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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-26] British Columbia. Supreme Court Jun 26, 1990

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 29030  Submissions by Mr. Rush  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.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  VANCOUVER, B.C.  June 2 6, 1990  REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, Tuesday, the 26th day of June, 1990.  Delgamuukw versus Her Majesty the Queen, at bar, my  lord.  COURT:  Mr. Rush.  RUSH:  Yes, my lord, I will be making a brief appearance  this morning, and for the plaintiffs will be Mr. David  Paterson, who's here with us this morning.  COURT:  Mr. Paterson.  RUSH:  I introduce Mr. Paterson again to your lordship.  COURT:  P-a-t-t?  One T, my lord.  THE  MR.  THE  MR.  PATERSON:  COURT:  Yes, thank you.  Mr. Rush.  RUSH:  The issue of the hard-copy diskette copy of the  Section 35 argument raised yesterday --  COURT:  Yes.  RUSH:  I've had an opportunity of comparing the copy that is  in your lordship's -- that was handed to your  lordship, and I now see that the difficulty is that  what was copied onto the diskette was a draft, and  what should have been copied onto there was the final  version, which turns up on another one of our  machines.  COURT:  All right.  RUSH:  We'll replace the diskette and apologize for the  tempest in a tea pot.  COURT:  All right.  RUSH:  I have another issue, my lord, arising out of the  comment made by Miss Sigurdson yesterday, and it  concerned a statement by her and an apparent  recognition by your lordship that the Province was  entitled to a written response of some kind at some  point, and I wondered about this.  I didn't know  really what was being suggested here, I still don't,  and it's for this that I wish to speak to your  lordship.  And I take it that Miss Sigurdson was  voicing something that Mr. Goldie slipped into the  discussion of the schedule at the end of the argument  in April.  COURT:  In Smithers, I recall.  RUSH:  In Smithers.  COURT:  I recall him making that remark, yes.  RUSH:  What he said was: 29031  Submissions by Mr. Rush  "My lord, I forgot to mention one thing with  respect to the schedule, and this provides no  time for reply to the counter-claim by the  Province.  If we don't make up any time I would  propose that the reply be filed in writing  rather than scheduling in any further oral  argument."  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:  Mm-hmm.  MR. RUSH:  Now, your lordship said:  "I think that would be preferable because my  plans are uncertain, but I have an uneasy  feeling that I'm going to be in Nova Scotia at  least for the first week in July and perhaps  beyond."  And there the matter stood, resting quietly until  yesterday.  :  Mm-hmm.  Now, my lord, the point that I want to come to is  that in my submission there is no basis for any  further written or oral response by the Province, and  it flows from your lordship's determination of the  order of the argument which was made on October the  5th, 1989, in which the last point of what you said  was this:  "On the Monday following the completion of  Canada's argument" --  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  And I understand from Mr. Macaulay and Miss  Koenigsberg we're at that point today at noon, "the  Provincial defendant" --  :  But the Monday has to go by the board now, but that  was --  Yes, I think we're now Tuesday.  Yes.  'The Provincial Defendant will reply, if leave  is given, to Canada's argument on the  counter-claim, which reply will be scheduled  for one day, to be followed immediately by  Plaintiff's reply, if leave is given, which  will be scheduled for three days.  Court hours  will be described as paragraph 4 above." 29032  Submissions by Mr. Rush  1 So two parts of this are settled, three days for the  2 plaintiffs, and a completion of the -- of Canada's  3 argument.  The matter was revisited, however.  Mr.  4 Goldie took objection to the scheduling, the matter  5 was revisited a few days later, and there was an  6 argument about whether or not Mr. -- the Province  7 would be entitled to have a further submission after  8 Canada's submission, and it was left unclear as to  9 whether this would constitute an argument that would  10 come before or after the Plaintiff's reply.  And the  11 issue throughout, my lord, has always been who has the  12 last word, and the Plaintiffs have steadfastly taken  13 the position that we're entitled to state finally what  14 our position is to the whole of the Province's case  15 and to the whole of Canada's case, and that has been  16 the position we say throughout.  Mr. Goldie's  17 position, however, has been that if in terms of the  18 counter-claim, which he says is as though he were  19 bringing an action, he has a final word in respect of  20 that.  And to that issue, my lord, on October the  21 12th, you said this:  22  23 "Well, I am not going to -- I am not sure that I  24 am ever going to resolve this question until I  25 have heard the arguments.  It may be that Mr.  26 Goldie will have a right of further reply, but  27 it's not even a further reply.  A right of  28 reply after you have replied to his  2 9 argument --"  30  31 Talking to Mr. Grant:  32  33 "But I think I am going to reserve on that until  34 I have heard the argument to decide whether or  35 not fairness requires whether he be given a  36 right of reply to that, to that narrow part of  37 the case, which seems to me not to be a --  38 likely to take a lot of time and if it takes a  39 day, then so be it.  But we'll find the day to  40 do it.  But I'm not sure that I have to deal  41 with this now.  It may be that the way the  42 argument develops it will be necessary or maybe  43 it will not."  44  45 And that's at volume 278 on October the 12th, 1989 at  46 page 20647.  47 Now, my lord, then followed the discussion of 29033  Submissions by Mr. Rush  1 scheduling in Smithers and the resolution, or at least  2 the proposed resolution, that occurred at that time.  3 And what I say, my lord, is this:  That from your  4 lordship's statements of yesterday, that -- and my  5 learned friend Mr. Macaulay's response, it is evident  6 that the issue about the counter-claim is resolved or  7 will be resolved in the determination of paragraph 1.  8 Does the case -- is the case made out or is it not  9 made out by the Plaintiffs.  The issue does not fall  10 to be determined on paragraph 2 of the Province's  11 counter-claim, and I think Mr. Macaulay made that  12 point.  It's a point that we've made throughout.  So I  13 say what is there in the counter-claim reply that  14 would either warrant A, a reply by way of oral  15 submission, or B, a reply by way of written  16 submission, and I say nothing.  And I draw your  17 lordship's attention to the comments that you made  18 yesterday, where you said:  19  20 "Well, if that's so, and I don't presume to  21 suggest one way or the other, it seems to me  22 that the real heart of the counter-claim is in  23 paragraph 1, and that -- and that paragraph 2  24 would only operate as paragraph 1 operates, and  25 I completely agree with that assessment."  26  27 And what I say, my lord, is that this issue of a right  28 of reply is disposed of, in my submission, by the  29 nature of that pleading and by the -- what I say is  30 the determination of the issues at large in the case  31 as pled, as a matter of our pleadings and as responded  32 to as a matter of Defendant's pleadings.  But if that  33 isn't sufficient, my lord, what the Plaintiffs say is  34 that all of the issues that were raised in the  35 counter-claim of, if you can put it, seminal note for  36 that argument, were responded to by the Plaintiffs in  37 the course of their argument.  And I note, my lord,  38 that the issues primarily, as I saw them, were what do  39 we say were the legal -- were the historical facts and  40 the legal significance of the Terms of Union argument  41 by the Province, response in the Plaintiffs' case to  42 that issue.  What was the legal effect of  43 McKenna-McBride, what was the historical matrix and  44 the legal effect of P.C. 751, what was the legal  45 effect and historical matrix of P.C. 1265, and the  46 Joint Committee Recommendations of 1927, all issues  47 spoken of in the Plaintiffs' argument initially and 29034  Submissions by Mr. Rush  Submissions by Mr. Macaulay  1 responded to in the Province.  And, my lord, I was  2 astonished at the presumption that there would be  3 further written reply, or any further reply on the  4 part of the Province to the Plaintiffs' case, because  5 I say that A, they don't have the right to, and B,  6 even if they had the right to, then the issue is  7 disposed of by virtue of the fact that the Plaintiffs  8 have addressed these issues as part of their argument  9 in chief.  And in my submission, my lord, I would like  10 the matter addressed now and a determination made of  11 this issue so that we can proceed on the basis of some  12 clarity into the remaining few days of this argument.  13 THE COURT:  Thank you.  Mr. Macaulay, do you have anything to  14 say?  15 MR. MACAULAY:  No, my lord.  I tend to agree with what Mr. Rush  16 has said.  Those issues were dealt with first by the  17 Plaintiff and then by the Defendant in the main  18 argument, and of course, in reply to the Plaintiffs,  19 and we are dealing with the same matters.  Because of  20 the nature of the counter-claim it's, well, virtually  21 impossible to talk about it without impinging on the  22 issues between the Plaintiff and the Defendant  23 Province.  That's the problem Mr. Rush faces, and  24 that's why I agree with him.  25 THE COURT:  What would the situation be if there were no  26 counter-claim in the context of this case, wherein the  27 Plaintiff first advances its arguments, Defendant A  28 replies and advances its separate arguments, Defendant  29 B then replies to the two that were brought ahead and  30 advances its separate arguments.  Would the first  31 responding Defendant not have a reply to the second  32 Defendant before the Plaintiff makes his final  33 argument?  34 MR. MACAULAY:  Only, my lord, if there was a distinct issue as  35 between the first and the second defendant.  36 THE COURT:  Well —  37 MR. MACAULAY:  It's hardly —  38 THE COURT:  Certainly there are distinct issues between the  39 Defendants.  40 MR. MACAULAY:  Well, we take different positions, but our — is  41 the Province now going to address aboriginal rights?  42 That's the principle --  43 THE COURT:  Not generally, because they did so in their  4 4 argument.  4 5 MR. MACAULAY:  We've —  46 THE COURT:  Could they not reply to any specific positions  47 advanced after they argued by their co-defendant? 29035  Submissions by Mr. Macaulay  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.  MR. MACAULAY:  Well, that depends very much on the kind of issue  that they're replying to.  A reply is generally  restricted to matters that weren't part of the  Plaintiffs' case, might not have been foreseen by the  Plaintiffs.  I'm talking now about the ordinary reply  where you have one plaintiff and one defendant, and  the courts have never welcomed extensive replies.  COURT:  Oh, no indeed.  But —  MACAULAY:  That leads to the leapfrogging.  COURT:  I am referring to the example, Mr. Macaulay, of the  30-odd documents that you put in as part of your  submission yesterday.  MACAULAY:  Yes.  If it were limited to that, I certainly  couldn't see how they couldn't reply to that, but that  is -- that's a very small slice.  I don't think that's  what the Province has in mind at all.  COURT:  No.  MACAULAY:  That's really more completing the record that was  put in rather than anything else.  THE COURT:  All right, thank you, Mr. Macaulay.  Mr. Rush, could  you read to me again what I said in the memorandum of  October?  MR. RUSH:  I'll pass it up to your lordship.  It's on page --  the second page, last paragraph of substance.  THE COURT:  Well, this certainly contemplated that the  Province's reply, if any, would follow Canada's  argument and precede the Plaintiffs' reply.  MR. RUSH:  It does, my lord, and I would have to, given what  you've said to your questions to Mr. Macaulay, I would  have to agree that if there were matters, such as the  documents raised by Mr. Macaulay, that they would be  entitled to answer those documents and other like  issues that arose anew in Mr. Macaulay's argument, but  I say after Mr. Macaulay's argument, and with respect,  my lord, the Province is in no worse a position than  the Plaintiffs are in respect of answering Mr.  Macaulay's argument.  Mr. Macaulay's argument is an  argument that has both positive and negative features  for the Plaintiffs, and there are some aspects of it  that we seek to reply to, and we have to bring  ourselves up to speed on that, just as the Province  would.  And I would have to agree, my lord, that if  there is a need to reply to Mr. Macaulay, then that  such be done before the Plaintiffs, and there may be a  convenient time to do that, that is to say tomorrow.  THE COURT:  Let's see what the Province says.  MR. RUSH:  Thank you. 29036  Submissions by Mr. Plant  1 MR. PLANT:  Well, I think the first point, my lord, is this:  2 That the counter-claim is directed at the Plaintiffs.  3 The assumption that there is a claim over, while  4 ardently contended for by Mr. Macaulay yesterday, is  5 not one that is accepted, so as a matter of principle  6 what your lordship will hear when the Plaintiffs speak  7 in reply to the counter-claim is the defence to the  8 counter-claim that we have pleaded against them.  And  9 if any issues are raised in that defence, which are as  10 yet unknown to us, by way of argument, then we are  11 entitled to reply.  12 Now, Mr. Rush says in his submission "Oh, we don't  13 have to worry because they've said everything they  14 have to say about those issues".  And that may be so,  15 and if there is no new argument and no issue raised,  16 then we won't be seeking a right of reply to the  17 Plaintiffs' defence to the counter-claim.  That then  18 leaves us with what Mr. Macaulay has said yesterday in  19 the argument, speaking to the argument which he  20 delivered to us relatively late Sunday night,  21 including documents which hitherto have not been part  22 of the court record.  And I say that we're entitled to  23 answer that on either of two theories, either  24 following your lordship's example, because  25 Co-Defendant B is saying "oh, no, no, no, no, this  26 isn't our problem, it's your problem Co-Defendant A",  27 and Co-Defendant B, after Defendant A has finished, is  2 8 putting forward new arguments and new documents, and I  29 say that we have a right to answer that.  And  30 alternatively, we have a right to answer it, although  31 I say it's an incorrect construction of what's going  32 on, but if somehow what's going on here is if Canada  33 is answering the counter-claim, then I say that we  34 have again, as a matter of principle, a right to reply  35 to that.  36 Now, that then leaves the problem of scheduling,  37 and I think that Mr. Goldie's proposal that there be  38 written reply was designed to accommodate the desire  39 of all parties and your lordship to finish the  40 argument, oral argument, by the end of this month.  41 And I'm still anxious to assist in that.  I can't say  42 right now, because it's only been 25 minutes since  43 I've had the benefit of thought on Mr. Rush's  44 suggestion, I can't say right now whether we can  45 answer Canada's argument on the counter-claim  46 tomorrow, but I can say that we can't argue the  47 Plaintiffs' defence through the counter-claim until we 29037  Submissions by Mr. Plant  Submissions by Mr. Willms  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  hear it, and so to suggest that we can go tomorrow,  apart from certain practical difficulties, one of  which is the absence of Mr. Goldie, which does have  some bearing here, to suggest that we go tomorrow  really probably isn't going to assist in expediting  the solution to these problems.  