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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-16] British Columbia. Supreme Court May 16, 1990

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 26665  Submissions by Mr. Goldie  1 VANCOUVER, B.C.  2 MAY 16, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 16th day of May, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar.  7 THE COURT:  Mr. Goldie.  8 MR. GOLDIE:  My lord, at the present time we are not  9 proposing -- I shouldn't introduce -- we are not  10 proposing that we sit this Saturday, my lord.  We may  11 need some extra time in the course of the week, but at  12 the present time we are basically on schedule.  13 THE COURT:  All right.  Thank you.  14 MR. GOLDIE:  My lord, I was at page 12 of Part 3, Section 3  15 yesterday, and your lordship will notice on that page  16 the parenthetical statement, and I quote:  17  18 "The word not in line 5 referring to the  19 quotation from Star Chrome appears to be in  20 error, as the lands in question were within the  21 boundaries of Quebec as laid down in the Royal  22 Proclamation."  23  24 I was going to make some submissions with respect  25 to the effect of that at a later point, but it seems  26 now to be appropriate to do that.  I would ask your  27 lordship to have available the judgment in Star  28 Chrome, which is in my friends' authorities, Volume 1,  29 Tab 10, and the judgment in Guerin, which is in my  30 friend's authorities, Volume 5 at Tab 28.  31 THE COURT: I'm sorry, was that both Volume 5?  32 MR. GOLDIE:  No, Volume 1 for Star Chrome, my lord.  And I don't  33 know whether I did so yesterday, but the page number  34 from which this quotation comes is page 410, and not  35 411, as I have it in my summary.  36 THE COURT:  I haven't found Star Chrome yet.  Tab 10.  Was Star  37 Chrome called Attorney General --  38 MR. GOLDIE:  Yes.  39 THE COURT:  All right.  40 MR. GOLDIE:  And at page 410 appears the quotation or appears  41 the language which I have cited in my summary.  And I  42 should, if I may remind your lordship, that in Star  43 Chrome the question arose in this way:  In 1850 --  44 well, there were actually two pre-confederation  45 statutes, the effect of which was to set aside  46 reserves for the Abenaki, A-b-e-n-a-k-i, Indians, and  47 in 1882, that is to say after Confederation, a 2 6666  Submissions by Mr. Goldie  1 surrender was taken with respect to those lands by  2 Canada, and the issue arose between grantees or  3 successors in interest of the dominion on the one  4 hand, which had purported to grant title to the lands,  5 and the province on the other, and the way in which  6 that occurred is not necessary for our purposes.  7 One of the issues before the Court was to  8 determine whether the interest of the Indians in the  9 surrendered lands was such as to confer a beneficial  10 interest on the dominion through the surrender.  The  11 result was one which became familiar.  The surrender  12 was held to confer the beneficial interest on the  13 province, that is to say in the result.  The judgment  14 in St. Catherine's Milling was applied.  15 Now, turning to page 410 of Star Chrome, beginning  16 with the second paragraph, and this is not wholly  17 quoted in my summary, so I am going to the report  18 itself.  Mr. Justice Duff, who was speaking for the  19 judicial committee said:  20  21 "The object of the Act of 1850 ..."  22  23 And I pause there.  It was the terms of that Act  24 which were being examined to ascertain which view the  25 provincial or the dominion would prevail as to the  26 nature of the interest of the Indians.  27  28 "The object of the Act of 1850 is declared in  29 the recitals already quoted.  Is to make better  30 provision for preventing encroachments upon the  31 lands appropriated to the use of Indian tribes  32 and for the defence of their rights and  33 priviledges.  Language which does not point to  34 an intention of enlarging or in any way  35 altering the quality of the interest conferred  36 upon the Indians by the instrument of  37 appropriation or other source of title."  38  39 And then follows the language:  40  41 "And the view that the Act was passed for the  42 purpose of affording legal pretext for the  43 Indians in the enjoyment of property occupied  44 by them or appropriated to their use and of  45 securing a legal status for benefits to be  46 enjoyed by them receives some support from the  47 circumstance that the operation of the Act 26667  Submissions by Mr. Goldie  1 appears to extend to lands occupied by Indian  2 tribes in that part of Quebec which not being  3 within the boundaries of the province is laid  4 down in the Proclamation of 1763 was subject to  5 the pronouncements of that Proclamation in  6 relation to the rights of the Indians a region  7 in which the Indian title was still in 1850, to  8 quote the words of Lord Watson, a personal and  9 usufructuary right dependent upon the good will  10 of the sovereign."  11  12 Now, it will be my submission that it is that  13 passage which gives rise to the statement in Guerin.  14 And I turn now to page 379 in Guerin.  If your  15 lordship would look at the second paragraph.  16 THE COURT:  "It does not matter ..."  17 MR. GOLDIE:  "It does not matter ..."  Where his lordship says:  18  19 "It does not matter in my opinion that the  20 present case is concerned with the interest of  21 an Indian band in a reserve rather than with  22 unrecognized aboriginal title in traditional  23 tribal lands.  The Indian interest in the land  24 is the same in both cases."  25  26 And then reference is made to the Star Chrome  27 case.  Now, it is that statement that I now wish to  28 address, in light of what I say is an error of fact in  29 the Star Chrome case.  30 In order to -- in order to do this in a, I hope,  31 intelligible way, I have prepared some notes in which  32 I attempt to follow through the consequences of what I  33 have stated in my summary.  The word "not" in line 5  34 appears to be in error.  35 THE COURT:  And where do you recommend I insert these pages?  36 MR. GOLDIE:  Well, I am going to suggest that they could go in  37 the summary following page 12.  38 THE COURT:  Thank you.  Your map is causing all kinds of  39 trouble.  40 MR. GOLDIE:  Well —  41 THE COURT:  That's fine.  Thank you.  42 MR. GOLDIE:  Now, I submit, my lord, that a reasonable reading  43 of the language of Mr. Justice Duff at page 410 is  44 that the lands in question were not within the  45 boundary of the Colony of Quebec as created in -- by  46 the Royal Proclamation in 1763.  The sentence is not  47 an easy one to construe, but I think the relevant part 2666?  Submissions by Mr. Goldie  1 is:  2  3 "Appears to extend to lands occupied by Indian  4 tribes and that part of Quebec not being within  5 the boundaries of the province as laid down in  6 the Proclamation of 1763 was subject to the  7 pronouncements ..."  8  9 And I say that's a mistake.  I want to trace those  10 through, the effect of that.  