to vindicate the rights now  23 asserted.  And I refer there to the 1927 amendment to  24 the Indian Act and the fact that the plaintiffs have  25 offered no evidence to suggest that that prohibition  2 6 had any impact on them.  27 In the third line on page 12, my lord, there is an  28 incorrect statutory reference.  That should be section  29 1 of the Indian Act of 1884.  And the balance of this  30 section of the argument responds to the various types  31 of legislation referred to by my friends.  32 In paragraph 26 I say, restrictions on access to  33 the political system have no relevance when the issue  34 is why did the plaintiffs not sue to vindicate their  35 alleged rights?  36 I say the complaints about the potlatch law are,  37 for present purposes, equally irrelevant.  They are  38 particularly irrelevant in respect of the province,  39 which by order-in-council, that I've given your  40 lordship a reference to, sought a relaxation of those  41 laws.  Again, though, the potlatch law is relevant to  42 show that insofar as the laws of the land were imposed  43 upon the plaintiffs and their ancestors, their  44 jurisdiction over themselves was necessarily  45 restricted.  Secondly, that active interference with  46 rights on the part of one who, according to the  47 plaintiffs' argument, is supposedly acting without 28055  Submissions by Mr. Plant  1 right imposes an obligation on the party, that is the  2 plaintiffs, whose rights are being infringed to take  3 action to enforce such rights.  He delays doing so at  4 his peril.  5 The next paragraph I make the point that federal  6 interference with Indian control of education has  7 nothing to do with this case, nor in substance to the  8 federal restraints on Indian trade.  9 Now, that completes that section of the argument,  10 my lord.  11 THE COURT:  All right.  Thank you.  We'll adjourn until two  12 o'clock.  I don't know what counsel think about how  13 long we'll sit today.  I wouldn't mind adjourning at  14 four o'clock, but I can go a little longer if you  15 wish.  What is your schedule?  I am hoping to finish.  Do you want to speak to this at two o'clock?  I think we can speak to it more profitably at two  19 o'clock.  20 MR. GRANT:  My lord, just one thing for my friends, they're  21 aware that they had raised in their correspondence  22 about apparently arguing tomorrow morning the  23 admissibility of the Robinson and Downy documents.  2 4 THE COURT:  Yes.  25 MR. GRANT:  I've discussed it with Mr. Rush, and I was only  26 aware of this this morning, and in terms of us  27 responding tomorrow we are not going to be in a  28 position to respond tomorrow.  We had proposed  29 responding on Monday or Tuesday, but dealing with it  30 then my friends say that's a problem for them.  I  31 think that may affect -- I'm not sure what else they  32 have to do tomorrow, but I think that's something  33 we'll have to --  34 THE COURT:  Well, Mr. Plant can include that in his response at  35 two o'clock.  36 MR. GRANT:  That's right.  He can possibly deal with how that  37 will affect tomorrow.  38 THE COURT:  All right.  Thank you.  39 THE REGISTRAR:  Order in court.  Court is adjourned until two  16 MR. PLANT  17 THE COURT  18 MR. PLANT  40 o'clock.  41  42  43  44  45  46  47 28056  Submissions by Mr. Plant  1 (PROCEEDINGS ADJOURNED)  2  3 I hereby certify the foregoing to  4 be a true and accurate transcript  5 of the proceedings transcribed to  6 the best of my skill and ability.  7  8  9  10  11    12 Peri McHale,  13 Official Reporter,  14 UNITED REPORTING SERVICE LTD.  15  16

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