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[Proceedings of the Supreme Court of British Columbia 1990-04-12] British Columbia. Supreme Court Apr 12, 1990

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 24303  Proceedings  1 12 April 1990  2 Smithers, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 12th day of April, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  Mr. Rush.  8 MR. RUSH:  My lord, on the question of timing, we wanted to  9 propose two options for next week.  One is, we would  10 ask the court to sit next Saturday.  11 THE COURT:  Can't do it, I am sorry.  12 MR. RUSH:  Well, that's option one down.  13 THE COURT:  I am committed to something that's been arranged for  14 my convenience and I didn't anticipate this request  15 and it would be very awkward for me so ask those  16 people now to re-arrange all their affairs.  17 MR. RUSH:  Perhaps I should explore the possibility of the  18 following Saturday.  19 THE COURT:  That's worse.  20 MR. RUSH:  I see.  All right.  21 THE COURT:  I am already committed.  22 MR. RUSH:  The weekends are not available.  23 THE COURT:  Well, they are a little further down with a little  24 more time.  I have a number of engagements that are  25 tight.  I have to fly one of those nights and I'm not  26 looking forward to that either.  27 MR. RUSH:  No.  Well, the other option, my lord, is extended  28 hours next week.  29 THE COURT:  Well, we have arranged for another reporter as I  30 think you know.  31 MR. RUSH:  Yes, and I think that for sure we would want to go to  32 five o'clock on most of those days and I think, if the  33 option is available to us, to go later than five  34 o'clock.  We'd like to know that, if that's feasible  35 with the reporters.  36 THE COURT:  Well, I think it is and I think we could try it on  37 Tuesday anyway and see how we get along.  I would --  38 well, my conversation with the reporters antedated the  39 idea of four reporters, so I am not sure what their  40 views would be about an evening sitting or whether you  41 would just carry on beyond five o'clock.  42 MR. RUSH:  I think it may well depend on who is arguing at that  43 particular time, but I think both options, we would  44 like to know if they are available to us, certainly on  45 Tuesday, given the shortness of the day, we would like  46 to carry on after five.  47 THE COURT:  Yes.  I think we will be able to accommodate that. 24304  Submissions by Mr. Jackson  1 There are some limits, but it greatly ameliorates the  2 problem when the reporters don't have to provide a  3 transcript first thing the following morning.  They  4 can't get it that day, but if they don't have to have  5 the transcript first thing in the morning, well, they  6 are able to sit longer hours.  7 MR. RUSH:  Yes.  Well, there is no requirement on the  8 plaintiffs' part in the production of such a  9 transcript.  10 THE COURT:  Well, I won't even speak to Mr. Willms about that,  11 although I don't think he's been hurt by the few hour  12 delay.  13 MR. WILLMS:  No, my lord, and I think I said that earlier this  14 week that during the day is fine.  15 THE COURT:  Yes.  16 MR. RUSH:  But I should advise your lordship that  17 notwithstanding our efforts to try and adjust the  18 daily hours, that we are still going to be behind in  19 our argument and we are presently trying to find  20 another, another option to deal with that, and we will  21 make submissions to you further on that on Tuesday.  22 THE COURT:  Yes, all right.  Thank you.  Mr. Jackson.  23 MR. JACKSON:  My lord, I got to page 125 of volume 3.  24 THE COURT:  Oh, yes.  25 MR. JACKSON:  And I wish to address your lordship first on the  26 Treaty of Waitangi and if I may be permitted to  27 comment, my lord, I suspect that, were it not for this  28 case, both your lordship and I might be in New Zealand  2 9 at the Commonwealth Law Conference.  30 THE COURT:  Well, I know I would be.  31 MR. JACKSON:  I cancelled an invitation, my lord, in order to  32 fulfil my obligations in this case, my lord.  33 In the course of both the judgments of Chief  34 Justice Martin and Mr. Justice Chapman in the Symonds  35 case, reference was made to the Treaty of Waitangi of  36 1840.  And I say, my lord, although this is the 150th  37 anniversary of that treaty, my addressing you on the  38 context in terms of the treaty rests not on  39 celebratory sentiments but on its direct relevance to  40 the determination of the nature of aboriginal  41 ownership and jurisdiction, which is the subject  42 matter of the plaintiffs' Statement of Claim.  43 If your lordship would just turn back for a moment  44 to page 121, judgment of Mr. Justice Chapman in  45 Symonds, about three-quarters of the way down the page  46 in the second underlining or third underlining where  47 his lordship said: 24305  Submissions by Mr. Jackson  1  2 "...it cannot be too solemnly asserted that it  3 is. . . "  4  5 the native title is:  6  7 "...entitled to be respected, that it cannot be  8 extinguished (at least in times of peace)  9 otherwise than by the free consent of the  10                     native occupiers."  11  12 Further down:  13  14 "It follows from what has been said, that the  15 solemnly guaranteeing the native title and  16 securing what is called the Queen's pre-emptive  17 right, the Treaty of Waitangi, confirmed by the  18 charter of the colony, does not assert either  19 in doctrine or in practice anything new and  20 unsettled."  21  22 And turning now back to page 125.  23 THE COURT:  That's really the American position, isn't it?  2 4    MR. JACKSON:  Yes, my lord.  25 THE COURT:  As reflected by the Marshall judgments.  26 MR. JACKSON:  Yes, my lord, and as affirmed by Chief Justice —  27 by Mr. Justice Chapman as being the settlement law of  28 the colonies applicable to New Zealand as well as part  29 of British law applicable to the colonies, which of  30 course is an essential thrust of our arguments, my  31 lord, that the Marshall principles are large -- the  32 principles of the common law and not an American  33 version thereof.  34 The treaty was signed in 1840 by  35 Lieutenant-Governor William Hobson on behalf of the  36 Crown and, on behalf of the Maori, 39 chiefs signed  37 the treaty in its English version and over 500 signed  38 the treaty in its Maori version.  We say, my lord,  39 that the Treaty of Waitangi in substance resembles the  40 Royal Proclamation insofar as both were intended to  41 establish a comprehensive framework for ordering  42 relations between aboriginal peoples and the Crown.  43 Both are based upon guarantees of pre-existing  44 aboriginal rights.  Essential difference between the  45 two in form is that the Proclamation is unilateral in  46 form whereas the Treaty is expressly stated to be a  47 consensual document, it being the Treaty.  Of course 24306  Submissions by Mr. Jackson  1 it is our submission that the Proclamation in  2 substance is a recapitulation and a re-affirmation of  3 principles which were the subject themselves of  4 consensual treaty-making through and before the  5 covenant chain.  6 My lord, the Treaty of Waitangi is an exhibit in  7 these proceedings.  Your lordship can find it as  8 Exhibit 1028 tab 25.  It was put into evidence in the  9 course of Mr. Morrison's evidence. The preamble to  10 the Treaty he recites and I set it out at page 126:  11  12 "The Queen...  regarding her royal Favour the  13 Native Chiefs and Tribes of New Zealand, and  14 anxious to protect that just Rights and  15 Property... has deemed it necessary in  16 consequence of the great number of Her  17 Majesty's subjects who have already settled in  18 New Zealand and the rapid extension of  19 emigration both from Europe and Australia which  20 is still in progress...  to treat with the  21 Aborigines of New Zealand for the recognition  22 of Her Majesty's sovereign authority over the  23 whole or any part of those islands."  24  25 Before I go on to deal with the text of the Treaty  26 of Waitangi and why we say it has relevance to the  27 issues here, there are two matters I would draw to  28 your lordship's attention.  The first one I have  29 already briefly mentioned and that is that the treaty  30 was drafted in two versions, in Maori version and in  31 an English one.  Until recently the English text has  32 been seen as the primary reference point despite the  33 fact that over 500 of the 539 chiefs signed the Maori  34 version.  And I refer at the bottom of page 126, my  35 lord, to the Waitangi Tribunal.  This is a body which  36 was established pursuant to legislation in New Zealand  37 which has a statutory mandate to hear claims by the  38 Maori that their rights under the treaty have been  39 breached.  It is also empowered to determine the  40 meaning and effect of the Treaty as embodied in the  41 two texts and to decide issues raised by differences  42 between them.  And I note, my lord, that the tribunal  43 is not a court of law and its findings and  44 recommendations on claims are, with some important  45 exceptions, not binding on the courts or on the Crown.  4 6 And I have referred your lordship to a recent judgment  47 of Mr. President Cook in the Te Runuwega case where 24307  Submissions by Mr. Jackson  1 the New Zealand Court of Appeal observed the finding  2 of the tribunal, although not binding, might well be  3 accepted by a court and indeed has been accepted by  4 courts as strong evidence of the extent of the  5 customary title.  And the Waitangi Tribunal, in  6 looking at the Treaty of Waitangi, has taken the  7 position that where there is significant differences,  8 in many matters there are differences, but where there  9 are differences between the two texts, the Maori text  10 should be seen as the prime reference; it being the  11 one by reference to which most of the Maori chiefs  12 penned their signatures.  13 And I say at the bottom of page 127 that that  14 approach is one which is consistent with principles of  15 treaty interpretation which have been accepted and  16 endorsed by the highest courts in this country, by the  17 Supreme Court of Canada in the Symonds case, and most  18 recently by our own Court of Appeal in Saanichton  19 Marina, and those principles are ones which we will be  20 returning and Mr. Rush has already referred your  21 lordship to them as appropriate cans in looking at the  22 Royal Proclamation and its respective application.  23 MR. WILLMS:  My lord, the references that my friend has given,  24 Williams and Saunders, and the report of the Waitangi  25 Tribunal, if he would be so good as to let us know  26 where we could find those.  I have looked for them.  27 MR. JACKSON:  Yes, my lord.  They are in our series 3 which will  28 be made available early next week, my lord.  They  29 should have been in series 2.  Some of this material,  30 my lord, particularly the Waitangi Tribunal Report,  31 had to come from New Zealand and arrived but recently.  32 Under Article 1 of the English text the Maori  33 chiefs cede to the Crown:  34  35 "...absolutely and without reservation, all the  36 rights and powers of sovereignty which the said  37 confederation or individual chiefs respectively  38 exercise or possess, or may be supposed to  39 exercise or to possess, over their respective  40 territories,"  41  42 By contrast, my lord, the Maori version of Article  43 1 ceded the thing called "kawanatanga".  This was a  44 word which was used extensively in the 1820 Maori  45 translation of the Bible and was used to describe the  46 authority of such figures as Pontius Pilate.  Now, in  47 return for what was ceded by Article 1 under the 2430?  Submissions by Mr. Jackson  1 English text the Article 2 provides that:  2  3 "Her Majesty the Queen of England confirms and  4 guarantees to the Chiefs and Tribes of New  5 Zealand, and to the respective families and  6 individuals thereof, the full, exclusive, and  7 undisturbed possession of their Lands and  8 Estates, Forests, Fisheries, and other  9 properties which they may collectively or  10 individually possess, so long as it is their  11 wish and desire to retain the same in their  12 possession but the chiefs of the United Tribes  13 and the individual chiefs, yield to Her Majesty  14 the exclusive right of pre-emption over such  15 lands as the proprietors thereof may be  16 disposed to alienate, at such prices as may be  17 agreed upon between the respective proprietors  18 and persons appointed by Her Majesty to treat  19 with them in that behalf."  20  21 And, my lord, it is almost self-evident the way in  22 which that language tracks in a more amplified form  23 what we say are fundamental principles of the common  24 law.  We say it is a more explicit recognition of the  25 aboriginal ownership which is recognized and protected  26 by the Royal Proclamation and the common law.  In  27 unambiguous terms, it recognizes the beneficial  28 interest of aboriginal proprietors in all resources,  29 and you will note, my lord, estates, forests,  30 fisheries, and other properties.  Furthermore, in  31 addition to providing an expansive and full definition  32 of the content of aboriginal rights in terms of their  33 proprietary aspects, it recognizes the rights of the  34 Crown as being limited to rights of pre-emption to  35 such lands as the aboriginal peoples, as proprietors  36 of those lands, consent to sell and affirms that such  37 sales must be made by treaties with Crown-appointed  38 agents.  And what you find there, my lord, in a  39 capsulated form is the referencial incorporation of  40 what we say are the chief hallmarks of the common law  41 conception of aboriginal rights and the relationships  42 between aboriginal peoples and the Crown vis-a-vis  43 proprietary matters.  44 Article 2 of the Maori text differs from the  45 English text both in the nature of what is protected  46 and the extent of that protection.  And I have  47 referred your lordship to a recent decision of Mr. 24309  Submissions by Mr. Jackson  1 Justice Chilwell of the New Zealand High Court where  2 his lordship, in the course of a discussion of an  3 issue as to the way in which an administrative  4 tribunal should take into account Treaty of Waitangi  5 as part of the values of the nation and the public  6 interest, I am not referring you to the case for that  7 purpose, but in the body of his judgment he does set  8 out this material as to the Maori text and its  9 translation.  And the Article 2 of the Maori text has  10 a number of English translations, one of them given by  11 Mr. Justice Chilwell as set out here.  12  13 "The Queen of England agrees and consents (to  14 give) to the Chiefs, the Hapus, and all the  15 people of New Zealand the full chieftainship  16 (Rangatiratanga) (of?) their lands, their  17 villages, and all their possessions but the  18 Chiefs of the Confederation and all the other  19 Chiefs give to the Queen the purchasing of  20 those pieces of land which the owner is willing  21 to sell, subject to the arranging of payment  22 which will be agreed to by them and the  23 purchaser who will be appointed by the Queen...  24 The Waitangi Tribunal..."  25  26 and this is part of Mr. Justice Chilwell's judgment...  27  28 "...empowered by s. 5(2) of the Treaty of  29 Waitangi Act 1975, to have exclusive authority,  30 in exercising any of its functions under the  31 section to determine the meaning and effect of  32 the treaty, has translated the crucial  33 passage."  34  35 And then the Maori words are given, "literally..."  36 the top of page 130:  37  38 "...as at highest chieftainship of their lands,  39 homes and prized possessions."  40  41 And one of the words Taonga, which is the prized  42 possessions, is interpreted by the Waitangi Tribunal  43 as we are told by Mr. Justice Chilwell as:  44  45 "...objects of tangible value.  A river may be a  46 taonga as a valuable resource.  Its 'mauri' or  47 'life-force' is another taonga.  We accept the 24310  Submissions by Mr. Jackson  1 contention of counsel for the claimants that  2 the mauri of the Waikoto River is a taonga of  3 the Waikoto tribes."  4  5 That came up in this particular case because the  6 issue before his lordship is whether or not an  7 administrative tribunal, in determining whether or not  8 to grant a licence of the dumping of their fluid into  9 the river, had to take into account Maori concerns  10 that even if it couldn't be shown that the fish were  11 polluted, there was contamination of the river to  12 their way of thinking.  And the question was:  Should  13 the administrative tribunal, in looking at the public  14 interest in the context of the whole of New Zealand,  15 have had regard to how the Maori looked at this  16 matter, and the Court determined in the event that  17 that was part of the public interest.  That's how this  18 issue came before the court in Huakina.  My lord, the  19 reference to the Huakina case is in volume 5 of our  20 book of authorities, tab 34, and again citing from Mr.  21 Justice Chilwell, he quotes from a Waitangi Tribunal:  22  23 "...while the English text is centred around  24 'real estate rights', the maori refers also to  25 to the protection of intangible things.  The  26 guarantee of all 'o ratou taonga katoa' are all  27 things treasured by the ancestors has been  28 taken to include language, custom and  29 religion."  30  31 My lord, the Waitangi Tribunal has tried to  32 grapple with the -- the Maori ceded sovereignty under  33 Article 1 and they retained full chieftainship under  34 Article 2; how do those mesh; how do they relate to  35 each other; are they inconsistent or is there a way to  36 marry the two to make sense of the treaty as the Crown  37 would have understood it on the one hand and how the  38 Maori would have understood it on the other?  And at  39 the bottom of page 130 and 131, I set out what in fact  40 is the Waitangi Tribunals' attempt to make sense from  41 both the Crown and the Maori's point of view of the  42 treaty.  43  44 "The meaning of tino rangatiratanga has caused  45 us much trouble.  There is no precise English  46 equivalent and, it is used in the treaty in an  47 'un-maori' manner to give it the meaning both 24311  Submissions by Mr. Jackson  1 parties would have understood, we would render  2 it as 'full authority'.  The opening to Article  3 the second would then be interpreted as:  4 The Queen of England assures.."  5  6 and that should be "to", my lord:  7  8 "...assures to the chiefs, the subtribes and  9 (Maori) people of New Zealand and agrees (to  10 their having) full authority over their lands,  11 homes, etc."  12  13 The Maori text thus conveyed an intension that  14 the Maori would retain full authority over  15 their lands, homes and things important to  16 them...  That of course is wider than the  17 English text which guaranteed 'the full,  18 exclusive and undisturbed possession of lands,  19 estates, forests, fisheries, and other  20 properties' so long as the Maori wished to  21 retain them.  The Maori text gave that and  22 more.  23  24 The present case is concerned with land.  It is  25 plain that land, which is expressly referred to  26 in both texts, is covered by the Treaty.  The  27 real question is the nature and extent of the  28 interest in the land secured to the Maori.  In  29 the Te Atiawa Report (1983) we stressed that  30 'rangatiratanga" and 'mana" are inextricably  31 related and that rangatiratanga denotes the  32 mana not only to possess what one owns but, and  33 we emphasize this, to manage and control it in  34 accordance with the preferences of the owner."  35  36 And, my lord, if one refers back to the Mitchel  37 case where Mr. Justice Baldwin talks about to use it  38 according to their discretion, we thought the Maori  39 text would have conveyed to Maori people that, amongst  40 other things, they were to be protected not only in  41 the possession of their fishing grounds but in the  42 manner to control them in accordance with their own  43 customs and having regard to their own cultural  44 preferences.  Clearly the same understanding would  45 have been held in relation to land.  46  47 "In recognizing the 'tino rangatiratanga' over 24312  Submissions by Mr. Jackson  1 their lands the Queen was acknowledging the  2 right of the Maori people for as long as they  3 wished, to hold their land in accordance with  4 longstanding custom on a tribal and communal  5 basis."  6  7 And it is our submission, my lord, that in  8 retaining full authority over their lands, homes and  9 things important to them, the Maoris retained the  10 right to self-government, and we say that the Treaty  11 of Waitangi properly understood reflects the common  12 law position articulated by Chief Justice Marshall  13 himself in Worcester and Georgia.  14 THE COURT:  But what does that mean, Mr. Jackson?  When you say  15 self-government, what do you mean?  Do you mean  16 exemption from the criminal law?  17 MR. JACKSON:  No, my lord.  In the context of the Treaty of  18 Waitangi in relation to the land rights, we say it is  19 the authority to manage the resources, the authority  20 to determine rights in relation to those resources.  21 In terms of the criminal law, in fact the Treaty of  22 Waitangi, Tribunal of Waitangi has not had to address  23 that matter and the Maoris have not asserted that  24 under the treaty.  They are exempted from the general  25 criminal law.  2 6    THE COURT:  What about exemption from ordinary land, civil law  27 such as registration, expropriation, form and content  28 of conveyancing documents and things of that kind?  29 MR. JACKSON:  My lord, it is our position that the Treaty of  30 Waitangi and, as I understand it it is the Maori  31 position, is the framework for future negotiations of  32 those kinds of issues.  The treaty guaranteed certain  33 pre-existing rights in terms of changing the shape of  34 future relationships between the Maori and the Crown.  35 That was to be the subject of future treaty-making.  36 And it is our position in relation to the Gitksan and  37 Wes'suwet'en, my lord, that to the extent, I say, the  38 principal of consent is a critical feature of the  39 common law juris prudence that changes to the  40 pre-existing rights are properly the subject of  41 treaty-making.  42 THE COURT:  Have the New Zealand tribunals had to deal with the  43 question of expropriation?  44 MR. JACKSON:  Yes, my lord.  In fact there has been  45 expropriation legislation in New Zealand.  There was  46 in fact legislation in New Zealand in 1865 which had  47 the effect of subjecting Maori land rights to a 24313  Submissions by Mr. Jackson  1 registrational regime and an allotment regime,  2 somewhat equivalent to what happened in the United  3 States later on.  One of the things which happened to  4 the Treaty of Waitangi, my lord, and it is something I  5 will be coming back to, is that war, as the Supreme  6 Court in Symonds had taken the position that this was  7 an authoritative expression of the law, it reflects  8 the law and was binding, the New Zealand courts in the  9 1870s took the position from which only recently have  10 the New Zealand courts resiled that the Treaty of  11 Waitangi, because it was an international treaty, was  12 not enforcable as a matter of municipal law and  13 therefore it meant nothing as a matter of municipal  14 law.  And a decision which I will be coming back to  15 called Wiparata and the Bishop of Wellington in I  16 think 1877, Chief Justice Pendegast described the  17 treaty as a nullity on the basis that the Maoris were  18 in fact savages, had no conception of their rights,  19 and the treaty in fact wasn't really worth the paper  20 it was written on.  A position, my lord, which in many  21 ways parallels the position taken by some of the  22 judges in St. Catherine's Milling at around the same  23 time and which parallels positions taken by the U.S.  24 Supreme Court also around the same time, and I will be  25 addressing that, my lord, this afternoon in the  26 context of what caused the shift in the late 19th  27 century in which the rights of aboriginal peoples were  28 reconceptualized in ways which fly in the face it  29 would appear from the original Marshall principles.  30 THE COURT:  I would have thought that the conveyance of  31 sovereignty, and this is just a very preliminary  32 thought, on the one hand would carry with it the  33 incidence of the general law.  34 MR. JACKSON:  That, my lord, is a continuing subject in New  35 Zealand and the prevailing view has been that indeed  36 it did in relation to certain important matters.  It's  37 only been with the Treaty of Waitangi Tribunal, my  38 lord, that some of these issues have come up because  39 since the New Zealand courts took the position that  40 the treaty was an international treaty and was  41 therefore not binding as a matter of municipal law.  42 In the absence of it having been endorsed and  43 incorporated by municipal legislation, there was no  44 way for the Maoris to come to court to assert the  45 actions of the government were inconsistent with it  46 and it's only been with the Treaty of Waitangi that in  47 fact those claims have in fact come to the fore and 24314  Submissions by Mr. Jackson  1 the courts have now had to reassess the appropriate --  2 the role of the Treaty of Waitangi in the context of  3 New Zealand law.  4 That's one of the reasons, my lord, that, in the  5 recent decision, the New Zealand courts have looked to  6 the Canadian decisions in cases such as Guerin, where  7 they have said aboriginal rights are pre-existing  8 rights, and the New Zealand courts are going back to  9 Symonds which of course said the same thing that the  10 Treaty of Waitangi didn't actually say anything new  11 and extraordinary.  It affirmed the principles of the  12 common law as they have been applied by the U.S.  13 Supreme Court in the United States.  14 MR. WILLMS:  My lord, just so that I can make a note about this,  15 is my friend saying that it is -- the treaty is or is  16 not part of the municipal law of New Zealand?  Is  17 that -- I think he said it is not but I am not sure.  18 THE COURT:  That's what I understood.  19 MR. JACKSON:  What I said, my lord, is that enforcement of its  20 terms as such has to date been viewed by the New  21 Zealand courts as something which is not possible  22 because it is an international treaty.  But the courts  23 are in fact in an evolutionary kind of way working  24 back to fundamental principles.  And that's exactly,  25 my lord, the position which we are advancing before  26 this court; that we have identified what we say are  27 fundamental principles.  And where I am going next, my  28 lord, is in fact to The Canadian Jurisprudence after I  2 9 have made one more comment about the Treaty of  30 Waitangi and New Zealand.  And what we will be seeking  31 to do, both in looking at the Canadian juris prudence  32 and the American juris prudence after Marshall, is  33 pointing out the ways in which these fundamental  34 principles have been modified, in some cases  35 apparently abrogated the way in which that has  36 happened as part of a particularly historical process  37 and how in fact courts are now coming back to the  38 assertion of those fundamental principles.  And we are  39 urging upon your lordship that that is the very role  40 which this court can perform as it were to re-assert  41 what we say are the fundamental principles of justice  42 as they relate to the determination of the rights of  43 aboriginal peoples and the Crown.  44 Now, the last part of the Treaty of Waitangi, my  45 lord, there is really no difference of substance  46 between the Maori and the English text.  Article 3 of  47 the English version provides that in consideration of 24315  Submissions by Mr. Jackson  1 the Maoris agreement -- this is at page 132 -- in  2 consideration of the Maoris agreement to articles 1  3 and 2, the Queen extends to the Natives of New Zealand  4 her Royal Protection, and imparts to them all the  5 rights and privileges of British subjects.  And I have  6 set out Mr. Justice Chilwell's English translation of  7 that article.  8  9 "This is the arrangement for the consent to the  10 Governorship of the queen.  11 The Queen will protect all Maori people of New  12 Zealand, and give them all the same rights as  13 those of the people of England."  14  15 And we say, my lord, that Article 3 again  16 explicitly and unequivocally reflects the protectorate  17 relationship established by consent under the Treaty.  18 A recent commentator reviewing the New Zealand  19 experience against the backdrop of the Marshall  20 decisions and the Royal Proclamation has summarized  21 the framework of Maori-Pakeha, and that, my lord, is a  22 Maori term for white New Zealanders, which is now used  23 in official documents, indeed used in decisions of New  24 Zealand courts, what those relationships were as  25 established by the treaty.  