And I now turn to the  11 note that I have handed up.  12 THE COURT:  You say they were within the boundary --  13 MR. GOLDIE:  Yes, I do.  And certain consequences flow from  14 that.  15 Now, the lands in question are described at page  16 404, where Mr. Justice Duff says in the fifth line of  17 the first paragraph of his judgment:  18  19 "Certain lands including those whose title is in  20 question on this appeal, namely lot 66, 7 and 8  21 in the 13th range of the township of Coleraine  22 in the County of Megantic were appropriated for  23 the benefits of the Indian tribes of Lower  24 Canada.  Those particularly mentioned being set  25 apart for the tribe called the Abenaki's of  26 Becancour."  27  28 These were the lands that were set aside in -- I  29 have 1853.  It should have been 1850 and surrendered  30 in -- these lands lie south of the St. Lawrence River  31 in the Province of Quebec.  Now, the description of  32 the -- in the Royal Proclamation of the boundary of  33 the colony is referred to by Mr. Justice Dickson at  34 page 377.  And you will see that his lordship quotes  35 from the Royal Proclamation the words that exclude  36 Quebec from the provisions of the Proclamation which  37 created what I will call the great reserve, that is to  38 say the reserve that lay between the Appalachans and  39 the Mississippi.  The words in question being from  40 that part of the Proclamation which deals with the  41 Indian reserve, and I'll read it in full, if I may, my  42 lord.  And I quote:  43  44 "And we do further declare it to be our Royal  45 will and pleasure for the present as aforesaid  46 to reserve under our sovereignty protection and  47 dominion for the use of the said Indians all 26669  Submissions by Mr. Goldie  1 the lands and territories not included within  2 the limits of our said three new governments."  3  4 Now, the said three new governments are the  5 Colonies of Quebec, East Florida and West Florida.  6 Now, I am going to now refer to the description of the  7 Colony of Quebec as contained in the first part of the  8 Royal Proclamation.  And I have quoted from that in  9 'C' on page one of my note, but it reads as follows  10 from the Royal Proclamation:  11  12 "First.  The Government of Quebec, bounded on  13 the Labrador coast by the River St. John and  14 from thence by a Line drawn from the Head of  15 that river through the Lake St. John to the  16 south end of the lake in my opinion a scene  17 from whence the said line crossing a River St.  18 Lawrence and the Lake Champlain in 45 degrees  19 of north latitude, passes along the highlands  2 0                     which divide the rivers that empty themselves  21 into the said River St. Lawrence, from those  22 which fall into the sea ..."  23  24 Now, it is that last part which defines the  25 southeast boundary of the colony, and which is today  26 part of the international boundary, and it follows the  27 height of land separating the rivers which fall into  28 the St. Lawrence and the rivers which fall into the  29 sea eventually that fall onto the American side in  30 other words.  31 The River Becancour, and your lordship will recall  32 it was the Indians -- the Abenaki's of Becancour in  33 respect -- for whom these lands were set aside, has  34 shown on Dr. Farley's map 24 flows into the St.  35 Lawrence.  Now, a detailed map from the national  36 archives, which is attached to a note I have handed  37 up, and if your lordship would turn to that, I have  38 outlined in yellow the --  39 MR. GRANT:  I was wondering if my friend for clarification, is  40 this map an exhibit?  41 MR. GOLDIE:  Not the one from the archives.  It is — I rely  42 upon Dr. Farley's map which shows the River Becancour  43 not in detail.  But this provides -- this is part of  44 my argument, and I am taking this to indicate to your  45 lordship the River Becancour and the Township of  46 Megantic -- not the Township of Megantic, but the  47 County of Megantic and the Township of Coleraine, 26670  Submissions by Mr. Goldie  1 which is in the lower -- in the bottom of the --  2 THE COURT: I don't see Coleraine.  3 MR. GOLDIE:  Does your lordship see Coleraine?  If your lordship  4 would look at the very bottom tip of Megantic.  5 THE COURT:  Oh, yes.  6 MR. GOLDIE:  Coleraine is a little triangle.  Now, the Becancour  7 River, and I would have to hand up a full map to your  8 lordship, because the part that is here is cut-off.  9 THE COURT: This is due south a short distance from the city of  10 Montreal, is it not?  11 MR. GOLDIE:  Yes, it is, my lord.  The actual area is one in  12 which the major asbestos mines are found.  Thetford  13 Mines is in around here.  14 THE COURT:  It's part of what is now known as the south shore.  15 MR. GOLDIE:  Or the eastern townships.  16 THE COURT:  Yes.  17 MR. GOLDIE:  The point that I wish to draw to your lordship's  18 attention is that the boundary on the right-hand side  19 is that which is described in the Royal Proclamation.  20 If you go right down to the bottom of this map, there  21 is a straight line, and that can be determined from  22 other sources as the 45th parallel of -- 45th degrees  23 of north latitude.  24 Then it takes off in a very winding line, and your  25 lordship will see that that land carves out and puts  26 into Quebec the headwaters of all of the extremes that  27 are depicted on this map.  28 Now, my lord, I don't appear to have the original  29 of this archival map with me, but it is clear, in my  30 submission, that the description given in the Star  31 Chrome case of the lands in question lie, as His  32 Lordship says, lie in Quebec.  And this is where they  33 are in the south shore.  What is my next point is  34 there was no part of the original Colony of Quebec  35 that wasn't excluded from the reserve created by the  36 Royal Proclamation.  There is no part of the old  37 colony that fell within the Royal Proclamation  38 reserve.  And that is graphically depicted on these  39 maps here, one of which is a Department of Indian and  40 Northern Affairs Canada Indian treaties, and your  41 lordship will see under 1763 a hatched version, and it  42 is identified as exempted, Royal Proclamation.  And  43 that -- the boundary that I have described to your  44 lordship is the south eastern boundary of the old  45 colony of Quebec.  And that boundary never changed.  4 6 Now, the other government map that I have put up  47 on the board is called territorial evolution of 26671  Submissions by Mr. Goldie  1 Canada, and it will be seen that the original colony  2 of Quebec goes through a series of evolutions, but in  3 no case does the south eastern boundary change.  4 THE COURT:  Does that hatched area — all of Quebec as of the  5 date of Proclamation?  6 MR. GOLDIE:  It was all that was that was created -- I should  7 put it this way, my lord.  It was not all of the lands  8 which were ceded by virtue of the Treaty of Paris, but  9 of those lands the hatched portion is that which was  10 created by the Royal Proclamation.  11 THE COURT:  Was excluded by the Royal Proclamation.  