So that's I think the  basic answer.  I could take your lordship to rule  21(12) and we could go through the --  THE COURT:  What does it say?  MR. PLANT:  It's entitled "Defence to Counter-Claim":  "A person served with a counter-claim" --  That in this case would be the Plaintiffs:  "-- becomes a defendant to the counter-claim  from the time of service with the same rights  and obligations in respect of his defence to  the counter-claim or otherwise as a defendant."  And I say what follows from that is that we then have  the same rights as the Plaintiff would, including the  right to reply to the Defence to the counter-claim.  THE COURT:  Well, it's unfortunate that this matter wasn't  resolved when the schedule was set so that surprise  and inconvenience might have been avoided, but that  wasn't done.  The way the case has evolved leads me to  conclude that the second paragraph of the  counter-claim, or the second head of counter-claim is  not being pursued at this trial.  I think Mr. Goldie  disclaimed that when he conceded that --  MR. WILLMS:  My lord, if I can just —  THE COURT:  Yes, go ahead.  MR. WILLMS:  That is from the submissions on the final  Wednesday, and it's not that the counter-claim is  disclaimed, it's, as your lordship observed, if it  succeeds as a defence and the action is dismissed, so  it's not that the counter-claim part 2 is irrelevant.  The counter-claim part 2 is still relevant to the  dismissal of the action, and that, I thought, my lord,  and the extract is at pages 28406 to 28407, where your  lordship and Mr. Goldie, there was an exchange about  that part of the counter-claim, but when you read that  section it's clear that the part isn't abandoned but  that it's an absolute defence to the Plaintiffs' case  and the Plaintiffs' action will be dismissed.  THE COURT:  Part 1 is an absolute defence? 2903E  Submissions by Mr. Willms  1 MR. WILLMS:  Part 1 is an absolute -- it goes further than a  2 defence, my lord, it's not only a defence to this  3 action, it's a defence to any action in the future.  4 But part 2 is a defence that would entitle the  5 Province in this case to a dismissal of the action  6 against it, with the Plaintiff left to whatever rights  7 they may have for relief against Canada in another  8 forum.  9 THE COURT:  Well, I'm slicing this cheese as thin as I can slice  10 it, and it seems to me that when Mr. Goldie agreed  11 that -- to enforce the claims he has advanced in part  12 2 of the counter-claim, he would have to go through  13 another court.  He is removing that issue from this  14 trial.  Now, if that isn't so, and I gather from the  15 violent shaking of heads, the Province has mentioned,  16 then I regret that, but I have to deal with this on a  17 practical basis.  And it does seem to me that the  18 Province's only position at this trial is that the  19 Plaintiffs' action should be dismissed, and that  20 result the Province seeks both in its defence and in  21 its counter-claim, part 1 of its counter-claim.  22 Now, it follows, in my view, regrettably, that  23 inevitably that the Province's reply must be made to  24 the co-defendant before the Plaintiff has the last  25 reply to the whole case.  I see no alternative but to  26 require the Province to make its reply to the  27 co-defendant, Canada, at the end of Canada's argument.  28 MR. WILLMS:  My lord —  2 9    THE COURT:  Yes.  30 MR. WILLMS:  On that point, there is one further thing, and that  31 is to the extent that the argument of Canada goes to  32 the counter-claim and is not adopted by the  33 Plaintiffs.  It's neither here nor there.  It's the  34 Plaintiffs that the counter-claim is against.  If the  35 Plaintiffs choose not to adopt, and who knows which  36 parts of Canada's argument they will wish to adopt,  37 but in essence, there may be absolutely nothing to  38 reply to if the Plaintiffs -- the Plaintiffs, for  39 example, may decide that they don't want to adopt any  40 of Canada's argument on so-called Calder-type relief.  41 They may decide that that's never be been part of  42 their case, it's not in the pleadings, and in that  43 case there would be no need to reply to that at all.  44 If the Plaintiffs don't adopt it there's no issue, no  45 issue joined, and in my submission, it would be sort  46 of poking in the dark to attempt to divide Canada's  47 argument into the aspect that goes to the 29039  Submissions by Mr. Willms  Submissions by Mr. Macaulay  1 counter-claim and the aspect that goes to defend the  2 Plaintiffs' case without knowing whether or not the  3 Plaintiffs want to adopt it or rely on it, because if  4 they don't adopt it or rely on it, in my submission  5 there is no issue joined and there is no need to reply  6 to it.  7 THE COURT:  With respect, Mr. Willms, it seems to me that the  8 Province is entitled to reply to the co-defendant, and  9 how it will make that reply is for counsel.  No one  10 knows in certainty what someone who speaks later is  11 going to say, but if I were to accede to what you're  12 suggesting, you would now reply to the -- or pardon  13 me -- the Province would next reply to the  14 co-defendant, and then the Plaintiff would reply, and  15 you would reply to that, and they would have a further  16 reply to you.  Seems to me that is a course that is so  17 tortuous and unwieldy and unmanageable that it not  18 ought not to be followed.  19 MR. WILLMS:  My lord, then I suppose then the difficulty is that  20 we may be replying to something that it is completely  21 unnecessary to reply to, for the first part.  The  22 second part is, as my colleague, Mr. Plant, said a  23 minute ago, the reply on the counter-claim is going to  24 be limited to anything new that has been raised, and I  25 can't see any prejudice to the Plaintiffs to do that  26 by way of written reply at the close of the oral  27 argument.  I just can't see the proper reply to the  28 new issues raised isn't going to prejudice the  29 Plaintiffs.  30 THE COURT:  I don't see an answer to the problem we have, Mr.  31 Willms.  I think I see only one path through this  32 particular piece of territory, and that's the one I've  33 already stated.  I see no alternative, regrettable as  34 that may be.  I won't ask you to state now, Mr.  35 Willms, Mr. Plant, whether you want to make that  36 reply, but it seemed to me that it must be told at the  37 end of Mr. Macaulay's argument or not later than  38 tomorrow.  I do not enjoy being decisive in this  39 context in any way, I wish it weren't necessary to do  40 so, but as I say, I see no alternative.  I would be  41 glad to hear from you when Mr. Macaulay has completed  42 as to what your best convenience will be, although it  43 may not be an optimal one.  Mr. Macaulay, are you  44 ready to proceed?  45 MR. MACAULAY:  Thank you, my lord.  My lord, perhaps I could go  4 6 back to some documents, a document that I had referred  47 to yesterday at page 287 of my written submission. 29040  Submissions by Mr. Macaulay  1 Remember, my lord, I showed you this tab 34, a letter  2 written by Premier Oliver to O'Meara, which followed a  3 couple of letters from O'Meara to Oliver and his  4 secretary.  And one of those letters, tab 34 -- sorry,  5 tab 32, was O'Meara's letter to Oliver enclosing  6 certain documents.  If you turn to tab 32.  The fifth  7 is a letter addressed by the Lord President of His  8 Majesty's Privy Council through the Clerk of the  9 Council to the Agents of the Nishga tribe on the 16th  10 of September, 1918.  Do you see that one?  That is an  11 exhibit, in fact, and to show that it's Exhibit  12 1203-8, and it might be well to look at that.  It's a  13 brief letter, if I can hand it up, this exhibit, and  14 that's what they were talking about, the Premier and  15 Mr. O'Meara.  It was the petition that had been  16 launched in the early part of the century on behalf of  17 the Nishga.  That's the best photocopy we could  18 manage.  19 THE COURT:  I can read it.  20 MR. MACAULAY:  The first page is pretty good.  But it refers to  21 the Nishga nation.  It is a petition as to the nature  22 and extent of the rights of the said Nishga nation or  23 tribe in respect of the said territory.  So it was the  24 Nishga petition that was being dealt with.  And --  25 THE COURT:  May I put that with this document?  26 MR. MACAULAY:  Well, I think I was going to suggest that, my  27 lord.  28 THE COURT:  Yes.  And with the exhibit number is 1203-8?  29 MR. MACAULAY:  Yes, 1203-8, and it's one of the enclosures to  30 this letter.  It merely shows the subject -- well, it  31 was fairly clear, I think, from the general tenure of  32 the discussion between O'Meara and the Premier and the  33 Premier's secretary, but this shows the kind of --  34 precisely the kind of thing the guy got.  In other  35 words, when Bill 17 was in the hopper, if I can use  36 that expression, O'Meara was concerned that that might  37 affect the Nishga petition, things -- that kind of  38 issue, which was the land claim, which was the claim  39 to ownership of lands.  And the Premier's reply that  40 was found at tab 34 was no, that won't affect -- I'll  41 use the Premier's words now:  42  43 "The hearing, weighing and deciding according to  44 merit, the matters in the document submitted."  45  46 That was the understanding of the legislation that was  47 being passed in order to conclude the McKenna-McBride 29041  Submissions by Mr. Macaulay  1 process.  2 The -- oh, I might add that while I was making my  3 argument, or after I made my argument yesterday, the  4 counsel for the Province drew to my attention that I  5 had taken either the first or second version of their  6 submission on a certain point and reproduced it at  7 pages 319 and 320 of my argument.  Indeed, at the  8 conclusion of the Province's counter-claim argument  9 amended -- some amended material was handed up, and I  10 was using their old material, the original material  11 that had been delivered in March, and not the new  12 material that was delivered at the conclusion of Mr.  13 Goldie's submissions.  14 THE COURT:  So this replaces —  15 MR. MACAULAY:  This replaces those pages, 319 and 320.  And the  16 only change is the -- is our -- the only change is the  17 change from the old version of the Province's argument  18 to the new version of their submissions on the 1927  19 Committee and subsequent events.  20 At the conclusion yesterday of the submission I  21 was at page 329, 330, and I was showing your lordship  22 that the Appropriation Acts that dealt with the B.C.  23 Special through the years were not such that provided  24 a statutory order that these payments be made, and  25 that in recent years there's been no mention of the  26 B.C. Special at all in the Appropriation Acts.  And  27 that is the basis for my saying at the conclusion of  28 the 1927 proceedings the only permanent fallout was  29 the adoption of a policy by Canada on the  30 recommendation of that committee, Joint Committee,  31 which is continued, the policy has continued to the  32 present time.  In fact, it's -- as your lordship has  33 heard, it's now $300,000 rather than $100,000.  And  34 your lordship has heard much evidence on how that's  35 divied up and the purpose for which it's used and so  36 on.  But it is nothing more than policy, and policy  37 does not change the law, it does not change the  38 constitution, it does not change the effect of the  39 issues between the parties here.  40 I have one more brief submission at page 330, top  41 of 331 on that subject.  The Province argues:  42  43 "That the Dominion viewed P.C. 1265 as a  44 complete discharge of British Columbia from all  45 further obligations towards Indians is clear  46 from the fact that after July 19th, 1924, it  47 purchased additional lands required for Indian 29042  Submissions by Mr. Macaulay  1 reserves from the Province."  2  3 And they go on to say:  4  5 "Furthermore, in some cases, such additional  6 lands were purchased with B.C. Special funds."  7  8 Now, our submission is that this argument of the  9 Province confuses the obligations owed to the Dominion  10 by the Province under Term 13 with the issue of  11 whether there are any aboriginal rights that form a  12 burden on Provincial Crown lands.  It wasn't unique  13 for Canada to purchase lands for Indians.  And as an  14 illustration, in his letter of July 29th, 1912 to  15 McBride, McKenna noted that 6,271 acres of land had  16 been purchased by the Dominion already.  17 THE COURT:  How much?  18 MR. MACAULAY:  6,271 acres of land.  That's Exhibit 1203-8.  In  19 fact, 1,948 acres in the Babine Agency were bought in  20 1909 from the Provincial Government for four reserves  21 for the Fort Babine Indians.  22 THE COURT:  I don't think you mean 1203-8, do you; that was the  23 letter from the Privy Council, or does it mention it  24 in there?  25 MR. MACAULAY:  Well, the volume, as I understand it, is 1203-8.  26 That's just the volume number, and then you look to  27 X-14, page 326.  28 THE COURT:  X-14?  2 9 MR. MACAULAY:  Page 32 6.  30 THE COURT:  And what is that, these acreages, or is that the  31 letter of --  32 MR. MACAULAY:  Yes.  Well, I'll get them now.  If we can come  33 back to that, I'll dig out the exhibit.  34 THE COURT:  Thank you.  35 MR. MACAULAY:  And in their part X, XII and XIII of the  36 Province's counter-claim argument, they refer to  37 events in the Kitwancool Valley in 1927.  In this  38 case, Canada argues that the Province has had the  39 authority to make grants of title or other interests  40 in Provincial Crown lands and that such grants  41 extinguished -- have that effect of extinguishing  42 aboriginal rights, at least up to 1982.  43 THE COURT:  Well, is it your position that if the Crown were to  44 grant title to MacMillan Bloedel to the whole of the  45 Skeena Valley, would that extinguish aboriginal rights  46 in the valley?  4 7 MR. MACAULAY:  Yes, my lord, if the Crown had done that. 29043  Submissions by Mr. Macaulay  1 THE COURT:  If they did it today?  2 MR. MACAULAY:  I beg your pardon, my lord?  3 THE COURT:  If they do it today?  4 MR. MACAULAY:  It is very doubtful they would do it today  5 because of the provisions of Section 35.  There would  6 have to be justification.  7 THE COURT:  I thought your argument would be well, all right,  8 you would say it would have to withstand the  9 justification process of Sparrow.  10 MR. MACAULAY:  Yes, my lord.  11 THE COURT:  Yes, all right.  I'm not suggesting that the  12 Province should do that.  13 MR. MACAULAY:  I have the exhibit now.  The exhibit is at  14 1203-8, volume 8 -- dash 8 simply means volume 8.  15 We're operating in quantities not normally known to  16 the law, and the X-14 is tab 14 in that volume.  So  17 you could put tab for X.  And tab 14 is a document  18 comprising it must be over a hundred pages.  Well,  19 60 -- 66 -- I'm pretty close.  It appears to be over  20 90 pages.  And it's a letter to McBride -- this is the  21 famous letter to McBride from McKenna in which he  22 says:  23  24 "As to the first claim, I understand that you  25 will not deviate from the position which you  26 have so clearly taken and frequently defined,  27 that the Province's title to its land is  28 unburdened by Indian title."  29  30 Et cetera.  And the public interest, "you're not  31 prepared to discuss it", and for the purposes of these  32 negotiations it's dropped.  33  34 That letter.  35 THE COURT:  Yes.  36 MR. MACAULAY:  Well, attached to that letter there's quite a lot  37 of matters to be dealt with, a variety of matters,  38 mostly reserve matters.  