26  27 "Firstly..."  28  29 says Mr. Williams:  30  31 ...like the Royal Proclamation, the Treaty  32 recognized and guaranteed Maori title to the  33 whole of New Zealand.  It also guaranteed  34 tribal territorial integrity in the article II  35 phrase 'exclusive and undisturbed possession'.  36 Secondly, pre-existing Maori sovereignty was  37 clearly recognized in both the form of the  38 treaty and in specific provisions of article I.  39 Moreover, that sovereignty was modified by  40 article I...  but it was not extinguished.  In  41 essence a right to internal Maori self  42 government - remained intact and was protected  43 by the terms of article II.  In return for that  44 protection, what remained of the sovereignty  45 rubric was transferred to the Crown pursuant to  46 article I.  This so-called 'sovereignty'  47 amounted to the exclusive right to exercise 24316  Submissions by Mr. Jackson  1 governmental powers in respect of the growing  2 settler population.  As was expressly included  3 in article II, it also reserved to the British  4 Crown the exclusive right to purchase land held  5 by their tribes.  6  7 And it is our submission, my lord, that at the  8 time when British claims to sovereignty over what is  9 now British Columbia were settled by the Treaty of  10 Oregon in 1846, the fundamental principles of the  11 common law to determine the rights of aboriginal  12 peoples were the principles articulated first in the  13 Marshall decision of the U.S. Supreme Court which have  14 their fullest expression in the case of Worcester and  15 Georgia; secondly, in the Treaty of Waitangi and the  16 decision of the New Zealand Supreme Court in Symonds.  17 These principles recognize the pre-existing rights of  18 aboriginal peoples to the ownership of their  19 territories and the right to exercise full authority  20 over their territories, limited only by a restriction  21 on alienation of their territories to persons other  22 than the Crown or persons authorized by the Crown.  23 These principles also recognize an underlying Crown  24 title in the colonies which so far as the pre-existing  25 rights of the aboriginal peoples was concerned was  26 limited to the right to acquire such lands as the  27 aboriginal peoples were willing to sell.  And  28 underpinning the legal relationship between aboriginal  29 rights and Crown rights was the principle of  30 aboriginal people's consent and a Crown protectorate.  31 And we say that this was the legal framework which was  32 applicable to the Colony of Vancouver Island when it  33 was established in 1849 and the Colony of British  34 Columbia when it was established, decades later, in  35 1858.  36 I wish to turn now, my lord, to the Canadian  37 Jurisprudence.  And, again, I would advise your  38 lordship that many of these cases I am going to be  39 referring to will be brought up again later in the  40 argument in the context of its specific issues which  41 your lordship is being asked to determine.  The St.  42 Catherine's Milling case was the first Canadian case  43 dealing with aboriginal rights to proceed through the  44 Canadian judicial system and reach the privy council.  45 And until the decision of the Supreme Court in Calder  46 and Guerin, it was regarded as the leading case and  47 the place where, and the words of Mr. Justice Judson, 24317  Submissions by Mr. Jackson  1 "any Canadian inquiry into the nature of the Indian  2 title must begin".  3 We say, my lord, that in analysing the judgments  4 of both the Canadian courts and the Privy Council in  5 St. Catherine's Milling there are a number of points  6 which have to be kept very clearly in mind.  The first  7 point is that, as with Johnson and Mcintosh, the case  8 was argued at all levels in the absence of any Indian  9 or legal representation.  The second point, and this  10 is a crucial point, is that the factual matrix of the  11 case was one underpinned by a purchase of Indian lands  12 by the Crown through a treaty in accordance with what  13 we say are fundamental principles governing Indian  14 Crown relationships.  15 My lord, St. Catherine's Milling was a dispute  16 between the Federal Government and the Province of  17 Ontario as to the legal effect of an Indian cession of  18 lands on their respective rights under the British  19 North America Act.  In 1873, I have previously advised  20 your lordship of this, the Federal Government  21 authorized William Morris as a Treaty Commissioner to  22 negotiate with the Saulteaux Nation for the surrender  23 of some 50,000 square miles of territory.  And I  24 described in some detail, my lord, you will recall two  25 days ago those treaty negotiations.  The Province --  26 the Federal Government believed that this territory  27 was part of Rupert's Land that had been transferred to  28 Canada in 1870.  The Province of Ontario for its part  29 took the position the part of the area lay within its  30 boundaries.  This dispute was eventually submitted to  31 arbitration; it went to the Privy Council with the  32 result that it was found by the Privy Council that a  33 considerable portion of the boundaries of the  34 territories surrendered by the Indians under Treaty 3  35 lay indeed within Ontario's boundaries.  Prior to the  36 Privy Council decision finally determining this, the  37 Federal Government acting on the legal assumption that  38 it had proprietary rights in the territory, which had  39 been relieved of any Indian title by virtue of Treaty  40 3, had granted timber licences to St. Catherine's  41 Milling and Lumber Company.  The Province of Ontario  42 took the view that it had the sole right to grant  43 licences to cut timber on the lands located within its  44 provincial limits, and that the surrender of the  45 Indian interest under Treaty 3 enured to its, and not  46 the Federal Government's, benefit.  And they therefore  47 brought proceedings against St. Catherine's Milling 2431?  Submissions by Mr. Jackson  1 seeking injunction to prevent any further cutting.  2 The Privy Council, at the beginning of its judgment --  3 and, my lord, the Privy Council judgment to which of  4 course I will be referring in some detail is found in  5 volume 9 of our book of authorities, tab 40.  I will  6 of course be bringing your lordship back to that  7 decision.  8 THE COURT:  4 0 or 39?  9 MR. JACKSON:  40 is the Supreme Court Privy Council, 39 is the  10 judgment of the Supreme Court of Canada.  The Privy  11 Council, at the beginning of its judgment, succinctly  12 states the nature of the controversy facing the  13 courts.  14  15 "Of the territory thus ceded to the Crown..."  16  17 THE COURT:  What is meant by that?  Is that by the —  18 MR. JACKSON:  By Treaty No. 3.  19 THE COURT:  By Treaty No. 3.  2 0 MR. JACKSON:  Yes, my lord.  21 THE COURT:  That's not the Rupert's Land?  22 MR. JACKSON:  No, my lord.  This is the treaty ceded by Treaty  23 No. 3.  24 THE COURT:  Yes, thank you.  2 5 MR. JACKSON:  26  27 "Of the territory thus ceded to the Crown, the  28 area of not less than 32,000 square miles is  29 situated within the boundaries of the Province  30 of Ontario, and with respect to that area,  31 controversy has arisen between the Dominion and  32 Ontario, each of them maintaining that the  33 legal effect of extinguishing the Indian title  34 has been to transmit to itself..."  35  36 I think that should be "transmit to itself":  37  38 "...the entire beneficial interest of the lands,  39 as now vested in the Crown, freed from  40 incumbrance of any kind, save the qualified  41 privilege of hunting and fishing mentioned in  42 the treaty."  43  44 The arguments for the parties and the various  45 judgments of the courts addressed themselves to three  46 things:  One, the nature of the Indian title in the  47 lands; two, the relationship of the Indian title to 24319  Submissions by Mr. Jackson  1 the Crown title; and thirdly, and this is for which  2 the proposition for which the case is authority, the  3 effect of the Constitution Act on that issue of the  4 relationship between federal and provincial rights.  5 The competing arguments were essentially these:  6 Counsel for the lumber company and counsel for the  7 Federal Government, counsel for the Federal Government  8 didn't intervene in the case until it was before the  9 Privy Council, argued along two lines, and the first  10 argument was that the Saulteaux Nation had an  11 aboriginal title to the lands at common law which was  12 a complete proprietary interest subject only to a  13 limited power of alienation to the Crown and that by  14 aquiring that interest under the terms of Treaty 3 the  15 Federal Government had acquired the Indians  16 proprietary interest.  Alternative argument was that  17 the Royal Proclamation had conferred on the Indians  18 rights to the territory which rights were capable of  19 transfer to the Crown through the vehicle of the  20 treaty in accordance with the terms of the  21 Proclamation.  In other words, we say, my lord, the  22 Federal Government argued that when it treated with  23 the Indians in 1873, the Indians conveyed their title  24 to the Federal Government, either because they owned  25 the territory by virtue of aboriginal title or because  26 they had been vested with proprietary rights by the  27 Proclamation.  On either ground, the Federal  28 Government had acquired title to the territory from  29 the Indians and they therefore could grant a valid  30 licence to the logging company.  31 There was a further argument in the alternative  32 made by the Federal -- by the lumber company and the  33 Federal Government and that was under Section 91(24).  34 The Federal Government had jurisdiction over lands  35 reserved for the Indians, and this included not only  36 particular lands set aside as Indian reverse, for  37 example under the terms of Treaty 3, but all lands the  38 aboriginal title to which, whether recognized at  39 common law or by the Proclamation, had not been  40 extinguished or surrendered to the Crown.  And the  41 Government and the logging company argued that the  42 Federal Government had exclusive jurisdiction over  43 lands -- Indians and lands reserved for Indians.  And  44 by necessary implication this grant of jurisdiction  45 carried with it a proprietary interest in lands  46 reserved for the Indians.  And therefore, all lands in  47 possession of the Indians not surrendered at the date 24320  Submissions by Mr. Jackson  1 of Confederation, and of course these lands had not  2 been surrendered that day, are to be deemed land  3 reserved for the Indians the ultimate title to which  4 was in the Crown in right of the Federal Government  5 and not in right of the Province.  And since such  6 unsurrendered lands fell within 91(24) they were not  7 lands which vested in the province by virtue of  8 Section 109.  9 My lord, it might be helpful -- I don't know how  10 well your lordship has committed to memory the B.N.A.  11 Act.  12 THE COURT:  I seldom think of little else.  13 MR. JACKSON:  Page 161, my lord.  I have set out Section 109 of  14 the B.N.A. Act so your lordship will have it to mind.  15 Perhaps I will just read it to your lordship.  Section  16 109, it is in the second quote of the page:  17  18 ...provides that 'all lands, mines, minerals,  19 and royalties belonging to the several  20 provinces of Canada ... and all sums then due  21 or payable for such lands, mines, minerals, or  22 royalties, shall belong to the several  23 provinces, et cetera, in which the same are  24 situate or arise, subject to any trusts  25 existing in respect thereof, and to any  26 interest other than that of a Province in the  2 7 s ame. . .  28  29 The province Ontario in response to the first line  30 of argument based on aboriginal title and the Royal  31 Proclamation took the position that the Indians had no  32 legally recognized rights to their lands which could  33 be the subject of surrender.  Counsel for the  34 Attorney-General of Ontario argued "we say that there  35 is no Indian title at law or in equity.  The claim of  36 the Indians is simply moral and no more.  They have no  37 legal or equitable estate in the lands."  38 On the argument that the Royal Proclamation vested  39 such rights in the Indians or affirmed whatever rights  40 they may have had, the Province took the position that  41 the Proclamation conferred on the Indians a licence to  42 occupy terminable at will and furthermore and in any  43 event the Quebec Act of 1774 had repealed the  44 Proclamation so far as it related to this particular  45 territory.  And in response to the argument of the  46 Federal Government that, under Section 91(24), it had  47 exclusive jurisdiction over lands reserved for Indians 24321  Submissions by Mr. Jackson  1 and that carried a proprietary interest as well.  The  2 province took the position that lands reserved for the  3 Indians should be interpreted narrowly as limited to  4 only those particular lands which were set aside as  5 reserve and, alternatively, even if lands reserved for  6 the Indians was to be given a generous, liberal and  7 broad meaning conferring jurisdiction on the Federal  8 Government over lands reserved for the Indians did not  9 require as a matter of constitutional or legal  10 inference as investing the Federal Government with any  11 proprietary interest in those lands.  And the Province  12 argued that lands reserved to the Indians at the time  13 of Confederation vested in the Crown in right of the  14 Province under Section 109 and there was no necessary  15 inconsistency between locating legislative power for  16 the Federal Government and recognizing the underlying  17 proprietary interest of the Province.  My lord, page  18 139, three lines up from the bottom of that paragraph  19 you will see that there was "no necessary  20 consistency", that should be "inconsistency".  21 THE COURT:  I am sorry, where is that?  On 139?  22 MR. JACKSON:  Page 139.  23 THE COURT:  Yes, I have it.  "No necessary inconsistency", yes.  24 MR. JACKSON:  And so, you see, my lord, St. Catherine's Milling  25 was in conjunction with some rather thorny issues  26 which the courts had to address.  27 At trial, Chancellor Boyd ruled in favour of the  28 Province on both of their arguments.  He concluded  29 first that there was no legal basis for Indians land  30 rights and he said:  31  32 "The Colonial policy of Great Britain as it  33 regards the claims and treatment of the  34 aboriginal populations in America, has been  35 from the first uniform and well-defined.  36 Indians people were found scattered wide-cast  37 over the continent, having as a characteristic,  38 no fixed abodes, but moving as the exigencies  39 of living demanded.  As heathens and  40 barbarians, it was not thought that they had  41 any proprietary title to the soil, nor any such  42 claim thereto as to interfere with the  43 plantations, and the general prosecution of  44 colonization.  They were treated 'justly and  45 graciously Lord Bacon advised, but no legal  46 ownership of land was ever attributed to them."  47 24322  Submissions by Mr. Jackson  1 And in rejecting the concept that Indians could  2 have a legal interest in their lands, the Chancellor  3 advanced this argument:  4  5 "But in order to emphasize this reductio ad  6 absurdum aspects of the case, let what little  7 is known of the people in this remote region be  8 recalled; when the treaty was made, the land it  9 deals with formed the traditional hunting and  10 fishing ground of scattered bands Ojibbeways,  11 most of whom presenting a more than usually  12 degraded Indian type...  Divided into 30 bands,  13 they number, all told, some 2,600 or 2,700  14 souls.  These only remained as representatives  15 of the primitive possessors of the whole 55,000  16 square miles of territory, whose claim of  17 occupancy thereon was extinguished by the  18 treaty."  19  20 According to the Chancellor, Treaty No. 3 despite  21 its express terms did not transfer to the Federal  22 Government any legal rights, because the Indians had  23 no rights to transfer.  He said:  24  25 "while in their nomadic state they may or may  26 not choose to treaty with the Crown for the  27 extinction of their primitive right of  28 occupancy.  If they refuse the government is  29 not hampered, but has perfect liberty to  30 proceed with the settlement and development of  31 the country, and so, sooner or later, to  32 displace them."  33  34 And the Chancellor found comfort and support for  35 his views in the practice of British Columbia.  36 Underlying the whole of British Columbia policy, he  37 said:  38  39 "...there is an affirmance of the constitutional  40 proposition that the claim of the Indians by  41 virtue of their original occupation is not such  42 as to give any title to the land itself, but  43 only serves to commend them to the  44 consideration and liberality of the Government  45 upon their displacement."  46  47 On the alternative argument raised by the Province 24323  Submissions by Mr. Jackson  1 of Ontario, the Chancellor concluded that if, contrary  2 to his views, the Indians interest, which he  3 characterized "their primitive right of occupancy",  4 was strictly speaking a legal interest, then it was  5 interest other than that of the Province within the  6 meaning of Section 109; and upon Confederation --  7 Confederation the lands in issue were vested in the  8 Crown in right of the Province and the provincial  9 title was burdened with the Indians right of  10 occupancy; the effect of the treaty therefore to  11 unburden that interest in favour of the Province.  12 My lord, it is our respectful submission that the  13 judgment of Chancellor Boyd fits fore squarely into  14 what Professor Robert Williams, an American Indians  15 rights scholar, has referred to as "documents of  16 barbarism", replete as it is with references to the  17 Saulteaux Nation as "heathens and barbarians", a "more  18 than usually degraded Indian type", and another part  19 of his judgment, the "rude red-men of the Northwest".  20 And we say that like the argument of Sepulveda its  21 racist denigration of the nature of Indian society in  22 this judgment leads inexorably to the denigration and  23 denial of Indian land rights.  And again reminding  24 your lordship of the words of Chief Justice Dickson in  25 Symonds, in relation to very similar views expressed  26 by His Honour Judge Patterson in Syliboy, we say that  27 the language of Chancellor Boyd "reflects the biases  28 and prejudices of another era in our history.  Such  29 language is no longer acceptable in Canadian law and,  30 indeed, is inconsistent with the growing sensitivity  31 to native land rights in Canada".  And we say  32 something more than that, my lord, it is not just the  33 sentiments, the language, we say that the legal  34 implications which the Chancellor draws also are wrong  35 in law.  36 On appeal to the Ontario Court of Appeal, the  37 Chancellor's judgment was affirmed, and it was also  38 affirmed on a further appeal to the Supreme Court of  39 Canada.  And it's to the judgment of the Supreme Court  40 of Canada to which I would refer your lordship, you  41 will see at the bottom of page 142, and when your  42 lordship looks at the very voluminous report in the  43 Supreme Court Reports of the Supreme Court of Canada  44 decision you will see as the Privy Council later was  45 to refer there was a great deal of learned discussion  46 at the bar relating to the historical record in the  47 America -- American colonies.  There was also 24324  Submissions by Mr. Jackson  1 extensive citations from the judgments of the Marshall  2 court.  3 THE COURT:  The appellants in the Supreme Court of Canada was  4 Canada.  5 MR. JACKSON:  Yes, my lord.  Well, actually it was still the  6 logging company.  7 THE COURT:  I am sorry, yes.  8 MR. JACKSON:  The Federal Government as I say did not intervene  9 in the case until the case was on its way to London.  10 And I would take your lordship first to the  11 judgment of Chief Justice Ritchie.  There were four  12 judgments written in the case, my lord.  Chief Justice  13 Ritchie, with whom Mr. Justice Fournier concurred,  14 there was two further concurrencies by Mr. Justice  15 Henry and Mr. Justice Taschereau, and both Mr. Justice  16 Strong and Mr. Justice Gwynne dissented, writing  17 separate judgments.  The judgment of Chief Justice  18 Ritchie, and, my lord, the judgment can be found at  19 tab 39 of volume 9.  And at page 143 I have set out  20 what we say is the main thrust of Chief Justice  21 Ritchie's judgment, the judgment is quite brief and in  22 contrast to some of the other judgments in the case.  23 In his judgment, he dealt with the relationship  24 between the underlying Crown title and the Indian  25 title in a manner in which we say is modelled on Chief  26 Justice Marshall's judgment in Johnson and Mcintosh.  27 And at page 599, he said:  28  29 "I am of the opinion, that all ungranted lands  30 in the Province of Ontario belong to the Crown  31 as part of the public domain, subject to the  32 Indian right of occupancy in cases in which the  33 same has not been lawfully extinguished, and  34 when such right of occupancy has been lawfully  35 extinguished absolutely to the Crown, and as a  36 consequence to the Province of Ontario.  I  37 think the Crown owns the soil of all at  38 unpatented lands, the Indians possessing only  39 the right of occupancy, and the Crown  40 possessing the legal title subject to that  41 occupancy, with the absolute exclusive right to  42 extinguish the Indian title either by conquest  43 or by purchase."  44  45 And the next page later on as on the next page, he  46 says:  47 24325  Submissions by Mr. Jackson  1 "...When the Dominion government, in 1873  2 extinguished the Indian claim or title, its  3 effect was, so far as the question now before  4 us is concerned, simply to relieve the legal  5 ownership of the land belonging to the province  6 from the burden, encumbrance, or however it may  7 be designated, of the Indian title."  8  9  10 THE COURT:  1873 is the date of Treaty No. 3?  11 MR. JACKSON:  Treaty No. 3, yes, my lord.  That's what he is  12 referring to.  And so you see the legal co-existence  13 of the Crown title, the underlying Crown title,  14 burdened by the Indian right which right continues  15 until lawfully extinguished at which point the  16 underlying title having vested in the province by  17 virtue of 109 becomes a full title with no further  18 burden upon it.  The judgments of Mr. Justice  19 Taschereau, Mr. Justice Henry, expressly approved of  20 Chancellor Boyd's characterization of the Indian  21 interest as being one which gave them no legal title.  22 Mr. Justice Henry went so far as to say, my lord, and  23 I've cited this at the top of page 144:  24  25 "In the first place, I suppose nobody will  26 assert that if a private individual entered  27 upon any of the lands at any time, the Indians  28 could legally object, as the law does not  29 permit them by any legal means to recover  30 possession of the land, or recover damages for  31 any trespass committed thereon.  I mention this  32 to show that the Indians were never regarded as  33 having a title."  34  35 THE COURT:  That must have been a dissenting judgment in the  36 Supreme Court of Canada.  37 MR. JACKSON:  No, my lord, that was a concurring judgment in the  38 result.  39 THE COURT:  All right.  40 MR. JACKSON:  It's certainly not something which Mr. Justice —  41 Chief Justice Ritchie concurred with and I would like  42 your lordship to contrast that statement which we say  43 is wrong in law.  We say that statement, my lord,  44 defies the Marshall principles.  You will recall, my  45 lord, when I referred your lordship to Johnson and  46 Macintosh and Fletcher and Peck, I drew your  47 lordship's attention to the fact that the court in 24326  Submissions by Mr. Jackson  1 that case expressly said that the Crown interest and  2 the Indian title co-existed; however, the Indian  3 interest was such as would prevent an action after  4 ejectment by a guarantee from the Crown prior to the  5 extinguishment of the Indian interest.  6 Mr. Justice Henry is in fact saying there is no  7 legal interest, there is no legal right; if the Crown  8 makes a grant the grantee simply can go in, take  9 possession, and the Indians can do nothing.  And I'd  10 like your lordship also to compare that statement with  11 what Mr. Justice Chapman in the Symonds case said.  12 Your lordship doesn't have to go back to it, it's the  13 passage I read to your lordship first thing this  14 morning, earlier on in that passage where the learned  15 judge said:  16  17 "It is now part of the law of the land and  18 although the courts of the United States in  19 suits between their own subjects will not allow  20 a grant to be impeached under pretext that the  21 native title has not been extinguished, yet  22 they would certainly not hesitate to do so in a  23 suit by one of the native Indians."  24  25 And, my lord, we say that Mr. Justice Henry's  26 statement there is in fact not supported by any of the  27 authorities and in fact is contrary to law.  28 In relation to Treaty No. 3, Mr. Justice Henry as  29 a logical corollary to his position that the Indians  30 had no legal entitlement said this about the treaty:  31  32 "This document signed by certain Indians is not  33 evidence of a purchase.  The conveyance itself  34 shows that the title was in the Crown, and the  35 treaty is simply a cession of all the Indians  36 rights, titles, and privileges whatever they  37 were, and the consideration is stated to have  38 emanated from Her Majesty's bounty...  The  39 consideration was, therefore, on the face of  40 the treaty, an act of bounty on the part of the  41 Her Majesty.  It is not an acknowledgement of  42 any title in fee simple in the Indians.  The  43 Indians were not in possession of any  44 particular portion of the lands; for years and  45 year they might never be on certain portions of  46 it; they could not be said to have yielded  47 possession, for that they cannot be assumed to 24327  Submissions by Mr. Jackson  1 have had, but virtually only relinquished their  2 claim to the lands as hunting grounds."  3  4 We say, my lord, that Mr. Justice Henry's summary  5 dismissal of Treaty 3 flies in the face of the treaty  6 negotiations which I have set out in my previous  7 submissions.  And his equal summary rejection of the  8 argument that the Indians had any legal possession of  9 their territory on the basis that it was only their  10 hunting grounds flies in the face of the carefully  11 reasoned judgment of the Marshall court in Mitchel.  12 Your lordship will recall where the court said  13 that the hunting grounds were as much in their  14 possession as the planted fields of the whites.  15 Mr. Justice Taschereau, my lord, also took a  16 similar, what I may call a, de minimis view of the  17 Indian interest and one is given a sense of that de  18 minimis view at the very beginning of his judgment  19 where he restated the doctrine of discovery quoting  20 from Johnson and Mcintosh, and he restated it in this  21 very significant way:  22  23 "While the different nations of Europe respected  24 the rights (I would say the claims) of the  25 natives as occupants, they all asserted the  26 ultimate dominion and title to the soil to be  27 in themselves."  28  29 And addressing himself to the argument that the  30 Royal Proclamation guaranteed Indians rights, he  31 asserted:  32  33 "Their occupancy under that document has been  34 one by sufferance only.  Their possession has  35 been, in law, the possession of the Crown.  At  36 any time before confederation the Crown could  37 have granted these lands, or any of them, by  38 letters patent, and the grant would have  39 transferred to the grantee, the plenum et utile  40 dominion, with the right to maintain trespass,  41 without entry, against the Indians.  A grant of  42 land by the Crown is tantamount to conveyance  43 with livery of seisin."  44  45 My lord, this conclusion is directly contrary to  46 the position asserted by the U.S. Supreme Court in  47 Fletcher and Peck and Johnson and Mcintosh, although 2432?  Submissions by Mr. Jackson  1 Mr. Justice Taschereau cites both of them with  2 apparent approval.  3 My lord, the reference to that particular passage  4 where he cites these cases is -- do you have a  5 reference in your material to page 35 at this point at  6 the top of page 146, my lord?  7 THE COURT:  Of 146?  