12 MR. GOLDIE:  Well, it was firstly created by the Royal  13 Proclamation, and then when it -- when the King came  14 to describe the great reserve, he excluded the new  15 colonies.  And that is what is meant by the word  16 "exempt" on this treaty map.  17 THE COURT: So the other area of the north side of the St.  18 Lawrence River, which was ceded by Quebec by the  19 Treaty of Paris was not excluded from the Royal  20 Proclamation?  21 MR. GOLDIE:  Yes, this -- what was excluded from the reserve  22 section was the colony as described in the Royal  23 Proclamation, and that's on both sides of the St.  24 Lawrence.  But this line, and I am now referring to  25 the northern boundary.  2 6 THE COURT:  The northern boundary is the St. Lawrence River.  27 MR. GOLDIE:  No, it's an artificial line, my lord.  If I may  28 turn to the description in the --  29 THE COURT: It's not the St. Lawrence?  It's not the northern  30 boundary?  31 MR. GOLDIE:  No.  The northern boundary is the Government of  32 Quebec, and I am now reading from the Royal  33 Proclamation.  34  35 "bounded on the Labrador coast."  36  37 That is this coast here.  38  39 "By the river St. John and from thence by a line  40 drawn from the head of that river."  41  42 Which is up there.  43  44 "Through the Lake St. John to the south end of  45 the Lake Nigh Pissin."  46  47 And that's this straight line, the western end of 26672  Submissions by Mr. Goldie  1 which is Lake Nigh Pissin.  And then the words are:  2  3 "from whence the said line crossing the  4 River St. Lawrence and the Lake Champlain  5 in 45 degrees of north latitude."  6  7 That's another artificial line which your lordship  8 will see is just a straight line until -- along the  9 45th degree of north latitude.  10 THE COURT:  Yes.  11 MR. GOLDIE:  Until it hits the height of land dividing the  12 rivers that empty themselves into the River St.  13 Lawrence from those that fall into the sea.  That's  14 that point right there, and then it follows a natural  15 line to -- and also reading from the Proclamation, and  16 I quote:  17  18 "Also along the north coast of the Baye des  19 Chaleurs, and the coast of the Gulf of St.  20 Lawrence to Cape Rosieres and from thence  21 crossing the mouth of the River St. Lawrence."  22  23 THE COURT:  All right.  Thank you.  And you say that colony was  24 carved out of those lands ceded to Britain by --  25 MR. GOLDIE:  Yes.  26 THE COURT:  — by the Proclamation?  27 MR. GOLDIE:  I beg your pardon?  2 8 THE COURT:  By the Proclamation.  29 MR. GOLDIE:  By the Proclamation.  30 Now, if I may refer to the territorial evolution.  31 In 1774, by virtue of the Quebec Act, the boundaries  32 of Quebec were very substantially enlarged.  They were  33 reduced as a result of the American Revolution, and  34 changed again in 1791 and 1809, and I don't -- the  35 changes are not physical in these regards.  There is  36 Upper Canada and Lower Canada at that point.  And then  37 finally 1867 the two provinces of Ontario and Quebec  38 were carved out of the old province of Canada, but the  39 boundary in respect of which our concern exists never  40 changed.  That is to say the international boundary at  41 that point.  42 THE COURT:  All right.  Thank you.  43 MR. GOLDIE:  As has been said on a number of occasions, there  44 have been no treaties of surrender by the Indians in  45 the Province of Quebec, and that has its inception in  46 the Proclamation, the provision which it accepts the  47 three colonies from the reserve created by the -- the 26673  Submissions by Mr. Goldie  1 great reserve created by the Proclamation.  2 Now, if I may turn to my note.  I am on page 2.  3 MR. GRANT:  Just before my friend proceeds.  I don't want my  4 silence on this in terms of how he is relying on these  5 two maps or three maps actually to be taken as sort of  6 acquiescing.  I want to discuss -- this is an issue  7 that Mr. Rush, of course, dealt with with Dr. Farley.  8 It touches on some of that and some of the others.  9 That we can deal with in reply.  I just want to  10 know --  11 THE COURT:  I take it all Mr. Goldie is doing now is giving me a  12 pictorial explanation of what's in the Royal  13 Proclamation.  14 MR. GRANT:  And to the extent that's what he is doing, I don't  15 see any difficulty with that.  I am just not sure  16 where he is going.  17 THE COURT:  I could take that description in the Royal  18 Proclamation and get out my own atlas and perhaps  19 reach the same result.  20 MR. GRANT:  And probably use a map similar to that.  I  21 appreciate that.  This other sketch map I am a bit  22 more concerned about.  23 MR. GOLDIE:  Well, I am not -- my basic reliance is upon the  24 fact that your lordship can take judicial notice of  25 natural phenomena, one of which is that water flows  2 6 downhill.  27 THE COURT:  I'm not even sure about that any more.  28 MR. GOLDIE:  I can trace the River Becancour on other maps that  29 are exhibits back from the River of St. Lawrence to  30 its source.  31 My lord, continuing, I simply note that on page  32 408, the claims of Quebec and the dominion is stated,  33 and His Lordship Mr. Justice Duff states in paragraph  34 number 4 in that page:  35  36 "Their lordship's think the contention of the  37 province to be well-founded to this extent,  38 that the right recognized by the statute is an  39 usufructuary right only and a personal right in  40 the sense that it is in its nature inalienable  41 except by surrender to the Crown."  42  43 And then at page 409 in the last paragraph St.  44 Catherine's Milling is referred to, and I quote:  45  4 6 "And the judgment of this board in the St.  47 Catherine's Millings case also referred to was 26674  Submissions by Mr. Goldie  1 laid down speaking of Crown lands burdened with  2 the Indian interest arising under the  3 Proclamation of 1763."  4  5 And that, I say, is the great reserve west of the  6 Appalachians and east of the Mississippi as follows:  7  8 "The Crown has all along had a present  9 proprietary interest in land upon which the  10 Indian titles is a mere burden.  The ceded  11 territory was at the time of the union land  12 vested in the Crown."  13  14 Now, that word "ceded territory" refers, of  15 course, to the Treaty of Paris.  And on page 410 is  16 the passage which links the lands in question to St.  17 Catherine's Milling in the way I have referred to.  18 Now, my lord, I come to my submission with respect  19 to the statement in Guerin.  I say that Mr. Justice  20 Dickson would know that the original colony of Quebec  21 was excluded from the provisions of the Royal  22 Proclamation which created the great reserve west of  23 the Appalachians, and in fact, as I have pointed out,  24 he quotes at page 377:  25  26 "The exclusion of the colony of Quebec."  27  28 He would, in my submission, read Mr. Justice  29 Duff's judgment as saying that the lands in question,  30 although outside this great reserve, were subject to  31 the same Indian interest.  And I have referred there  32 to page 379, the second paragraph, where he says:  33  34 "The Indian interest is the same and the land is  35 the same in both cases.  