Attached to it was a  39 statement, exhibits showing reserves and railway belts  40 and statements of various kinds, and all kinds of  41 statistical material or material done in column form,  42 table form.  And the very last one is a statement, and  43 it shows "Showing lands purchased by the Dominion  44 outside the railway belt and included in reserves".  45 And the first item is Babine Agency, the Hagwilget's  46 number 13, 14, 15 and 16 comprising 1,948 acres  47 purchased in 1909 by the Provincial Government from 29044  Submissions by Mr. Macaulay  1 the Indians in consideration of their ceasing to place  2 barricades in the river for securing fish.  That's a  3 fallout from the barricade issue.  And there were  4 purchases in Kwawkewlth outside the claim area in New,  5 Westminster Agency, in Williams Lake, and an agency in  6 Cowichan for a total of 6,271 acres.  All those  7 agencies, of which 1,948 acres was in the Babine  8 Agency but not in the claim area, they're called  9 Hagwilget number 13, 14, 15 and 16.  I assume that  10 that's over in the Babine country.  At that time what  11 we call Hagwilget was known as Roger Du Boulle(?), and  12 Hagwilgets were a category of Indian.  13 Now, turning to this last argument, or the last  14 argument that we deal with, and they deal with it at  15 parts X, XII and XIII of their counter-claim argument,  16 we say that the Province confuses the obligations --  17 I've just repeated that -- owed to the Dominion under  18 Term 13 with the issue regarding aboriginal rights to  19 Crown lands.  And then I point out these purchases.  20 And finally, at page 331 of my argument, they  21 talked about the Kitwancool Valley, and the -- we say  22 that the Provincial Crown has the authority to make  23 grants, and there was no change in policy after the  24 adoption of Order-In-Council 1265, Order-In-Council  25 1265 in 1924.  The Province has exhibited Laurier's  26 telegram in 1909 to Stephen Morgan, which reads  27 "Dominion Government cannot prevent persons from  28 staking provincial lands but will prevent land being  29 staked for settlement on Indian Reserves".  30 So it was Sir Wilfred Laurier recognized that the  31 Province could do that, and there was nothing that the  32 Federal Crown could do other than to defend reserves.  33 I want to turn now, my lord, to another, and it  34 will be the last -- we've made -- our submissions of  35 course follow on these large number of submissions of  36 every conceivable kind made by the Province on their  37 counter-claim, but I'm going to deal with -- orally  38 with only one more, and that is the Order-In-Council  39 751.  It's to be found starting at page 265 of the  40 argument, and I can deal with it I think fairly  41 expeditiously.  This of course is before the  42 McKenna-McBride hearings had started, or about the  43 same time.  It's contemporaneous with the  44 establishment of and the instructions to the Royal  45 Commission on Indian Affairs in B.C., and I say here  46 the Province argues that by this Order-In-Council the  47 Dominion explicitly acknowledged "that British 29045  Submissions by Mr. Macaulay  1 Columbia's entire obligation towards the Indians was  2 encompassed in Term 13 of the Terms of Union, and  3 that, if Indian title existed in British Columbia, the  4 Dominion alone was responsible for and had the power  5 to extinguish it".  This is another -- "By responsible  6 for" they mean, and I think your lordship understands  7 that they mean that Canada has a duty or obligation.  8 That's what "responsible for" means.  9 Canada didn't adopt this Order-In-Council because  10 of any responsibility owed to the Province, or for  11 that matter, to the Indians of British Columbia.  It  12 was Canada's position that the extinguishment of  13 aboriginal rights in Provincial Crown lands was not  14 Canada's responsibility.  Canada adopted this  15 Order-in-Council to deal with the "vexatious"  16 question.  And, my lord, I'll come to the origin of  17 the "vexatious" -- the term "vexatious" in a minute.  18 I was wrong in saying I thought it was in the  19 Order-in-Council itself, it wasn't, but it was used at  20 the time and in connection with that Order-In-Council.  21 As Laurier said in 1911 to the Indian representatives,  22 "It is a matter of good government to have no one  23 resting under a grievance".  As a matter of policy,  24 Canada attempted to address the British Columbia  25 Indians' grievances.  26 Canada expressed a willingness to assume the cost  27 of compensating Indians for the extinguishment of any  28 validated Indian claim, but not to an unlimited  29 extent.  The offer in this Order-In-Council was  30 subject to certain conditions, and they were never  31 agreed to.  32 In the Order-In-Council, Canada considered that  33 British Columbia would not negotiate with the Indians  34 regarding their demands and that British Columbia,  35 because of its Crown immunity, could not be forced to  36 negotiate.  By the Order-In-Council, Canada tried to  37 resolve the stalemate.  38 It is incongruous for the Province to attempt to  39 rely on these actions by Canada.  If, as Canada argues  40 that Canada had no duty to deal with the aboriginal  41 claims to the Provincial lands, and the fact that  42 Canada attempted to resolve this "vexatious question"  43 that the Province refused to deal with, does not  44 change the effect of the constitution or the law.  In  45 other words, a policy initiative does not change the  46 law and it does not change their rights between  47 parties or between the Indians and either government. 29046  Submissions by Mr. Macaulay  1 THE COURT:  Well, tell me why it's not reasonable to look at  2 this as a tragedy of misunderstanding and lack of  3 communication on both sides?  Canada clearly had the  4 sole right to speak for the Indians and to enter into  5 agreements with them, which would be required in order  6 to dispose of this question.  Canada had assumed  7 responsibility for Indians, why is it reasonable for  8 Canada to put all the responsibilities you seem to be  9 doing on the Province?  10 MR. MACAULAY:  I'm not putting any responsibility on the  11 Province.  I'm saying that the Province doesn't owe a  12 duty to the Indians to deal with their -- the  13 aboriginal title.  What the Province is -- but the  14 Province has the burden of that title on their Crown  15 lands, and the Province wrongly held the fixed view  16 that there was no such thing.  That was the origin of  17 the trouble, that was part of the origin of the  18 trouble.  19 THE COURT:  Well, Canada was discharging all these  20 responsibilities on the prairies.  21 MR. MACAULAY:  That was a matter of policy.  22 THE COURT:  Why didn't it have the same policy as British  23 Columbia.  24 MR. MACAULAY:  Because British Columbia wouldn't have it.  No,  25 there's another answer to that.  Canada was the land  26 owner on the prairies, it owned the land.  It could go  27 to the tribes and say "Now, if you will cede your  28 land, if you will surrender all your rights of  29 whatsoever kind, then we will give you such and such a  30 block of territory that will be yours forever", and so  31 on, and that's how they were doing it on the prairies.  32 And some people of British Columbia clearly, when you  33 read the discussions in the B.C. Legislative Council,  34 that some people thought that was a terrible way of  35 carrying on business, because on the prairies it  36 involved removing all the Indians perhaps hundreds of  37 miles from where they had been found or settled, at  38 least at that point, to a very very large reserve in  39 some other place, and Canada was the owner of the  40 land.  It was in a position to dedicate that land for  41 reserves, and it also was the beneficiary of the  42 cession.  43 British Columbia was entirely different for two  44 reasons.  First, it had no interest in the lands  45 except for the railway block on the Peace River, and  46 the railway belt in the Peace River block, and it had  47 no interest in the lands.  It could not say to the 29047  Submissions by Mr. Macaulay  1 Indians, "Well, now if you will give up your trapping  2 rights and hunting rights we will give you a great big  3 reserve".  4 THE COURT:  Well, Canada had title to the railway belt, didn't  5 hesitate to deal with it.  6 MR. MACAULAY:  Well, but we're not dealing with the railway, I'm  7 talking about in most of British Columbia.  They did  8 establish reserves in the railway belt.  The reserves  9 were established on the railway belt and they weren't  10 the ones subject to cut-offs.  There's another thing,  11 there's another factor:  Unlike anywhere else in the  12 west, the Northwest Coast Indians had been taught that  13 they were the owners of the land and that the position  14 that they should take is that they would themselves  15 decide how much they wanted to keep for themselves and  16 how much they would be willing to sell.  Now, that  17 claim that we say originated with Duncan and Tomlinson  18 at Metlakatla and spread, and is reflected in the  19 Nishga Petition, for instance, and is reflected in the  20 Plaintiffs' claim in this case -- it never died --  21 made it even more complicated or difficult to deal  22 with.  When the Federal Government, after 1924 or in  23 the early 20's, tried to reach some kind of agreement  24 with the Indians, they couldn't because of the nature  25 of the Indians' demand based on what the Indians had  26 been told for, by then, over a generation that they  27 were the owners of the land.  2 8 And the formula went this way:  It was the Duncan  29 formula.  You have not concurred, you have not sold  30 the land, therefore if any of you have lost any land  31 it's been stolen.  And that was the gospel regarding  32 land claims that was preached from 1882 onwards in  33 northern and northwestern British Columbia.  34 THE COURT:  I just find it incongruous that the Province and  35 Canada are blaming each other, when it seems to me  36 that perhaps both have failed to deal with the  37 problem.  38 MR. MACAULAY:  Canada couldn't act without the Province, just as  39 Canada --  4 0    THE COURT:  The Province couldn't act without Canada.  41 MR. MACAULAY:  The same in Ontario, it's the same thing in  42 Ontario.  Remember that message that was sent to the  43 Lieutenant-Governor of Ontario by the Superintendent  44 General of Indian Affairs in 1870, just as the Terms  45 of Union were negotiated at the same time, and having  46 nothing to do with B.C., he was saying to Ontario, he  47 was saying "We believe that inside your borders of 2904E  Submissions by Mr. Macaulay  1 your province there's some unceded land, and we think  2 that you ought to start taking a look at that".  3 THE COURT:  You see, it seemed to me that British Columbia was  4 prepared to give up land, that was the whole purpose  5 of McKenna-McBride.  6 MR. MACAULAY:  Well, it was prepared to extend some reserves.  7 It wanted cut-offs on others.  8 THE COURT:  Mm-hmm.  9 MR. MACAULAY:  And in the end the cut-offs exceeded the  10 additions.  11 THE COURT:  Canada must have agreed to that.  12 MR. MACAULAY:  Yes.  That was — well, that was the  13 recommendation of the commissioners, who spent two or  14 three years out in the field.  15 THE COURT:  Well, Canada accepted it and enacted it.  16 MR. MACAULAY:  Yes, yes.  17 THE COURT:  Well, I'm not suggesting for a moment that Canada  18 can't blame British Columbia if it wanted to.  19 MR. MACAULAY:  It's not a question of blame.  20 THE COURT:  I took that from your submission.  21 MR. MACAULAY:  Well, the acts speak for themselves.  It's not a  22 question of blame.  We say that there are aboriginal  23 rights there, and those aboriginal rights form a  24 burden on Provincial Crown land.  And it is -- the  25 Province can either live with that or do something  2 6 about it.  The Federal Government --  27 THE COURT:  Is that the way Canada discharges its obligation  28 with the Indians?  2 9 MR. MACAULAY:  No.  The Federal Government does not have the  30 obligation to free up all Provincial Crown lands by  31 making treaties at God knows what costs.  As the  32 Plaintiffs say, there's not enough money in Canada to  33 pay them.  That problem was solved between Canada and  34 another Province, that is Ontario.  Once it was  35 determined that some of these lands in which treaties  36 had not been made were in Ontario, I'm thinking of  37 Treaty 3, then Ontario and Canada formed a joint  38 commission and they negotiated a treaty and shared the  39 burden.  But British Columbia's position is it -- "We  40 have no responsibility to do anything about our own  41 lands, if there is aboriginal title the Federal  42 Government has to pay, no matter what it is, the  43 Federal Government has to pay it all, and we don't  44 have to do anything.  We'll just carry on business as  45 usual, as if it didn't exist".  46 THE COURT:  I'm not suggesting that that wouldn't be an equally  47 unreasonable position to take.  I'm just wondering 29049  Submissions by Mr. Macaulay  1 why -- not why.  People are entitled to do whatever  2 they want, up to a point, but I'm just perhaps  3 bemused, is the word, at the finger pointing between  4 the two arguments of the Crown.  They're blaming you  5 and you're blaming them.  At least I thought you were  6 blaming them.  You say you're not, you're saying this  7 is on their own heads.  8 MR. MACAULAY:  I'm talking about their arguments before this  9 court.  The position B.C.'s obviously taken, you have  10 to remember that B.C.'s position throughout this is  11 "Don't talk to us, don't even talk to us on the  12 subject of the Indians, if the Indians are -- there's  13 unrest there and something has to be done, you go do  14 it, that's none of our business.  We have what you  15 hold, we have the Provincial Crown lands, and they  16 aren't affected".  17 THE COURT:  All right, thank you.  18 MR. MACAULAY:  And I go on to say it is incongruous for the  19 Province to reply on these actions by Canada.  If, as  20 Canada argues that Canada had no duty to deal with the  21 aboriginal claims to rights in the Provincial lands,  22 the fact that Canada attempted to resolve the  23 "vexatious question" and the Province refused to deal  24 with -- that the Province refused to deal with, does  25 not change the effect of the constitution or the law.  26 Moreover, the Canadian officials noted that by P.C.  27 751 Canada would be "relieving" British Columbia of  28 the onus of granting compensation, if they wanted to.  29 We don't say that they had a duty to.  All we say is  30 that if they want to clear land for one reason or  31 another from the Indian interest, then they're the  32 ones responsible as the land owners.  33 Now, in 1913 the Nishga petitioned the King  34 "claiming to hold a tribal title to the whole of the  35 territory" in the Nass River region and asking for a  36 determination of the nature and extent of their  37 rights.  And that's that -- it was that petition that  38 O'Meara was talking about when he was discussing --  39 having discussions later with Mr. Oliver.  While the  40 Royal Commission was being set up in the spring and  41 summer of 1913, Canadian and Nishga representatives  42 met several times, and Interior Minister Roche  43 forwarded a copy of the Nishga Petition to the  44 Minister of Justice.  And Doherty's reply is set out  45 at page 267.  The only portions of that document I  46 refer to are the underlined ones, particularly:  47 29050  Submissions by Mr. Macaulay  1 "The agreement of 24th September, 1912, between  2 representatives of the Dominion and British  3 Columbia, which was approved by  4 Order-in-Council of 27th November following  5 appears to evince a departure from the policy  6 of the late Government."  