Yes.  8 MR. JACKSON:  That should be page 34 and that's a reference to  9 these submissions where I set out the passage from  10 Johnson and Macintosh in which Chief Justice Marshall  11 states the proposition from Fletcher and Peck about  12 the way in which aboriginal title bar an action for  13 ejectment by a guarantee of the Crown's title prior to  14 the extinguishment of the aboriginal interest.  15 Would this be a convenient time to take the break,  16 my lord?  17 THE COURT:  Oh, all right.  18 THE REGISTRAR:  Order in court.  Court stands adjourned for a  19 short recess.  20  21 (PROCEEDINGS ADJOURNED AT 11:07 a.m.)  22  23 I hereby certify the foregoing to be  24 a true and accurate transcript of the  25 proceedings herein, transcribed to  26 the best of my skill and ability.  27  28  29  30  31 TANNIS DEFOE, Official Reporter  32 United Reporting Service Ltd.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 24329  Submissions by Mr. Jackson  1 (PROCEEDINGS RECONVENED PURSUANT TO MORNING RECESS)  2  3 THE REGISTRAR: Order in court.  4 THE COURT: May I inquire, Mr. Jackson and Mr. Rush, if there's  5 any more discs available?  6 MR. RUSH:  Yes, as a matter of fact there is, my lord.  There's  7 one further that was prepared this morning and we are  8 now making an additional copy for the province, so  9 we'll have it at two.  10 THE COURT:  It would be easier to carry home than a large  11 volume, if it's available.  12 MR. RUSH:  Yes, it is.  13 THE COURT:  Is it Volume 2 by any chance?  14 MR. RUSH:  Yes.  It's all of Volume 2 of the plaintiffs'  15 submissions.  16 THE COURT:  Yes, that will be great, thank you.  Jackson.  17 MR. JACKSON:  Just a minor reference that might interest your  18 lordship, at the bottom of page 145, top of page 146,  19 I note that Mr. Justice Taschereau's views, which we  20 say are contrary to the Marshall decisions, ought to  21 be based upon them, and where Mr. Justice Taschereau  22 cites the Marshall cases is at page 643 of his  2 3 judgment.  2 4 THE COURT:  Thank you.  25 MR. JACKSON:  In response to the logging company's argument  26 "that the principles which have always guided the  27 crown...", this is at page 146, "...amount to a  28 recognition of their title to a beneficiary interest  29 in the soil", Mr. Justice Taschereau had this to say:  30  31 "There is, in my opinion, no foundation for this  32 contention.  For obvious political reasons, and  33 motives of humanity and benevolence, it has, no  34 doubt, been the general policy of the Crown, as  35 it had been at the times of the French  36 authorities, to respect the claims of the  37 Indians.  But this, although it unquestionably  38 gives them a title to the favourable  39 consideration of the Government, does not give  40 them any title in law, any title that a court  41 of justice can recognize as against the Crown.  42 If the numerous quotations on the subject  43 furnished to us by appellant from philosophers,  44 publicists, economists, and historians, and  45 from official reports and dispatches, must be  46 interpreted as recognizing a legal Indian title  47 as against the Crown, all I can say of these 24330  Submissions by Mr. Jackson  1 opinions, is, that a careful consideration of  2 the question has led me to a different  3 conclusion.  4  5 The necessary deduction from such a doctrine  6 would be, that all progress of civilization and  7 development in this country is and always has  8 been at the mercy of the Indian race.  Some of  9 the writers cited by the appellants, influenced  10 by sentimental and philanthropic  11 considerations, do not hesitate to go as far.  12 But legal and constitutional principles are in  13 direct antagonism with their theories.  The  14 Indians must in the future, everyone concedes  15 it, be treated with the same consideration for  16 their just claims and demands that they have  17 received in the past, but, as in the past, it  18 will not be because of any legal obligation to  19 do so, but as a sacred political obligation in  20 the execution of which the state must be free  21 from judicial control."  22  23 My lord, this afternoon you'll see how that  24 language in many ways parallels similar language which  25 emanated from decisions of the U.S. Supreme Court at  26 around the same period.  And it is the plaintiffs'  27 submission that Mr. Justice Taschereau's conclusions  28 in this passage I've cited is wrong in law.  We say  29 that his judgment on these points amounts to a  30 statement that, whatever the historical record,  31 whatever statements made by crown officials, whatever  32 the previous practice may have been, it does not  33 reflect the law.  34 MR. WILLMS:  My lord, there are three dots in setting out the  35 argument on the previous page, and this is one of the  36 difficulties with going with this instead of the  37 actual text.  The argument that was advanced was not  38 that principles which have always guided the crown  39 since the dawn of time, but it was since the cession,  40 since the treaty.  The words "since the cession" have  41 been deleted up there and the argument advanced was  42 not anything other than what the crown did after the  43 treaty.  44 THE COURT:  Where do you say the words are missing?  45 MR. WILLMS:  If you look, my lord, on page 146.  4 6    THE COURT:  Yes.  47    MR. WILLMS:  It says "In response to the appellant's argument 24331  Submissions by Mr. Jackson  1 'that the principles which have always guided the  2 Crown...'"  And then you'll see three dots.  3 THE COURT:  Yes.  4 MR. WILLMS:  Well, when you go to the actual case it says "since  5 the cession" on page 648.  6 MR. JACKSON:  My lord, if my friend reads the case in its  7 fullness he will see that the arguments advanced by  8 the appellants in this case refer to a period of time  9 prior to the cession.  There was much evidence before  10 the court, much argument, as to the pre-cession  11 practice and recognition of aboriginal rights in the  12 American colonies prior to the cession.  And therefore  13 I say this passage, my lord, is a passage which refers  14 to a rejection of a legal entitlement in the context  15 of the fullness of the history, rather than the narrow  16 way in which my friend has read it.  But, in any  17 event, our point, my lord, on this is that in saying  18 that any recognition to the extent that it is given is  19 a matter of morality or political judgment, rather  20 than because of any legal obligation.  21 We say, my lord, that the underlying premise  22 reflected in this passage has been repudiated by the  23 Supreme Court of Canada in its judgment in Guerin.  24 And, my lord, in Guerin, and my friend Miss Mandell  25 will be addressing this point at a later day, one of  2 6 the arguments made by the federal government in that  27 case, in response to a claim by the Musqueam band that  28 the federal government, in its dealing with Musqueam  29 Reserve lands upon a surrender for lease, had breached  30 its lawful obligations to deal with those lands in the  31 Indians' interest, one of the principal arguments made  32 by the federal government was that the obligations of  33 the crown were an obligation of a higher order.  They  34 were a political trust and not a legal trust.  And  35 while the crown must in fact strive and endeavour to  36 do what is proper and right for the Indians, it gave  37 rise to no legal entitlement which could be enforced  38 in courts of justice.  39 And the Supreme Court of Canada both in the  40 judgments of Madam Justice Wilson and Mr. Justice  41 Dickson, Chief Justice Dickson expressly rejected the  42 application of the political trust doctrine to these  43 kinds of issues.  44 And I can refer your lordship, just by way of  45 advance notice, that we will be coming back to this.  46 It's Volume 5 of our book of authorities, tab 28, at  47 pages 350, 352, in the judgment of Madam Justice 24332  Submissions by Mr. Jackson  1 Wilson, and pages 378, 379, in the judgment of the  2 Chief Justice.  3 Mr. Justice Taschereau, my lord, and perhaps I  4 could take your lordship to the passage in tab 39.  5 THE COURT:  Well, I don't think you should be deflected from  6 your argument unless you want to.  We'll come to it  7 I'm sure.  8 MR. JACKSON:  Well, I think this is an accurate citation, my  9 lord, and I have endeavoured to be faithful.  These  10 judgments of course are long judgments and I have  11 tried to take your lordship to the passages which I  12 think best reflect the tenor and the substance of  13 these judgments.  14 Mr. Justice Taschereau, remaining then at page  15 147, noted that the judgment of the New Zealand  16 Supreme Court in Symonds, which had been cited to the  17 court, appeared to support the appellant's contention  18 that they had a beneficial interest in their lands.  19 However, he rejected the authority of that case on the  20 basis that by virtue of the treaty of Waitangi, "the  21 nature of the Indians title in New Zealand is a  22 peculiar one".  23 And, as we have pointed out, my lord, in our  24 discussion of Symonds, the judgments in that case are  25 quite explicit that the interest of the Maoris in  26 their lands in New Zealand is identical to the  27 interest of aboriginal peoples in North America.  And  28 furthermore, in both judgments of Mr. Justice Chapman  29 and Chief Justice Martin, the court held that the  30 provisions of the Treaty of Waitangi were an  31 affirmation of "certain established principles of law"  32 and, this is the passage I've cited before, did not  33 "assert either in doctrine or in practice anything new  34 and unsettled".  And, my lord, that statement  35 therefore rejecting the authority for the application  36 of Symonds we say is in error.  37 Both the judgments of Mr. Justice Taschereau and  38 Mr. Justice Henry are part of what we say, my lord, is  39 this chain of jurisprudence which takes us clear back  40 into the 16th century in which aboriginal rights are  41 viewed as being ones which emanate from originally  42 papal subsequently crown grace, rather than as  43 pre-existing legal entitlements.  And we say, my lord,  44 that the Supreme Court of Canada in Guerin has very  45 clearly affirmed that that view is misplaced and as a  46 matter of law is not a proper statement of fundamental  47 principles in relation to aboriginal rights applicable 24333  Submissions by Mr. Jackson  1 to Canada.  2 My lord, the two longest judgments in the Supreme  3 Court were delivered by Mr. Justice Strong and Mr.  4 Justice Gwynne.  Now, both of these judges dissented  5 on the issue as to whether Ontario or the federal  6 government benefited from the Indian cession under the  7 treaty.  The judgment of Mr. Justice Strong -- excuse  8 me, my lord, my voice seems to have got the better of  9 me.  10 THE COURT:  Will a life-saver help, Mr. Jackson?  11 MR. JACKSON:  I don't know, I'm sure a life-saver of some kind.  12 I'm not sure the one with a hole will do it, but we'll  13 see.  14 THE COURT:  Leave them there, he might want another one.  15 MR. JACKSON:  Do I have to finish it before I start talking  16 again?  17 THE COURT:  No.  18 MR. JACKSON:  The judgment of Mr. Justice Strong contains the  19 most comprehensive discussion of the common law  20 origins of aboriginal title, and for that reason the  21 judgment is the one which has been most often cited in  22 subsequent Canadian cases.  It was extensively relied  23 upon by Mr. Justice Hall in Calder who observed that  24 Mr. Justice Strong's judgment, while dissenting in the  25 result, contains an analysis of the nature of Indian  26 title and its relationship to the underlying title of  27 the crown which is in substantial agreement with the  28 views expressed by Chief Justice Ritchie and Mr.  29 Justice Fournier.  30 The judgment of Mr. Justice Strong contains not  31 only the most elaborate analysis of the common law  32 origins of aboriginal title in any Canadian judgment  33 thus far, but we say it is also the one which is the  34 most consistent with the historical research and the  35 preceding jurisprudence, and we say therefore it bears  36 citing at some length.  37 And your lordship will find in the following pages  38 that indeed I have cited it at some considerable  39 length.  The judgment in the report is an enormous one  40 and your lordship will no doubt in the fullness of  41 time look into it.  I have taken from the judgment  42 what I think are the most significant aspects.  I  43 should state at the start, my lord, that Mr. Justice  44 Strong, in terms of his dissent, his dissent  45 essentially was on the issue as to which of the  46 federal government or the province benefitted from the  47 Indian cession.  And on his view of the matter, which 24334  Submissions by Mr. Jackson  1 is set out at page 148, he concluded that:  2  3 "The ultimate Crown title in the lands described  4 in the subsection 24 of section 91, whatever  5 may be the true meaning of the terms employed  6 (an inquiry yet to be entered upon), became,  7 subject to the Indian title in the same, vested  8 in the Crown in right of the Dominion."  9  10 And, therefore, were not public lands at the date  11 of confederation belonging under section 109 to the  12 province of Ontario.  13 His lordship then addressed the inquiry as to the  14 proper scope of section 91(24), and the appellants  15 argument that they "are to have attributed to them a  16 meaning sufficiently comprehensive to include all the  17 lands in which the Indian title, always recognized by  18 the Crown of Great Britain, has not been extinguished  19 or surrendered according to the well-understood and  20 established practice invariably observed by the  21 Government from a comparatively remote period."  22 And it was in response to this inquiry that Mr.  23 Justice Strong embarked upon his comprehensive review  24 of the recognition of aboriginal rights by the crown.  25 And I'll just take your lordship to some of the  26 passage in the next pages starting with the second  27 paragraph at page 149.  His lordship says:  28  29 "In the commentaries of Chancellor Kent and in  30 some decisions of the Supreme Court of the  31 United States we have very full and clear  32 accounts of the policy in question.  It may be  33 summarily stated as consisting in the  34 recognition by the crown of an usufructuary  35 title in the Indians to all unsurrendered  36 lands.  This title, though not perhaps  37 susceptible of any accurate legal definition  38 in exact legal terms,"  39  40 And, my lord, of course this is a recurring theme  41 in many of the cases.  42  43 "...was one which nevertheless sufficed to  44 protect the Indians in the absolute use and  45 enjoyment of their lands, whilst at the same  46 time they were incapacitated from making any  47 valid alienation otherwise than to the crown 24335  Submissions by Mr. Jackson  1 itself, in whom the ultimate title was, in  2 accordance with the English law of real  3 property, considered as vested.  This short  4 statement will, I think, on comparison with the  5 authorities to which I will presently refer, be  6 found to be an accurate description of the  7 principles upon which the crown invariably  8 acted with reference to Indian lands, at least  9 from the year 1756 when Sir William Johnston  10 was appointed by the Imperial government  11 superintendent of Indian Affairs in North  12 America, being as such responsible directly to  13 the crown through one of the secretaries of  14 stator, or the Lords of Trade and Plantation,  15 and thus superseding the provincial governments  16 down to the year 1867, when the Confederation  17 Act constituting the Dominion of Canada was  18 passed.  So faithfully was this system carried  19 out, that I venture to say that there is no  20 settled part of the territory of the province  21 of Ontario, except perhaps some isolated spots  22 upon which the French government had, previous  23 to the conquest, erected forts, such as Fort  24 Frontenac and Fort Toronto, which is not  25 included in and covered by a surrender  26 contained in some Indian treaty still to be  27 found in the Dominion Archives."  28  29 And, my lord, although Mr. Justice Strong started  30 his analysis from 1756, the plaintiffs of course in  31 their legal argument have taken that what we say is  32 consistent practice and principled application of the  33 common law back to a point well pre-dating that.  34 My lord, over at page 151 I want to just refer  35 your lordship to the American authorities upon which  36 Mr. Justice Strong relied.  And you'll see in the  37 second paragraph of 151 he says.  38  39 "The American authorities, to which reference  40 has already been made, consist (amongst others)  41 of passages in the commentaries of Chancellor  42 Kent in which the whole doctrine of Indian  43 titles is fully and elaborately considered, and  44 of several decision of the Supreme Court of the  45 United States, from which three, Johnson v.  46 Mcintosh, Worcester v. State of Georgia, and  47 Mitchel v. United States, may be selected as 24336  Submissions by Mr. Jackson  1 leading cases."  2  3 And, my lord, this is the passage I already read  4 to you where Mr. Justice Strong makes the point that  5 these authorities are significant not because they're  6 American law, but because they pre-date the principles  7 to a point anterior to the revolution, and therefore  8 are a common denominator in relation to what the law  9 is both in the United States and Canada.  And I have  10 underlined that passage, my lord, and I commend it to  11 you again.  12 And at page 151 and 152 what Mr. Justice Strong  13 does is to cite Chancellor Kent's summary of the  14 leading cases, and at the bottom of 151 you see Mr.  15 Justice Strong citing what Chancellor Kent says about  16 Worcester v. Georgia.  17  18 "The Supreme Court in the case of Worcester  19 reviewed this ground of controversy relative to  20 the character and validity of Indians rights  21 within the territorial dominions of the United  22 States, and especially with reference to the  23 Cherokee nation within the limits of Georgia.  24 They declared that the right given by European  25 discovery was the exclusive right to purchase,  26 but this right was not founded on a denial of  27 the Indian possessor to sell.  Though the right  28 of the soil was claimed to be in the European  29 governments as a necessary consequence of the  30 right of discovery and assumption of  31 territorial jurisdiction, yet the right was  32 only deemed such in reference to the whites;  33 and in respect of the Indians it was always  34 understood to amount only to the exclusive  35 right of purchasing such lands as the natives  36 were willing to sell."  37  38 And, my lord, that of course tracks the language  39 of the Proclamation; it tracks the language of the  40 Treaty of Waitangi.  41  42 "The royal grants and charters asserted a title  43 to the country against Europeans only, and they  44 were considered as blank paper so far as the  45 rights of the natives were concerned.  The  46 English, the French and the Spaniards were  47 equal competitors for the friendship and aid of 24337  Submissions by Mr. Jackson  1 the Indian nations.  The crown of England never  2 attempted to interfere with the national  3 affairs of the Indians further than to keep out  4 the agents of foreign powers who might seduce  5 them into foreign alliances.  The English  6 government purchased the alliance and  7 dependence of the Indian nations by subsidies,  8 and purchased their lands when they were  9 willing to sell at a price they were willing to  10 take, but they never coerced a surrender of  11 them."  12  13 And that in many ways, my lord, is the exact language  14 of Worcester v. Georgia.  And again commenting,  15 quoting from Chancellor Kent, you have some further  16 statements at the bottom of page 152.  17 At 153, my lord, Mr. Justice Strong also recites  18 from the summary of Chancellor Kent in the Mitchel  19 case which he says, near the top of page 153 in  20 relation to Mitchel, the Chancellor states:  21  22 "...the whole doctrine in a form still more  23 applicable to the present case."  24  25 And the Chancellor said:  26  27 "The Supreme Court once more declared the same  28 general doctrine that lands in possession of  29 friendly Indians were always under the colonial  30 governments considered as being owned by the  31 tribe or nation as their common property by a  32 perpetual right of possession; but that the  33 ultimate fee was in the crown or its grantees  34 subject to this right of possession and could  35 be granted only by the crown upon that  36 condition; that individuals could not purchase  37 Indian lands without licence or under rules  38 prescribed by law; that possession was  39 considered with reference to Indian habits and  40 modes of life, and the hunting grounds of the  41 tribes were as much in their actual occupation  42 as the cleared fields of the whites, and this  43 was the tenure of Indian lands by the laws of  44 all the colonies."  45  46 And then Mr. Justice Strong goes on, and my  47 apologies for this, my lord, but the passage from 2433?  Submissions by Mr. Jackson  1 Chancellor Kent should have been indented.  In the  2 reformat process they became unindented.  3 THE COURT:  You mean starting at "It thus appears"?  4 MR. JACKSON:  "It thus appears" is Mr. Justice Strong's own  5 statement.  6 THE COURT:  Where is the part that should be indented?  7 MR. JACKSON:  There's a number of passages, my lord.  8 THE COURT:  Oh, yes, I see at line 2.  9 MR. JACKSON:  Yes, my lord.  10 THE COURT:  So it's that first full paragraph on page 153.  11 MR. JACKSON:  Yes, my lord, and there's other passages on page  12 152.  What we may do, and think it will help you, it  13 certainly helps me, when we do the disc I'll make sure  14 that the passages which should have been indented are  15 indented so that your lordship can distinguish what is  16 Mr. Justice Strong and what is his citation from  17 Chancellor Kent.  18 THE COURT:  All right.  19 MR. JACKSON:  This is Mr. Justice Strong though.  20  21 "It thus appears that in the United States a  22 traditional policy derived from colonial  23 times, relative to the Indians and their lands  24 has ripened into well established rules of  25 law."  26  27 And this of course, my lord, is our central  28 proposition here that policy practice ripens into  29 rules of law.  30  31 "And that the result is that the lands in the  32 possession of the Indians are, until  33 surrendered, treated as their rightful though  34 inalienable property, so far as the possession  35 and enjoyment are concerned; in other words,  36 that the dominium utile is recognized as  37 belonging to or reserved for the Indians,  38 though the dominium directum is considered to  39 be in the United States.  Then, if this is so  40 as regards Indian lands in the United States,  41 which have been preserved to the Indians by the  42 constant observance of a particular rule of  43 policy acknowledged by the United States courts  44 to have been originally enforced by the crown  45 of Great Britain, how is it possible to  46 suppose that the law can or rather could have  47 been at the date of confederation, in a state 24339  Submissions by Mr. Jackson  1 any less favourable to the Indians whose lands  2 were situated within the Dominion of the  3 British crown, the original author of this  4 beneficent doctrine so clarify any adhered to  5 in the United States from the days of the  6 colonial governments?  Therefore, when we  7 consider that with reference to Canada the  8 uniform practice has always been to recognize  9 the Indian title as one which could only be  10 dealt with by surrender to the crown, I  11 maintain that if there had been an entire  12 absence of any written legislative act  13 ordaining this rule as an express positive  14 law, we ought, just as the United States  15 courts have done, to hold that it nevertheless  16 existed as a rule of the unwritten common law,  17 which the courts were bound to enforce as  18 such, and consequently that the 24th  19 subsection of section 91, as well as the 109th  20 section and the 5th subsection of section 92  21 of the British North America Act, must all be  22 read and construed upon the assumption that  23 these territorial rights of the Indians were  24 strictly legal rights which had to be taken  25 into account and dealt with in that  26 distribution of property and proprietary  27 rights made upon confederation between the  2 8 federal and provincial governments."  29  30 My lord, later in his judgment at the bottom of  31 page 154, Mr. Justice Strong says.  32  33 "To summarize these arguments, which appear to  34 me to possess great force, we find, that at  35 the date of confederation the Indians, by the  36 constant usage and practice of the crown, were  37 considered to possess a certain proprietary  38 interest in the unsurrendered lands which they  39 occupied as hunting grounds; that this usage  40 had either ripened into a rule of the common  41 law as applicable to the American Colonies or  42 that such a rule had been derived from the law  43 of nations and had in this way been imported  44 into the Colonial law as applied to Indian  45 Nations; that such property of the Indians was  46 usufructuary only and could not be alienated,  47 except by surrender to the crown as the 24340  Submissions by Mr. Jackson  1 ultimate owner of the soil."  2  3 Now, my lord, Mr. Justice Strong, having  4 considered the meaning of the phrase "lands reserved  5 for Indians" from the perspective of colonial  6 practice, which in his view had ripened into a rule of  7 the unwritten common law, his judgment then addressed  8 the question, what about the Royal Proclamation.  And  9 of course the appellant's argument had been that the  10 Indians had a right to these lands, proprietary  11 interest, either as a matter of common law aboriginal  12 title, or by virtue of the Proclamation.  And so his  13 lordship then addressed himself to the question of the  14 legal status and legal effect of the Royal  15 Proclamation.  16 And he concluded, as the following passage makes  17 evident, that the Proclamation was a restatement of  18 common law principles.  19  20 "In the present case the importance of this  21 Proclamation is paramount and appears to me to  22 be by itself decisive of the present appeal.  23 In the first place, it gives legislative  24 expression and force to what I have heretofore  25 treated as depending on a regulation of policy,  26 or at most on rules of unwritten law and  27 official practice, namely, the right of the  28 Indians to enjoy, by virtue of a recognized  29 title, their lands not surrendered or ceded to  3 0 the crown;"  31  32 THE COURT:  I suppose you say this is all obiter dictum, is it?  33 MR. JACKSON:  Well, my lord, in terms of the structure of his  34 judgment he found, we would submit, on -- it was a  35 dissenting judgment of course.  3 6    THE COURT:  Yes.  37 MR. JACKSON:  But we say that Mr. Justice Strong used two  38 parallel lines in much the same way as the plaintiffs  39 in this case are using two parallel lines, that there  40 is the line of the aboriginal title.  41 THE COURT:  Yes.  42 MR. JACKSON:  And there is the line of the Proclamation.  And it  43 seems that, in our view, if you were to characterize  44 this judgment, if it were the majority judgment, one  45 would say that both lines were convergent in the sense  46 of recognizing a legal entitlement.  47 THE COURT:  All right.  I suppose maybe I put it wrong anyway 24341  Submissions by Mr. Jackson  1 because he says the Proclamation is paramount, which  2 would suggest that was a more important ground for his  3 decision.  You say he has two streams.  4 MR. JACKSON:  Two streams, my lord.  5 THE COURT:  All right.  Thank you.  6 MR. JACKSON:  At page 156, my lord.  Having concluded that the  7 Proclamation was a particularly authoritative  8 restatement of the law -- and I think your lordship's  9 comment is correct that he viewed the restatement as  10 being more than simply the common law -- by virtue of  11 having the force of a statute, in the context of  12 construing section 91(24) his lordship concluded that  13 the lands in dispute before the court were  14 specifically within the definition of lands which were  15 reserved for the Indians as their hunting grounds.  16 And I've set out the passage at page 156, my lord.  17 THE COURT:  There wasn't any question about whether these were  18 lands within Rupert's Land?  19 MR. JACKSON:  No, my lord.  Originally that exactly was the  20 position of the federal government.  They said these  21 lands were Rupert's Land.  22 THE COURT:  Yes.  23 MR. JACKSON:  At 1870 they vested in the Dominion.  2 4 THE COURT:  Yes.  25 MR. JACKSON:  The whole reference to the Privy Council  26 previously had been about that, and it was finally  27 determined that this particular, the 32,000 square  28 miles, were not in fact part of Rupert's Land.  2 9 THE COURT:  All right.  