See Star Chrome."  36  37 Now, that would, in my submission, pose a  38 question, and I set that out at the top of page 3 of  39 my note.  I say the question would then become, if the  40 source of the Indian interest in the great reserve is  41 the Royal Proclamation, and if Quebec is excluded from  42 the Royal Proclamation, but these lands are subject to  43 the same interest as being not within the boundaries,  44 what then is the source of the Indian interest outside  45 the great reserve which was recognized by the  46 pre-Confederation Act of 1850?  And I say that it was  47 from this circumstance that he arrived at an answer, 26675  Submissions by Mr. Goldie  1 which he refers to as implicit in Calder.  And I go  2 back to page 378.  And it's the last paragraph on that  3 page, and his lordship's says:  4  5 "The principle that a change in sovereignty over  6 a particular territory does not in general  7 affect the presumptive title of the inhabitants  8 was approved by the Privy Council in Amodu  9 Tijani.  That principle supports the assumption  10 implicit in Calder that Indian title is an  11 independent legal right which although  12 recognized by the Royal Proclamation that  13 nonetheless pre-dates it."  14  15 And I say that is the answer that he came to when  16 Mr. Justice Duff's judgment appeared to pose the  17 question.  I say appeared to pose the question.  What  18 is the source of title of lands in Quebec not being  19 within the boundaries of that province?  Now, I say he  20 was forced by virtue of that judgment to ask himself  21 what's the source of that title, and the answer he  22 arrived at is found in his judgment, and it is the  23 answer that my friends have contended for.  That is to  24 say, something which pre-exists the colonization of  25 the British.  26 Now, of course his reference to Amodu Tijani is,  27 of course, also a reference to accede or conquered  28 territory.  29 THE COURT:  Well, would you dispute the correctness of the  30 statement with respect to ceded territory following  31 conquest, that the Indians living there before the  32 conquest and before the cession had an interest in the  33 lands by occupation which continued after the  34 conquest?  35 MR. GOLDIE:  That's the point I am going to come to.  36 THE COURT:  All right.  37 MR. GOLDIE:  What I am saying is that there is no dichotomy, a  38 source here and a source here.  The Royal  39 Proclamation -- well, I say the only -- that Mr.  40 Justice Duff's mistake, if I may put it that way,  41 didn't require the dichotomy that is revealed in the  42 Guerin judgment.  What I say is that what pre-exists  43 colonization in a settled colony, and I am back to  44 British Columbia now, because his lordship is  45 apparently saying that the interest of the Indian  46 people in a reserve in British Columbia is the same as  47 unrecognized aboriginal title in traditional tribal 26676  Submissions by Mr. Goldie  1 lands.  2 So bringing it back to British Columbia, and  3 recognizing the fact that British Columbia was a  4 settled colony, I say that what pre-exists  5 colonization in a settled colony is the physical fact  6 of native settlements.  There is no, by definition,  7 there is no recognized ruler in a settled colony, but  8 there is the physical fact of native settlements.  And  9 as to these, I have appended, my lord, two documents.  10 Mr. Merivale's minute of 1859, which describes the  11 Crown's policy with respect to -- he was speaking  12 there with respect to lands in Rupert's Land.  Mr.  13 Merivale, as your lordship knows, was the permanent  14 head of the colonial office, and he occupied that  15 position from 1847 until 1859.  And his minute on an  16 inquiry about the question of title in and around the  17 Red River settlement is addressed to the parlimentary  18 under secretary, Mr. Fortescue.  And he starts out by  19 saying:  20  21 "Its essential to be extremely cautious in  22 answering Mr. Kennedy as any such answer will  23 no doubt be made use of and may very easily be  24 misapprehended."  25  26 THE COURT:  What is the date of this?  27 MR. GOLDIE:  This is the 5th of December, 1859.  28 THE COURT:  That's after the Proclamation of the English law in  29 British Columbia?  30 MR. GOLDIE:  Yes.  After the establishment of the mainland  31 colony.  32 THE COURT:  Yes.  33 MR. GOLDIE:  And the -- there had been an inquiry into the  34 Hudson's Bay stewardship of its lands in 1857, a  35 parlimentary inquiry, and the question of title in  36 Rupert's lands had arisen.  And Mr. Merivale says in  37 his minute:  38  39 "In the old days no one ever thought of  40 recognizing 'territorial rights' in Indians.  41 Charles the Second simply made over to the Bay  42 Company the freehold of the soil and their  43 chartered territory.  According therefore to  44 English real property notions, the Indians had  45 no territorial rights within that territory at  46 all.  In Lord Selkirk's account of the  47 foundation of the Red River settlement all he 26677  Submissions by Mr. Goldie  1 says on the subject is that he obtained a  2 conveyance of the soil from the company, having  3 satisfied himself of their title, and that the  4 neighbouring Indians (the Sautoux) were assured  5 that their hunting grounds should not be  6 interfered with.  The Indians were afterward  7 excited to hostility against the settlement,  8 but not so far as appears on the ground of  9 their lands being taken from them.  10 I think it might be pretty safely assumed  11 that no right of property would be admitted by  12 the Crown as existing in mere nomadic hunting  13 tribes over the wild land adjacent to the Red  14 River Settlement.  But that agricultural Indian  15 settlements (if any such exist) would be  16 respected, and that Indian ground actually so  17 used by the Indians would either be reserved to  18 them or else compensation made."  19  20 MR. GRANT:  Says "hunting ground".  21 MR. GOLDIE:  What did I say?  22 MR. GRANT:  "Indian ground".  23 MR. GOLDIE:  I'm sorry.  24  25 "... that hunting grounds actually so used by  26 the Indians would either be reserved to them or  27 else compensation made."  28  29 And so I say, my lord, that the physical fact of  30 Indian settlements and a colony settled by British  31 colonists is something that would be taken into  32 account and either reserved, that is to say either  33 secured to them or else compensation made.  And that  34 is in my submission precisely what Lytton referred to  35 in his despatch to Douglas of July 31st, 1858.  And  36 that's the next attachment.  This is the despatch  37 which Mr. Justice Hall relies upon and which my friend  38 Mr. Rush referred to as recognizing Indian title of  39 the kind he is contending for here.  I say it does no  40 such thing, and that it simply is an official  41 statement of Merivale's minute.  42 I refer to paragraph 3 at the bottom of page 45,  43 where the Secretary of State for the colonies begins  44 with these words:  45  46 "I have to enjoin upon you to consider the best  47 and most humane means of dealing with the 2667?  