7  8 And he goes on to say about the Nishga Petition at the  9 bottom of the letter:  10  11 "Upon the merits I think the Indian claim is a  12 very doubtful one, but I am not prepared to say  13 that it is not without sufficient foundation to  14 justify consideration by the courts."  15  16 In the petition, Duncan Scott, who later played a  17 significant part in the 1927 proceedings, was even by  18 then Deputy Superintendent General, and he provided a  19 memorandum that is of some interest, and the portions  20 of his lengthy memorandum I draw to your lordship's  21 attention are at page 269, where he says, 1, he talks  22 about the two main difficulties to submitting the  23 Nishga petition for judicial review.  First:  24  25 "1.  The refusal of British Columbia to consent  26 to a stated case which would include any  27 reference to the Indian title.  28 2.   Uncertainty as to the extent of  2 9 compensation which might be demanded by the  30 Indians if they were successful before the  31 courts, and if the Crown found it good policy  32 to extinguish the title to the Indians."  33  34 And then he goes on about the first difficulty:  35  36 "With reference to the first difficulty, I would  37 propose that it be held that British Columbia  38 has fully discharged its obligation to the  39 natives by granting from the public domain of  40 the Province reserve lands to be administered  41 exclusively for their benefit, and that, if the  42 Indian claim is found valid by the court of the  43 Privy Council, and, if it is thought advisable  44 to offer anything further for extinguishment of  45 title, the Dominion should assume the burden  46 and compensate the Indians according to the  47 past usage in such arrangements as have been 29051  Submissions by Mr. Macaulay  1 made by the good-will of the Crown with the  2 aborigines.  The Dominion has interest in the  3 land in the Railway Belt, and, to this extent,  4 would benefit by the extinguishment of the  5 Indian title."  6  7 So Scott is proposing a solution, and that in effect,  8 my lord, is what became P.C. 751.  9 THE COURT:  Didn't P.C. 751 say that the Indians would accept  10 the McKenna-McBride allocation of reserves in exchange  11 for all their aboriginal rights?  12 MR. MACAULAY:  Well —  13 THE COURT:  It circumvented this question of compensation,  14 didn't it?  15 MR. MACAULAY:  No, no.  Can I draw your attention to page 271,  16 which is the proposal which became almost verbatim in  17 P.C. 751, where, as I say, I say "Scott concluded" --  18 this became, without hardly a change, 751.  First:  19  20 "The Indians of British Columbia shall, by their  21 Chiefs or representatives, in a binding way,  22 agree if the court" --  23  24 THE COURT:  Sorry.  Where are you reading from?  2 5 MR. MACAULAY:  271 of my argument.  2 6 THE COURT:  Yes.  27 MR. MACAULAY:  Well, here is the proposal that became —  28 THE COURT:  Oh, yes.  I see where you are.  29 MR. MACAULAY:  Yes.  First:  30  31 "The Indians of British Columbia shall, by their  32 Chiefs or representatives, in a binding way,  33 agree if the court, or, on appeal, the Privy  34 Council decides that they have a title to lands  35 of the Province, to surrender such title,  36 receiving from the Dominion benefits to be  37 granted for extinguishment of title in  38 accordance with past usage of the Crown in  39 satisfying the Indian claim to unsurrendered  40 territories, and to accept the finding of the  41 Royal Commission on Indian affairs in British  42 Columbia, as approved by the Governments of the  43 Dominion and the Province as a full allotment  44 of Reserve lands to be administered for their  45 benefit as part of the compensation."  46  47 So the compensation was to be of two kinds.  It was to 29052  Submissions by Mr. Macaulay  1 be whatever was recommended by the Royal Commission,  2 which was just about to start -- just starting on its  3 work.  And second, obviously cash compensation from  4 the Federal Crown on the level or on the basis that it  5 had been determined in the treaty-making process,  6 which was just ending on the prairies.  And it was  7 part of the deal too:  8  9 "That British Columbia, by granting these  10 reserves, shall be held to have satisfied all  11 claims of the Indians."  12  13 So they were going to get a release.  And:  14  15 "The remaining considerations be provided and  16 the cost thereof borne by the Government of  17 Canada."  18  19 And then it went on to provide for counsel, And also,  20 what would happen in the event that the Petitioner did  21 not succeed.  22 Now, the Province about that says it is, of  23 course, clear that the second of Scott's conditions  24 was simply a statement which acknowledged the  25 constitutional arrangement between British Columbia  26 and of Canada provided for and embodied in Term 13 of  27 the Terms of Union.  It reflected -- the Province says  28 it reflected the situation which would obtain whether  29 or not the Indians agreed.  We say that's wrong.  The  30 constitutional arrangement provided for in Term 13 and  31 Section 109 is discussed -- we have discussed that in  32 our earlier argument.  33 The second of Scott's conditions simply reflected  34 the means by which the Province's objection to a court  35 submission could be overcome, that's why it was there.  36 The idea was a clever idea too.  Surely by doing this  37 the Province could no longer have any objection to the  38 mention of this subject.  39 My lord, I see it's 11:15.  4 0    THE COURT:  All right.  41 MR. MACAULAY:  We'll finish this soon.  42 THE REGISTRAR:  Order in court.  Court will adjourn.  43  44  45  46  47 29053  Submissions by Mr. Macaulay  1 (PROCEEDINGS ADJOURNED AT 11:15)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability  7  8  9  10    11 Graham D. Parker  12 Official Reporter  13 United Reporting Services Ltd.  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 29054  Submission by Mr. Macaulay  1 (PROCEEDINGS RECONVENED AT 11:30 A.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  My lord, after Scott made his proposal the  6 Superintendent General, that's the minister, Mr.  7 Roche, wrote a letter to the Prime Minister, Sir  8 Robert Borden, and I quote from the letter at the  9 bottom of 272 of my argument and the top of 23, and it  10 bears reading.  The question of 751.  The minister  11 says to the Prime Minister:  12  13 "I have pleasure in sending you herewith a  14 memorandum from the Deputy Superintendent  15 General on the subject of the Indian land title  16 in British Columbia, making certain recommenda-  17 tions which I am inclined to approve.  The  18 papers are in the form of a memorandum to His  19 Royal Highness in Council.  The advantage of  20 these suggestions is that we relieve the  21 Province of British Columbia from the onus of  22 granting any compensation to the Indians except  23 the reserves, and the Province should not,  24 therefore, seriously object to our going to the  25 courts; in all other respects their interests  26 in the lands are safeguarded.  27 The purpose sought to be accomplished by  28 making it necessary for the Indians to express  29 their willingness to surrender the title in  30 accordance with past usage of the Crown is that  31 the Dominion might not be embarrassed by  32 extravagant claims.  It is evident from the  33 memorial from the Nishga Indians that they  34 imagine the disposal of the provincial lands  35 would be in their hands if the case were  36 decided in their favour by the courts, and, no  37 doubt, they have been led to this erroneous  38 opinion by interested persons.  I think it good  39 policy to clear up this misapprehension before  40 we consent to take the case to the courts; the  41 Indians will then realize the extent to which  42 they can accept benefits if their case  43 succeeds.  44 As Mr. Scott points out, there are two  45 Indian treaties for the Province of Ontario in  46 which the obligations are shared by the  47 Dominion and the Province.  We have already a 29055  Submission by Mr. Macaulay  1 considerable expenditure in British Columbia,  2 to which something would be added and the whole  3 expense would not be proportionately in excess  4 of what we are paying in the Western Provinces.  5 Of course, in the Western Provinces the  6 Dominion holds the lands, but it is worthless,  7 I think" --  8  9    THE COURT:  "Worthwhile."  "Worthwhile."  10 MR. MACAULAY:  I'm sorry, "worthwhile."  Yes, that's right, my  11 lord.  12  13 "...I think, to increase our expenditure for the  14 British Columbia Indians in order to obtain a  15 settlement of a vexatious question."  16  17 And that's where vexatious question came from, my  18 lord.  It wasn't Sir Wilfrid Laurier.  It was Minister  19 Roche.  20 And in June of 1914 the Governor in Council  21 approved of the Exchequer Court reference in that  22 famous Order in Council 751 on the terms proposed by  23 Scott, which we've just seen.  24 Now, my lord, I'd like to hand up a new page 273.  25 There was a misprint there.  I had quoted Mr. Roche.  26 There had been a couple of pages -- words left out.  27 In the original it says -- original of our version  28 it's "settlement vexatious question," but it should  29 read "settlement of a vexatious question."  So there  30 is two copies, one for your lordship one for the  31 court.  32 THE REGISTRAR:  Thank you.  33 MR. MACAULAY:  And one for the plaintiffs.  34 THE COURT:  Thank you.  35 MR. MACAULAY:  And one for the Province, which corrects that  36 typo in Mr. Roche's letter.  That's an exhibit, by the  37 way, Mr. Roche's letter.  38 Now, I say at 274, 751 was Canada's policy but the  39 conditions were not for Canada to adhere to - the  40 conditions were for the acceptance by British Columbia  41 and the Indians.  42 In this submission I'd like to turn now to page  43 276.  I'm sorry, I better deal with the bottom of page  44 275.  Meetings were held with the Indian representa-  45 tives, but the proposal, Order in Council 751 proposal  46 was never formally presented to the Indians.  In March  47 of 1916 the minister wrote to certain Spence's Bridge 29056  Submission by Mr. Macaulay  1 chiefs, and he wrote as follows:  2  3 "I am in receipt of your joint letter signed  4 at Spences Bridge on the 17th March, 1916.  I  5 regret to see that you state you will not agree  6 to the terms and conditions proposed in the  7 Order-in-Council of the 20th June, 1914."  8  9 That's 751.  10  11 "You have made this statement before the  12 agreement has been officially laid before you,  13 but notwithstanding this, at some convenient  14 time you will be asked to consider the  15 agreement and I then hope you will be able to  16 concur, as these proposals are made in your  17 best interests and with the desire of having  18 your claim decided by the Courts and by appeal  19 to His Majesty's Privy Council in England."  20  21 Mr. O'Meara lobbied the government to change its  22 policy, but Mr. Doherty, the Minister of Justice,  23 declined.  And those are the -- the other excerpts on  24 page 275.  25 We now come to 276.  I'm referring to that letter  26 of Doherty's.  He concludes by noting that the first  27 matter is whether the Indians have acquiesced in the  28 conditions of the Order in Council, and the matters of  29 procedure will be then considered, but he assured the  30 Indians that no point of procedure would be allowed to  31 prejudice the decision on the merits.  And the  32 Province argues:  33  34 "As was noted in paragraph 26 above,"  35  36 and that's their paragraph 26,  37  38 "the Dominion continued to hold out P.C. 751 as  39 the only means by which it would assist Indians  40 in British Columbia to obtain a Court decision  41 respecting the existence of aboriginal title."  42  43 And we say that that Order in Council represented the  44 only means by which Canada thought it could obtain a  45 court decision.  Without B.C.'s concurrence the  46 reference was impossible.  47 And the Province refers to a series of meetings in 29057  Submission by Mr. Macaulay  1 1915.  The Indians' objections to the Order in Council  2 and their counter-proposals were discussed and  3 considered by the Nishga representatives and the  4 ministers of Canada.  The record of much of what went  5 on was published in a pamphlet by the Conference of  6 Friends of the Indians of British Columbia in July.  7 And that's an exhibit.  And the pamphlet records,  8 amongst other things, that Dr. Roche, the minister,  9 advised the Nishga in March of 1915 the following:  10  11 "[A] 11 I can say is that I am prepared to  12 bring it once more before Council with a view  13 if seeing if they are willing to have a  14 reference made on the ground suggested by the  15 Indian Tribes, but, while we have not got the  16 consent of the British Columbia Government to  17 our present method of settlement, we are not  18 having their opposition, and I fear that to  19 give that case to the courts on other terms  20 would mean the opposition of the British  21 Columbia Government, and that was the stumbling  22 block in the way of Sir Wilfrid Laurier  23 carrying out his promise.  Sir Wilfrid has been  24 quoted on a number of occasions here as stating  25 it ought to be decided by the Judicial  26 Committee; well, I believe he is quite right,  27 that is what this Government says, but, at the  28 same time, Sir Wilfrid did not devise any plan  29 to have the Judicial Committee of the Privy  30 Council pass upon it; he never got it before  31 them, and the reason he did not, so far as my  32 understanding, is that the British Columbia  33 Government would not consent, and, while he  34 intimated that if it were possible to devise  35 some other method of bringing it before the  36 courts, he would do so, still he never did  37 devise any other method.  Now, this Government  38 has devised a method, and, I think, a fair one,  39 and we had hoped the Indians would accept."  40  41 So he was discussing that with the Nishga, the  42 representatives of the Nishga.  And it didn't work.  43 My last quote here is Mr. O'Meara's statement to  44 Scott at one of these meetings.  And O'Meara says:  45  46 "The basis of the greatest difficulty of all  47 is the fact that vast quantities of land in 2905E  Submission by Mr. Macaulay  1 British Columbia have been disposed of by the  2 Province to persons who have bought in good  3 faith.  Now, the Nishgas and the other Tribes  4 say that these transactions have been unlawful  5 under Proclamation of King George the Third.  6 The Nishgas are proposing that the difficulty  7 arising from that state of things would be  8 dealt with in this particular way.  Now, if the  9 Secretary of State should decide that lands  10 that have already been sold by the Province,  11 should go to the Indians, then, no doubt, some  12 compensation would have to be made to the  13 persons who in good faith had purchased, and,  14 as I pointed out to the Nishgas, the Province  15 was interested in that question, and also,  16 under the McKenna agreement, the Government of  17 Canada was interested, because the Government  18 had seen fit to undertake special responsibil-  19 ity for the whole matter."  20  21 And Mr. Scott said:  22  23 "I understood you to say that the Dominion  24 would have to compensate the owners?"  25  2 6 And Mr. O'Meara said:  27  28 "In pursuance of the terms of the McKenna  2 9 agreement."  30  31 And Mr. Scott says:  32  33 "Of course I do not agree with that.  There  34 is no objection to your making that statement;  35 I cannot agree with it."  36  37 And, my lord, by Order in Council 1422 Canada  38 declined to alter its policy and decided that the  39 terms of P.C. 751 be not modified or altered.  