30 MR. JACKSON:  At page 157, my lord, and 158, you see our  31 reference and it's a point to which Mr. Rush has  32 already addressed your lordship, Mr. Justice Strong's  33 addressing the issue of whether or not the Quebec Act  34 had repealed the Proclamation.  And some of those  35 passages, I think indeed all of those passages, have  36 been read to your lordship already by Mr. Rush in his  37 argument on the Proclamation.  And I don't intend to  38 dwell on them.  39 At the very bottom of page 157 the judgment of Mr.  40 Justice Gwynne is addressed, and his lordship in his  41 judgment paid particular attention to the way in which  42 the practice of the crown in the original province of  43 Quebec and subsequent province of upper Canada had  44 adhered to the provisions of the Royal Proclamation,  45 had adhered to the procedure for the acquisition of  46 Indian rights through the purchase of lands from the  47 Indian in public council. 24342  Submissions by Mr. Jackson  1 And I've set out at page 158 what Mr. Justice  2 Strong refers to as "the inviolable manner in which  3 the Indian title as declared by the Proclamation of  4 1763 has been recognized".  5 Later in his judgment, my lord, at page 159, I  6 refer your lordship to the passage in his judgment in  7 which Mr. Justice Gwynne characterized the Royal  8 Proclamation as the "Indians' Bill of Rights".  And of  9 course that is a passage which Mr. Justice Hall  10 referred to in his judgment in Calder.  11 At the bottom of page 159, my lord, I note that,  12 as I've already mentioned, on appeal to the Privy  13 Council the federal government was granted leave to  14 intervene.  And as more than one commentator has noted  15 "it seems incredible in light of subsequent history",  16 and I say particularly in light of the position taken  17 by the federal defendant in this case, counsel for the  18 federal government on the intervention at the Privy  19 Council argued that the Indians prior to the treaty  20 copy of 1873 had a complete proprietary interest and  21 absolute title limited only by an imperfect power of  22 alienation, and that it was this interest which had  23 been transferred to the federal government by the  24 treaty.  25 At the Privy Council, my lord, the judgment of  26 their lordships was delivered by Lord Watson.  And  27 that judgment is at Volume 11, tab 40.  And the  28 principal --  2 9    THE COURT:  11 or 9?  3 0    MR. JACKSON:  Volume 9, tab 14.  31 THE COURT:  Thank you.  32 MR. JACKSON:  And Lord Watson ascribed the Indians' rights in  33 this area ceded by treaty 3 to the provisions of the  34 Royal Proclamation.  And, having reviewed those  35 provisions, he set out in what is the passage which is  36 cited in all the subsequent cases, and I've given that  37 passage to your lordship in its fullness:  38  39 "The territory in dispute has been in Indian  40 occupation from the date of the Proclamation  41 until 1873.  During that interval of time  42 Indian Affairs have been administered  43 successively by the crown, by the provincial  44 governments, and (since the passing of the  45 British North America Act, 1867) by the  46 Government of the Dominion.  The policy of  47 these administrations has been all along the 24343  Submissions by Mr. Jackson  1 same in this respect, that the Indian  2 inhabitants have been precluded from entering  3 into any transaction with a subject for the  4 sale or transfer of their interest in the land,  5 and have only been permitted to surrender their  6 rights to the crown by a formal contract, duly  7 ratified in a meeting of their chiefs or head  8 men convened for the purpose.  Whilst there  9 have been changes in the administrative  10 authority, there has been no change since the  11 year 1763 in the character of the interest  12 which its Indian inhabitants had in the lands  13 surrendered by the treaty.  Their possession,  14 such as it was, can only be ascribed to the  15 general provisions made by the Royal  16 Proclamation in favour of all Indian tribes  17 then living under the sovereignty and  18 protection of the British crown.  It was  19 suggested in the course of the argument for the  20 Dominion, that inasmuch as the Proclamation  21 recites that the territories thereby reserved  22 for Indians had never 'been ceded to or  23 purchased by' the Crown, the entire property of  24 the land remained with them.  That inference  25 is, however, at variance with the terms of the  26 instrument, which show that the tenure of the  27 Indians was a personal and usufructuary right  28 dependent upon the good will of the sovereign."  29  30 And, of course, those passages, my lord, are ones  31 which have figured predominantly in subsequent debates  32 about the nature of the Indian title.  It is my  33 friends', both the provincial and the federal  34 government's, position that that is a characterization  35 of the nature of Indian title which is binding on your  36 lordship.  That is a point which I will very directly  37 address.  38 To continue with the judgment, my lord:  39  40 "The lands reserved are expressly stated to be  41 'parts of our dominions and territories'; and  42 it is declared to be the will and pleasure of  43 the sovereign that, for the present' they shall  44 be reserved for the use of the Indians, as  45 their hunting grounds, under his protection and  46 dominion.  There was a great deal of learned  47 discussion at the Bar with respect to the 24344  Submissions by Mr. Jackson  1 precise quality of the Indian right, but their  2 Lordships do not consider it necessary to  3 express any opinion upon the point.  It appears  4 to them to be sufficient for the purposes of  5 this case that there has been all along vested  6 in the Crown a substantial and paramount  7 estate, underlying the Indian title, which  8 became a plenum dominion whenever that title  9 was surrendered or otherwise extinguished."  10  11 And his lordship then addressed the question as to  12 which body the underlying title of the crown was  13 vested as a result of the Constitution Act of 1867.  14 And his conclusions on that are set out at page 57 of  15 his judgment, and having first set out section 109,  16 which I've already read to your lordship, Lord Watson  17 stated:  18  19 "The enactments of section 1019 are, in the  20 opinion of their Lordships, sufficient to give  21 to each province, subject to the administration  22 of control of its own Legislature, the entire  23 beneficial interest of the crown in all lands  24 within its boundaries, which at the time of the  25 union were vested in the crown."  26  27 And addressing himself, my lord, to the argument  28 of the federal government that the Indian interest was  29 in the nature of a fee simple, Lord Watson clarified  30 the nature of the Indian title in relation to section  31 109:  32  33 "Had its Indian inhabitants been the owners in  34 fee simple of the territory which they  35 surrendered by the treaty of 1873,  36 Attorney-General of Ontario v. Mercer might  37 have been an authority for holding that the  38 Province of Ontario could derive no benefit  39 from the cession, in respect that the land was  40 not vested in the Crown at the time of the  41 union.  But that was not the character of the  42 Indian interest.  The crown has all along had a  43 present proprietary estate in the land, upon  44 which Indian title was a mere burden.  The  45 ceded territory was at the time of the union,  46 land vested in the crown, subject to 'an  47 interest other than that of the Province in the 24345  Submissions by Mr. Jackson  1 same' within the meaning of Section 109; and  2 must now belong to Ontario in terms of that  3 clause, unless its rights have been taken away  4 by some provision of the Act of 1867 other than  5 those already noticed."  6  7 And of course this brought their lordships into  8 the final argument of the Dominion government which  9 was that one other provision of the B.N.A. Act,  10 section 91(24), in conferring on the federal  11 government the exclusive power to make laws for  12 Indians, and lands reserved for Indians, by necessary  13 implication, carried with it a proprietary interest in  14 those lands.  15 And on that point, my lord, and I have reformatted  16 section 163 to make it clear that the passage at the  17 top of 163 is a quote.  It's not indented, and I'll  18 give your lordship a copy of this.  If your lordship  19 will just substitute this 163 for the errant 163.  20 THE COURT: Yes.  Strike it off the record as they say.  21 MR. JACKSON:  The province had argued that, in any event, lands  22 reserved for the Indians was limited to Indian  23 reserves specifically set aside as such.  Now, the  24 Privy Council rejected the province's narrow  25 interpretation of 91 (24) on the grounds that:  26  27 "The words actually used are, according to their  28 natural meaning, sufficient to include all  29 lands reserved, upon any terms or conditions,  30 for Indian occupation.  It appears to be the  31 plain policy of the Act that, in order to  32 ensure uniformity of administration, all such  33 lands, and Indian affairs generally, shall be  34 under the legislative control of the central  35 authority."  36  37 But having rejected this narrow interpretation of  38 section 91(24), Lord Watson also rejected the federal  39 government's argument that even given that these were  40 lands reserved to the Indians at the time of  41 confederation, because they were lands protected by  42 the Proclamation, the allocation of exclusive  43 legislative authority did not necessarily carry with  44 it, in terms of the federal government's jurisdiction,  45 a proprietary interest.  And the lordships said:  46  47 "There can be no a priori probability that the 24346  Submissions by Mr. Jackson  1 British Legislature, in a branch of the statute  2 which professes to deal only with the  3 distribution of legislative power, intended to  4 deprive the provinces of rights which are  5 expressly given them in that branch of it which  6 relates to the distribution of revenues and  7 assets.  The fact that the power of legislating  8 for Indians, and for lands which are reserved  9 to their use, has been entrusted to the  10 Parliament of the Dominion is not in the least  11 degree inconsistent with the right of the  12 Provinces to a beneficial interest in these  13 lands..."  14  15 And I would stress these last words, my lord.  16  17 "...available to them as a source of revenue  18 whenever the estate of the Crown is  19 disencumbered of the Indian title."  20  21 And the reference to that, my lord, should be at  22 page 58, not page 59.  I corrected this this morning I  23 think.  24 THE COURT:  It is 59.  25 MR. JACKSON:  I hadn't realized I corrected it.  26 THE COURT:  It is 59.  27 MR. JACKSON:  It is 59.  28 THE COURT:  So what he's saying then is that, notwithstanding  29 92(14) that while the jurisdiction to deal with  30 Indians is in the federal government, the federal  31 crown, the residual interest burden, as he said, is in  32 the province.  33 MR. JACKSON:  Yes, my lord.  That's the central thrust of St.  34 Catherine's Milling.  35 THE COURT:  So the appeal was dismissed then.  3 6 MR. JACKSON:  Yes, my lord.  37 THE COURT:  Yes.  38 MR. JACKSON:  On that point the views of the Canadian courts was  39 affirmed that the effect of the treaty was to relieve  40 the underlying title of the crown of the Indian  41 interest.  That underlying title at the time of  42 confederation in relation to lands lying within the  43 borders of the provinces was in the province by virtue  44 of 109.  My lord —  45 THE COURT:  Couldn't have made it more complicated, could they?  46 MR. JACKSON:  It's an extremely complicated matter, my lord, and  47 one of the reasons I've taken your lordship through 24347  Submissions by Mr. Jackson  1 the issues is that in many of the subsequent cases  2 about St. Catherine's Milling you sort of get a  3 statement of Lord Watson's proposition without the  4 surrounding complexities of the issues and the  5 weavings, as it were, and interweavings of the  6 constitutional issue and the issue of the nature of  7 the Indian title.  And I've endeavoured for your  8 lordship to help your lordship separate them out.  9 At page 163, my lord, at the bottom.  Although the  10 Privy Council in its judgment makes no specific  11 reference to the Marshall decisions, beyond saying  12 that there was a great deal of learned discussion at  13 the bar, it is submitted that the way in which Lord  14 Watson conceptualizes the relationship between the  15 underlying crown title -- which is in the province in  16 much the same way Fletcher v. Peck, the underlying  17 crown title was said to be vested in the states --  18 although he conceptualizes the relationship between  19 the underlying crown title and the Indian title in a  20 way which parallels the Marshall court's decision.  21 And we say in that sense that relationship between the  22 underlying crown title and the Indian title is in fact  23 the way in which Mr. Justice Strong conceptualized the  24 issue in his judgment in the Supreme Court.  25 In this analysis, the crown's underlying title is  26 subject to or burdened by the Indian title.  As a  27 result of the provisions of the Constitution Act of  28 1867, that underlying title lies with the crown in  29 right of the province pursuant to section 109, subject  30 to the Indian title which is "an interest other than  31 that of the province".  Only when the estate of the  32 crown is disencumbered of the Indian title can the  33 crown in right of the province exercise its beneficial  34 interest in those lands as a source of revenue.  And  35 we say, my lord, by necessary implication, until the  36 Indian title has been surrendered, the crown cannot  37 make such beneficial use of those lands.  38 And this, of course, was the position which had  39 been consistently taken by the executive council of  40 upper Canada in the post-Proclamation and  41 pre-Confederation period.  And as we will show, it's  42 the position taken by courts subsequent to St.  43 Catherine's Milling.  44 Now, my lord, although the way in which the Privy  45 Council characterizes the relationship between crown  46 title and aboriginal title as being co-existing  47 interests, is in accordance with the Marshall 2434?  Submissions by Mr. Jackson  1 decisions, the way in which --  2 THE COURT:  I'm sorry, is there interests after co-existing?  3 MR. JACKSON:  As co-existing no, my lord, but perhaps there  4 should have been.  5 THE COURT:  Well, you said it, so —  6 MR. JACKSON:  Yes, my lord.  7 THE COURT:  All right.  8 MR. JACKSON:  The way in which the Privy Council describes the  9 nature of aboriginal title would appear to be  10 inconsistent with what the plaintiffs assert is a  11 fundamental principle of the common law affirmed by  12 the Marshall decisions and the Royal Proclamation,  13 that principle that aboriginal title can only be  14 extinguished with the consent of the Indians.  15 And of course that's a point your lordship raised  16 with me yesterday, as to whether that principle was  17 consistent with St. Catherine's Milling and with  18 Calder.  19 And if I may, I will take your lordship back to  20 the passage I first cited from the Lord Watson's  21 judgment in which, in referring to the nature of the  22 Indian interest recognized by the Proclamation, he  23 states:  24  25 "The tenure of the Indians was a personal and a  26 usufructuary right, dependent upon the good  27 will of the Sovereign."  28  29 And, my lord, in Calder, in the judgment of Mr.  30 Justice Judson, his lordship, in characterizing the  31 general characteristics of aboriginal title, stated,  32 and in this way he was tracking the language of Lord  33 Watson:  34  35 "There can be no question that this right was  36 dependent upon the good will of the Sovereign."  37  38 And, as I have said, my lord, that, as we  39 understand it, is a central thesis of both defendants'  40 case in this matter, that that is the nature of  41 aboriginal title.  42 It is our submission, my lord, that the Privy  43 Council judgment in St. Catherine's Milling should not  44 be read as rejecting the principle that Indian consent  45 is a prerequisite to the extinguishment of aboriginal  46 title.  And, as our analysis of the issues has made  47 clear, the principal issue before all the courts in 24349  Submissions by Mr. Jackson  1 St. Catherine's Milling was who benefitted from the  2 extinguishment of Indian title and not the  3 circumstances under which such extinguishment could be  4 made.  It cannot be too strongly emphasized that the  5 factual matrix of the case was one in which  6 extinguishment of the Indian title had been made with  7 Indian consent in the form of a treaty of cession.  8 And in this matter the background to the case is  9 exactly similar to Johnson v. Mcintosh.  And it is our  10 submission that to read the Privy Council's words as  11 rejecting the necessity for Indian consent for  12 extinguishment, in a case where the issue was who, as  13 between the federal and provincial government,  14 benefitted from the exercise of such consent, flies in  15 the face of the consistent practice of the crown, of  16 the prior common law precedents, and the facts of the  17 particular case before the court.  18 In your lordship's own words, what actually  19 happened on the ground, and what actually happened on  20 the ground in St. Catherine's Milling, my lord, was  21 that the Indian nation, the Saulteaux nation, entered  22 into a treaty of cession with the crown in conformity  23 with what we say are the principles of the common law  24 in conformity with the principles and process of the  25 Royal Proclamation.  And their title was extinguished  26 in no other manner than that of Indian consent.  27 My lord, Lord Watson in his judgment noted that,  28 and I've referred your lordship to this on a number of  29 occasions "there was a great deal of learned  30 discussion at the Bar with respect to the precise  31 quality of the Indian right", and went on to indicate  32 that "their lordships do not consider it necessary to  33 express any opinion upon the point."  And to that  34 extent, my lord, we say that the views of Lord Watson  35 on the precise quality of the Indian title are obiter.  36 It is our further submission that Lord Watson, in  37 describing the tenure of the Indians as "a personal  38 and usufructory right, dependent upon the good will of  39 the Sovereign" did so for the very limited purpose of  40 rejecting the argument of the federal government that,  41 under the Proclamation, the absolute title was in the  42 Indians, and that the crown had nothing.  Everything  43 in terms of proprietary interest was with the Indians  44 upon cession.  What the Indians had was what the crown  45 got.  It had nothing independent thereof.  46 And we say that Lord Watson, in reciting the  47 language of the Proclamation, did so to demonstrate 24350  Submissions by Mr. Jackson  1 that the crown did indeed assert rights in Indian  2 territories which the Privy Council defined as the  3 underlying title in the same way, my lord, as Chief  4 Justice Marshall indicated that by the doctrine of  5 discovery the crown had underlying rights in the  6 territories, subject to the rights of the aboriginal  7 people.  And it is our submission that this underlying  8 title was one which gave the crown the exclusive right  9 to secure the extinguishment of the Indian title  10 through treaty making.  And, as we have pointed out to  11 your lordship, over some 300 years this was the  12 consistent practice of the crown.  And also, my lord,  13 as we have pointed out, this was the view taken Mr.  14 Justice Strong and Mr. Justice Gwynne.  15 I'm just wondering whether my -- does your pages  16 166 and 167 read consecutively, my lord?  17 THE COURT:  Yes.  18 MR. JACKSON:  Okay.  Then it's mine that's gone awry.  19 It is our further submission, my lord, that to the  20 extent -- I think my materials have got --  21 THE COURT:  I have that on the top of page 167.  22 MR. JACKSON:  My apologies, my lord.  23 It is our further submission that to the extent  24 that the Privy Council saw the language of the  25 Proclamation as descriptive of the nature of Indian  26 title, it failed to completely comprehend the  27 structure of the Proclamation.  My lord, the court  28 refers to the fact that in the Proclamation:  29  30 "the lands reserved are expressly stated to be  31 'parts of Our Dominions and Territories'; and  32 it is declared to be the will and pleasure of  33 the sovereign that 'for the present' they shall  34 be reserved for the use of the Indians, as  35 their hunting grounds, under his protection and  36 Dominion."  37  38 And, my lord, Lord Watson saw those terms as  39 reflecting on one analysis of his lordship's judgment  40 the character of the Indian interest.  41 In our earlier submissions made by Mr. Rush  42 regarding the proper interpretation of the  43 Proclamation, we have strenuously argued that the  44 words relating to "will and pleasure of the Sovereign"  45 and "for the present" relate back to the first  46 paragraph of part IV of the Proclamation wherein the  47 prohibition imposed on the colonial governors to make 24351  Submissions by Mr. Jackson  1 grants in the unceded lands was prefaced with the  2 words "until our further pleasure be known".  And it  3 has been and is the plaintiffs' submission that these  4 words were not intended nor did they qualify the  5 nature of the Indian title, but rather reflected the  6 fact that it was envisaged in the future, as a result  7 of the cession of Indian lands through the treaty  8 protocol set out in the Proclamation, that the  9 westward limits of settlements might be extended.  We  10 have reviewed the extensive evidence to show that,  11 consistent with this interpretation, the Proclamation  12 line was indeed shifted westward in the years after  13 1763 with the consent of the Indian nations through  14 this treaty process.  15 And, my lord, the reference there is to Volume 2  16 of our materials, pages 311 and 323.  17 THE COURT:  That's Volume 2 of the argument.  18 MR. JACKSON:  Yes, my lord.  And I would also refer your  19 lordship to Mr. Rush's previous submissions.  20 Lord Watson did not have before him a full  21 analysis of the precise terms of the Proclamation, but  22 your lordship does.  Your lordship has been taken  23 through, and I'm sure my friends will do the same  24 thing, a detailed analysis, and I venture to say the  25 most extensive analysis which has been made before any  26 court, of the precise nature of the terms of the  27 Proclamation.  You have been taken through the  28 prehistory of the Proclamation.  And we say that  29 looked at in the context of that history, looked at in  30 the context of the proper canons of statute  31 interpretation applicable to the Proclamation, the  32 words "for the present", the words "until our future  33 pleasure be known", do not seek to characterize the  34 nature of the title.  They characterize the nature of  35 the westward limits of settlement, and that the  36 character of the title is one which is conditioned  37 upon Indian consent clearly, explicitly, and  38 unambiguously, in the terms of the Proclamation  39 itself.  40 The plaintiffs' submissions that Lord Watson's  41 words "dependent on the good will of the sovereign"  42 ought not to be viewed as binding authority on the  43 nature of aboriginal title is buttressed by the manner  44 in which St. Catherine's Milling has been approached  45 in recent decisions of the Supreme Court of Canada.  46 In St. Catherine's Milling the Privy Council quite  47 clearly, from Lord Watson's words, took the view that 24352  Submissions by Mr. Jackson  1 the aboriginal title of the Saulteaux nation could  2 only be ascribed to the provisions of the Royal  3 Proclamation.  And in both Calder and Guerin the  4 Supreme Court of Canada has made it very clear that  5 the Royal Proclamation is not the exclusive source of  6 aboriginal title, but that it affirms and guarantees  7 pre-existing aboriginal rights.  8 And referring first to Calder, Mr. Justice Judson,  9 with specific reference to Lord Watson's statements in  10 St. Catherine's Milling, said:  11  12 "I do not take these reasons to mean that the  13 Proclamation was the exclusive source of Indian  14 title.  The territory under consideration in  15 the St. Catherine's appeal was clearly within  16 the geographical limits set out in the  17 Proclamation"  18  19 And Mr. Justice Hall in the same case said:  20  21 "Paralleling and supporting the claim of the  22 Nishgas that they have a certain right or title  23 to the lands in question is the guarantee of  24 Indian rights contained in the Proclamation of  25 1763."  26  27 And more recently and more significantly, Chief  28 Justice Dickson in Guerin, stated:  29  30 "In recognizing that the Proclamation is not the  31 sole source of Indian title, the Calder  32 decision went beyond the judgment of the Privy  33 Council in St. Catherine's Milling.  In that  34 case Lord Watson acknowledged the existence of  35 aboriginal title but said it had its origin in  36 the Royal Proclamation.  In this respect Calder  37 is consistent with the position of Chief  38 Justice Marshall in the leading American cases  39 of Johnson v. Mcintosh and Worcester v.  40 Georgia."  41  42 And, of course, my lord, in both those cases the  43 Chief Justice had looked at the Proclamation as a  44 parallel source as affirming and confirming the common  45 law.  46 Later in his judgment in Guerin Chief Justice  47 Dickson affirms the pre-existing nature of aboriginal 24353  Submissions by Mr. Jackson  1 rights:  2  3 "Their interest in their lands is a pre-existing  4 legal right not created by Royal Proclamation,  5 by section 18(1) of the Indian Act or by any  6 other executive order of legislative  7 provision."  8  9    THE COURT:  The "their" in Chief Justice Dickson's dictum, I  10 take it, is the plaintiffs in the case before him?  11 MR. JACKSON:  It's the Musqueam Indians' interest in their  12 lands, my lord.  Yes.  13 THE COURT:  Yes.  Thank you.  14 MR. JACKSON:  And it is our submission that the Supreme Court of  15 Canada, in unequivocally affirming that aboriginal  16 rights are pre-existing rights recognized by the  17 common law and that the Royal Proclamation confirms  18 those rights, has adopted the views of Mr. Justice  19 Strong on this very issue in St. Catherine's Milling.  20 The views of Mr. Justice Strong, like the views  21 expressed by Chief Justice Dickson in Guerin, trace  22 their judicial source to the Marshall jurisprudence.  23 The proposition that aboriginal rights are "dependent  24 upon the good will of the sovereign" is no part of  25 that jurisprudence; indeed it is directly controverted  26 by it.  But that Indian consent is a legal  27 prerequisite to the surrender or extinguishment of  28 their rights is, we say, the centrepiece of that  29 jurisprudence, and it is therefore respectfully  30 submitted that in the same way as modern Canadian  31 courts have concluded that the Privy Council's views  32 on the Proclamation as being the exclusive source of  33 aboriginal title is too limited, so this court should  34 firmly resist any argument that the Privy Council's  35 judgment in St. Catherine's Milling negates the  36 principle of Indian consent as a prerequisite to the  37 extinguishment of aboriginal rights.  38 My lord, that would be a convenient point to take  39 the break.  4 0    THE COURT:  Yes.  All right.  Thank you.  41 THE REGISTRAR: Order in court. Court stands adjourned until two  42 o'clock.  43  44  45  46  47 24354  Submissions by Mr. Jackson  1  2 (PROCEEDINGS ADJOURNED FOR THE LUNCH RECESS)  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings herein transcribed to the  7 best of my skill and ability.  8  9    10 Tanita S. French  11 Official Reporter  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 24355  Submissions by Mr. Jackson  1 THE REGISTRAR:  Order in court.  2 MR. JACKSON:  I want to advise you that we have handed to Madam  3 Registrar the disk for volume 2.  4 THE COURT:  Yes.  Thank you.  For planning purposes, the  5 reporters and others, how long do you expect to go  6 this afternoon, Mr. Jackson?  7 MR. JACKSON:  My lord, I already advised my friends I was going  8 until I drop, which may be sooner rather than later.  9 THE COURT:  All right.  10 MR. JACKSON:  I probably can advise your lordship at the break.  11 I will know whether or not I have any chance of  12 getting to the point I wanted to get to.  13 THE COURT:  Yes, all right.  