Submissions by Mr. Goldie  1 Native Indians."  2  3 THE COURT:  Is there anything about British Columbia?  4 MR. GOLDIE:  He is writing about British Columbia, this part  5 specifically.  6 THE COURT:  And the date again?  7 MR. GOLDIE:  July 31st, 1858.  8 THE COURT:  Yes.  Thank you.  9 MR. GOLDIE:  And he goes on to talk about the feelings of the  10 country being opposed to any arbitrary or oppressive  11 measures, and says that at this distance he is  12 reluctant to offer any suggestion as to the prevention  13 of affrays.  And he continues, and I am at the top of  14 page 46, line 3:  15  16 "This question is of so local a character that  17 it must be solved by your knowledge and  18 experience, and I commit it to you, in the full  19 persuasion that you will pay every regard to  20 the interests of the Natives which an  21 enlightened humanity can suggest.  Let me not  22 omit to observe, that it should be an  23 invariable condition, in all bargains or  24 treaties with the Natives for the cession of  25 land possessed by them, that subsistence should  26 be supplied to them in some other shape."  27  28 My lord, in my submission he is talking about  29 lands of the natives upon which they rely for  30 subsistence, and he is saying that if there is -- if  31 those lands are to be taken from them by a cession,  32 that subsistence should be supplied to them in some  33 other shape.  34 Now, it will be my submission that that was done  35 in the colony of British Columbia, but I wanted to  36 bring together the submission that I make is that the  37 origin of what in my submission is the mistaken notion  38 that there is an independent source recognizing a  39 proprietary interest extending over the whole of the  40 territory of British Columbia, that the source of that  41 is Mr. Justice Duff's erroneous assumption that there  42 were lands in Quebec which were subject to the Royal  43 Proclamation -- I am sorry, which were not subject to  44 the Royal Proclamation, but subject to an interest  45 described by the Royal Proclamation.  And I say that  46 with -- although I will be dealing with this in  47 greater detail, I wanted to explain the reason for the 26679  Submissions by Mr. Goldie  1 note that I made.  2 My lord, if I may turn back to my summary, page  3 12, paragraph 29.  The position thus far may be  4 conveniently summarized as follows:  5 A.  The plaintiffs' claim to ownership and  6 jurisdiction fails as a matter of law.  It will also  7 be -- it will be argued in Part IV that this claim  8 also fails on the evidence although if the legal  9 proposition is correct, strictly speaking it will be  10 unnecessary to review the evidence.  11 B.  Aboriginal title in colonial British Columbia,  12 properly so-called, consisted of the interest of the  13 native peoples in their occupied village sights and  14 cultivated fields, which interest was both created in  15 the legal sense and protected by the allocation of  16 reserves.  Additionally, the Indians of British  17 Columbia enjoyed the prospects of full citizenship and  18 the right to fish and hunt with others over unoccupied  19 Crown lands subject to regulation.  What happens to  20 those rights (including "title") as a result of  21 confederation has been referred to briefly and will be  22 the subject of submissions in Parts VIII and X below.  23 Again, if this proposition is correct.  Then, strictly  24 speaking, it will be unnecessary to consider the  25 evidence dealing with assertion of rights outside the  26 reserves within the claim area.  27 And I say if the argument summarized as position B  28 in the preceding paragraph is rejected, then it  29 becomes necessary to consider by way of a further  30 alternative, both the nature of aboriginal title in  31 British Columbia and the requirements for its proof.  32 Judicial support for the existence of a use and  33 occupancy based claim of possessory rights outside  34 reserve lands is found in the Baker Lake case, and in  35 the trial judgment in Bear Island.  36 In the following section submission will be  37 advanced with respect to the requirements for proof of  38 such a claim.  The character of such rights was  39 described by counsel for the plaintiffs in Calder as  40 follows:  41  42 "An interest which is a burden on the title of  43 the Crown; an interest which is usufructuary in  44 nature; a tribal interest inalienable except to  45 the Crown and extinguishable only by  46 legislative enactment of the Parliament of  47 Canada." 26680  Submissions by Mr. Goldie  1  2 And I have already drawn to your lordship's  3 attention the meaning of the word usufructuary, which  4 is using and enjoying something belonging to another  5 without impairing the substance.  6 THE COURT:  That's a quote from Calder?  7 MR. GOLDIE:  That's — I believe it is found in Tee-Hit-Ton.  8 Yes, the note I have -- it's taken from Tee-Hit-Ton,  9 99 lawyers' edition, page 316.  10 THE COURT:  But it's quoted in Calder at page 352.  11 MR. GOLDIE:  The quotation is from Calder at page 352, but my  12 definition usufructuary is from Tee-Hit-Ton.  13 THE COURT:  All right.  14 MR. GOLDIE:  Now, my lord, before going to the requirements of  15 proof, which is Section 4, I want to highlight the  16 question of the application of United States cases,  17 and I have a section to hand up, my lord.  I suspect  18 this will mark the limits of your lordship's binder.  19 THE COURT:  Oh, no, there is lots of room.  20 MR. GOLDIE:  It is described as an addendum to Part III, Section  21 3.  22 THE COURT:  An addendum at the beginning?  23 MR. GOLDIE:  I would place it following page 14, the page that  24 we are presently at.  2 5 THE COURT:  Yes.  26 MR. GOLDIE:  Now, the reason for this addendum, I state in  27 paragraph 1, the plaintiffs' lengthy submission  28 concerning the American jurisprudence of aboriginal  29 rights are as stated at Volume 3 of their final  30 argument, page 198, not in support of any argument  31 that this court should Americanize Canadian common  32 law, but they continue, and I quote:  33  34 "... In citing the Marshall decisions and in  35 submitting that they provide a jurisprudential  36 foundation for aboriginal rights as defined in  37 the Plaintiffs' Statement of Claim, we have  38 argued that these principles are relevant in a  39 Canadian court not as American law but as a  40 restatement of fundamental principles governing  41 relationships between aboriginal peoples and  42 the Crown, principles which in the words of Mr.  43 Justice Strong in St. Catherine's Milling, have  44 ripened into rules of the common law."  45  46 I say if the purpose is not to Americanize  47 Canadian law, the reference to Mr. Justice Strong is 26681  Submissions by Mr. Goldie  1 particularly inappropriate.  