The  40 Nishga position was that the settlers be cleared out  41 and paid whatever their lands were worth, and so you  42 can see how difficult it was.  43 May I say in answer -- and this is in answer to a  44 question put to me by your lordship earlier, there are  45 discussions, as your lordship knows, going on with the  46 Nishgas now, and they've been going on for -- is it 12  47 years? 29059  Submission by Mr. Macaulay  1 MS. MANDELL:  Since 1973.  2 MR. MACAULAY:  And the Dominion, of course, has the — faces the  3 difficulty today that it always has faced, and that is  4 that the land doesn't belong to them and it's not  5 theirs to deal with, and the Province has declined to  6 attend, and so the stalemate goes on.  It didn't go on  7 in other provinces that owned their own land, like  8 Ontario.  9 My lord, the other submissions made by Mr. Goldie  10 concerning the counterclaim, Treaty 8, the land acts,  11 what happened between 1874 and 1878, and so on, are  12 all matters of which we have made written submissions.  13 I don't consider that it is necessary or desirable to  14 read every line.  I am satisfied we have made full  15 answers.  If your lordship deems it necessary to  16 address those issues that are really issues -- those  17 other issues are issues between Canada and the  18 Province.  They are not issues between the plaintiff  19 and the defendants in this case.  The issues between  20 the plaintiff and the defendants are of different  21 character.  And we go back to our original submission,  22 of course, that it's not necessary to deal with Part  23 II of the counterclaim at all.  Those are my  24 submissions.  2 5    THE COURT:  Thank you.  26 MR. MACAULAY:  I have one or two things I'd like to deal with.  27 One thing I'd like to deal with.  It had to do with  28 one of the wills.  And this may be -- I may be  29 anticipating the plaintiffs' reply at this point.  At  30 a certain point I came to Mr. Joe David Brown's will,  31 and Mr. Grant, who was then on duty as counsel for the  32 plaintiffs, challenged our identification of the  33 testator, who was a member, your lordship may recall,  34 of the Kitsegukla Band, and, of course, we had his  35 band number and whatnot.  But what he seemed to  36 challenge was his name, the name assigned to him, the  37 chiefly name, to Mr. Joe Brown, and the basis for  38 holding that the testator was that particular Joe  39 Brown.  Well, I went back to the transcript of a  40 cross-examination of Ernest Hyzims.  Mr. Hyzims is  41 another hereditary chief, the head chief of a house  42 and a resident of Kitsegukla.  And in my cross-  43 examination I asked him, amongst other things:  44  45 "Q   Did you know Joe Brown who used to live at  46 Gitsegukla?  47 A   Yes. 29060  Submission by Mr. Macaulay  1 Q   And what was his house?  2 A   That's the Gisgaast head chief..."  3  4 And I'll spell the other word.  I'm not going to  5 pronounce it.  X-s-g-o-g-i-m-l-a-x-h-a.  That was one  6 way of identifying him.  By the way, that's Exhibit  7 608-A, that whole transcript is, my lord, and it's at  8 page 15, and those were lines 25 to 29.  So that may  9 or may not allay Mr. Grant's concerns we've got the  10 right man.  11 On the genealogy which we --  12 THE COURT:  Still relating to Joe David Brown?  13 MR. MACAULAY:  Yes, my lord.  14 THE COURT:  Yes.  15 MR. MACAULAY:  — of the house called Haak asxw, that's H-a-a-k  16 a-s-x-w, on the second page, and we included that with  17 the will, Joe Brown, bearing that chiefly name, is  18 shown as the husband of Martha Brown, whose chiefly  19 name was Mool'xan, Mool'xan, which is a chief -- a  20 head chief name at Kitsegukla.  But if your lordship  21 would like to make a note, on page 1 we -- his name  22 appears on page 2 of that genealogy, and that's the  23 only one we've produced, but on page 1 Connie Wesley,  24 who apparently inherited Joe Brown's name, is shown as  25 married to a member of Haak asxw, and she and Esther  26 Hyzims were the beneficiaries.  In the will she's  27 called Connie Milton, and, of course, the genealogy  2 8 shows that that was -- her maiden name was Connie  29 Wesley.  She married George Milton of the Haak asxws,  30 and she inherited his name.  So we've got the right  31 person.  We've properly identified that particular  32 one.  33 If there were any doubt about it, we could refer  34 also to the evidence of, commission evidence of  35 Stanley Williams.  That's Exhibit 446E at page 380,  36 where he was asked by Mr. Grant in re-examination:  37  38 "Q   You were asked about Martha, Mool'xan, I  39 believe it's Martha Mool'xan, Mrs. Joe Brown,  40 who held the name Mool'xan, and you were asked  41 about who held the name after her death.  Did  42 George Milton, the holder of the name Haakasxw,  43 did he care for the name Mool'xan from the time  44 of Martha Mool'xan's death until his death?  45 A   Nobody took this name.  Jacob Milton was  46 supposed to have taken this name but he didn't  47 have enough money and materials and so Haakasxw 29061  Submission by Mr. Macaulay  1 is looking after this name.  They will have to  2 do something about Mool'xan, before this name  3 is given away."  4  5 So that passage, my lord, at page 380, lines 34 to 44,  6 shows that Mrs. Joe Brown is Mool'xan, and that just  7 confirms what's on the genealogy.  It's the same  8 person we're talking about.  9 There's another but a slightly more oblique  10 reference to the same effect in Stanley Williams' and  11 at page 5 of the transcript of the cross-examination  12 of Mary Joseph on her territorial affidavit.  It's  13 Exhibit 662A, page 5.  And at trial Olive Ryan, in  14 Volume 17, page 1083, identified Mool'xan as Martha  15 Brown.  And also coming back to Stanley Williams, his  16 commission evidence, Exhibit 446D, at page 231 at the  17 bottom of the page, starting on line 33, Mr. Plant was  18 asking about this for some reason, and Mr. Plant's  19 question was:  20  21 "Q   Oh.  I'm sorry that my pronunciation is so  22 poor.  Thinking again about -- well, no, let's  23 move onto something else.  24 You just mentioned Mool'xan."  25  26 That's M-o-o-1-'-x-a-n.  27  28 "Did you ever know Mrs. Joe Brown?  2 9 A   Yes, I remember her.  She knows how to smoke  30 those big pipes.  31 Q   Did she have the name Mool'xan at one time?  32 A   Yes, that's the lady that's called Mool'xan.  33 Q   Do you recall now who held the name Mool'xan  34 after her death?  35 A   Nobody today.  Whoever gets the grave soon or  36 the pole will receive -- will get Mool'xan's  37 name.  38 Q   Has it been a long time since Mrs. Joe Brown  39 passed away?"  40  41 On the top of the next page, which is page 272:  42  43 "A   It's probably about 30 years now."  44  45 So those are some of the documents, and if there  46 were any doubt about it, we can refer again to the  47 census, our exhibits, and, of course, the estate file. 29062  Submission by Mr. Macaulay  Submission by Ms. Koenigsberg  We didn't put the estate file in.  The estate file  would establish that.  I don't think in view of all  those that identification is necessary.  COURT:  Mr. Macaulay, where in your argument do you suggest  I should put my notes of what you've just told me?  Is  there a section number or page number or --  MACAULAY:  I handed up a book of wills covering traplines  and hunting grounds.  COURT:  Yes.  MACAULAY:  Just one volume.  Tab 14.  COURT:  That's fine.  MACAULAY:  Deals with Joe Brown, Joseph David Brown.  COURT:  Yes.  All right.  MACAULAY:  He is regimental number 6 at the Kitsegukla Band,  and they've given his name here as X-s-g-o-g-i-m-  l-a-x-h-a .  COURT:  Yes.  MACAULAY:  You see, the difficulty there, my lord, was that  he appeared on the Haak asxw genealogy, H-a-a-k  a-s-x-w genealogy, but he didn't appear on the  genealogy of his own house.  COURT:  Yes.  MACAULAY:  He appears on Exhibit 853-20, but he doesn't  appear on Exhibit 853-45, which is his own house,  though he had the name, apparently.  And why that is  we don't know, but all we were concerned about is to  identify who this testator was.  I believe we've done  it beyond a reasonable doubt.  COURT:  All right.  Thank you.  MACAULAY: Thank you, my lord. Ms. Koenigsberg has a  submission to make regarding the last aspect of  jurisprudence on aboriginal rights.  COURT:  Thank you.  Is there a volume I should be looking  at?  KOENIGSBERG:  Your lordship will require the volume of  authorities of the Attorney-General of Canada.  There  was a blue --  COURT:  A small one or a large one?  KOENIGSBERG:  Yes, it's a small.  My lord, I'm handing up a  brief submission with a tab, the tab is labelled  "Concluding Remarks," to go in the very back of the  Attorney-General of Canada's final argument.  COURT:  12?  KOENIGSBERG:  11, I think, my lord.  COURT:  Yes.  KOENIGSBERG:  And lest we be concerned that the Supreme  Court of Canada is not busy turning out judgments.  1  2  3  4  THE  5  6  7  MR.  8  9  THE  10  MR.  11  THE  12  MR.  13  THE  14  MR.  15  16  17  THE  18  MR.  19  20  21  22  THE  23  MR.  24  25  26  27  28  29  THE  30  MR.  31  32  33  THE  34  35  MS.  36  37  38  THE  39  MS.  40  41  42  43  THE  44  MS.  45  THE  46  MS.  47 29063  Submission by Ms. Koenigsberg  1 They turned out another one on June 21st.  It is known  2 as Mitchell, and I'm not sure how to pronounce the  3 name of this Indian band, but on my best guess it's  4 Peguis, the Peguis Indian Band.  And that judgment,  5 believe it or not, has some bearing, in my submission,  6 on the matters in issue.  7 THE COURT:  It won't go in your book, Ms. Koenigsberg.  8 MS. KOENIGSBERG:  My lord, I crammed it into mine.  I don't know  9 if it will go into yours.  If it won't, we will  10 provide your lordship with another binder for  11 reorganization purposes.  12 THE COURT:  Well, if you've got it in yours, maybe we can get it  13 in ours.  Let's try.  Yes, we got it in.  The index  14 goes in the front?  15 MS. KOENIGSBERG:  Yes, my lord, because it just has that  16 additional authority.  17 THE COURT:  All right.  Thank you.  18 MS. KOENIGSBERG:  My lord, we wish to address some aspects of  19 the effect of Section 35 and make summary remarks  20 leading up to that in what is our best effort to meet  21 some of the problems that your lordship foresaw in  22 coming to grips with what I will call the use and  23 occupancy jurisprudence.  The difficulty of coming up  24 with anything even close to a draft order is twofold  25 for the Attorney-General of Canada:  first, the  26 anomalous position in which we are in this lawsuit,  27 added by the Province in order to be bound by the  28 facts; and the fact that the plaintiffs have pleaded a  29 case which may or may not include the claim that we  30 are in fact addressing, and the Province having chosen  31 to meet the claim as it appears on the pleadings.  I  32 thus learned the value of the adversary system.  It's  33 a lot easier to define things when you have something  34 to push against, and we find ourselves in a position  35 of basically not having anything to push against in  36 dealing with trying to determine exactly where these  37 issues fall.  Therefore, we've attempted to solve that  38 problem by summarizing in the briefest possible way  39 what we would come to see as the essential  40 characteristics of the issues as we have attempted to  41 elucidate them much more broadly and then tried to fit  42 Section 35 and the role of the Province into the end.  43 So beginning with that, we've addressed the issue  44 of aboriginal rights, and we say that aboriginal  45 rights remain a burden on Crown land so long as they  46 are necessary to support an aboriginal way of life or  47 are extinguished by clear and plain acts of the 29064  Submission by Ms. Koenigsberg  1 Sovereign.  2 That aboriginal rights are communal and not  3 personal rights is a given not challenged by the  4 plaintiffs.  5 THE COURT:  Well, is that really so?  It seems to me that the  6 Privy Council in St. Catherine's said they were  7 personal rights.  8 MS. KOENIGSBERG:  Well, in my submission, they meant personal  9 only in the sense of inalienable, and I think that --  10 THE COURT:  Not proprietary?  11 MS. KOENIGSBERG:  That's right.  12 THE COURT:  But didn't Milirrpum fail on the ground that there  13 was no communal rights recognized by law?  14 MS. KOENIGSBERG:  Well, in that jurisdiction on that  15 jurisprudence that's correct, but that particular  16 argument was not -- has not been accepted in Canada.  17 MS. MANDELL:  My lord, I don't want to interrupt my friend.  I  18 think she means in her first sentence "are not  19 extinguished by clear and plain acts," not "are  20 extinguished."  21 MS. KOENIGSBERG:  Yes, yes, I do mean that, and I don't know why  22 I didn't notice that it was not.  23 MS. MANDELL:  And also the plaintiffs don't accept the fact that  24 aboriginal rights are communal only.  We adopt the  25 reasoning of the Court of Appeal in Pasco that they're  26 both communal and personal.  27 MS. KOENIGSBERG:  Well, I didn't understand my friends to  28 challenge the jurisprudence that aboriginal rights are  29 communal, and it's my submission then -- if we are  30 dealing with a challenge at least at that level, my  31 submission would be that the Court of Appeal in Pasco  32 did not say that they were not communal in nature,  33 and, in fact, they went on to say they can be  34 exercised personally, and I deal with that in my next  35 couple of sentences.  36 THE COURT:  All right.  37 MS. KOENIGSBERG:  The communal aspect of them, in our  38 submission, defines their essential characteristic of  39 relating to a way of life of a community.  That is not  40 to say that individual members of the community don't  41 exercise the rights - that is exactly what they were  42 doing when they participated in those traditional  43 pursuits which supported the existence of the  44 community before the time of the assertion of British  45 sovereignty.  46 The bundle of rights that we have argued are  47 aboriginal rights fall into three categories.  There 29065  Submission by Ms. Koenigsberg  1 are rights which have been protected by being made  2 into reserves.  Those rights are to village sites,  3 cultivated fields, adjacent lands for tillage or  4 timber.  These rights have been given a proprietary  5 character through the Indian Act.  6 The second category --  7 THE COURT:  That paragraph 1 defines -- describes reserves, does  8 it?  9 MS. KOENIGSBERG:  Yes, it does.  10 The second category of rights that we attempted to  11 describe are fishing sites and fishing rights.  The  12 majority of fishing sites in the claim area have been  13 protected by reserve status and given a proprietary  14 character by the Indian Act.  The right to fish for  15 food in traditionally occupied places has been  16 unqualifiedly protected as a usufructuary right.  It  17 has no proprietary character, but its regulation has  18 not extinguished the underlying right to food fish.  19 THE COURT:  Well, do you intend in your second paragraph there  20 to refer to off site -- I'm sorry, off reserve sites?  21 MS. KOENIGSBERG:  No.  In my submission, my lord, the right to  22 fish itself, no matter where, whether it happens to  23 take place --  2 4 THE COURT:  Yes.  25 MS. KOENIGSBERG:  — on a site which is on a reserve, which  26 would -- different things might flow from questions  27 one might ask about that site having been made into a  28 reserve, but as to the right to fish itself --  29 THE COURT:  Off reserve.  30 MS. KOENIGSBERG:  — off reserve or on reserve —  31 THE COURT:  Yes.  32 MS. KOENIGSBERG:  — it is a non-proprietary right, and all we  33 say is it's unqualified in the sense that it is not  34 qualified in the way that other usufructuary rights  35 were qualified.  36 THE COURT:  Is it exclusive or non-exclusive?  37 MS. KOENIGSBERG:  It's —  38 THE COURT:  That's off reserve.  39 MS. KOENIGSBERG:  In the claim area, in my submission, as on the  40 facts, it is exclusive.  