14 MR. JACKSON:  And I can advise Your Lordship then.  15 THE COURT:  All right.  16 MR. JACKSON:  We are at page 170 of the submissions, my lord.  17 And I want to turn to the post-St. Catherine's case  18 law, which is under the sub-heading of defining the  19 nature of aboriginal title.  Because in the years  20 after St. Catherine Milling both the Canadian courts  21 and the Privy Council continued to grapple with this  22 only issue of the nature of aboriginal title,  23 particularly in light of the constitutional division  24 in Section 91(24) and Section 109.  And in 1897 in the  25 case of the Attorney General of Canada and Attorney  26 General of Ontario, Lord Watson again speaking for the  27 board had occasion to address the nature of the Indian  28 interest against this constitutional backdrop.  Like  29 St. Catherine's Milling itself, the issue related to  30 the legal effect of a treaty under which the Indians  31 by consent had surrendered their lands.  In this case  32 it wasn't Treaty No. 3, it was one of the earlier  33 Robinson treaties in 1850.  The issue was different  34 from St. Catherine Milling, insofar as no argument was  35 made that the province did not benefit from the  36 surrender, that issue of course having been determined  37 by St. Catherine Milling.  The issue in Attorney  38 General of Canada v. Attorney General of Ontario was,  39 in the words of their lordship:  40  41 "Whether liability for the increased amount of  42 the Indian annuities stipulated by the treaties  43 is so connected with or attached to the  44 surrender territory in the sense of the  45 concluding enactments of Section 109 as to  46 follow the beneficial interest, and form a  47 charge upon it in the hands of the province". 24356  Submissions by Mr. Jackson  1  2 Essentially the issue was who had to pay for the  3 increased annuities.  So again it was a litigation as  4 between the two governments federal and provincial.  5 And Lord Watson summarized the legal effects of the  6 Robinson treaties in a way consistent with St.  7 Catherine's Milling.  8  9 "The beneficial interest in the territories  10 ceded by the Indians under the treaty of 1850  11 became vested by virtue of Section 109 in the  12 Province of Ontario."  13  14 Later on His Lordship characterized the nature of  15 the Indian interest in unsurrendered lands as an  16 interest other than the province in this way.  Page  17 171 at the bottom set that out.  18  19 "On the other hand, a 'interest other than that  20 of the province in the same' appears to them to  21 denote some right or interest in a third party,  22 independent of and capable of being vindicated  23 in competition with the beneficial interest of  24 the old province."  25  26 And, my lord, we say that is consistent with the  27 position taken by Mr. Justice Chapman in the Symonds  28 case.  His Lordship, however, concluded that unlike  29 the Indian interest in unsurrendered lands, the right  30 to annuities under the terms of the treaty was not an  31 independent interest of that kind envisaged by Section  32 109.  33 THE COURT:  It's not meant that the federal Crown paid.  34 MR. JACKSON:  That's right.  Federal Crown had the obligation  35 and the province was not responsible for the  36 annuities.  37 THE COURT:  Yes.  38 MR. JACKSON:  This, of course, continued to be a sore point,  39 insofar as the result of this legal regime was that  40 the provinces benefited from a treaty which only the  41 federal government could negotiate, and yet the  42 federal government became responsible for payments.  43 And this legal fallout, as I call it, from St.  44 Catherine Millings again was before the Privy Council  45 in the 1903 decision of Ontario Ming and Seybold.  The  46 land in dispute was land surrendered under Treaty 3,  47 which had been set aside as reserve land, and then 24357  Submissions by Mr. Jackson  1 surrendered for sale under the provisions of the  2 Indian Act.  Patents for the sale had been issued by  3 both the federal and the provincial governments.  And  4 in upholding the provincial patents, Lord Davey said:  5  6 "It was decided by this board in the St.  7 Catherine Milling case that prior to that  8 surrender (by treaty) the Province of Ontario  9 had a proprietary interest in the lands, and  10 under the provisions of Section 109 of the  11 British North America Act, 1867, subject to the  12 burden of the Indian usufructuary title, and  13 upon the extinguishment of that title by the  14 surrender the province acquired the full  15 beneficial interest."  16  17 And so again, my lord, it becomes clear that it's  18 only upon the surrender of the Indian interest that  19 the province's interest becomes a beneficial one which  20 it can make use of in terms of conveying the  21 beneficial rights thereto.  22 In Canada and Ontario in 1910 there was another  23 issue that failed to be decided by the Privy Council,  24 again arising from Treaty 3.  And this time the issue  25 was faced clearly whether Ontario had any legal  26 obligation to reimburse the federal government for the  27 monies expended under Treaty 3, given that Ontario had  28 benefited from the Indian surrender of their lands.  29 In St. Catherine's Milling, my lord, Lord Watson had  30 strongly intimated that Ontario did in fact have such  31 a legal obligation.  But in Canada and Ontario in 1910  32 the Privy Council determined that that was not an  33 issue which was before the board in St. Catherine's  34 Milling, and Lord Watson's views on the matter were  35 therefore obiter.  We say, of course, his views on the  36 Indian interest also were obiter.  The Privy Council  37 in 1910 held that Ontario was under no such legal  38 obligation, and in the course of his judgment Lord  39 Loreburn, in characterizing Treaty No. 3 said:  40  41 "Its effect was to extinguish by consent the  42 Indian interest of a large tract of land about  43 50,000 square miles in extent."  44  45 My lord, if Your Lordship remembers back to the  46 views of Mr. Justice Henry, Mr. Justice Taschereau and  47 the views in fact of Chancellor Boyd, that the treaty 2435?  Submissions by Mr. Jackson  1 in fact conveyed no interest.  There was nothing to  2 convey, because there was no legal entitlement.  Quite  3 clearly the Privy Council's view of Treaty No. 3 was  4 that there was an interest other than the province  5 which required to be extinguished prior to the  6 province being able to make use that beneficial sense  7 of its underlying title.  8 And in so characterizing, my lord, the nature of  9 the process, we submit -- again its effect was to  10 extinguish by consent the Indian interest.  In  11 characterizing the nature of the process in this way,  12 it is our view that the Privy Council clearly did not  13 envisage that the extinguishing force of the treaty  14 derived from the unilateral intent or the pleasure of  15 the Crown.  And we say, my lord, that those judges who  16 have so concluded and the courts in the Bear Island  17 case are the most recent judges who have so done,  18 misconceive and misconstrue the true intent of the  19 Privy Council's views of treaty making.  20 THE COURT:  I'm not sure that I am following you, Mr. Jackson.  21 You say the Privy Council did not envisage that the  22 extinguishing force of the treaty derived from the  23 unilateral intent.  24 MR. JACKSON:  Or the pleasure of the Crown.  25 THE COURT:  I would have thought that was axiomatic.  If you  26 have got a treaty, both parties have agreed to it, so  27 the extinguishing force of the treaty came from a  28 mutual agreement of the parties.  29 MR. JACKSON:  That's our point, my lord, that comes from the  30 mutual agreement of the parties.  31 THE COURT:  I would have thought that any extinguishing force or  32 power of the Crown other than by treaty might be said  33 could be argued to come from the pleasure of the  34 Crown, but I can't see how it can even be contended  35 that an extinguishing force by treaty came from any  36 unilateral intent or pleasure.  37 MR. JACKSON:  My lord, when we get to the Bear Island case, and  38 in terms of some of the passages I have already  39 quoted, Mr. Justice Steel has taken the position, as  40 indeed did Chancellor Boyd, that the treaty to the  41 extent the Indian rights were extinguished, was not  42 because of a surrender of any legal interest with the  43 consent of the Indians, but because the Crown had  44 acquired the interest by virtue of its acts  45 independently of anything the Indians may have done.  4 6 THE COURT:  Yes.  47 MR. JACKSON:  And it is our point that by characterizing the 24359  Submissions by Mr. Jackson  1 process of extinguishment -- by treaty, the Privy  2 Council clearly envisaged that it was the combination  3 of the intent of the Crown and the intent of the  4 Indians expressed in a mutually binding way, which is  5 the process whereby aboriginal title is surrendered or  6 extinguished.  That was the point I was endeavoring to  7 make, my lord.  8 THE COURT:  Thank you.  9 MR. JACKSON:  It is also of some importance that later in his  10 judgment Lord Loreburn in restating the legal effect  11 of a treaty surrender on the respective interests of  12 the federal and provincial governments, said that:  13  14 "Lands which are released from the overlying  15 Indian interest enure to the benefit, not of  16 the Dominion, but of the province ..."  17  18 And of course this is a characterization of the  19 Indian interest stated in more positive terms than the  20 mere burden referred to in St. Catherine's Milling.  21 THE COURT:  Of course that comes from the acts, not from common  22 law, Section 109.  That is the benefit being converted  23 on the province?  24 MR. JACKSON:  Yes, my lord.  But the words we are emphasizing  25 his characterization is being the overlying Indian  26 interest.  2 7 THE COURT:  Yes.  28 MR. JACKSON:  As opposed to in St. Catherine Milling, the title  29 being described, the Crown's title is the underlying  30 title, and the Indian interest being a burden.  31 Nothing, we say, my lord, really hinges on this  32 language, because it is --  33 THE COURT:  I thought it was overlying equals burden anyway.  34 MR. JACKSON:  It was our position that regardless of the  35 language, whether its an underlying, overlying burden  36 or whatever, the legal fact of the matter is that the  37 Indian interest is a pre-existing interest in land,  38 and that the province's underlying title is subject to  39 or burdened by the overlying Indian interest, and that  40 absent a consentual surrender of that interest made  41 under the auspices of the federal government, the  42 province cannot make beneficial use or grant  43 beneficial interests which conflict with the  44 unsurrendered Indian interest.  45 And, my lord, we will be making more extensive  46 submissions on the limits of the provincial  47 government's constitutional ability to make grants or 24360  Submissions by Mr. Jackson  1 to in other ways adversely affect the Indian interest  2 under aboriginal title.  3 In some way, my lord, the language is somewhat  4 similar to what happened in the Marshall decisions.  5 You will recall that Mr. Justice -- Chief Justice  6 Marshall in his first stab, as it were, at  7 characterizing aboriginal title, talked about the  8 rights of aboriginal peoples being not entirely  9 disregarded, which I suggest it was less than fulsome  10 in its enthusiasm for the existence of those rights.  11 And yet we see when the Chief Justice subsequently  12 characterizes the rights in Worcester and Georgia, we  13 have a much fuller and more expansive definition.  In  14 the same way the language in which the Privy Council  15 has sought to characterize the Indian interest has  16 shifted and has changed as the courts continue to  17 struggle, to find a language in which to fit these  18 kinds of competing, conflicting or co-existing  19 interests.  20 The Privy Council sought again in 1921 to  21 characterize the nature of the Indian interest.  In  22 Attorney-General of Quebec and Attorney General of  23 Canada, which is known in the cases as the Star Chrome  24 case.  And there the board was required to consider  25 the nature of the title of land set apart for the use  26 of the Indians in Quebec pursuant to a 1851 statute.  27 And the relevant points to which I would draw Your  28 Lordship's attention are at page 175, and the Privy  29 Council in describing the nature of the Indian  30 interest in their reserve lands said that the right  31 recognized by the statute -- four lines from the  32 bottom of the first quote:  33  34 "... that the right recognized by the statute is  35 a usufructuary right only and a personal right  36 in the sense that it is in its nature  37 inalienable accept by surrender to the Crown."  38  39 And again the language of it being a personal  40 right has been latched upon by some judges to say  41 well, it's not a proprietary right, it's a personal  42 right.  And that was a position again adopted by Mr.  43 Justice Steel.  Their lordship confined, again in  44 terms of characterizing -- and the second part of the  45 second quote beginning:  46  47 "In their lordship's opinion... the effect of the 24361  Submissions by Mr. Jackson  1 Act of 1850 is not to create an equitable  2 estate in lands set apart for an Indian tribe  3 ..."  4  5 And that language, again, has given rise to  6 subsequent comment to which I will presently address  7 Your Lordship.  8 We say at the bottom of 175 the language in which  9 the Privy Council, in what we have collectively  10 referred to as the St. Catherine's Milling line of  11 cases, has expressed the nature of the aboriginal  12 interest in land, and that has caused much difficulty  13 in the Canadian case law.  In particular terminology  14 such as "personal" and "usufructuary" has been  15 problematic.  Moreover, the statement I have last  16 read, my lord, in the Star Chrome case, that the  17 Indian interest in reserve lands (which the board held  18 was the same as the interest in unsurrendered lands)  19 was not an equitable interest has not gone  20 unchallenged.  21 And Chief Justice Dickson in the Guerin case has  22 referred to a number of subsequent judgments by  23 Canadian cases in which Canadian courts have asserted  24 the proposition that an Indian band does indeed have a  25 beneficial interest in its reserve lands.  And that's  26 a point which Chief Justice Dickson sought to  27 reconcile the cases in a passage which I will refer to  28 Your Lordship almost immediately.  Before doing so, I  29 have set out at page 176 how in Calder the judges  30 sought to deal with this issue.  Mr. Justice Judson,  31 again in grappling with the nature of aboriginal  32 title, commented that:  33  34 "It does not help one in the solution of this  35 problem to call it a 'personal or usufructuary  36 right'."  37  38 Mr. Justice Hall, while stating -- and this is  39 significant, my lord, in terms of what precedent are  40 binding upon Your Lordship -- Mr. Justice Hall while  41 stating that "the exact nature and extent of the  42 Indian right or title does not need to be precisely  43 stated in this litigation", he went on to characterize  44 the claims in this way:  45  46 "This is not a claim to title in fee but is in  47 the nature of an equitable title or interest, a 24362  Submissions by Mr. Jackson  1 usufructuary right and an right to occupy the  2 lands and to enjoy the fruits of the soil, the  3 forest and of the rivers and streams which does  4 not in any way deny the Crown's paramount title  5 as it is recognized by the law of nations."  6  7 In Guerin, my lord, these competing strains in the  8 Canadian jurisprudence were before Chief Justice  9 Dickson, and he sought to reconcile them in the  10 following ways.  And I have set out the passage in  11 which he does this.  And I would read it to Your  12 Lordship:  13  14 "It appears to me that there is no real conflict  15 between the cases which characterize Indian  16 title as a beneficial interest of some sort,  17 and those which characterize it a personal,  18 usufructuary right.  Any apparent inconsistency  19 derives from the fact that in describing what  20 constitutes an unique interest inland the  21 courts have almost inevitably found themselves  22 applying a somewhat inappropriate terminology  23 drawn from general property law.  There is a  24 core of truth in the way that each of the two  25 lines of authority has described native title,  26 but an appearance of conflict has nonetheless  27 arisen because in neither case is the  28 categorization quite accurate.  29 Indians have a legal right of occupy and  30 possess certain lands, the ultimate title to  31 which is in the Crown.  While their interest  32 does not, strictly speaking, amount to  33 beneficial ownership, neither is its nature  34 completely exhausted by the concept of a  35 personal right.  It is true that the sui  36 generis interest, which the Indians have in the  37 land is personal in the sense that it cannot be  38 transferred to a grantee, but it is also true,  39 as will presently appear, that the interest  40 gives rise upon surrender to a distinctive  41 fiduciary obligation on the part of the Crown  42 to deal with the land for the benefit of the  43 surrendering Indians.  These two aspects of  44 Indian title go together, since the Crown's  45 original purpose in declaring the Indians'  46 interest to be inalienable otherwise than to  47 the Crown was to facilitate the Crown's ability 24363  Submissions by Mr. Jackson  1 to represent the Indians in dealings with third  2 parties.  The nature of the Indians' interest  3 is therefore best characterized by its general  4 inalienability, coupled with the fact that the  5 Crown is under an obligation to deal with the  6 land on the Indians' behalf when the interest  7 is surrendered.  Any description of Indian  8 title which goes beyond these two features is  9 both unnecessary and potentially misleading."  10  11 THE COURT:  Of course, as you pointed in the next paragraph,  12 even that is misleading, unless you read into that  13 that this was reserve land.  14 MR. JACKSON:  My lord, Mr. Justice — Chief Justice Dickson  15 dealt with that indeed in the very next passage.  16 THE COURT:  Because that passage you just read me, if read  17 literally, would mean that all surrendered land had to  18 be dealt with for the best interests of the Indians,  19 and that wouldn't necessarily be so, would it?  20 MR. JACKSON:  Well, my lord, the particular context, of course,  21 of Guerin was a surrender of reserve land.  22 THE COURT:  That's right.  That's what he was talking about  23 there.  But it seems to me that that paragraph can't  24 be read except in the context of the case.  25 MR. JACKSON:  I think it has to be read in the context of the  26 case, my lord, subject to the following point I wish  27 to make, the very point which the Chief Justice made.  28 As you say in Guerin, the lands were lands which were  29 surrendered under the provisions of the Indian Act,  30 and they were part of the Musqueam Band's reserve  31 lands, but Chief Justice Dickson made it very clear  32 that no difference must be drawn in the  33 characterization of reserve lands or lands held under  34 aboriginal title.  And we have already cited that part  35 of his judgment where he affirmed that the Musqueam  36 Band interest in their reserve lands was a  37 pre-existing legal right not created by Royal  38 Proclamation by Section 18 of the Indian Act, which  39 defines reserve lines or by any other executive order.  40 His Lordship then continued:  41  42 "It does not matter, in my opinion, that the  43 present case is concerned with the interest of  44 an Indian band in a reserve rather than with  45 unrecognized aboriginal title in traditional  46 tribal lands.  The Indian interest in the land  47 is the same in both cases." 24364  Submissions by Mr. Jackson  1  2 But Your Lordship is correct in terms of the  3 consequences of what the obligation of the Crown would  4 be, depending upon what was surrendered.  5 THE COURT:  Yes.  Or the purpose for the surrender.  6 MR. JACKSON:  Or the purpose for the surrender.  Now, Madam  7 Justice Wilson in the same case, my lord, attempted  8 also to characterize the nature of aboriginal title.  9 And like the Chief Justice, she made no distinction  10 between the nature of the Indian interest in reserves  11 or lands held under aboriginal title.  She saw Section  12 18 of the Indian Act, the section which defines the  13 nature of the reserve, as having its roots in the  14 aboriginal title of Canada's Indians.  And her views  15 are set out in that passage at the bottom of page 178.  16  17 "I think that when S. 18 mandates that reserves  18 be held by the Crown for the use and benefit of  19 the bands for which they are set apart, this is  20 more than just an administrative direction to  21 the Crown.  I think it is the acknowledgement  22 of a historic reality, namely that Indian bands  23 have a beneficial interest in their reserves  24 and that the Crown has a responsibility to  25 protect that interest and make sure that any  26 purpose to which reserve land is put will not  27 interfere with it.  This is not to say that the  28 Crown either historically or by S. 18 holds the  29 land in trust for the bands.  The bands do not  30 have the fee in the lands; their interest is a  31 limited one.  But it is an interest which  32 cannot be derogated from or interfered with by  33 the Crown's utilization of the land for  34 purposes incompatible with the Indian title  35 unless, of course, the Indians agree.  I  36 believe that in this sense the Crown has a  37 fiduciary obligation to the Indian bands with  38 respect to the uses to which reserve land may  39 be put and S. 18 is a statutory acknowledgement  40 acknowledgement of that obligation."  41  42 THE COURT:  Doesn't Guerin -- the lands in question were  43 provided presumably under the constitutional scheme  44 they were operating under by the province for Indian  45 reserve purposes.  46 MR. JACKSON:  Pursuant to Section 13, my lord, the Terms of  47 Union. 24365  Submissions by Mr. Jackson  1 THE COURT:  So the question of whether there was an underlying  2 prior title with respect to those items never arose in  3 this case.  Once they got into reserve status, well  4 then the case and the principles they talk about began  5 to operate.  But the case doesn't decide that if the  6 lands hadn't been set aside for reserve purposes, that  7 the Indians would have had the aboriginal title for  8 which you contend.  Because that's what we are here --  9 that's what we are here to decide in this case.  10 MR. JACKSON:  My lord, I think the Chief Justice in refusing to  11 distinguish as a matter of law between lands set aside  12 for Indians pursuant to the Indian Act and lands held  13 by aboriginal title was seeking to state some general  14 principles, which in terms of the nature of the Indian  15 interest are common principles.  16 THE COURT:  I don't see how that can stand along with his dictum  17 we have all been following that every case is cite  18 specific.  He never investigated it, the cite  19 specificity of those lands.  20 MR. JACKSON:  No, my lord, but I think in that case there was an  21 agreement that the lands of the reserve were in fact  22 carved out, to use his words, of the lands which were  23 lands held by aboriginal title.  Your Lordship is  24 correct in the sense that there was not in Guerin the  25 kind of particular investigation on the facts.  The  26 case to some extent proceeded upon similar lines to  27 Calder, in that issue was not aggressively litigated  28 on the facts.  And what we say about Guerin is not  29 that it gives Your Lordship a conclusive and clear  30 guideline to how Your Lordship should determine this  31 case, but what it does do, when Your Lordship looks at  32 Guerin, you will see how the Court starts off not by  33 saying we are dealing here with reserve lands, so we  34 can put to one side everything else which the courts  35 have said about aboriginal title, because we are  36 dealing here with a statutory scheme, and we should  37 look within the four corners of the statute for the  38 role to determine the outcome of this case.  What the  39 court did was to look at the nature, the source, the  40 existence of aboriginal title and say that the  41 reserves which had been established here had the legal  42 quality of lands which are held by aboriginal title.  43 The differences, I think, my lord, is that the Court  44 in characterizing -- in characterizing what the  45 incidence of aboriginal title are, the Chief Justice  46 said the two incidents.  Its general inalienability  47 and the fact that upon a surrender the Crown has 24366  Submissions by Mr. Jackson  1 distinctive fiduciary obligations, which, you know, on  2 the facts of this case he held had in fact been  3 breached.  4 THE COURT:  I have to look at it again, but I rather thought  5 that what he was saying was that for the purpose of  6 this fiduciary question, it wouldn't matter whether  7 the lands were held by aboriginal title simpliciter  8 for which you contend in this lawsuit, or they're  9 lands which are dedicated and held for reserve  10 purposes.  It wouldn't make any difference.  But he  11 hasn't made the juridical determination of the first  12 issue.  It's as if you were to win this case and then  13 a piece of this land was set aside for a reserve while  14 the rest of the lands were sold, and you then had the  15 Guerin facts.  16 MR. JACKSON:  My lord, I think that's true, but I think your  17 distinguishing or limiting Guerin too much, in the  18 sense that what we say it stands for is that in  19 characterizing aboriginal title, as a pre-existing  20 right, it in fact is laying down a general proposition  21 not limited to the fact that these lands were reserved  22 lands.  23 THE COURT:  You are saying what aboriginal rights are once you  24 get them established?  25 MR. JACKSON:  I think he is saying more than that.  I think he  26 is saying that aboriginal rights arise not by virtue  27 of being confirmed by the Indian Act.  28 THE COURT:  I agree with that, yes, entirely.  29 MR. JACKSON:  Yes.  But in terms of the consequences which flow  30 in terms of the Crown's fiduciary obligations, we  31 agree, my lord, that in terms of those particular  32 obligations Guerin was dealing with the obligation  33 which arise from the Indian Act, and he didn't have to  34 deal with the question of what those obligations would  35 be, apart from the Indian Act.  Although we say, my  36 lord, that to the extent in Guerin the fiduciary  37 obligation which he talks about derive from the  38 inalienability of the land at common law, we say that  39 that is the characteristic of the protectorate  40 relationship and those fiduciary obligations to deal  41 with the Indians in a way consistent with the honour  42 of the Crown are ones which flow from the common law.  43 We say beyond that, my lord, the part of those  44 fiduciary obligations are that lands can only be  45 acquired with the consent of the Indians.  And that  46 principle, my lord, that lands can only be surrendered  47 with the consent of the Indians, is in turn embedded 24367  Submissions by Mr. Jackson  1 in the Indian Act.  So in that sense the Indian Act  2 codifies in a particular way the Crown's obligations  3 in relation to Indian reserves.  But we say that that  4 does not delimit or preclude a definition of Crown  5 obligations, nor does it preclude, and in fact Chief  6 Justice Dickson specifically says that the rights of  7 the Indians in relation to lands held by aboriginal  8 title are the same.  And --  9 THE COURT:  Yes, he says that right in front of you on your page  10 178.  11 MR. JACKSON:  Yes, my lord.  And the point, I think, where this  12 comes -- comes important is that in the passage which  13 I have just cited, where the Chief Justice says the  14 description of aboriginal title in terms of incidents  15 is limited to two aspects.  One, its general  16 inalienability; and the second, the Crown's fiduciary  17 obligation to deal with the land on the Indian's  18 behalf when the interest is surrendered.  And he said  19 any other description is misleading or unnecessary.  I  20 think, my lord, that what he was saying there is that  21 for the purposes of what I am going to decide in this  22 case, I don't have to go beyond that, because the only  23 issue which this case has raised is are those  24 obligations breached.  25 THE COURT:  I agree with that.  26 MR. JACKSON:  And his lordship therefore was not intending to,  27 nor can his judgment be read as to exhaustively  28 determine the nature of aboriginal title.  