He was one of two judges  2 who dissented in the Supreme Court of Canada in St.  3 Catherine's Milling (the appeal being dismissed by the  4 judicial committee) and the particular reference cited  5 by the plaintiffs, and in that particular reference  6 where he talks about ripening in the rules of common  7 law, he was referring to the development of American  8 law.  9 Now, I note that elsewhere in their final argument  10 the plaintiffs say at Volume 3, page 5, and I quote:  11  12 "It is our submission that the decisions of the  13 U.S. Supreme Court in the first part of the  14 19th century (hereinafter referred to as the  15 Marshall decisions), building upon both British  16 Colonial and American state practice, affirm  17 common law principles upon which the relative  18 rights of ownership and jurisdiction of  19 colonial governments and Indian nations are to  2 0 be determined ..."  21  22 And the emphasis has been added to the word  23 "affirm".  And I say by use of that word the  24 plaintiffs' suggest that some earlier recognition of  25 these principles may be found, and has been seen, it  26 is their position that these so-called fundamental  27 principles have ripened into well established rules of  28 the common law by the time of the Royal Proclamation  29 of 1763.  The plaintiffs repeated use of the phrase  30 fundamental principles of the common law must  31 therefore be briefly examined before the American  32 jurisprudence is considered.  Shortly put:  33 1.  Principles of common law have only such form  34 and content as the courts give them;  35 2.  When such principles are recognized by the  36 courts they become law as stated in the reports of the  37 judges whose duty it is to expound the law.  One of  38 the principles applied in the courts is that of stare  39 decisis.  40 3.  Rules of common law must give way to statute,  41 to executive act of the Crown, and to subsequent  42 decision of a higher tribunal.  As a matter of  43 constitutional principle, the supremacy of parliament  44 over the common law was established conclusively by  45 the end of the 17th century.  And reference is there  46 made to the 4th edition of Halsbury, volume 44, and I  47 have attached the relative pages.  Paragraph 831 26682  Submissions by Mr. Goldie  1 reads, and I quote:  2  3 "The legislative authority of the sovereign in  4 Parliament is Supreme."  5  6 THE COURT:  I'm sorry, 831?  7 MR. GOLDIE:  On page 504.  My insert begins at 505.  It's here.  8 The pages have been reversed.  9 I read the first sentence.  It continues, and I  10 quote:  11  12 "A statute, whether public or private, can  13 define or override the common law, abrogate  14 local custom, and amend or repeal the  15 provisions of earlier statutes.  Since,  16 however, every Parliament is Supreme, one  17 Parliament cannot derogate from the powers of a  18 subsequent parliment that a statute can neither  19 provide that it is to be incapable of repeal  20 nor dictate the form of subsequent  21 legislation."  22  2 3 And 8 32:  24  25 "The legislative supremacy of parliament implies  26 not only the inability of the courts to  27 question its power to enact any particular  28 statutory provision, but also their duty to  29 give effect as statutes only to enactments  30 answering that description."  31  32 Now, of course the obvious comment is that we are  33 talking here about Parliament in a unitary system and  34 not the federal system, but nevertheless we will be  35 applying that principle when we come to consider the  36 situation in 1858.  37 So with that background of what the common law is,  38 I go on at page 4 of my addendum under the heading of  39 the limited usefulness of American jurisprudence.  40 American law recognizes a doctrine of aboriginal  41 title.  American law also affords a measure of  42 self-government to Indian tribes.  The question is  43 whether these propositions have any application in  44 Canada.  It is submitted that they do not, for reasons  45 which may be summarized as follows:  46 1.  Canadian law recognize no uniform doctrine of  47 of aboriginal title and Canadian law recognize 26683  Submissions by Mr. Goldie  1 inherent right of aboriginal self-government.  And I  2 say it is Canadian law which is binding here, not  3 American law.  4 2.  In any event American law is a product of  5 constitutional and historical circumstances which are  6 unique to that country's experience and inapplicable  7 to the experience of the Crown in British Columbia.  8 And I say this appears to be conceded by the  9 plaintiffs.  I refer to pages 199 to 200 of Volume 3  10 of their final argument.  11 Now, that's the second set of numbers in that  12 volume that we have.  13 Continuing on page 6.  14 3.  Lastly, American law offers no assistance to  15 the plaintiffs.  American law draws a clear  16 distinction between aboriginal title and aboriginal  17 rights of self-government.  18 First, with respect to aboriginal title American  19 jurisprudence distinguishes between recognized title,  20 that is to say title which has been recognized in a  21 treaty or legislation, and unrecognized title, that is  22 mere possession not specifically recognized as  23 ownership by congress.  Those words are taken from the  24 Tee-Hit-Ton case.  As to unrecognized title, the  25 position is this.  And again I am quoting from  26 Tee-Hit-Ton:  27  28 "... Indian occupation of land without  29 government recognition of ownership creates no  30 rights against taking or extinction by the  31 United States protected by the fifth amendment  32 or any other principle of law. "  33  34 And I emphasize that last clause.  35 In this respect aboriginal title is entirely  36 different from common law property rights, the taking  37 of which are compensable in the United States under  38 the fifth amendment to their constitution.  There is,  39 furthermore, no obligation to recognize aboriginal  40 title.  In the result, the fundamental principles of  41 the common law so vigorously asserted by the  42 plaintiffs simply are not part of the common law of  43 the United States.  44 THE COURT:  Didn't counsel, I think Mr. Jackson point out some  45 subsequent American authorities to Tee-Hit-Ton  46 suggesting that this question of recognized title was  47 no longer the law of the United States. 26684  Submissions by Mr. Goldie  1 MR. GOLDIE:  I think the qualification, and I expect to come to  2 it when I look at the cases, is not quite as absolute  3 as my friend suggested.  4 MR. JACKSON: It was the Oneida case I was referring to.  5 THE COURT:  Oneida.  6 MR. GOLDIE:  And the Oneida case, in my submission, is not  7 inconsistent with Tee-Hit-Ton.  8 I say that or I submit the position with respect  9 to aboriginal self-government rights is equally  10 unhelpful.  Such rights appear to be confined to  11 reservations, they are subject to restriction and  12 extinguishment by congress, and, essentially, are also  13 subject to regulation by the individual states.  14 American law in respect of aboriginal interests  15 reflects a mixture of statute law and judge-made law.  16 Reference to the former is found in the judgment of  17 Mr. Justice Judson in Calder, and an overview of some  18 of the more relevant congressional enactments is found  19 in Otoe and Missouria Tribe v. United States.  