41 THE COURT:  No one else can fish in the claim area?  42 MS. KOENIGSBERG:  According to the — oh, I'm sorry.  It has to  43 be exclusive on the facts.  If you find it's not  44 exclusive, in my submission, off reserve, it would be  45 extinguished.  But I don't think that we're really  46 facing that issue, my lord.  47 THE COURT:  I'm not following that. 29066  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  Well, maybe we're not meeting on the right  2 question.  3 THE COURT:  Well, we may not be.  I'm not troubled by your  4 proposition on reserves.  That's clearly exclusive and  5 it's been given what you call this proprietary  6 character.  7 MS. KOENIGSBERG:  Yes.  8 THE COURT:  And certainly it's in a different category.  But  9 let's walk a half a mile off the reserve --  10 MS. KOENIGSBERG:  Yes.  11 THE COURT:  -- to the banks of one of the great rivers, and you  12 say that the Indians have a right to fish there which  13 hasn't been extinguished?  14 MS. KOENIGSBERG:  If on the facts it's not been extinguished or  15 abandoned, yes.  And, in fact, off reserve aboriginal  16 fishing, on the evidence, in a few places has taken  17 place, and there's no evidence -- I'm searching my  18 mind, but I don't believe there's any evidence that in  19 particular in a few specific areas there's any  20 evidence of it having been extinguished or abandoned.  21 Now, there is evidence of abandonment, which we've  22 dealt with, of fishing areas off reserve.  23 THE COURT:  Well, let's assume there's a location that is off  24 reserve but which Indians from time to time use for  25 fishing and they haven't abandoned it.  Let's assume  26 that it's right within the Village of Smithers.  But  27 from time to time over the years I'm sure Indians have  28 fished along the river, not just -- not just on their  29 reserves.  Now, do you say fishing there is an  30 aboriginal right or they have an aboriginal right to  31 fish there?  32 MS. KOENIGSBERG:  If that is an area — and, I'm sorry, I can't  33 recall on that particular area.  If that were an area  34 that they could show and have shown they have  35 traditionally and continuously used, and I don't mean  36 continuously --  37 THE COURT:  Yes.  All right.  38 MS. KOENIGSBERG:  That they have not abandoned by not having  39 fished there for the last 20 or 40 years.  4 0 THE COURT:  All right.  41 MS. KOENIGSBERG:  Then, yes, they are exercising an aboriginal  42 right which has not been extinguished.  43 THE COURT:  All right.  And is it exclusive?  44 MS. KOENIGSBERG:  Yes.  Food fishing, my lord.  45 THE COURT:  Well, that's what troubles me because it didn't seem  46 to me that Sparrow was in any way suggested to be an  47 exclusive right. 29067  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  We're back to that problem, my lord.  In my  2 submission, on the facts in Sparrow the aboriginal  3 people there in issue did not as within a defined  4 group fish exclusively pre-contact, and the issue was  5 not before the court, it's true, to make a declaration  6 as to what the actual nature of that aboriginal right  7 was, because it was dealing with a fishing  8 prosecution, as to whether this person was exercising  9 an aboriginal right.  But, in my submission, on the  10 facts as they are in the judgment no exclusive right  11 to fish in that area was claimed or would have been  12 claimed.  The evidence was that there were a group of  13 discrete Indian people who shared that resource, and  14 the claim was that it was an aboriginal right to  15 continue that.  16 THE COURT:  But on the facts of Sparrow as set out in the  17 reasons, including the anthropological evidence, one  18 would think that if your proposition is sound that  19 that would have been an exclusive right to fish in  20 Sparrow, and there's no suggestion of it in the  21 judgment.  22 MS. KOENIGSBERG:  An exclusive right to fish, my lord —  23 THE COURT:  In the past.  24 MS. KOENIGSBERG:  Well, my lord —  25 THE COURT:  And is that right exclusively reserved for Indians  26 pursuant to their aboriginal right?  27 MS. KOENIGSBERG:  Oh, I see what your lordship is getting at.  2 8 THE COURT:  I'm sure that the judgment contemplates that there  29 will be other fishing in --  30 MS. KOENIGSBERG:  Oh, yes.  31 THE COURT:  — I think it's Canoe Pass or Canoe Passage.  32 MS. KOENIGSBERG:  Yes.  33 THE COURT:  And what the court was at pains to do was to  34 establish priorities.  That in itself suggests that  35 anyone could -- I suppose the Indian right to -- not  36 the right, but the possibility of fishing there had to  37 arise because it was a regulated industry, because if  38 it wasn't a regulated industry, well, then every  39 citizen in British Columbia might fish in Canoe Pass.  4 0 MS. KOENIGSBERG:  Yes.  41 THE COURT:  But they can't because you need a licence.  42 MS. KOENIGSBERG:  Yes.  Now, if we come back to looking at the  43 difference between the actual fishing right and the  44 place —  4 5 THE COURT:  Yes.  46 MS. KOENIGSBERG:  — Canoe Pass, as I understand it, and I could  47 be quite wrong, is not -- there is no evidence as to 2906E  Submission by Ms. Koenigsberg  1 exclusive use of that place.  2 THE COURT:  Well, there is evidence that it's not exclusive.  3 MS. KOENIGSBERG:  That's right, that anyone and everyone fished  4 there.  The evidence that I thought we were addressing  5 in the Gitksan-Wet'suwet'en claim area is off reserve  6 identified areas where people say they fished  7 exclusively, a place.  8 THE COURT:  Well, all right.  9 MS. KOENIGSBERG:  If the evidence is that they did not fish  10 there exclusively, that everyone joined in that --  11 and, in fact, interestingly enough, those are the  12 facts, and I believe there are some facts that that is  13 the case around Kisgegas.  However, it's been made  14 into a reserve, which removes it as an issue.  15 THE COURT:  It's only a reserve on one side of the river, isn't  16 it?  17 MS. KOENIGSBERG:  I think it's both sides.  18 THE COURT:  I'm not sure.  Is it both sides?  19 MS. KOENIGSBERG:  I think it's both sides, my lord.  20 THE COURT:  Let's go upstream three miles.  I have no doubt that  21 Indians fished there at the time of Trader Brown and  22 before at various locations along the Babine, both  23 Gitksan and non-Gitksan, that is, the Indians from the  24 Fort Kilmaurs area.  25 MS. KOENIGSBERG:  Yes.  26 THE COURT:  There is no clear identification of who fished where  27 in those days, but let's assume -- I haven't  28 considered it carefully.  Let's assume the evidence  29 doesn't establish exclusive Gitksan fishing three  30 miles upstream from Kisgegas.  If that is so, you  31 would say that the right to fish would not be  32 exclusive?  33 MS. KOENIGSBERG:  That's right.  34 THE COURT:  But would you say it would be fishing pursuant to an  35 aboriginal right?  36 MS. KOENIGSBERG:  Yes.  37 THE COURT:  It would be fishing pursuant to a non-exclusive  38 aboriginal right?  39 MS. KOENIGSBERG:  That's correct, which has been regulated and  40 remains regulated pursuant to Sparrow, but not  41 extinguished because, in fact, it's provided for.  The  42 preservation of that food fishery is provided for.  43 THE COURT:  In Sparrow?  44 MS. KOENIGSBERG:  Well, under the legislation which applies  45 there and in Sparrow.  4 6 THE COURT:  All right.  Where are you?  47 MS. KOENIGSBERG:  I'm on the third category.  The other 29069  Submission by Ms. Koenigsberg  1 usufructuary rights we say fall into a third category,  2 such as hunting, trapping, and berry picking.  We have  3 described those as amorphous rights and already  4 addressed you on that issue.  We take the position  5 that they are diminishing in their character, but they  6 can be exercised wherever there is unoccupied Crown  7 land appropriate to the purpose.  8 THE COURT:  And again they would be exclusive or non-exclusive?  9 MS. KOENIGSBERG:  In my submission, they are non-exclusive  10 rights.  11 THE COURT:  Different from fishing?  12 MS. KOENIGSBERG:  Very different from fishing.  And as to the  13 different ways in which they have been dealt with, I  14 would refer your lordship back to the combination of  15 Douglas' policy, as he set it out, but specifically in  16 the claim area the implementation of that policy or  17 the beginning of the implementation of that policy by  18 O'Reilly and Vowell and the very different way in  19 which fishing rights are characterized.  20 We then go on to address the issue again of who we  21 say are the holders of the rights.  The preponderance  22 of evidence, we submit, supports the conclusion that  23 the kinds of aboriginal rights existing in the claim  24 area were held by the Gitksan and Wet'suwet'en people  25 as organized in villages.  We do not say that the  26 Gitksan and Wet'suwet'en did not have other forms of  27 organization.  We do say that in relation to the  28 rights as described it was in their village  29 organization that they held these rights.  And, in my  30 submission, we've canvassed, however briefly, the  31 difficulty of whether the bands are before your  32 lordship.  In my submission, their constituent parts  33 are.  34 THE COURT:  Unless there is a body of aboriginal people who  35 belong to the bands who don't recognize or participate  36 in house activities.  37 MS. KOENIGSBERG:  Well, frankly, my lord, I don't think that the  38 problem posed by talking about band as a -- now a  39 successor in title, if you will, to the village, which  40 is simply a practical extension, is any more difficult  41 of resolution than any other possible declaration that  42 your lordship might have to make as to who are the  43 holder of the rights, whether it's ownership and  44 jurisdiction as contended for or any other.  45 I then address again the issue of abandonment.  46 Abandonment or the non-use of aboriginal rights will  47 result in an extinguishment of those rights. 29070  Submission by Ms. Koenigsberg  1 Abandonment must be inferred from the actual  2 conduct of the aboriginal community.  Non-use or non-  3 occupancy for a significant number of years is one  4 major factor.  Twenty years or a generation, as we  5 have submitted, is a minimum.  And that's because, we  6 would say, it's combined with the general evidence of  7 abandonment of hunting and trapping as a way of life  8 in the 1950s one generation supports the inference of  9 voluntary abandonment.  10 THE COURT:  But what if in 1991, 40 years later, the price of  11 furs becomes so enhanced that it becomes highly  12 profitable?  13 MS. KOENIGSBERG:  Well —  14 THE COURT:  Would the natives not have the right, if they  15 haven't used -- assuming they haven't used that right  16 for 40 years, not have a right to resume?  17 MS. KOENIGSBERG:  We say they don't for this reason:  they don't  18 have that right as aboriginals.  They, in fact, of  19 course, have the right to exercise whatever rights  20 they wish on their traplines.  21 THE COURT:  Under the general law?  22 MS. KOENIGSBERG:  Yes.  23 THE COURT:  If they — if they have a trapline licence?  24 MS. KOENIGSBERG:  Yes, or if they want —  25 THE COURT:  Or if they want to get one.  26 MS. KOENIGSBERG:  Or if they want to get one.  And it's not  27 onerous.  The issue is this.  First of all, as a  28 concept, abandonment amounts to extinguishment.  Once  29 you find abandonment, inferring from all of the  30 factors that it is an abandonment of a way of life, in  31 my submission, they don't resume.  And your lordship  32 has heard evidence that the increase, significant  33 increase in fur prices has not resulted in aboriginal  34 people going out and trapping.  And, in my submission,  35 that is not to say that some, and I might say a very  36 few on the evidence, native people don't trap for a  37 living, but your lordship has also heard evidence, and  38 my colleague Mr. Macaulay addressed you on this issue,  39 a very few who do are now dealing with that.  I mean,  40 as a community they are dealing with traplines as  41 personal property.  This no longer has the character  42 right across the board of an aboriginal right, of the  43 exercise of an aboriginal right.  44 The second most important factor, it is submitted,  45 is that of voluntariness.  If there is evidence that a  46 non-use or non-occupation of a site by members of the  47 aboriginal community is because of illegal 29071  Submission by Ms. Koenigsberg  1 dispossession of that area, then, it cannot be said  2 that the rights have been abandoned.  Voluntariness is  3 inferred again from the conduct of the aboriginal  4 communities.  Have they ceased use of an area in order  5 to take up other pursuits incompatible with such  6 communal activities?  And we say, of course, that is  7 the character of the evidence.  The evidence is, and  8 your lordship has heard it, I would submit, throughout  9 the Attorney-General of Canada's presentation of the  10 evidence, a gradual moving away from these traditional  11 pursuits and doing other things, and often those other  12 things are incompatible with the aboriginal  13 traditional pursuit.  Working full time in other  14 occupations does not allow working full time to earn a  15 living from trapping, hunting, and fishing.  And as  16 early as the -- as the early 1950s Mr. Loring  17 documented that change and the reasons for it, and, in  18 our submission, it has simply continued.  19 THE COURT:  Well then, would you say that Mr. Art Matthews, who  20 works full time in the Kitwanga filing room and has  21 done so for, I think, 13 years but who continues to be  22 a week-end trapper, is no longer trapping pursuant to  23 an aboriginal right?  24 MS. KOENIGSBERG:  Yes, I think that inference is open to your  25 lordship on this analysis.  On this analysis, and this  26 is distinct from a more piecemeal approach which is  27 available, it's possible to analyse this thing and  28 say, well, there are aboriginal rights still existing  29 on Black Acre but nowhere else around because a  30 handful of persons have actually continuously used a  31 particular area, but, in my submission, it is equally  32 and, in fact, perhaps a more compelling argument to  33 analyse the whole of the evidence and to say what is  34 it we are saying when we are protecting or saying  35 there is an aboriginal right to do X, and it is, in my  36 submission, a way of life, a use of the land necessary  37 to support a way of life, and, in my submission, that  38 has been long gone from the claim area.  39 THE COURT:  Well, we've had the family allowance since 1941 or  40 1942, I think it was.  41 MS. KOENIGSBERG:  There are a multitude of factors, my lord.  42 THE COURT:  You would say that would be a factor in the  43 abandonment of an aboriginal --  44 MS. KOENIGSBERG:  Yes.  45 THE COURT:  — life and, therefore, aboriginal right?  46 MS. KOENIGSBERG:  Yes, my lord.  There's simply the indirect  47 effect of not doing something that you did -- that you 29072  Submission by Ms. Koenigsberg  1 learned from your father or grandmother and not doing  2 it for a generation and thus not teaching it to your  3 children, and the whole cycle of what's necessary to  4 maintain it as a way of life begins to fall away.  It  5 is replaced by something else.  6 THE COURT:  How does one know then whether there are aboriginal  7 rights or there are not aboriginal rights?  8 MS. KOENIGSBERG:  Well, I think, my lord, that is not a very  9 easy question to answer and it's one that  10 unfortunately falls to your lordship's shoulders on  11 these facts, as enormous as they are, and on the law  12 as really uncharted in many of these ways, as it is.  13 However -- and this is where I say we've run into some  14 difficulty, is we have nothing to push against in the  15 sense that we do not have on this type of analysis the  16 position of the plaintiffs, but what I'm saying is  17 that there are a variety, if you will, of ways you can  18 analyse it.  