And, my  29 lord, the Chief Justice's conclusion that the nature  30 of the Indian interest in reserve lands is the same as  31 the nature of the Indian interest in unsurrendered  32 Indian lands is in fact drawn from the Privy Council's  33 position in the Star Chrome case.  34 THE COURT:  What do you think he means by an unrecognized  35 aboriginal title?  36 MR. JACKSON:  Unrecognized aboriginal title, my lord, comes from  37 a line of decisions in the United States, which I will  38 be --  39 THE COURT:  If you're going to come to that —  40 MR. JACKSON:  -- dealing with quite soon.  And in shorthand form  41 it means lands which have not been confirmed in some  42 way by legislative act or executive order in the form  43 of being made into a reserve or in American terms a  44 reservation.  That is his reference there, lands which  45 have been set aside as an Indian Act reserve, as  46 opposed to lands which simply haven't been  47 surrendered, but which are held under an aboriginal 2436?  Submissions by Mr. Jackson  1 title.  2 THE COURT:  Well, in view of the position you take in this case,  3 would you say that all the lands within the external  4 boundary are presently describable as unrecognized  5 aboriginal title?  6 MR. JACKSON:  Yes, my lord, except for those lands which are  7 designated Indian reserves.  8 THE COURT:  Yes, all right.  9 MR. WILLMS:  My lord, my friend used the word "Crown" as he went  10 through and described Guerin.  I was assuming that he  11 meant Crown in the same terms that the Chief Justice  12 did, which is the Crown federal, and that that is the  13 focus of his argument.  And if he is suggesting that  14 what Mr. -- what the Chief Justice said in Guerin as  15 to interest against the Crown and Crown fiduciary  16 interests applies to the province as well, I would  17 like him to clarify that.  I am assuming that he is  18 not saying that, and that is not part of the  19 plaintiffs' case.  20 THE COURT:  Well, the province wasn't a party to Guerin, was it?  21 MR. WILLMS:  That's why.  My friend said Crown, Crown, Crown,  22 and I am just assuming that he meant Crown federal,  23 Crown federal, Crown federal.  2 4 THE COURT:  Yes.  25 MR. JACKSON:  Yes, my lord, exactly that, the case was dealing  26 with the obligations of the Crown federal.  27 It is our submission, my lord, and I make this  28 point at the bottom of page 179, that it was not  29 necessary for the court exhaustively to determine the  30 nature of aboriginal title.  And it is our submission  31 further, my lord, that Madam Justice Wilson in the  32 passage which I most recently read to you at page 179,  33 which I have italicized, correctly identified one  34 further fundamental feature of aboriginal title.  35 Because it is of great significance to the plaintiffs'  36 position, I have set it out again at the top of page  37 180, because we say it is one of the fundamental  38 principles.  It is an interest which cannot be  39 derogated from or interfered with by the Crown's  40 utilization of the land for purposes incompatible with  41 the Indian title, unless, of course, the Indians  42 agreed.  43 And of course, as Your Lordship would have seen,  44 we say that that was a principle of the Marshall  45 cases, it is a principle which is reflected in the  46 decision of the New Zealand Supreme Court in Symonds.  47 It is a principle which is at the centre of the Royal 24369  Submissions by Mr. Jackson  1 Proclamation, and is a principle which goes back to  2 the very earliest days of European colonization.  3 The next section, my lord, I've termed building  4 upon the Chief Justice's own characterization in the  5 Guerin case, "Aboriginal Title as a Sui Generis  6 Interest".  7 THE COURT:  What's your understanding of what sui generis means?  8 MR. JACKSON:  Of its own kind, distinctive, unique.  I think  9 that probably gives us the nature of the --  10 THE COURT:  Yes.  11 MR. JACKSON:  And as both Mr. Justice Strong in St. Catherine's  12 Milling and the Chief Justice in Guerin, indeed among  13 others, have observed, one of the great difficulties  14 the courts have had in describing the nature of  15 aboriginal title in its proprietary aspects is fitting  16 it in to property law terminology.  And this is a  17 problem which the Privy Council has encountered in a  18 number of cases arising from the African colonial  19 experience.  And two of these cases are cited both in  20 Calder and Guerin, and we say that these are important  21 cases in identifying the appropriate line of inquiry  22 for this court, for Your Lordship, in determining the  23 sui generis nature of the plaintiffs' interest in  24 their territories.  25 And the first of these cases, my lord, is Amodu  26 Tijani and the Secretary of South Nigeria.  And I want  27 to go into the case in some detail.  Your Lordship, I  28 think, will see the point to which I am driving, and  29 why we say this is a case which Your Lordship should  30 play particular attention.  31 Amodu Tijani was one of the Idejo White Cap Chiefs  32 of Lagos, and in 1913 certain lands situated in the  33 colony of southern Nigeria were acquired by the  34 government of the colony under the Public Lands  35 Ordinance for public purposes.  This ordinance  36 authorized the governor to take any lands required for  37 public purposes for an estate in fee simple, or for a  38 lesser estate on paying compensation to be agreed on  39 or determined by the Supreme Court of the colony.  40 Where the land required was the property of a native  41 community, the head chief of the community was  42 empowered to sell and convey it in fee simple, any  43 native law or custom to the contrary notwithstanding.  44 Generally speaking, the governor could pay the  45 compensation in accordance with the direction of the  46 court, but whether any compensation is paid to a head  47 chief in respect of any land, the property of a native 24370  Submissions by Mr. Jackson  1 community, such compensation is to be distributed by  2 him among the members of the community, or applied or  3 used for their benefit in such proportions as the  4 native council of the district determined.  5 Now, the Privy Council described the issue from  6 which the appeal was brought in the following way:  7  8 "The land in question is at Ipapa, on the  9 mainland and within the colony.  The appellant  10 is the the head chief of the Oluwa family or  11 community and is one of the Idejos or  12 landowning White Cap Chiefs of Lagos and the  13 land is occupied by persons some of whom pay  14 rent or tribute to him.  Apart from any family  15 or private lands the chief may possess or may  16 have alloted to members of his own family, he  17 has in a representative or official capacity  18 control by custom over the tracts within his  19 chieftaincy including, as Chief Justice Steed  20 points out in his judgments in this case, power  21 of allottment and of exacting a small tribute  22 or rent in acknowledgement of his position as  23 head chief.  But when in the present  24 proceedings he claimed for the whole value of  25 the lands in question, as being land in which  26 he was empowered by the ordinance to sell, the  27 Chief Justice of the Supreme Court held that,  28 although he had a right which must be  29 recognized and paid for, this right was;  30 'merely a seigneurial right giving the holder  31 the ordinary rights of control and management  32 of the land in accordance with the well-known  33 principles of native law and custom, including  34 the right to receive payment of the nominal  35 right or tribute payable by the occupiers, and  36 that compensation should be calculated on that  37 basis, and not on the basis of absolute  38 ownership of the lands" ...  39 The appellant, on the other hand, contended  40 that, although his claim was ... restricted to  41 one in a representative capacity, it extended  42 to full value of the family property and  43 community land vested in him as chief, for the  44 latter of which he claimed to be entitled to be  45 dealt with under the terms of the ordinance in  46 the capacity of representing his community and  47 its full title of occupation. 24371  Submissions by Mr. Jackson  1 The question which their lordship's have to  2 decide is which of these view is the true one.  3 In order to answer the question, it is  4 necessary to consider, in the first place, the  5 real character of the native title to the  6 land."  7  8 And it's that inquiry, my lord, which is the  9 particular focus of why we say this case is of  10 significance to Your Lordship's deliberations.  11  12 "Their Lordships make the preliminary  13 observation ..."  14  15 And this is part of the quote, my lord, which has  16 been cited extensively in the Canadian jurisprudence.  17  18 "Their Lordships make the preliminary  19 observation that in interpreting the native  20 title to the land, not only in southern  21 Nigeria, but other parts of the British Empire,  22 much caution is essential.  In is a tendency,  23 operating at times unconsciously, to render  24 that title conceptually in terms which are  25 appropriate only to systems which have grown  26 up under English law.  But this tendency has  27 to be held in check closely.  As a rule, in the  28 various systems of native jurisprudence  29 throughout the Empire, there is no such full  30 division between property and possession as  31 English lawyers are familiar with.  A very  32 usual form of native title is that of the  33 usufructuary right, which is a mere  34 qualification of or burden on the radical or  35 final title of the sovereign where that exists.  36 In such cases the title of the sovereign is a  37 pure legal estate, to which beneficial rights  38 may or may not be attached.  But this estate is  39 qualified by a right of beneficial user which  40 may not assume definite forms analagous to  41 estates, or may, where it has assumed these,  42 have derived them from the intrusion of the  43 mere analogy of English jurisprudence.  Their  44 lordships have elsewhere explained principles  45 of this kind in connection with the Indian  46 title to reserve lands in Canada."  47 24372  Submissions by Mr. Jackson  1 And the reference there to St. Catherine's Milling  2 itself and one of the other Privy Council cases.  3  4 "But the Indian title in Canada affords by no  5 means the only illustration of the necessity  6 for getting rid of the assumption that the  7 ownership of land naturally breaks itself up  8 into estates, conceived as creatures of  9 inherent legal principle.  Even where an estate  10 in fee is definitely recognized as the most  11 comprehensive estate in land which the law  12 recognizes, it does not follow that outside  13 England it admits of being broken up.  In  14 Scotland a life estate imports no freehold  15 title, but is simply in contemplation of  16 Scottish law a burden on a right of full  17 property that cannot be split up.  In Indian  18 much the same principle applies.  The division  19 of the fee into successive and independent  20 incorporeal rights of property conceived as  21 existing separately from the possession is  22 unknown.  In Indian, as in southern Nigeria,  23 there is yet another feature of the fundamental  24 nature of the title to land which must be borne  25 in mind.  The title, such as it is, may not be  26 that of the individual, as in this country it  27 nearly always is in some form, but may be that  2 8 of a community.  Such a community may have the  29 possessory title to the common enjoyment of an  30 usufruct, with customs under which its  31 individual members are admitted to enjoyment,  32 and even to a right of transmitting the  33 individual enjoyment as members by assignment  34 inter vivos or by succession.  To ascertain  35 how far this latter development of right has  36 progressed involves the study of the history  37 of the particular community and its usages in  38 each case.  Abstract principles fashioned a  39 priori are of but little assistance, and are  40 as often as not misleading."  41  42 THE COURT: What do you say about this case?  The Indian chiefs  43 are here, the plaintiff chiefs say it's theirs for the  44 benefit of the house.  45 MR. JACKSON:  My lord, if you will bear with me one further  46 passage, I think I'll take Your Lordship to the point  47 which Your Lordship just made. 24373  Submissions by Mr. Jackson  1    MR. JACKSON:  Now, the courts goes on.  2  3 "In the case of Lagos and the territory around  4 it, the necessity of adopting this method of  5 enquiry is evident."  6  7 And going to the last paragraph of that quote, my  8 lord.  9  10 "In the instance of Lagos the character of the  11 tenure of the land among the native communties  12 is described by Rayner C.J. in the Report of  13 Land Tenure in West Africa which that learned  14 judge made in 1895 in language in which their  15 lordship's think is substantially borne out by  16 the preponderance of authority:  'the next fact  17 which it is important to bear in mind in order  18 to understand the native land law is that the  19 notion of individual ownership is quite foreign  20 to native ideas.  Land belongs to the  21 community, the village or the family, never to  22 the individual.  All the members of the  23 community, village or family have an equal  24 right to the land, but in every case the Chief  25 Headman of the community or village, or head of  26 the family, has charge of the land, and in  27 loose mode of speech is sometimes called the  28 owner.  He is to some extent in the position of  29 a trustee, and as such holds the lands for the  30 use of the community or family.  He has control  31 of it, and any member who wants a piece of it  32 to cultivate or build a house upon, goes to him  33 for it.  But the lands so given still remains  34 the property of the community or family.  He  35 cannot make any important disposition of the  36 land without consulting the elders of the  37 community or family, and their consent must in  38 all cases be given before a grant can be made  39 to a stranger.  This is a pure native custom  40 along the whole length of this coast, and  41 wherever we find, as in Lagos, individual  42 owners, this is again due to the introduction  43 of English ideas.  But the native idea still  44 has a firm hold on the people, and in most  45 cases even in Lagos, land is held by the  46 family.  This is so even in cases of land  47 purporting to be held under Crown grants and 24374  Submissions by Mr. Jackson  1 English conveyances.  The originals grantee  2 ..."  3  4 And as we will demonstrate, my lord, and later  5 next week and the following week, the evidence of the  6 sui generis system of the plaintiffs bears some  7 resemblance to some of these features.  8 But our point, my lord, is not that these are the  9 features of aboriginal title.  Our point is that the  10 Court in Amodu Tijani has identified a critical part  11 of judicial inquiry.  In understanding what aboriginal  12 title is, one does not focus on abstract principles,  13 one does not have a pre-conceptualized idea of native  14 title.  What one does is based upon the evidence of  15 the particular plaintiffs' claims that are in dispute,  16 one characterizes on that basis.  And that is the  17 reason why, my lord, we have gone to the extent we  18 have gone to in describing for Your Lordship the  19 nature of the interest.  20 And of course in St. Catherine Milling, as in all  21 the other cases, my lord, the nature of the Indian  22 interest was in fact described in very general terms.  23 There was not this hard bedrock of evidence upon which  24 Your Lordship could bring to bear a judicial  25 characterization which does justice to the evidence,  26 and does not seek to characterize on the basis of  27 abstract principles removed from what exists on the  28 ground in relation to the claims of these particular  29 plaintiffs.  That, of course, is not to say, my lord,  30 that the inquiry is devoid of principles or devoid of  31 rules which Your Lordship has to bring to bear, but  32 what we say Amodu Tijani demonstrates that in sui  33 generis nature of aboriginal title, as it is described  34 in Guerin, there is an appropriate and principled way  35 to do it.  36 Returning, my lord, to the judgments of the Privy  37 Council in Ammodu Tijani.  Their lordships reviewed  38 the history of the relations of the native chiefs to  39 the British Crown, and how after Lagos had become a  40 centre for the slave trade the British government, in  41 order to surpress the trade, first established a  42 protectorate and later decided to take possession of  43 the island.  In 1861 a treaty of cession was decided  44 to take possession of the island.  In 1861 a treaty of  45 cession was signed with the British Crown by Docemo,  46 the King of Lagos and the ceded territories eventually  47 became part of the colony of southern Nigeria. 24375  Submissions by Mr. Jackson  1 And in that sense, my lord, Lagos seems to have  2 been acquired by the Crown in much the same way as New  3 Zealand in the sense of a cession from the native  4 proprietors, native chiefs.  5 In describing the effect of the cession, the Privy  6 Council had this to say.  And again, my lord, this is  7 a passage which has been extensively cited in Canadian  8 cases:  9  10 "No doubt there was a cession to the British  11 Crown, along with the sovereignty, of the  12 radical or ultimate title to the land, in the  13 new colony, but this cession appears to have  14 been made on the footing that the rights of the  15 property of the inhabitants were to be fully  16 respected.  This principle is an usual one  17 under British policy and law when such  18 occupations take place.  The general words of  19 the cession are construed as having related  20 primarily to sovereign rights only ... when the  21 cession passed any proprietary rights they were  22 rights which to the ceding King possessed  23 beneficiallly and free from the usufructuary  24 qualification of his title in favour of his  25 subj ects.  26 In the light afforded by the narrative, it  27 is not admissible to conclude that the Crown is  28 generally speaking entitled to beneficial  29 ownership of the land as having so passed to  30 the Crown as to displace any presumptive title  31 of the natives.  In the case of Oduntan  32 Onisiwo v. Attorney-General of Southern  33 Nigeria, Chief Justice Osborne laid down as to  34 the effect of a cession of 1861, that he was of  35 the opinion that 'the ownership rights of  36 private land owners, including the families of  37 the Idejos, were left entirely unimpaired and  38 as freely exercisable after the cession as  39 before'.  In this view their lordships concur.  40 A mere change in sovereignty is not to be  41 presumed as meant to disturb the rights of  42 private owners; and the general terms of a  43 cession are prima facie to be construed  44 accordingly.  The introduction of the system of  45 Crown grants which was made subsequently must  46 be regarded as having been brought about  47 mainly, if not exclusively, for conveyancing 24376  Submissions by Mr. Jackson  1 purposes, and not with a view to altering  2 substantive titles already existing."  3  4 Now, this passage, my lord, from Amodu Tijani, we  5 say is an authority restatement of the principle of  6 continuity, that a change in sovereignty over a  7 particular territory does not in general affect the  8 pre-existing property rights of the original  9 inhabitants.  And we have previously pointed out to  10 Your Lordship this affirms the principles of both  11 international law and of the common law, as reflected  12 in the judgment of the Marshall court in Mitchell.  13 Its affirmation by the Privy Council in the Amodu  14 Tijani has been cited with approval as applied to  15 Canada by Mr. Justice Hall in Calder and Chief Justice  16 Dickson in Guerin.  And I have set out, my lord, the  17 citations where Amodu Tijani is cited with approval as  18 being applicable to Canada.  19 Now, against the backdrop of the doctrine of  20 continuity and a careful analysis of the specific land  21 tenure system of the native peoples of Lagos, the  22 Privy Council then reviewed the judgment of Chief  23 Justice Steed in the Court below.  And as we have  24 seen, His Lordship concluded that compensation was to  25 be made on the basis that the only right or title of  26 the chief was one giving the holder the rights of  27 control and management of the land, including the  28 right to receive payment of the nominal rent, and the  29 compensation should be calculated on that basis and  30 not on the basis of absolute ownership.  According to  31 the Chief Justice the effect of the cession of 1861  32 was that all rights over the land, including the  33 sovereign ownership, passed to the British Crown, and  34 that what was recognized by the British government was  35 simply the title of the chiefs to exercise a kind of  36 control over considerable tracts of lands and to  37 receive a nominal rent.  38 THE COURT:  Just an assessment appeal.  39 MR. JACKSON:  That seems to be what it was, my lord, yes.  The  40 Privy Council rejected this view of the native title.  41  42 "Their lordships think that the Chief Justice in  43 the judgment thus summarized, which virtually  44 excludes the legal reality of the community  45 usufruct, has failed to recognize the real  46 character of the title to land occupied by a  47 native community.  That title, as they have 24377  Submissions by Mr. Jackson  1 pointed out, is prima facie based, not on such  2 individual ownership as English law has made  3 family, but on a communal usufructuary  4 occupation, which may be so complete as to  5 reduce any radical right in the sovereign to  6 one which only extends to comparatively limited  7 rights of administrative interference."  8  9 My lord, summarizing what we say is the importance  10 of this case to Your Lordship's deliberations, at the  11 bottom of page 187 we say in the marshalling of their  12 evidence the plaintiffs have sought to lay before this  13 court a detailed description of the precise nature and  14 contours of the distinctive Gitksan and Wet'suwet'en  15 system of land tenure.  This evidentiary basis goes  16 far beyond anything laid before any Canadian or U.S.  17 courts, and it is submitted that it provides a base  18 upon which this court can accurately characterize the  19 nature of the plaintiffs' interest in their  20 territories in the manner in which that interest is  21 described in the Statement of Claim.  In this way it  22 is submitted this court is in the unprecedented  23 position of being able to define the sui generis  24 nature and character of the plaintiffs' rights not, in  25 the words of the Privy Council, on abstract principles  26 fashioned a priori, but on evidence rooted in the  27 fundamental principles, laws and customs of the  28 plaintiffs.  29 THE COURT:  Well, at some time, then, perhaps this is something  30 you would rather leave for someone else, but I have  31 been throughout troubled by the style of cause, the  32 claim being advanced on behalf of the hereditary  33 chiefs.  If you're relying on Tajani, he seems to  34 suggest that the chiefs' role is a nominal one, and  35 it's a communal title.  Aren't you saying almost the  36 same thing here?  37 MR. JACKSON:  What we are saying, my lord, we are not trying to  38 say -- in the same way in citing, my lord, the --  39 giving Your Lordship some idea of the Iroquois' system  40 of my going yesterday into the way in which the  41 Cherokees organize their society.  We are not saying  42 that that is the model, try and see how close the  43 Gitksan and Wet'suwet'en get to that.  What we are  44 saying is that native interests in land are enormously  45 diverse.  The courts to date have almost, in the  46 absence of any real evidence, in the absence of the  47 kind of evidentiary basis you had in Canada, have 2437?  Submissions by Mr. Jackson  1 tended to do what the Privy Council has said we are  2 not to be doing, trying to determine these matters on  3 the basis of a priori principles on pre-conceptions,  4 particularly based upon Anglo-Saxon concepts of what  5 is property.  And what we are -- what we have sought  6 to do, and in setting out the evidence as we will be  7 doing for Your Lordship, we are saying this is how the  8 system works, and having regard to how it works, what  9 its shape is, what its contours are, that shape, that  10 contour has the characteristic of ownership and  11 jurisdiction.  And it will be the gravamen of our  12 submissions in the next week, my lord, to place before  13 you that evidence, and to permit Your Lordship to draw  14 that characterization, which we say is sui generis,  15 and Your Lordship will for the first time in a  16 Canadian court be in a position to accurately  17 characterize the nature of the interest.  18 THE COURT: All right.  Well, I'm not suggesting for — for a  19 moment that any valid claim here should be defeated by  20 misjoinder.  It's just a matter that has troubled me  21 about the claim being advanced, it seems to me,  22 possibly, but arguably just on behalf of the chiefs  23 when it might be more of a communal claim.  But we'll  24 come to that in due course.  We'll take the afternoon  2 5 adjournment.  26 THE REGISTRAR: Order in court.  Court stands adjourned for a  27 short recess.  28  2 9 (PROCEEDINGS ADJOURNED)  30  31 I HEREBY CERTIFY THE FOREGOING TO BE  32 A TRUE AND ACCURATE TRANSCRIPT OF THE  33 PROCEEDINGS HEREIN TO THE BEST OF MY  34 SKILL AND ABILITY.  35  36  37 LORI OXLEY  38 OFFICIAL REPORTER  39 UNITED REPORTING SERVICE LTD.  40  41  42  43  44  45  46  47 24379  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED AT 3:20 p.m. PURSUANT TO AN  2 ADJOURNMENT)  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Jackson.  6 MR. JACKSON:  My lord, if I may just revisit your lordship's  7 comments before the break, your lordship raised the  8 question of the nature of the way in which the  9 plaintiffs have asserted their rights in the Statement  10 of Claim.  The point I would like to emphasize, my  11 lord, is the question of whether the rights of the  12 chiefs are personal in the sense that they are their  13 rights, the question of whether the rights are rights  14 which are newer to the houses, and the chiefs are in a  15 representative capacity as trustees like the situation  16 in Amodu Tijani, we say is not determinative of the  17 issue.  18 THE COURT:  Oh, no.  19 MR. JACKSON:  What is important is that the way in which the  20 plaintiffs' rights are described are in fact borne out  21 by the evidence, and we say that is the point your  22 lordship should be directed to, not to consider are  23 they use of fructory rights, are they collective  24 rights, are they personal rights, because as we  25 understand what Amodu Tijani was saying is that in  26 order to give effect as a matter of the common law to  27 indigenous land rights, the quest, the judicial task  28 is not to try and see can they be fitted into a model  2 9 we have and somehow can we shoo them in one way or the  30 other, but look at those rights as they exist on the  31 ground, as they are conceptualized by the Native  32 people and then see how in fact they can be given  33 effect as a matter of the common law.  34 And in the next section, my lord, I am going to  35 attempt to show how that particular inquiry was sought  36 to be done in Calder, and some of the problems which  37 were encountered in Calder where that effort was made  38 as a way to advise your lordship of some of the road  39 blocks as it were which lay before your lordship in  40 seeking to give a proper characterization in  41 accordance with the mandate dictated by, directed by  42 Amodu Tijani.  43 And the second case I want to put to your lordship  44 to refer to is the case of Re Southern Rhodesia, it is  45 a decision of the Privy Council also in 1919, and at  46 page 189, I have set out the passage which again  47 appears in Calder and it's a passage which is also 24380  Submissions by Mr. Jackson  1 cited by Mr. Justice Mahoney in Baker Lake.  And Re  2 Southern Rhodesia was a very complicated case  3 involving a number of issues.  The rights of the  4 Matabes, the indigenous people of Southern Rhodesia,  5 were almost incidentally involved.  They were not  6 parties directly to the litigation although counsel on  7 their behalf did appear at the bar of the board when  8 it was argued before the Privy Council.  In the course  9 of their determination the Privy Council said:  10  11 "The estimation of aboriginal rights of  12 aboriginal tribes is always inherently  13 difficult.  Some tribes are so low in the scale  14 of social organization that their usages and  15 conception of rights and duties are not to be  16 reconciled with the institutions or the legal  17 ideas of civilized society.  