A  20 judgment of the United States Court of Claims reported  21 at 131 federal supplement, 265, and it is in the  22 plaintiffs' authorities at volume 12, tab 40.  23 Judge-made law in the United States in my submission,  24 was highly influenced at the outset by a desire to  25 retain English practice and precedent for purposes of  26 legitimacy and continuity, but it was modified and  27 modified early by something unknown to English law.  28 A federal system under which the powers of the central  29 government were no more than what the sovereign states  30 gave it.  That was the theory of the American union.  31 The influence of Chief Justice Marshall in  32 modifying that system to one in which the federal  33 power became dominant is well-known, and that  34 influence cannot be ignored assessing what the  35 plaintiffs have called the "Marshall decisions".  36 Article VI of the U.S. Constitution, sometimes known  37 as the supremacy clause, provides in part:  38  39 "this constitution, and the laws of the United  40 States which shall be made in pursuance  41 thereof; and all treaties made or which shall  42 be made, under the authority of the United  43 States, shall be the Supreme law of the lands;  44 and the Judges in every state shall be bound  45 thereby, anything in the constitution or the  46 laws of any state to the contrary  47 notwithstanding." 26685  Submissions by Mr. Goldie  1  2 Now Article I, Section 8, Clause 3 of the  3 constitution, sometimes known as the commerce clause,  4 empowers congress  5  6 "... to regulate commerce with foreign nations,  7 and among the several states, and with the  8 Indian tribes."  9  10 Of the supremacy clause, while denying to the  11 executive a prerogative right in respect of  12 treaty-making, affirmed the supremacy of the central  13 government in this field.  In my submission it became  14 the primary tool available to Chief Justice Marshall  15 in asserting federal authority over Indians to the  16 exclusion of state laws in Worcester and Georgia.  And  17 I make reference there to Mr. Lawrence treaties on  18 American constitutional law.  19 Now, turning to page 10, judgments of the Marshall  20 court.  21 The plaintiffs' submit that the judgments of the  22 Marshall court bear witness to an evolution of the  23 court's thinking on aboriginal rights.  That is taken  24 from Volume 3, page 8 of the final argument.  That  25 evolution, in my submission, did not stop with the  26 judgment in Mitchell v. United States, but continued  27 into the 20th century, as it continues today.  28 Extracting cases from that tradition without regard to  29 later developments may be of interest to historians,  30 but it bears little relationship to legal analysis.  31 And I say that reading Johnson versus Mcintosh without  32 Tee-Hit-Ton is analagous to reading Plessy and  33 Ferguson without reading Brown versus Board of  34 Education.  And the example that is given at the  35 bottom of the page in the next paragraph is intended  36 to take that analogy a little further in response to  37 the plaintiffs' suggestion in their argument, and I  38 quote:  39  40 "Later decisions of the United States Supreme  41 Court have ... ridden roughshod over what we  42 assert are the fundamental principles."  43  44 Now, such analysis brings together a political  45 rhetoric with law, and to illustrate that proposition,  46 the example that is given is this:  47 26686  Submissions by Mr. Goldie  1 "Brown v. Board of Education reads roughshod  2 over the fundamental principles of states  3 rights enshrined in Plessy v. Ferguson."  4  5 All I am saying, my lord, is that you cannot, in  6 my submission, take the later development of the  7 jurisprudence in the United States and simply put it  8 to one side.  9 The fundamentality of principles of common law is  10 coincident with the extent of their recognition and no  11 more.  12 Now, the plaintiffs concede the magnitude of the  13 task they have assumed when they argue that this case  14 offers your lordship with an opportunity not to  15 reaffirm, but to re-establish those fundamental  16 principles.  That is taken from page 10.  17 Now, my lord, turning to some of these cases, the  18 so-called Marshall cases, Fletcher and Peck.  The  19 analysis of that case, which the plaintiffs appear to  20 rely upon, appears in my submission to rely rather  21 heavily from an article by Mr. Howard Berman entitled  22 "The Concept of Aboriginal Rights in the Early Legal  23 History of the United States".  That law review  24 article is found in the plaintiffs' authorities.  In a  25 passage from this article not cited by the plaintiffs,  26 Mr. Berman's reference to Justice Johnson's dissent is  27 followed by this comment:  28  29 "It is apparent, however, that John Marshall and  30 the majority were unwilling to burden this  31 opportunity to expand the national legal system  32 with questions of aboriginal rights.  The  33 primary focus of the decision concerned the  34 constitutional protection of the obligation of  35 contracts and the right of the courts of the  36 United States to overturn unconstitutional acts  37 of the state legislatures.  In fact, the Indian  38 question is rarely mentioned in the  39 commentaries on this case.  Chancellor Kent, in  40 his comment on the majority statement on the  41 Indian title, called the statement a mere naked  42 declaration, without any discussion or  43 reasoning by the courts in support of it."  44  45 Now, in my submission, the context is set for all  46 of Chief Justice Marshall's judgment on Indian title.  47 The emergence of judicial review as a tool for tilting 26687  Submissions by Mr. Goldie  1 the balance of constitutional power from the states in  2 favour of the federal government.  And in my  3 submission the issue of Indian rights is but an  4 incidental aspect of a larger struggle.  5 Now, the dissent of Justice Johnson, which is  6 cited at pages 20 to 21 of the plaintiffs' argument,  7 is to be read subject to the following comments.  8 A.  Johnson ascribes the independence of the  9 'tribes to the west of Georgia' to the acknowledgement  10 found in the 'innumerable treaties formed with them'.  11 And while the treaties are not literally innumerable,  12 there are certainly a great many of them growing out  13 of a number of circumstances.  14 B.  The limitations on the interest of the states  15 'in the soil of the Indians within their boundary'  16 appear to be self-imposed, not pre-determined, and I  17 rely upon these words ("... nothing more than what was  18 assumed at the first settlement of the country ...").  19  20 Now, lastly, Fletcher and Peck is of interest for  21 its characterization of the Indian reserve provisions  22 of the Royal Proclamation of 1763, which applied to  23 that part of Georgia between the Allegheny Mountains  24 and the Mississippi River as:  25  26 "A temporary arrangement suspending for a time,  27 the settlement of the country reserved, and the  28 powers of the royal governor within the  29 territory reserved, but ... not conceived to  30 amount to an alteration of the boundaries of  31 the colony."  