In substance, what we are saying today is  19 we've talked about earlier the variety of ways of  20 analyzing the evidence.  We're submitting to you today  21 that this particular analysis is the one which on  22 balance we would submit makes the most sense of the  23 jurisprudence and the facts.  24 THE COURT:  All right.  I think we'll adjourn, Ms. Koenigsberg.  25 I just want to make a very brief note.  All right.  26 Two o'clock.  Thank you.  27 THE REGISTRAR:  Order in court.  Court stands adjourned until  28 two o'clock.  29  3 0 (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  31  32 I hereby certify the foregoing to  33 be a true and accurate transcript  34 of the proceedings transcribed to  35 the best of my skill and ability.  36  37  38  39  4 0    41 Leanna Smith  42 Official Reporter  43 UNITED REPORTING SERVICE LTD.  44  45  46  47 29073  Submissions by Ms. Koenigsberg  1 (PROCEEDINGS RESUMED AT 2:00 P.M.)  2  3 THE COURT:  Miss Koenigsberg.  4 MS. KOENIGSBERG:  My lord, we left off in the midst of the  5 argument on abandonment.  And I was -- had already  6 drawn to your lordship's attention our submission that  7 voluntariness is a crucial part of the concept of  8 abandonment.  We say on this analysis we argue that  9 the absence of evidence of specific use or occupation  10 of the vast majority of the claim area for hunting,  11 trapping or berry-picking is not a function of the  12 failure of the plaintiffs to meet a standard of proof.  13 It is testimony to the abandonment of a traditional  14 way of life.  The plaintiffs do not now and have not  15 for many decades made their living from traditional  16 pursuits.  17 But reliance we say on these traditional pursuits  18 is no longer the mainstay of this culture.  The  19 culture of the Gitksan and Wet'suwet'en, we submit,  20 from all of the evidence presented, is alive and well.  21 Rooted in the past, rich in its associations with  22 traditional pursuits, it has evolved into a culture  23 interweaving the Indian past with the Canadian  24 present.  25 I then would like to move on to the effect of the  26 Sparrow decision on the interpretation of section 35.  27 And I am dealing not with the issue that I have  28 already dealt with of its effect on the test for  29 extinguishment, and I already made submissions very  30 generally as to its relationship to the fiduciary  31 obligations or relationship between the Crown and the  32 Indians.  But I would now like to address the effect  33 of section 35 on the government's rights to regulate  34 or extinguish existing aboriginal rights as of April  35 17, 1982.  36 It is submitted that it is clear from the decision  37 of the Supreme Court of Canada that aboriginal rights,  38 and there I mean the Sparrow decision, can be affected  39 by laws and regulations of both federal and provincial  40 governments.  It is important to note each of the  41 paragraphs in the Sparrow decision which deal with  42 this subject.  And these are found on pages 25, 26 and  43 29.  And I would just like to turn to those, my lord,  44 and they are found in tab five of the Attorney General  45 of Canada's references to the argument.  My lord, I  46 must say that before the Mitchell decision, which I'll  47 get to, the Sparrow decision left one on this topic 29074  Submissions by Ms. Koenigsberg  1 with almost a balance of probabilities as to what was  2 meant.  But I will take you -- take your lordship  3 through it paragraph by paragraph leaving -- I mean,  4 concentrating, of course, only on those paragraphs  5 which in our submission bear directly on this issue,  6 and that is does the Province still have legislative  7 power.  Page 25, the first full paragraph, the Court  8 said:  9  10 "In response to the appellant's submission S.  11 35(1) rights are more securely protected than  12 the rights guaranteed by the Charter, it is  13 true that S. 35(1) is not subject to S.l of the  14 Charter.  In our opinion, this does not mean  15 that any law or regulation affecting aboriginal  16 rights will automatically be of no force or  17 effect by the operation of S.52 of the  18 Constitution Act, 1982.  Legislation that  19 affects the exercise of aboriginal rights will  20 nonetheless be valid, if it meets the test for  21 justifying an interference with a right  22 recognized and affirmed under S. 35(1) ."  23  24 Stopping there.  Speaking -- the Court in our  25 submission is speaking generally and could be taken to  26 mean both federal and provincial legislation.  They go  27 on in the next paragraph:  28  29 "There is no explicit language in the provision  30 that authorizes this Court or any court to  31 assess the legitimacy of any government  32 legislation that restricts aboriginal rights.  33 Yet, we find that the words 'recognition and  34 affirmation' incorporate the fiduciary  35 relationship referred to earlier and so import  36 some restraint on the exercise of sovereign  37 power.  Rights that are recognized and affirmed  38 are not absolute.  Federal legislative powers  39 continue, including, of course, the right to  40 legislate with respect to Indians pursuant to  41 S.91(24) of the Constitution Act, 1867.  These  42 powers must, however, now be read together with  43 S. 35(1).  In other words, federal power must  44 be reconciled with federal duty and the best  45 way to achieve that reconciliation is to demand  46 the justification of any government regulation  47 that infringes upon or denies aboriginal 29075  Submissions by Ms. Koenigsberg  1 rights.  Such scrutiny is in keeping with the  2 liberal interpretive principle enunciated in  3 Nowegijick, supra, and the concept of holding  4 the Crown to a high standard of honourable  5 dealing with respect to the aboriginal peoples  6 of Canada as suggested by Guerin."  7  8 And in this paragraph in our submission, although the  9 focus is on the federal Legislative powers,  10 particularly because of 91(24), again general  11 statements are made, referring to the Crown and  12 sovereign power, which are terms which can include  13 both provincial and federal powers.  Over on to page  14 26, first full paragraph:  15  16 "Section 35(1) suggests that while regulation  17 affecting aboriginal rights is not precluded,  18 such regulation must be enacted according to a  19 valid objective.  Our history has shown,  20 unfortunately all too well, that Canada's  21 aboriginal peoples are justified in worrying  22 about government objectives that may be  23 superficially neutral but which constitute de  24 facto threats to the existence of aboriginal  25 rights and interests.  By giving aboriginal  26 rights constitutional status and priority,  27 Parliament and the provinces have sanctioned  28 challenges to social and economic policy  29 objectives embodied in legislation to the  30 extent that aboriginal rights are affected.  31 Implicit in this constitutional scheme is the  32 obligation of the legislature to satisfy the  33 test of justification.  The way in which a  34 legislative objective is to be attained must  35 uphold the honour of Crown and must be in  36 keeping with the unique contemporary  37 relationship, grounded in history and policy,  38 between the Crown and Canada's aboriginal  39 peoples.  The extent of legislative or  40 regulatory impact on an existing aboriginal  41 right may be scrutinized so as to ensure  42 recognition and affirmation."  43  44 And if we stop there, in our submission here again we  45 are clearly talking about both federal and provincial  46 legislation and the exercise of their powers.  And in  47 our submission in this paragraph by grounding the 29076  Submissions by Ms. Koenigsberg  1 fiduciary relationship in the history and policy  2 between the Crown and Canada's aboriginal peoples, it  3 includes the Province as well.  Next paragraph:  4  5 "The constitutional recognition afforded by the  6 provision therefore gives a measure of control  7 over government conduct and a strong check on  8 legislative power.  While it does not promise  9 immunity from government regulation in a  10 society that, in the twentieth century, is  11 increasingly more complex, interdependent and  12 sophisticated, and where exhaustible resources  13 need protection and management, it does hold  14 the Crown to a substantive promise.  The  15 government is required to bear the burden of  16 justifying any legislation that has some  17 negative effect on any aboriginal right  18 protected under S.35(l)."  19  20 Again, in our submission this clearly has to apply to  21 the Province, that it still can regulate and deal and  22 affect aboriginal rights and their exercise as long as  23 it meets the justificatory test, because aboriginal  24 people in Canada live within the provinces, and it is  25 often provinces who are indeed regulating and dealing  26 with the exhaustible resource.  And in our submission  27 this case, of course, deals with fishing which is --  28 which is generally subject to federal regulation and  29 that's why in some parts of it it is exclusively  30 talking about federal regulation.  31 If we go on, then, over to page 29, the second  32 full paragraph, the court is now dealing with the  33 justification test and they choose a provincial act:  34  35 "The justification of conservation and resource  36 management, on the other hand, is surely  37 uncontroversial.  In Kruger v. The Queen, the  38 applicability of the B.C. Wildlife Act to the  39 appellant members of the Penticton Indian Band  40 was considered by this Court.  In discussing  41 that Act, the following was said about the  42 objective of conservation:  43  44 Game conservation laws have as their policy  45 the maintenance of wildlife resources.  It  4 6                         might be argued that without some  47 conservation measures the ability of 29077  Submissions by Ms. Koenigsberg  1 Indians or others to hunt for food would  2 become a moot issue in consequence of the  3 destruction of the resource.  The  4 presumption is for the validity of a  5 legislative enactment and in this case the  6 presumption has to mean that in the absence  7 of evidence to the contrary the measures  8 taken by the British Columbia Legislature  9 were taken to maintain an effective  10 resource in the Province for its citizens  11 and not to oppose the interests of  12 conservationists and Indians in such a way  13 as to favour the claims of the former.  14  15 While the 'presumption' of validity is now  16 outdated in view of the constitutional status  17 of the aboriginal rights at stake, it is clear  18 that the value of conservation purposes for  19 government legislation and action has long been  20 recognized.  Further, the conservation and  21 management of our resources is consistent with  22 the aboriginal beliefs and practices, and,  23 indeed, were the enhancement of aboriginal  24 rights."  25  26 We say as a result of reviewing those paragraphs in  27 their context, it is our submission that a careful  28 analysis of the Sparrow decision supports the  29 following conclusion:  Both the Federal and Provincial  30 legislative and executive acts may infringe upon  31 aboriginal rights if the legislation or executive act  32 can meet the justificatory test.  This analysis in our  33 submission is supported by the most recent decision of  34 the Supreme Court of Canada in Mitchell and Peguis  35 Indians.  36 THE COURT:  Well, that submission really walks around the whole  37 issue of extinguishment, does it not?  38 MS. KOENIGSBERG:  Yes, it does.  39 THE COURT:  It says don't worry about extinguishment.  Worry  40 about whether legislation or regulation or I suppose  41 executive action can reasonably be carried out without  42 unduly disturbing aboriginal rights or is the test  43 without touching them at all?  44 MS. KOENIGSBERG:  No, my lord, it's a two-prong test.  The first  45 part of the test is: are you interfering with the  46 aboriginal right with your legislation.  Or --  47 THE COURT:  Let's take clear-cut logging.  That interferes with 2907E  Submissions by Ms. Koenigsberg  1 aboriginal rights to hunt, does it?  2 MS. KOENIGSBERG:  It does on the evidence, yes.  And I say on  3 the evidence, because I am sure there is a theory that  4 it doesn't.  But we have to take the evidence as it is  5 and that is that at least some of the plaintiffs have  6 said it does.  7 THE COURT:  Yes.  All right.  But temporarily.  In a sense of —  8 MS. KOENIGSBERG:  Well, yes.  I think it's difficult to describe  9 that as temporary, because the evidence is how -- we  10 only have non-precise, very general evidence as to,  11 for instance, how long it takes to regenerate, what  12 effect -- we have no evidence on what effect the  13 regeneration is.  The only evidence we have is that in  14 some instances some plaintiffs said because of the  15 clear-cut I cannot exercise my right.  16 THE COURT:  But we also have the evidence of Mr. — was it  17 Hatler?  18 MS. KOENIGSBERG:  Yes.  19 THE COURT:  Who said that the best arrangement for wildlife  20 enhancement is cleared land by fire or by logging.  21 MS. KOENIGSBERG:  Yes.  22 THE COURT:  And so the — and he talked about the growth of the  23 forest cover, and I don't think I am precluded from  24 attributing nature's ability to this case, nature can  25 regenerate forest cover -- ground cover, rather.  26 Well, let's take outside 25 years.  And that seems --  27 that's a long time for forest cover.  Now, do you say  28 that that would be precluded, that clear-cut logging  29 would still be -- well, you haven't got to your second  30 test, but --  31 MS. KOENIGSBERG:  The second part of the test is —  32 THE COURT:  Yes.  33 MS. KOENIGSBERG:  — as I understand it, as one pieces it  34 together, you look at the incidents of the aboriginal  35 right.  You break it down into its constituent parts  36 and look at exactly how it's exercised and the context  37 in which it's exercised, and then you determine if  38 that interference is such that it -- well, and then  39 you look -- then I think you have to determine the  40 extent of the interference.  And assuming that there  41 is a clear interference, then you have to look at can  42 it be justified.  There is no evidence, my lord, that  43 would allow for justification in that test in this  44 instance.  And I am advised that the actual evidence  45 of Dr. Hatler was that only certain species such as  46 moose do well in clear-cuts, not animals that are  47 trapped.  So I suppose if that's so, and I have no 29079  Submissions by Ms. Koenigsberg  1 reason to doubt that that's so, it points up the  2 importance of going through this rather minute  3 inspection of both sides of the coin, that is the  4 actual -- the actual exercise, broken down into  5 incidents of that exercise against what actually is  6 taking place in terms of the legislated use and  7 determining if they can live together.  An example I  8 bring your lordship back to is the Sioui case.  Again,  9 once they reached an analogous analysis of having the  10 religious rights in the Provincial park, they analysed  11 the right, the religious right, they analysed all  12 aspects of the Provincial park regulations and found  13 that they could live together with minor inconvenience  14 to each.  15 THE COURT:  Well, your first test was are you interfering.  What  16 do you say your second test is?  17 MS. KOENIGSBERG:  Can it be justified if you are.  And the  18 Sparrow decision, and I think it's fairly clear that  19 the, if you will, aboriginal perspective must be taken  20 into consideration in determining if you are  21 interfering.  In the Sparrow example these are the  22 kinds of facts that the court was sending this matter  23 back to have determined because they didn't have the  24 evidence.  