Such a gulf cannot  18 be bridged.  It will be idle will to impute to  19 such people some shadow of the rights known to  20 our law and then to transmute it into the  21 substance of transferrable rights of property  22 as we know them.  In the present case it would  23 make each and every person by a fictional  24 inheritance, a landed proprietor 'richer than  25 all his tribe'.  On the other hand, there are  26 indigenous peoples whose legal conceptions,  27 though differently developed, are hardly less  28 precise than our own.  When once they have  29 been studied and understood they are no less  30 enforceable than rights arising under English  31 law.  Between the two there is a wide tract of  32 much ethnological interest, but the position of  33 the natives of Southern Rhodesia within it is  34 very uncertain; clearly they approximate rather  35 to the lower than to the higher limit."  36  37 My lord, the language used in this passage both  38 states and illustrates the problem of ethnocentricism  39 to the extent that it seems to place native societies  40 within a hierarchy of civilized society with  41 non-native societies at the apex.  And the judgments  42 which this spectrum of civilized society seems to  43 invisage is reflected in the citation of this passage  44 by Chief Justice Davey in his judgment in the Court of  45 Appeal in Calder.  Now, my lord, in Calder, the  46 principal evidence given for the Nishga Plaintiffs was  47 the evidence of Dr. Wilson Duff.  When I say principal 24381  Submissions by Mr. Jackson  1 evidence, the evidence as to the nature of their  2 organized society, the nature of their system of  3 ownership, and Mr. Duff, as you have heard a number of  4 the witness characterize him, was at the time of the  5 Calder trial and up to the time of his premature death  6 regarded as one of the most knowledgeable  7 anthropologists on the Northwest Coast Native people  8 and had written the leading authority of text on the  9 subject.  And in the course of the trial before Mr.  10 Justice Gould, the following passage from his book  11 The Indian History of British Columbia was read into  12 evidence and this is a text which was referred to in  13 the course of the evidence of Dr. Richard Daly:  14  15 "At the time of contact the Indians of this  16 area..."  17  18 and we are talking of the Nishga:  19  20 "...were among the world's most distinctive  21 peoples.  Fully one third of the native  22 population of Canada lived here.  They were  23 concentrated most heavily along the coast line  24 and the main western rivers, and in these areas  25 they developed their cultures to higher peaks  26 in many respects, than in any other part of the  27 continent north of Mexico.  Here, too, was the  28 greatest linguistic diversity in the country...  29 Most of all, their cultures were distinguished  30 by a local richness and originality, the  31 product of vigorous and inventive people in a  32 rich environment...  33  34 It is not correct to say that the Indians did  35 not own the land but only roamed over the face  36 of it and used it.  The patterns of ownership  37 and utilization which they imposed upon the  38 land and waters were different from those  39 recognized by our system of law, but were  40 nonetheless clearly defined and mutually  41 respected.  Even if they didn't subdivide and  42 cultivate the land, they did recognize  43 ownership of plots used for village sites.."  44  45 Should be "s".  4 6    THE COURT:  Yes.  4 7    MR. JACKSON: 24382  Submissions by Mr. Jackson  1  2 "...fishing places, berry and root patches, and  3 similar purposes.  Even if they didn't subject  4 the forest to wholesale logging, they did  5 establish ownership of tracts used for hunting,  6 trapping and food gathering.  Even if they  7 didn't sink mine shafts into the mountains,  8 they did own peaks and valleys for mountain  9 goat hunting and as sources of raw materials."  10  11 And Professor Duff gave evidence, viva voce  12 evidence, that these paragraphs applied to the Nishgas  13 and gave more specific evidence of the Nishgas'  14 pattern of ownership and utilization of different  15 resource areas.  And in the course of his  16 cross-examination by Mr. Robinson he was asked to  17 provide documentary or other evidence to justify his  18 use of the word "ownership".  And Professor Duff had  19 studied the Barbeau-Beynon archive materials  20 extensively, indeed he was one of the principal  21 anthropologists to go into that archive and of course  22 it is the same archives which your lordship has heard  23 evidence from a number of the plaintiffs' expert  24 witnesses, and he referred to that material together  25 with other anthropological texts.  And he cited in  26 particular a book also cited to your lordship from Dr.  27 Garfield's work.  28  29 "It was characteristic of the Tsimshian, as of  30 other Northwest Coast Tribes, that exclusive  31 rights to exploit the resource districts were  32 claimed by kin.  Lineages of the Tsimshian were  33 owners of rights to hunt, fish, pick berries or  34 gather raw materials from geographically  35 defined territories.  Lineage properties were  36 listed at an installation potlatch of a new  37 head, hence were in his name.  Lineage heads  38 could and did designate certain areas as  39 actually his and passed them on as private  40 property to successors.  This is the concept of  41 ownership that - "  42  43 And at that point Professor Duff was interrupted by  44 counsel.  But later in his evidence he returned to a  45 passage from Dr. Drucker which again was cited to your  46 lordship in the course of a number of the expert  47 witnesses: 24383  Submissions by Mr. Jackson  1  2 "Distinctive of North Pacific Coast culture is  3 the inclusion of natural resources and items of  4 wealth; the foodstuffs, the materials for  5 dress, shelter and transport and the places  6 from which these things were obtained.  Each  7 group regarded the areas utilized as the  8 exclusive property of the group.  Group members  9 used habitation sites, fishing grounds, clam  10 beaches, hunting and burying grounds, that is  11 in the sense of getting buried, forest areas  12 where timber and bark were obtained through  13 right.  Outsiders entered by invitation or in  14 trespass.  Bounds were defined by natural land  15 marks with a precision remarkable for people  16 with no surveying equipment."  17  18 And later in his evidence he talked about the  19 particular Nishga system of succession through the  20 matriline.  In the course of his evidence, my lord,  21 Professor Duff was questioned by Mr. Justice Gould,  22 who sought to relate Dr. -- Mr. Duff's evidence as to  23 the Nishga concepts of ownership to ownership of real  24 property as defined by the common law.  And Mr.  25 Justice Gould identified five characteristics which he  26 thought were the hallmarks of common law ownership.  27 And those characteristics were:  specific delineation  28 of the land; exclusive possession; the right of  29 alienation; the right to destroy it at your whim; and  30 the exclusive possession should be of indeterminable  31 time, that is, it can be passed on to one's heirs.  32 And one point here, my lord, in the course of his  33 judgment in Calder, Mr. Justice Hall -- and Mr.  34 Justice Hall sets this particular line of  35 cross-examination out in his own judgment.  But before  36 doing so, he notes that this particular line of  37 inquiry of trying to characterize the Nishga rights of  38 property in terms in which we would define common law  39 ownership did not in his view do justice to the  40 inquiry which Amodu Tijani inquired; in other words,  41 the test of whether the Nishga had rights of property  42 should not be whether or not their property  43 characteristics are identical to ours, but that point  44 aside, my lord, Professor Duff sought to respond to  45 Mr. Justice Gould's line of inquiry and he testified  46 that the Nishgas had a system of specific delineation  47 which was by landmarks as opposed to modern surveying 24384  Submissions by Mr. Jackson  1 methods; that the Nishgas had a concept of exclusive  2 possession although that rested in a group of people,  3 not an individual; and that the Nishga system of  4 property recognized certain rights of alienation.  As  5 to the right to destroy property Professor Duff  6 testified that that right existed and in terms of  7 their interest in property being of indeterminable  8 time, he testified the property belonged to the  9 kinship group through time with no duration of theory  10 but it always remained with the same kinship group  11 within the matrilineal line.  12 In Calder, my lord, the Province of British  13 Columbia presented no competing anthropological  14 evidence.  Mr. Justice Gould found that "all witnesses  15 gave their respective testimony as to facts, opinions,  16 and historical and other documents with total  17 integrity.  There can be no issue of credibility as to  18 the witnesses in this case".  My lord, notwithstanding  19 the uncontradicted evidence of Professor Duff, Chief  20 Justice Davey, having cited the passage from Southern  21 Rhodesia, which I have read to your lordship,  22 concluded:  23  24 "Turning to the evidence in this appeal, in  25 spite of the commendation by Mr. Duff, a  26 well-known anthropologist, of the native  27 culture of the Indians on the mainland of  28 British Columbia they were undoubtedly at the  29 time of settlement a very primitive people  30 with few of the institutions of civilized  31 society, and none at all of our notions of  32 private property.  I am not overlooking Mr.  33 Duff's evidence that the boundaries of the  34 Nishga territory were well known to the tribes  35 and to their neighbours, and respected by all.  36 These were territorial, not proprietary  37 boundaries and had no connection with notions  38 of ownership of particular parcels of land."  39  40 My lord, we say that with all respect to Chief  41 Justice Davey who, in almost all other matters as your  42 lordship is of course aware, was one of the most  43 respected judges in this province's history, but Chief  44 Justice Davey's conclusions on this particular point  45 can only be explained by the limited vision which  46 comes with what anthropologists have called the "veils  47 of ethnocentricism".  Indeed -- 24385  Submissions by Mr. Jackson  1 THE COURT:  That's what they say about everybody who doesn't  2 agree with him, isn't it?  3 MR. JACKSON:  I think that may be the case but I think there is  4 more to it in this case.  5 THE COURT:  That's what lawyers say about non-lawyers, and  6 non-lawyers say about lawyers.  7 MR. JACKSON:  But Mr. Justice Hall, my lord, who was fully  8 conscious of Chief Justice Davey's eminence and  9 scholarship, was forced to comment in the course of  10 his judgment on that conclusion of the Chief Justice.  11 And in the course of his judgment, Mr. Justice Hall  12 said:  13  14 "In so saying this..."  15  16 that the Nishga were a very primitive people:  17  18 "...he was assessing the Indian culture of 1858  19 by the same standards that the European applied  20 to the Indians of North America two or more  21 centuries before."  22  23 And in actual fact, my lord, as my submissions I  24 hope have made clear to your lordship, in the 18th  25 century in the context of the Covenant Chain Treaties,  26 European understanding and respect for Indian  27 societies and their systems of law and diplomacies was  28 considerably in advance of the views expressed by  29 Chief Justice Davey in 1970.  30 That the extent to which judges' willingness to  31 lift this veil of ethnocentricity and see native  32 societies as equals and contemporaries is directly  33 linked to their ability to properly adjudicate on the  34 real rights of aboriginal peoples is, we say, revealed  35 in the manner in which Mr. Justice Hall himself cites  36 at very same passage in Re Southern Rhodesia which was  37 relied upon by Chief Justice Davey to conclude that  38 they were a very primitive people as it were at the  39 lower end of the scale invisaged by Re Southern  40 Rhodesia.  And having cited that very same passage  41 that:  42  43 "...there are indigenous peoples whose legal  44 conceptions, though differently developed, are  45 hardly less precise than our own."  46  47 Based upon exactly the same evidence, the evidence of 24386  Submissions by Mr. Jackson  1 Wilson Duff, was able to conclude:  2  3 "The Nishgas had a well-developed and  4 sophisticated concept of property...  5  6 The Nishgas in fact are and were from time  7 immemorial a distinctive cultural entity with  8 concepts of ownership indigenous to their  9 culture and capable of articulation under the  10 common law, having, in the words of Dr. Duff,  11 'developed their cultures to higher peaks in  12 many respects than in any other part of the  13 continent north of Mexico'."  14  15 And we have in these submissions, my lord, already  16 made reference to the way in which conceptions of  17 indigenous societies are mirrored in the way in which  18 their legal rights and relationships to colonial  19 governments are characterized.  And we have previously  20 cited that the admonitions of Mr. Justice Hall in  21 Calder and Chief Justice Dickson in Simon that a  22 contemporary Canadian court approaching the issue of  23 aboriginal rights must disregard "the biases and  24 prejudices of another era".  And, my lord --  25 MR. WILLMS:  My lord, the quote from the Nishgas is not Mr.  26 Justice Hall's conclusion, "the Nishgas had a  27 well-developed and sophisticated concept of property",  28 that's not -- Mr. Justice Hall is just saying that  29 Professor Duff said that on page 195.  3 0    THE COURT:  Thank you.  31 MR. JACKSON:  I will revisit that point, my lord, when I have  32 gone into the original text myself again.  33 My lord, we say that this caveat is only relevant  34 in approaching the Canadian case law.  We say it is as  35 if not more relevant in considering judicial  36 pronouncements in the United States made in the  37 century and a half since the Marshall decisions.  And  38 it's to the post-Marshall U.S. juris prudence to which  39 I would now address your lordship, starting at page  40 197.  41 We say that a consideration of the United States  42 juris prudence in the years since the Marshall  43 decisions is necessary for a number of reasons.  The  44 first and perhaps the most important one is some of  45 the leading United States cases haing been relied upon  46 by Canadian judges in characterizing the nature of  47 aboriginal title, the elements of proof of aboriginal 24387  Submissions by Mr. Jackson  1 title and the manner in which it can be extinguished.  2 And your lordship will see that in Calder American  3 cases are extensively cited both by Mr. Justice Judson  4 and Mr. Justice Hall and Mr. Justice Mahoney in Baker  5 Lake also places reliance upon the leading American  6 cases.  A second reason for a critical review of the  7 American juris prudence is that in contradistinction  8 in the Canadian case law where the exclusive focus has  9 been on the proprietary aspects of aboriginal rights,  10 what we refer to as the issue of ownership, the United  11 States cases have also addressed the other fundamental  12 principle which we have argued underpins the law of  13 aboriginal rights, the principle of aboriginal  14 jurisdiction.  And we have said of course that these  15 two elements were both recognized by the Marshall  16 court and received their most complete affirmation in  17 the case of Worcester and Georgia.  18 There are a number of preliminary points, my lord,  19 with which I would preface this review of the American  20 case law.  The first one is that even though there are  21 these two aspects, proprietary and jurisdictional,  22 those have been developed by and large in different  23 cases, rarely are they combined in the same case.  It  24 is also necessary to bear in mind, and this will be a  25 principal point I will be making, that since  26 Worcester and Georgia, 150 or so years since that  27 decision, the judgments of the U.S. Supreme Court have  28 ebbed and flowed in their recognition of and in many  29 cases deviation from the Marshall principles.  And it  30 is our submission that this ebb and flow cannot be  31 understood without some appreciation of the historical  32 and political context in which the courts have been  33 called upon to adjudicate the issue of aboriginal  34 rights in the United States.  And although part of  35 that context is specific to the United States, and I  36 have advised your lordship of that, other aspects of  37 it relate to larger political and intellectual shifts  38 which characterized late 19th century colonialism and  39 was shared in different degrees by courts not only in  40 the United States but in Canada and, as I indicated  41 before, in New Zealand.  And the reason, my lord, why  42 I am going to spend a little time on this is because I  43 think your lordship will find, in looking at the  44 leading cases, and your lordship may already have come  45 to this conclusion, that what one finds in those cases  46 is references to U.S. cases from different periods of  47 time which are often conflicting and colliding, and 243?  Submissions by Mr. Jackson  1 oftentimes cited by judges for entirely different  2 propositions in much the same way as Johnson and  3 Mcintosh and Worcester and Georgia have sometimes been  4 seen as mirror images as if they are interchangeable  5 cases so the American cases you find cropping up in a  6 concurring and a dissenting judgment as if one of them  7 must be wrong.  And I myself have had great difficulty  8 sometimes in coming to grips with what these cases  9 stand for, and it is our submission that when you put  10 these cases in a historical sequence some things  11 become clear, and what I have endeavoured to do for  12 your lordship, something which is certainly not  13 necessary in the Canadian context which your lordship  14 of course is most familiar but what we have sought to  15 do, is to place the American cases in some kind of  16 context so your lordship can make your own judgments  17 about which cases ought to be relied upon, which cases  18 are ones which your lordship should give particular  19 scrutiny to, and which cases are in fact in conformity  20 with what we say are fundamental principles.  21 THE COURT:  I notice that Mr. Justice Hall in — and Judson had  22 trouble with the case from Alaska.  23 MR. JACKSON:  Yes, that case is a case which I will be directing  24 some particular attention.  And again I wish to affirm  25 as I do at the bottom of page 198, that the  26 plaintiffs' citation of and reference to the United  27 States juris prudence is not in support of any  28 argument that this court should Americanize the  29 Canadian law.  In citing the Marshall decisions and in  30 submitting that they provide a juris prudence  31 foundation for aboriginal rights as defined by the  32 plaintiffs' Statement of Claim, we have argued that  33 these principles are relevant in a Canadian context  34 not as American law but as a restatement of  35 fundamental principles governing relationships between  36 aboriginal peoples and the Crown, principles, which,  37 in the words of Mr. Justice Strong ripened into the  38 rules of the common law.  39 And of course the citation of United States cases  40 is nothing new in Canadian courts, although the extent  41 of that citation has accelerated rapidly since the  42 enactment of the Charter of Rights.  And Canadian  43 courts have made it very clear that in considering the  44 U.S. case law, particularly in the context of the  45 purpose of analysis which we have urged upon your  46 lordship, due consideration must be made to the  47 different social and political context of American 24389  Submissions by Mr. Jackson  1 society.  And, my lord, as your lordship is of course  2 aware, I would cite in particular -- the very learned  3 and scholarly judgment of Mr. Justice Esson, as he  4 then was, in his judgment in the B.C. Court of Appeal  5 in Strachan, where his lordship, and the great  6 edification of the bar and of the university, went  7 into the roots of the exclusionary role in the United  8 States and the extent to which it grew out of a very  9 distinctive and particular social and political  10 history in the United States and that in a Canadian  11 context we should pay particular attention to that  12 context and not simply adopt as a Canadian solution a  13 solution which was as it were forged in the American  14 experience.  15 And we say that in approaching the American cases  16 on aboriginal rights it is equally important to place  17 judicial pronouncement in their appropriate  18 historical, political and social context.  And, my  19 lord, the particular context in which we wish to place  20 the late 19th century cases, and this is something  21 which is not limited to the United States, and it is  22 something I know, my lord, is of a sore point and I am  23 reluctant to press it, but it's something which in my  24 own and other scholar's analysis of this period is  25 really one which has been consistently drawn, and I  26 have given you a quote from Professor Johansen at the  27 bottom of page 200, my lord, which talks about the  28 attitudinal shift, the very dramatic attitudinal shift  29 which took place in the late 19th century in the way  30 we conceive aboriginal peoples.  And Professor  31 Johansen has contrasted this with the situation in the  32 18th century, particularly in the context of the  33 Covenant Chain.  And what he says is this:  34  35 "The tone of the Treaty Councils..."  36  37 in the 18th century:  38  39 "...was that of a peer relationship; the leaders  40 of sovereign nations met to address mutual  41 problems.  The dominant assumptions of the  42 Enlightenment, near its height during the mid  43 18th century cast Indians as equals in  44 intellectual abilities and moral sense to the  45 progressive Euro-American minds of the time.  46 It was not until the 19th century that  47 expansionism brought into its service the full 24390  Submissions by Mr. Jackson  1 flower of systematic racism that defined  2 Indians as children or wards, in the eyes of  3 Euro-American American law, as well as popular  4 discourse."  5  6 And, my lord, in the course of this trial a number  7 of our experts have referred to the Canadian  8 ethnohistorian Professor Bruce Trigger, and his book  9 Natives and Newcomers.  And all experts seem to agree  10 on this, it may be the only thing they agree on, that  11 Dr. Trigger is a well-known and respected Canadian  12 anthropologist.  And Dr. Trigger in the book traces  13 what he refers to as intellectual racism that  14 prevailed in Europe and the United States during most  15 of the 19th century.  And he does so in the context of  16 the writings of anthropologists and historians but, it  17 is our submission, that it has no less application to  18 your lordship's considerations of legal pronouncements  19 with legislators, government agents, and even judges.  20 And I have set out, my lord, and I don't intend to  21 take your lordship through it, but I do urge your  22 lordship to read it, the materials, and on pages 201  23 to 204, 205, and what Dr. Trigger does is he looks at  24 the writings of Francis Parkman, who was one of  25 America's distinguished historians in the mid and late  26 19th century, and Dr. Parkman or Professor Parkman's  27 work had tremendous influence not only in America but  28 in Canada, and he was a very distinguished man.  And  29 what Professor Trigger has done is to show how even  30 someone as distinguished as Professor Parkman in  31 talking about history, in talking about native people  32 and their place in history, use language which conveys  33 no other possible conclusion than that native people  34 were something less than us; that, in the scale of  35 evolution and indeed as Dr. Trigger points out, it was  36 because of certain theories of evolution which became  37 dominant in the 19th century in terms of Darwinism,  38 that the views of historians and indeed of many  39 thinking individuals of leading intellectuals of the  40 19th century came to adopt a discourse in which native  41 people were seen as children, as someone with less  42 intellectual abilities, and of -- what we are  43 suggesting to your lordship is that that had its  44 effects in the law, in the way judges wrote about  45 native people, particularly, for example, my lord, if  46 you think back to the way Chancellor Boyd described  47 native people as the "rude red-men", "native people of 24391  Submissions by Mr. Jackson  1 a more than normal degraded type", that was a  2 discourse, my lord, which was not peculiar to  3 Chancellor Boyd.  It was a discourse which became part  4 of an intellectual way of looking at the world.  And  5 what we say, and I can take you to one passage of  6 Professor Trigger which we say has some relevance to  7 your lordship's adjudication, at page 206.  What  8 Professor Trigger does, having described the nature of  9 his intellectual shift in the late 19th century, he  10 refers it to Canadian history and how Canadian history  11 was perceived in the 19th century, and the passage I  12 will read to you, my lord, is at page 206.  13  14 "In 1888 William Kingsford wrote that the study  15 of Indians was 'totally independent of the  16 history of Canada, except so far as it bears  17 upon the relations of the European and Indian  18 races'. Despite a growing interest in Indian  19 history, we must conclude..."  20  21 And this of course is Dr. Trigger:  22  23 "...that conditions have not changed greatly  24 since that time.  In the 19th century  25 historians and anthropologists concurred that  26 native people had played at best a marginal and  27 passive role in North American history.  28 Anthropology itself began as a study of peoples  29 who were thought to lack history and hence were  30 doomed to disappear as a result of the spread  31 of European civilization.  Anthropology, no  32 less than history, was deeply coloured by white  33 prejudices and unconsciously helped to  34 rationalize the European colonization of North  35 America by reaffirming White stereotypes of  36 Indians as primitive people who were incapable  37 of progress."  38  39 And Dr. Trigger throws out this challenge as it were:  40  41 "The view that native people have played more  42 than an insignificant role in shaping the  43 national history of Canada must be entertained  44 if scholars are to overcome their own heritage  45 of racism and ethnic bias.  A more objective  46 understanding cannot be achieved simply by  47 inverting old prejudices but must be based on 24392  Submissions by Mr. Jackson  1 detailed insights into the social, political  2 and economic relations as well as the  3 differing cultural values, that governed the  4 reciprocal interactions between specific  5 groups of native people and European settlers.  6 Such studies almost certainly will provide the  7 bases for a more complete and objective  8 understanding of Canada's historical  9 development."  10  11 And page 207, my lord, this is what we say you  12 should draw from this.  13 It is our submission that Professor Trigger's  14 analysis with respect to history and historians has as  15 much application to the law and lawyers.  The  16 essential thrust of the plaintiffs' evidence has been  17 to provide the court with, and I am tracking Professor  18 Trigger's language, "detailed insights into the  19 social, political and economic relations as well as  20 the differing cultural values" of the Gitksan and  21 Wet'suwet'en.  It is on the basis of these detailed  22 insights that the Plaintiffs submit the sui generis  23 nature and content of their aboriginal rights can be  24 described and made the subject of the relief in the  25 Statement of Claim.  Professor Trigger's intellectual  26 challenge to his colleagues in the historical and  27 anthropological fields - to eradicate the roots of  28 racism from the discipline of history and  29 anthropology - is the same challenge which this court  30 faces in both understanding the extent to which the  31 roots of racism have influenced the development of the  32 law and eradicating those roots by what we say are the  33 re-affirmation of fundamental principles.  34 And, my lord, I make a point at the bottom which I  35 have already made, that some of the statements of the  36 Canadian judges as in St. Catherine's Milling we say  37 bear the imprint of this intellectual shift which took  38 place in the late 19th century and explain why those  39 judges could make statements which we say fly in the  40 face of the clear pronouncements of the judgments upon  41 which they purport to rely.  42 MR. WILLMS:  My lord, I rise to note that that Trigger reference  43 was marked for identification in exhibit --  44 THE COURT:  I am sorry, where is it please?  45 MR. WILLMS:  It is 1250 tab 14.  4 6    THE COURT:  Let's see.  47    MR. JACKSON:  My lord, Dr. Trigger's work has been placed in 24393  Submissions by Mr. Jackson  1 evidence in various parts.  2 THE COURT:  That's Natives and Newcomers.  3 MR. WILLMS:  Yes, and this particular extract, and you have just  4 got portions of it, I commend the whole extract to  5 you, it is very illuminating.  6 THE COURT:  That's from pages 201, 202.  7 MR. WILLMS:  Page 201 all the way through to 206.  Those all  8 come from Exhibit 1250-14 for Identification.  9 THE COURT:  1250-14?  10 MR. WILLMS:  1250-14, yes.  11 THE COURT:  Well, this is all very interesting, Mr. Jackson, but  12 it's one of those things that we are all deeply  13 conscious of, but now I saw a good quantity of racial  14 prejudice in the witness box, too.  It is a one-way  15 street, that's what troubles me.  Everybody says the  16 other side should be better than they are.  17 MR. JACKSON:  My lord, I am not asking you to pass judgment.  18 THE COURT:  And that's one of the things — while these are  19 interesting submissions, it puts judges in a very  20 difficult position.  I don't know what you are asking  21 me to do, be a better person than I am?  Are you  22 asking me to put aside the years of training and  23 experience I have and embark on some new unchartered,  24 possibly slippery slope, decide for myself that there  25 is a different truth than what I have been trained to  26 listen to?  To disregard what I listen to?  I  27 understand what you are saying, and we have the same  28 thing with gender bias, with racial bias, the same  29 thing with all sorts of problems, and it just seems to  30 me to be an extremely difficult thing to put into the  31 context of a lawsuit.  32 MR. JACKSON:  My lord, perhaps if I can just take a moment to  33 address your lordship's comments.  The main purpose  34 for these submissions, my lord, is so that when your  35 lordship comes to certain passages in the cases, my  36 lord, to see why it is that judges might have said  37 that.  38 THE COURT:  Well, we all recognize bigotry when we see it, at  39 least I think we do, but I think you are asking  40 something far more than that and I am just not sure  41 what it is you are asking me to do with this kind of  42 approach.  43 MR. JACKSON:  My lord, no, this is not an exhortation to your  44 lordship.  45 THE COURT:  No, I understand that, but I just have some trouble  46 relating what Professor Trigger says to the  47 determination of these legal issues. 24394  Submissions by Mr. Jackson  1 MR. JACKSON:  Perhaps I can —  2 THE COURT:  You see, there is several plaintiffs' witnesses who  3 said that white men were all bad, liars, cheats and  4 stole and they'd done everything wrong, and I didn't  5 hear one of them say a good word about a white person.  6 I don't think they did anyway.  If they did, I missed  7 it.  And it seems to me that it's very difficult to  8 base legal judgments on those kinds of approaches one  9 way or the other.  And if there is a legal principle  10 in what Professor Trigger says, then I haven't yet  11 grasped it.  12 MR. JACKSON:  Perhaps I can address that, my lord, by way of an  13 example.  And it's a large example but it relates to  14 the essential thrust of our submissions.  We say that  15 the Marshall cases set down certain propositions of  16 law in the 1830s and 1840s.  When your lordship looks  17 at the judgments of the Supreme Court of Canada in  18 St. Catherine's Milling, when your lordship is  19 directed, as my friends will direct you to, to the  20 statement of Mr. Justice Taschereau, your lordship is  21 in a position, here is Chief Justice Marshall saying  22 one thing, here is Mr. Justice Taschereau saying  23 another thing.  Your lordship -- they are not -- they  24 are polar opposites.  What we are submitting to your  25 lordship in seeking a principled resolution of this  26 case based upon principles of law, your lordship  27 should look at those principles which are not coloured  28 by preconceptions based upon a view of native people  29 which see them as being inferior.  That's essentially  30 the position we are seeking to make, my lord.  31 Now, sometimes the propositions of the cases are  32 self-evident, for example, when Chief Justice Dickson  33 very directly took issue with what His Honour Judge  34 Patterson said about the Micmacs as being a bunch of  35 Indians who sort of came along and signed a treaty,  36 and it means nothing.  37 THE COURT:  He is saying that that's just plain bigotry and I  38 don't have any trouble with that.  39 MR. JACKSON:  And they are easily identified, my lord.  What are  40 less easily identifiable, if you look at the judgment  41 of Mr. Justice Taschereau, Mr. Justice Taschereau was  42 an honourable man and an honourable judge.  What we  43 are saying is that, in the climate of the time,  44 certain views about Indian people influence the way  45 their rights were characterized and that there has  46 been and there is, as Chief Justice Dickson has noted  47 and as your lordship's own judgments reflect, a 24395  Submissions by Mr. Jackson  1 growing awareness and appreciation of the way in which  2 native people have been seen in the past.  And all we  3 are asking your lordship, in looking at the previous  4 case law and in seeking to determine what cases are,  5 the appropriate points and precedents upon which your  6 lordship should decide this case, there is a question  7 of judgment and that judgment should be exercised in  8 the light of the propositions of Chief Justice Dickson  9 that we should not give effect to the prejudices of an  10 earlier era.  That is my point, my lord.  11 THE COURT:  Well, I think — I think I know what you mean but  12 what I am troubled by is it seems to me you are making  13 an argument about a man and you are asking me not to  14 worry about what the man says but look at what he is  15 or how he thinks, and it seems to me that I should be  16 looking at what he says and analysing what he says  17 without regard to the colouration that goes with it  18 because I am afraid I am on a slippery slope if I  19 start analysing these judgments other than on the  20 basis of what they say.  21 MR. JACKSON:  My lord, in my submission about these cases, I am  22 not going to say here is a case, it is against us,  23 disregard it, the judge was a racist.  I mean, that  24 would be, were I to make that kind of proposition, I  25 think it would be one which your lordship would have  26 no trouble in rejecting.  What I have sought to do is  27 to set out benchmarks which I say are the fundamental  28 principles, not ones kind of pulled from the air, but  29 ones which are rooted in the concrete of the common  30 law.  And what I am endeavouring to do when I start  31 looking at the American cases and later Canadian cases  32 is the extent to which statements are made which seem  33 to deviate from this proposition; for your lordship to  34 have a sense of whether that deviation is one which is  35 a reflection of a shift in attitude and that the  36 deviation from the principle can be seen as that, a  37 deviation from a principle, if your lordship doesn't  38 see the principle.  39 THE COURT:  Yes, but that's my problem.  If it is a deviation  40 from principle that stands out or should be  41 discernible without regard to the social conscience of  42 the judge.  It should --  43 MR. JACKSON:  If it is, my lord, then my submissions will be  44 unnecessary.  45 THE COURT:  I don't — I don't know yet, but Mr. Justice  46 Taschereau may genuinely have believed that he was  47 applying the right principle, and it seems to me that 24396  Submissions by Mr. Jackson  1 I ought to judge him as I would hope that future  2 generations will judge us.  They may well decide they  3 were as far off the mark as you see Mr. Justice  4 Taschereau was and you may think we are so far off the  5 mark going the other way.  I don't think we can look  6 at history forwards or backwards.  I think we have to  7 try and be rational and discern what the true  8 principle is, and my present sense is that, while the  9 things that you have said are useful reminders to have  10 in mind, they do not provide the framework that on  11 which we should -- which I should at this level  12 attempt to resolve this case.  But we can continue  13 this -- well, do you want to carry on?  14 MR. JACKSON:  My lord —  15 THE COURT:  We should break anyway.  16 MR. JACKSON:  We should break and I would continue perhaps for  17 half an hour after that, my lord.  18 THE COURT:  Yes.  All right, thank you.  19 THE REGISTRAR:  Order in court.  Court stands adjourned.  20  21 (PROCEEDINGS ADJOURNED  AT 4:05 p.m. FOR A BRIEF  22 ADJOURNMENT)  23  24 I hereby certify the foregoing to be  25 a true and accurate transcript of the  26 proceedings herein, transcribed to  27 the best of my skill and ability.  28  29  30  31 TANNIS DEFOE, Official Reporter  32 United Reporting Service Ltd.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 24397  Submissions by Mr. Jackson  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Mr. Jackson.  Somebody closed my book.  Where were  3 we?  4 MR. JACKSON:  My lord, we were at 208, but before we get to that  5 material, about which I understand from my friend he  6 has an objection which he will make known to you, I  7 just want to deal with something my friend has already  8 raised, my lord.  9 You will recall that when I cited from Mr. Justice  10 Hall's judgment back on page 195, where I said that  11 Mr. Justice Hall concluded certain things because on  12 Mr. Duff's evidence, and my friend rose to suggest to  13 Your Lordship that this was what Mr. Dove said, and it  14 was not Mr. Justice Hall's conclusions.  And I will  15 have to take you to the case, my lord, and if you  16 could look at volume 2, tab 35.  It's at tab 35, page  17 185, the second paragraph:  18  19 "Dr. Duff also went into the details of the  20 Nishga system of succession to property based  21 on a matrilineal line showing that the Nishgas  22 had a well-developed and sophisticated concept  23 of property."  24  25 And, my lord, it is my submission that the judge  26 does not use that language unless he adopts it as his  27 own.  The second point is even clearer, at page 190.  28 MR. WILLMS:  I didn't challenge the second point.  I  29 specifically said that Mr. Justice Hall did not  30 conclude that the Nishga's had a well-developed and  31 sophisticated concept of property.  What follows is a  32 quote from Mr. Justice Hall "the Nishga's", but I  33 restricted my point to the very first sentence that my  34 friends purported to be Mr. Justice Hall's  35 conclusions.  36 THE COURT:  Mr. Jackson says it is.  37 MR. WILLMS:  Well, he says it is, and I say it isn't.  The words  38 speak for themselves.  39 MR. JACKSON:  I am content to let Your Lordship draw your own  40 conclusion.  41 THE COURT:  Is there another page?  42 MR. JACKSON:  Page 190, my lord, is the second proposition, and  43 I'm guilty, if anything, of not concluding the first  44 few words, where His Lordship said:  45  46 "What emerges from the foregoing evidence is the  47 following:  The Nishgas in fact are and were 2439?  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  from time-immemorial a distinctive cultural  entity, concepts of ownership indigenous to  their culture ..."  That's the passage I cited at page 195.  THE COURT:  I see.  MR. JACKSON:  My lord, the next point which I was going to  address, and I'll introduce it and then sit down and  allow my friend to make his objection, is that whereas  I have suggested that the intellectual shifts in the  19th century had effect not simply in the United  States, but in other jurisdictions which we call upon  to adjudicate aboriginal rights issues.  The second point to which I wish to draw Your  Lordship's attention is distinctive to the United  States, and it relates to the shifts in the Indian  policy pursued by the American Congress and what I say  is the importance in understanding that in placing in  a historical social context case law.  Not that Your  Lordship should disregard the cases or read them out  in any way, but in order for Your Lordship to do what  I before suggested is very difficult to assess how  you, as it were, place these cases in a sequence and  make some sense of them, for the purposes for which  they are advanced in a Canadian court, that Your  Lordship has to have some understanding of that  background.  And pages 208 and 218 about which I was going to  speak for maybe five or ten minutes in a summary form  and not take Your Lordship directly through, charts  that course.  And my friend has an objection to it.  Well, I'm sorry, I first want to get an  understanding of what it is you're saying that pages  208 to 18 relate to shifts in.  JACKSON:  American Indian policy from the 19th through to  the contemporary situation.  THE COURT: Indian policy of the federal government?  MR. JACKSON:  Of the federal government.  And some of this is  directly of relevance, we say, because a significant  part of the material which we will be citing in  looking at the tests of aboriginal title under -- and  the cases decided under the Indian Commission Act, one  of the things I will be explaining to Your Lordship is  the reasons for the establishment of the Indian claims  commission.  THE COURT: And you say the decisions down there reflect these  shifts?  THE COURT:  MR. 24399  Submissions by Mr. Jackson  1 MR. JACKSON:  The legislation itself came at a particular time,  2 and an understanding of that legislation we say is  3 important in order to understand in particular the  4 decision of the Supreme Court in Tee-Hit-Ton.  It is  5 in fact my submission that without that understanding  6 Your Lordship would be in considerable difficulty in  7 having a full appreciation of Tee-Hit-Ton and the  8 extent to which it seems to be inconsistent with  9 previous cases.  10 THE COURT:  You wouldn't agree with the suggestion of Professor  11 Pie (?) who told us that we should disregard American  12 authorities entirely?  13 MR. JACKSON:  No, my lord, that is not my position.  14 THE COURT:  His position was you don't know what caused them to  15 do the things they did?  16 MR. JACKSON:  And it is my submission, my lord, that there is  17 some substance to that.  Your Lordship does not have  18 to go deep into it, and ten pages out of a thousand  19 page argument, my lord, is my attempt to avoid that,  20 but I think it is in this limited extent something of  21 significance and something Your Lordship should have  22 the benefit of.  23 THE COURT: All right.  24 MR. WILLMS:  My lord, the objection is a simple one, and it also  25 foreshadows some of the argument which follows, which  26 interweaves some of the objectionable portions, and I  27 touched on this briefly before.  In the next ten pages  28 my friend relies on commentators, including the the  29 form of -- including Mr. Justice Berger, as he now is,  30 on the Alaska situation, explaining about shifts in  31 American policy as supposedly giving Your Lordship a  32 foundation for understanding what a judge said in a  33 judgment.  And my friend refers from time to time to  34 what Mr. Justice Dickson said in Symond and the Queen  35 about statements of an earlier age, and what my friend  36 has not pointed out, but which in my submission is  37 critical, in terms of the admissibility of this  38 extraneous evidence, is what Mr. Justice -- the Chief  39 Justice did in Symond, and my friend's referred Your  4 0 Lordship to Symond.  This can be found at volume 9 of  41 his cases at tab 31.  Mr. Justice -- and Your Lordship  42 alluded to this earlier, that you wouldn't have any  43 difficulty with the language that was quoted from Mr.  44 Justice Patterson, but the Chief Justice said this:  45  46 "It should be noted that  ..."  47 24400  Submissions by Mr. Jackson  1 I'm on page 399.  2  3 "It should be noted that the language used by  4 Mr. Justice Patterson illustrated in this  5 passage reflects the bias and prejudices of  6 another era in our history, such language is no  7 longer acceptable in Canadian law and indeed is  8 inconsistent with a growing sensitivity to  9 native rights in Canada."  10  11 And then he goes on to say:  12  13 "With regard to the substance of Mr. Justice  14 Patterson's words, leaving aside for the moment  15 the question of whether treaties are  16 international type documents, his conclusions  17 on capacity are not convincing."  18  19 So what the Chief Justice did was he merely said  20 that this kind of language in judgments is inapt  21 today, and he recognized it from the judgment itself,  22 but then he went on to consider the language used by  23 the judge in light of the context of the judgment  24 itself to analyze the conclusion.  He didn't go  25 outside, and there is no authority in the Symond case  26 for going into commentators around the world telling  27 us, as if this was going to be a law review article at  28 the end of the day rather than a judgment, what is  2 9 motivating everybody.  30 And in my submission, my lord, my friend can make  31 all the mileage that he needs to make from the  32 judgments that he's going to cite from what the judges  33 actually said, but in my submission it's wholly  34 inadmissible, and it opens the whole case up wide to a  35 long search through American commentators.  And, my  36 lord, for every proposition in American law you can  37 find a case that stands for the contrary proposition.  38 There is a whole critical legal studies group at  39 Harvard dedicated to that.  And for every commentator  40 who says that this is what is motivating people, there  41 is another commentator that says oh, no, that's not  42 what's motivating people.  This is what's motivating  43 people.  44 Now, the next ten pages are just a tip of why in  45 my submission Your Lordship should not be obliged to  46 look through this at all, and that Your Lordship  47 should -- and my friend should be confined to what the 24401  Submissions by Mr. Jackson  1 courts actually said.  2 THE COURT:  Well, you've restated my point made a few minutes  3 ago, or I tried to make a few minutes ago.  It's what  4 they say what counts, not what motivated them to say  5 it.  6 MR. WILLMS:  I go further, my lord.  I said my friend keeps  7 coming back to Symond, and what I say is that in  8 Canada Symond is no authority for the proposition that  9 my friend can wander through all of these articles  10 cherry-picking, in my submission, and I know that's a  11 harsh word, but in the U.S. jurisprudence you can find  12 something to stand for almost any proposition.  13 THE COURT: I don't know that that's confined to the United  14 States.  There is certain failures in the same regard  15 to Canada.  I suppose there was a day when this all  16 could be solved just by reference to the rule that one  17 couldn't refer to the writings of a living person.  I  18 guess maybe there was some point to that rule.  I am  19 confident that my friend Mr. Berger is still alive.  20 You are referring to Mr. Berger, are you?  21 MR. JACKSON:  Yes, my lord.  In referring to the former Mr.  22 Justice Berger, my lord, I did so in many ways not  23 because I was cherry-picking, because as a Canadian --  24 former Canadian judge, a jurist of some considerable  25 eminence, his efforts in a few small pages seeking to  26 put the context of the American situation in context  27 would in fact be, as it were, a shorthand way for Your  28 Lordship to understand this.  And it is my submission  29 that what my friend is asking Your Lordship to do is  30 to blink at yourself.  I am not saying if you  31 understand the American policy, you can interpret into  32 this judgment something else, and therefore where you  33 read "x", don't read "x", read "y".  I am not seeking  34 to omit his evidence for the purpose of Your Lordship  35 placing a different interpretation upon the  36 proposition.  I am seeking to give Your Lordship the  37 best basis upon which Your Lordship can make an  3 8 informed judgment.  39 And I would have thought, my lord, that if this  40 case has sought to prove anything, it is that Your  41 Lordship is in a position which no other judge has  42 been in before, to bring scrutiny to bear on an  43 enormous body of evidence.  And what we have tried to  44 do is to ensure that in bringing scrutiny on an  45 enormous body of jurisprudence, that Your Lordship  46 particularly where that jurisprudence comes from our  47 neighbours to the south, that Your Lordship is in a 24402  Submissions by Mr. Jackson  1 position to place it in the kind of context which Mr.  2 Justice Esson said was necessary.  3 Mr. Justice Esson looked at much of the scholary  4 work which my friend has referred to as being for  5 every proposition there is another proposition.  I  6 mean, I've heard that before, my lord.  It is  7 overdrawn.  It is one which I think our courts have  8 completely rejected in their careful analysis of the  9 American cases, in their analysis of the American  10 scholarship.  The judgments of the Supreme Court are  11 replete with that scholarship.  They seem to have no  12 difficulty in being able to chose that which is worthy  13 and that which is unworthy.  And I am not inviting my  14 friend to match me with cite for cite.  As I said, I  15 have endeavoured to abbreviate this matter, and if my  16 friend thinks I am misstating or overstating the  17 proposition, he has the opportunity to place that  18 before Your Lordship.  19 THE COURT:  Well, Mr. Jackson, we are not in evidence now, and I  20 think that I would not stop you from making whatever  21 submission you think a proper advancement in your  22 clients' case requires.  I am as full of human  23 failings as anyone else.  None of us think we need  24 this kind of instruction.  Bigots more than non-bigots  25 probably think they don't need this kind of  26 instruction, and so none of us are in the best  27 position to judge ourselves in this regard.  And I  28 would not stop you from putting forward whatever  29 arguments and thoughts and principles that you think.  30 I don't think I would hold you to the rule about  31 deceased authors.  I am not sure that rule, salutary  32 as it may have been, is one that is in general  33 observance these days, and so if you think that that's  34 something which should be done, then I think we should  35 get on and do it.  36 MR. JACKSON:  I can do it in a very short period of time.  I  37 would in fact have completed, I think, by now.  38 THE COURT:  We'll thank Mr. Willms by now.  Go ahead.  39 MR. JACKSON:  As I said, the material, my lord, I would ask you  40 to read is at pages 208 and 218.  And reduced to its  41 bare bones, what it shows is that in comparison to  42 Canada where the abiding policy since the 19th century  43 until quite recently has been one in which it was  44 expected that aboriginal peoples would assimilate into  45 the mainstream, the American policy has ebbed and  46 flowed, and the manner of the ebb and flow is  47 essentially this.  Your Lordship will recall when I 24403  Submissions by Mr. Jackson  1 dealt with the Cherokee cases, that the Cherokees were  2 part of a movement to remove the eastern tribes west  3 of the Mississippi.  And that was done and became a  4 principle part of American Indian policy through to  5 the late 19th century.  And I set that out at page  6 208.  And that removal policy was implemented with the  7 establishment of reservations for the Indians in the  8 west, or where they were already in the west,  9 reservations carved out of their traditional  10 territory.  And when we look at the Sante Fe (?) case,  11 you will see an example of reservations being carved  12 out of existing aboriginal territory in much the same  13 way as the Musqueam reserve.  That changed in 1871, my  14 lord, where the congress brought to an end treaty  15 making.  That is significant, because at a time when  16 treaty making in Canada was getting, as it were, into  17 full gear, and treaties were about to be made in what  18 would encompass far more territory than had been  19 covered by treaty heretofore in 1871, Congress brought  20 an end to treaty making in the United States.  21 In 1887 the Congress enacted what is called the  22 General Allotment Act set out at page 209, and  23 essentially what this was designed to do was to  24 de-tribalize and break up into individual holdings the  25 reservations.  It was designed to foster assimilation  26 and to break down the tribal basis of communal  27 property and to allot two individual members of the  28 tribe what was previously the collective property.  29 And on allotment an Indian became a citizen, and after  30 a certain period he could transfer his rights.  That  31 process proceeded up until the 1930s, and as a result  32 of that process, my lord, something like 80 percent of  33 tribal lands were lost to tribal ownership through  34 individual sales.  35 And it was largely because of the loss of those  36 lands that in the 1930s, as part of what has been  37 called the Indian new deal, it paralleled the new deal  38 generally, congress again shifted gears and enacted  39 the Indian Re-organization Act, which is set out in a  40 passage from former Mr. Justice Berger's report at  41 page 211.  And again very briefly what it did was to  42 bring to an end the allotment period.  And it  43 authorized the formation of tribal constitutions, it  44 sought to regenerate the collective life and tribal  45 existence of the tribes.  46 And that period again was interrupted in the  47 aftermath of the Second World War when Congress again 24404  Submissions by Mr. Jackson  1 shifted gears and went back to the idea of trying to  2 bring to an end tribal existence, and to accelerate  3 the incorporation of American Indians into the melting  4 pot.  5 It was done in one way, I don't know if it's of  6 significance to this case, in terms of the citations  7 of these cases, in the Indian Claims Commission Act.  8 The Indian Claims Commission Act was enacted in 1946,  9 and it was designed to provide a final remedy for  10 individual tribal claims compensation.  It was thought  11 that many Indians were -- had an incentive not to join  12 the mainstream, because they were waiting for  13 settlements of outstanding claims.  And Congress felt  14 that if once and for all these claims be brought to a  15 head and resolved, then an impediment to Indians  16 joining into the American collective experience would  17 be removed.  18 And that was enhanced by legislation in the 1950s,  19 which terminated certain tribal groups.  And the idea  20 was that the federal trusteeship of Indian tribes  21 would be brought to an end, they would become the  22 responsibilities of the states in whom they resided,  23 and that they should look to the states and not to the  24 federal government for their future relationships.  25 That also had a fairly detrimental effect on the  26 tribes.  It led to the emigration into cities of  27 tribal members.  It led to the impoverishment of  28 certain of the tribes, and in due course it led to the  29 last shift in American policy, which was a shift back  30 to recognizing and seeking to strengthening tribal  31 existence.  And it's known, it's a period which  32 started in the 1970's, and it's a period which is  33 referred to as the policy of native  34 self-determination.  And it's a policy which is most  35 recently reflected in an address by the former  36 President Reagan in 1983, which I have set out at the  37 top of page 218.  And, my lord, it's that abbreviated  38 form.  I think my friend will find that any scholar or  39 commentator in the United States he talks to will find  40 that that is not a piece of advocacy.  It's a piece of  41 objective commentary which we hope will assist Your  42 Lordship in looking at these cases.  And I would on  43 Monday want to start looking at the past Marshall  44 cases starting at page 218.  45 THE COURT:  All right.  Thank you.  We will adjourn then until  46 about 11 o'clock on Tuesday morning next.  And I wish  47 you all a pleasant weekend. 24405  Submissions by Mr. Jackson  1    THE REGISTRAR:  Order in court.  2  3 (PROCEEDINGS ADJOURNED AT 4:40 P.M.)  4  5 I HEREBY CERTIFY THE FOREGOING TO BE  6 A TRUE AND ACCURATE TRANSCRIPT OF THE  7 PROCEEDINGS HEREIN TO THE BEST OF MY  8 SKILL AND ABILITY.  9  10    11 LORI OXLEY  12 OFFICIAL REPORTER  13 UNITED REPORTING SERVICE 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

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