On those facts they want to look at how  25 important to the exercise of the right in its cultural  26 sense is the actual way in which it's exercised if  27 that should be prescribed.  28 THE COURT:  All right.  Well, you would say, then, that  29 clear-cut logging would be an interference?  30 MS. KOENIGSBERG:  Yes.  31 THE COURT:  And what would you say about the second test?  Is  32 there any way it could be justified?  33 MS. KOENIGSBERG:  Well, my lord, I don't think I — I don't  34 think that on the evidence that we have one could  35 answer that question.  36 THE COURT:  All right.  Is there any form of logging that you  37 say could be answered or could be tested with a result  38 saying that you are not interfering?  39 MS. KOENIGSBERG:  Oh, yes.  I think that there is evidence here  40 that would allow an analysis of -- and I'm talking  41 specific evidence given by a plaintiff as to where -  42 it's pretty meagre - as to where they were exercising  43 this right.  And let's say it's hunting and let's say  44 that your lordship has determined that that's an  45 aboriginal right, the exercise of an aboriginal right,  46 and a clear-cut, and the evidence -- if the evidence  47 can stand that they can still hunt moose, then there 29080  Submissions by Ms. Koenigsberg  1 is no conflict.  The clear-cut continues and the  2 aboriginal right to hunt continues.  3 THE COURT:  I have trouble with -- I am not sure whether I am  4 supposed to be a strict constructionist or I am  5 supposed to be a mediator here, but certainly you  6 can't hunt moose while the clear-cut logging is going  7 on.  And if it's a right, then you can't do it if it  8 interferes and it can't be justified, or do you say  9 you look at after the clear-cut is finished and say  10 what will the result be?  11 MS. KOENIGSBERG:  Believe me, I understand the kinds of problems  12 your lordship is having.  These are the kinds of  13 problems that we have had trying to analyse these  14 things.  And again, then it becomes a choice.  One has  15 to start back one step in my submission to make  16 decisions and have things follow from it.  If -- if  17 you look at legislations and its intent from its  18 obvious effect, then you would say it cannot live on  19 the evidence with the exercise of any other use of the  20 land at the time it's being undertaken.  Then you say  21 that's an extinguishment.  22 THE COURT:  Well, what if the Indian can follow his aboriginal  23 pursuits somewhere else?  24 MS. KOENIGSBERG:  In my submission if you find it's a  25 non-exclusive right, then you have not extinguished it  26 with that kind of activity.  You haven't extinguished  27 it with much of any activity.  You have to -- you have  28 to obliterate the ability to use any reasonably  29 proximate area to exercise that right to say that you  30 have in fact extinguished that right.  Because if it  31 can still be exercised a mile away and there is any  32 kind of reasonable evidence that it could be exercised  33 a mile away and would be exercised a mile away, then  34 there is no extinguishment.  I don't see how that can  35 meet the test.  And in a sense that is the importance  36 of this very specific site to site, use to use  37 analysis.  You can't answer the -- at one level you  38 cannot answer these questions in the absence of very  39 specific evidence.  And at another level it becomes an  40 impossible task and you have to step back and say what  41 does the preponderance evidence demonstrate.  And in  42 our submission that's really the argument that we're  43 making to your lordship on abandonment.  You're faced  44 with an issue of let's assume we accept the concept of  45 abandonment as applying and even the factors that we  46 have suggested must be taken into account to determine  47 if there has been an abandonment, then we have 29081  Submissions by Ms. Koenigsberg  1 evidence of probably fewer than a handful of  2 plaintiffs who actually continuously have used a given  3 area for trapping, for instance, as a way of life,  4 even just to earn a living.  5 THE COURT:  Well, on Mr. Wolf's submission that's in the last 25  6 years.  7 MS. KOENIGSBERG:  Yes.  8 THE COURT:  Since 1951.  9 MS. KOENIGSBERG:  Yes.  10 THE COURT:  All right.  So that's more than 25 years.  11 MS. KOENIGSBERG:  Yes.  If you accept the test.  If you simply  12 say I'm going to now apply, I accept that abandonment  13 as a concept applies to aboriginal rights, it  14 extinguishes where I find it to have occurred, the  15 facts are here and it has occurred, you know, in some  16 place, then you are faced with a few areas within the  17 claim area, within this vast area, in which you have  18 no abandonment because you have continuous use.  19 THE COURT:  But isn't —  20 MS. KOENIGSBERG:  But the overwhelming preponderance of the  21 evidence is that that pursuit as a communal way of  22 life has been abandoned.  23 THE COURT:  But isn't 39 years a short time in the assessment of  24 the aboriginal right?  25 MS. KOENIGSBERG:  In my submission in the absence of any other  26 factors to look at, yes.  I think it's very hard to  27 look at just a number.  But if you look at the number  28 in the context of everything else that's going on, it  29 becomes meaningful in my submission.  So meaningful  30 that in my submission you can make a very good case  31 that there can be abandonment after only 20 years or  32 one generation, because we're talking about a way of  33 life and we're talking about aboriginal rights is  34 grounded.  Their meaning is to pursue a particular way  35 of life and a protection.  I mean, that was the  36 policy.  To protect that way of life until there was  37 something else there.  And my submission what the  38 overwhelming evidence is that something else has been  39 there.  It's been there for decades and decades.  We  40 then have the specific evidence that there has been an  41 abandonment of trapping as a way of life from the  42 plaintiffs.  They don't use the word abandon, but they  43 say they haven't trapped since the early 50's.  And  44 it's no longer related to the price of furs.  And so,  45 my lord, it's in the face of that evidence that you  46 put together with the number of years that I'll ask  47 you to draw that inference and supports the concept. 29082  Submissions by Ms. Koenigsberg  1 But in my submission if we had nothing but 20 years it  2 would be a very hard inference to draw that there was  3 abandonment.  4 THE COURT:  You say it wouldn't be argument if somebody would be  5 working for 20 years in that time for the Kitwanga  6 sawmills?  7 MS. KOENIGSBERG:  That's right.  8 THE COURT:  Even though he was trapping on weekends?  9 MS. KOENIGSBERG:  Yes.  In my submission, your lordship is  10 engaging in exactly the kind of analysis that has to  11 go on however, because maybe on those two facts your  12 lordship says well, yeah, really I think there is  13 still some attachment there.  But suppose that you  14 have the additional fact that that person's children  15 are not trapping.  Then we have an additional factor  16 which points to the abandonment of a way of life,  17 because that way of life is grounded in the social  18 structure, in every aspect of the life.  And once the  19 whole social economic basis for that way of life  20 begins to fall apart, it's simply not pursued.  21 THE COURT:  All right.  Thank you.  You are going to Mitchell?  22 MS. KOENIGSBERG:  Yes, my lord.  Now, the Mitchell case deals  23 with taxation and garnishment.  And I'm not going to  24 go through the facts, but I think it's important to  25 put the submissions, the parts to your lordship in  26 some context.  And the specific part of this decision  27 that I would like to read to your lordship and which I  28 say very clearly support propositions that I have been  29 putting forward on the Provincial power to regulate  30 and affect aboriginal rights after section 35 or after  31 1982 are contained in Chief Justice Dickson's decision  32 in this case.  Now, Chief Justice -- all of the  33 justices agreed on the result, but it was a six-to-one  34 split on the reasons why, with Chief Justice Dickson  35 being the dissenter.  It is a dissent decision on the  36 reasons why.  And it evolved around interpreting --  37 the real dissent evolved around the interpreting of  38 the words "Her Majesty" in section 90 of the Indian  39 Act.  And all justices agreed that "Her Majesty" or  40 "The Crown" may very well mean Provincial or Federal  41 depending on the context.  And the split centred  42 around when one would say that it meant both  43 Provincial and Federal.  And Mr. Chief Justice Dickson  44 in the reasons -- and there are lengthy reasons, but  45 his decision is at the end.  And going from the  46 back —  47 THE COURT:  Yes, I have it. 29083  Submissions by Ms. Koenigsberg  1 MS. KOENIGSBERG:  — I'm looking at page 21 of his reasons.  And  2 I say that though he is dissenting, his reasons here  3 are not central to his dissent.  They are reasons in  4 support of his position.  There is no reason to  5 believe that the other justices wouldn't have agreed  6 with these reasons.  They simply would have said it  7 wouldn't apply to section 90.  So with that caveat on  8 it I would like to read this part and it's page --  9 it's about four paragraphs.  Beginning on page 21 he  10 says:  11  12 "While this appeal does not involve the  13 interpretation of a treaty, I find it helpful  14 to consider the aboriginal perspective in  15 illustrating the ambiguity of 'Her Majesty' in  16 S. 90(1) (b) .  Nowegijick dictates taking a  17 generous liberal approach to interpretation.  18 In my opinion, reference to the notion of  19 'aboriginal understanding', which respects the  20 unique culture and history of Canada's  21 aboriginal peoples, is an appropriate part of  22 that approach.  In the context of this appeal,  23 the aboriginal understanding of 'the Crown' or  24 'Her Majesty' is rooted in pre-Confederation  25 realities.  The recent case of Guerin took as  26 its fundamental premise the 'unique character  27 both of the Indians' interest in land and of  28 the historical relationship with the Crown.'  29 That relationship began with pre-Confederation  30 contact between the historic occupiers of North  31 American lands (the aboriginal peoples) and the  32 European colonizers (since 1763, 'the Crown'),  33 and it is this relationship between aboriginal  34 peoples and the Crown that grounds the  35 distinctive fiduciary obligation on the Crown.  36 On its facts, Guerin only dealt with the  37 obligation of the federal Crown arising upon  38 surrender of land by Indians and it is true  39 that, since 1867, the Crown's role has been  40 played, as matter of the federal division of  41 powers, by Her Majesty in right of Canada, with  42 the Indian Act representing a confirmation of  43 the Crown's historic responsibility for the  44 welfare and interests of these people.  45 However, the Indians' relationship with the  46 Crown or sovereign has never depended on the  47 particular representatives of the Crown 29084  Submissions by Ms. Koenigsberg  1 involved.  From the aboriginal perspective, any  2 federal-provincial divisions that the Crown has  3 imposed on itself are internal to itself and do  4 not alter the basic structure of  5 Sovereign-Indian relations.  This is not to  6 suggest that aboriginal peoples are outside the  7 sovereignty of the Crown, nor does it call into  8 question the divisions of jurisdiction in  9 relation to aboriginal peoples in federal  10 Canada.  11 One can over-emphasize the extent to which  12 aboriginal peoples are affected only by the  13 decisions and actions of the federal Crown.  14 Part and parcel of the division of powers is  15 the incidental effects doctrine according to  16 which a law in relation to a matter within the  17 competence of one level of government may  18 validly affect a matter within the competence  19 of the other; as recently stated in Alberta  20 Government Telephones v. Canada, 'Canadian  21 federalism has evolved in a way which tolerates  22 overlapping federal and provincial legislation  23 in many respects.'  As long as Indians are not  24 affected qua Indians, a provincial law may  25 affect Indians, and significantly so in terms  26 everyday life.  Section 88 of the Indian Act  27 greatly increases the extent to which the  28 provinces can affect Indians by acknowledging  29 the validity of laws of general application,  30 unless they are supplanted by treaties or  31 federal law.  This fluidity of responsibility  32 across lines of jurisdiction accords well with  33 the fact that the newly entrenched S. 35 of the  34 Constitution Act, 1982, applies to all levels  35 of government in Canada."  36  37 In my submission the other justices would -- there is  38 no reason to believe they would not have agreed with  39 that general analysis.  Their disagreement with the  40 Chief Justice, which is extremely well laid out in the  41 reasons of Mr. Justice La Forest, centred around the  42 interpretation of S. 90(1)(b), and why in the  43 circumstances it should not be read to include the  44 Provincial Crown.  And in my submission that Mitchell  45 decision, that analysis by Chief Justice Dickson makes  46 it crystal clear that after 1982 provincial laws of  47 general application and provincial laws which can 29085  Submissions by Ms. Koenigsberg  1 apply ex proprio vigore still apply, but they are  2 going to have to meet the justificatory test.  And it  3 is also authority for the proposition that the  4 fiduciary relationship, which seems now to be  5 described as almost a floating charge, is one which  6 surrounds the Crown's dealings with aboriginal people  7 when it becomes crystalized and could be said to have  8 applied and still apply to the provincial power when  9 it is exercised in relevant circumstances.  And in my  10 submission all of that really was presage, though it  11 may not be so clearly in the Sparrow decision.  Those  12 are all my submission.  13 THE COURT:  All right.  Thank you.  14 MS. KOENIGSBERG:  And I think that closes the Federal Crown's  15 case.  16 THE COURT:  All right.  Thank you.  I should note that memorable  17 event.  18 MR. MACAULAY:  May I say errors and omissions excepted, my lord.  19 THE COURT:  Oh, yes.  All right.  Mr. Plant and Mr. Willms, have  20 you got anything to tell me?  21 MR. WILLMS:  My lord, we'll — there will be a submission  22 tomorrow morning at 10 o'clock on the counterclaim.  23 THE COURT:  Yes.  All right.  Any idea how long it will take?  24 MR. WILLMS:  Well, my lord, I can't say.  There has — it will  25 deal with the misconception of the counterclaim to  26 start with, and that's what it will be focussed on to  27 begin with.  28 THE COURT:  That will certainly be helpful.  29 MR. WILLMS:  We will have a common understanding of what the  30 counterclaim really is.  That will help the  31 plaintiffs.  32 THE COURT:  Yes.  All right.  You don't know whether Miss  33 Mandell should be ready to proceed tomorrow or maybe  34 she doesn't want to do so anyway?  35 MS. MANDELL:  My lord, we are expecting to start first thing  36 Thursday morning.  37 THE COURT:  All right.  Well, you have got all day then.  All  38 right.  You will keep in mind, Mr. Willms, that I have  39 to be at a funeral tomorrow from -- away from here  40 from 12:30 to 2:30 and in view of that you don't think  41 we should start early?  42 MR. WILLMS:  I don't think it's necessary, my lord.  43 THE COURT:  Yes.  All right.  Thank you.  10 o'clock tomorrow  44 morning.  Thank you.  45  46 (PROCEEDINGS ADJOURNED UNTIL WEDNESDAY, JUNE 27, 1990  47 AT 10:00 A.M.) 29086  Submissions by Ms. Koenigsberg  1  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 Laara Yardley,  13 Official Reporter,  14 UNITED REPORTING SERVICE LTD.  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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