32  33 And Mr. Justice Blackburn's comments on that are  34 found in Milurrpum at pages 20 to 21.  I won't read  35 that, but I note that for your lordship's assistance.  36 Then Johnson and Mcintosh itself.  It is going to  37 be talked about at some greater length in Part VII of  38 this summary, but the plaintiffs' cite the following  39 passage from the judgment of the court, and I am not  40 going to read it in full, but just sufficient to  41 remind your lordship of the tenor of it.  42  43 "In the establishment of these relations, the  44 rights of the original inhabitants were, in no  45 instance, entirely disregard; but were  46 necessarily, to a considerable extent,  47 impaired.  They were admitted to be the 266?  Submissions by Mr. Goldie  1 rightful occupants of the soil, with a legal as  2 well as a just claim to retain possession of  3 it, and to use it according to their own  4 discretion; but their rights to complete  5 sovereignty, as independent nations, were  6 necessarily diminished, and their power to  7 dispose of the soil at their own will, to  8 whomsoever they please, was denied by the  9 original fundamental principle that discovery  10 gave exclusive title to those who made it."  11  12 And then he goes on to speak about the custom of  13 the European Nations.  And then the plaintiffs submit  14 at page 33 of the final argument:  15  16 "What must be firmly kept in mind, however, is  17 that the limitation on free alienablity was the  18 only diminishment which was identified by Chief  19 Justice Marshall in his opinion."  20  21 And I submit that that reads too much into the  22 inquiry undertaken by the court in the Johnson and  23 Mcintosh case.  24 The issue in the case is whether the plaintiffs'  25 title, which derived from a grant made to their  26 predecessors by Indian chiefs of tribes admitted to be  27 sovereign entities.  Now, if I could pause there.  28 When I come to examine this case in greater detail I  29 will refer to the pleadings as set out in the report.  30 And your lordship will see that for the purposes of  31 the case, the Indian predecessors title were stated to  32 be sovereign nations.  It was in the interest of the  33 parties to put the Indian title at its highest.  34 And this sovereignty could be recognized in the courts  35 of United States.  In other words, the issue was did  36 the Indian tribes possess sufficient sovereignty to  37 dispose of the soil at their own free will.  The Court  38 held they did not.  Thus only specific attribute of  39 sovereignty which was at issue was the right of free  40 alienability, and that was flatly denied.  41 Now, while the Chief Justice referred specifically  42 to no other limitation on sovereignty, and in my  43 submission it is a desirable thing to decide no more  44 than the issue at bar -- well, I should say it's not  45 my submission, my lord, it's a statement that has been  46 made many times in our courts.  It is difficult to  47 find in the passage set out above an intention to 26689  Submissions by Mr. Goldie  1 restrict Indian sovereignty to that extent and no  2 further.  It is submitted that the only right Chief  3 Justice Marshall specifically attributed to the  4 Indians was a mere right of occupancy, defined as a  5 burden on the Crown's title which the Crown could  6 extinguish with impunity.  And apart from cases  7 arising out of special jurisdictional acts, that right  8 of occupancy has never been enforceable against the  9 United States.  10 Support for this suggestion is found in the later  11 U.S. cases in which Johnson and Mcintosh has been  12 considered, particularly Tee-Hit-Ton.  See also such  13 cases as Gemmill and Otoe and Missouria Tribe v.the  14 United States.  The principles said by the plaintiffs  15 to be bedrock fundamental principles of the common law  16 have never, in my submission, been applied by any  17 American court.  18 Now, when I say bedrock fundamental principles of  19 the common law, I want to emphasize that they are  20 being asserted here as against the Crown, and not as  21 against third parties, and against the Crown's  22 licensees and grantees.  23 Now, on page 17 the Chief Justice himself said in  24 the passage relied upon by the plaintiffs at page 33  25 of their argument, and this is extracted:  26  27 "... the rights of the original inhabitants ...  28 were necessarily, to a considerable extent,  2 9 impaired ...  30 "their rights to complete sovereignty ... were  31 necessarily diminished and their power to  32 dispose of the soil at their own will ... was  33 denied ..."  34  35 Of course I have added the emphasis to the words  36 "to a considerable extent" and to the word "and" in  37 the last clause.  38 I submit that Johnson and Mcintosh establishes  39 that a title based on a prior private purchase from  40 Indians could not prevail against a title granted by  41 the United States.  To establish this Chief Justice  42 Marshall recognized the pre-eminence of the Crown's  43 title in the colonies and the transfer of it and all  44 rights appurtenant to it by virtue of the outcome of  45 the American revolution.  This was so notwithstanding  46 the acknowledged occupation of the Indians.  At page  47 693 the Chief Justice said, and I quote: 26690  Submissions by Mr. Goldie  1  2 "However extravagant the pretension of  3 converting the discovery of an inhabited  4 country into conquest may appear, if the  5 principle has been asserted in the first  6 instance, and afterwards sustained; if a  7 country has been acquired and held under it; if  8 the property of the great mass of the community  9 originates in it, it becomes the law of the  10 land, and cannot be questioned.  So, too, with  11 respect to the concomitant principle, that the  12 Indian inhabitants are to be considered merely  13 as occupants, ... but to be deemed incapable of  14 transferring the absolute title to others.  15 However this restriction may be opposed to  16 natural right, and to the usages of civilized  17 nations, yet, if it be indispensable to that  18 system under which the country has been  19 settled, and adapted to the actual condition of  20 the two people, it may perhaps, be supported by  21 reason, and certainly cannot be rejected by  22 courts of justice."  23  24 My lord, that's found in Johnson and Mcintosh, and  25 in my submission it is an explicit statement of what  26 somebody once -- what a historian once referred to as  27 the only system that would work.  28 Now, in paragraph 24.  It will be noted that there  29 is no acknowledgement of the treaties so heavily  30 relied upon by the plaintiffs in this case.  The  31 object of the judgment was to establish the supremacy  32 of the title of the United States to its lands, and  33 for this purpose no qualification could be admitted  34 with respect to the title passing from Great Britain  35 under the 1783 Treaty of Paris.  36 I emphasize that the strength of the United States  37 title was, in my submission, for purposes of  38 legitimacy and continuity based entirely upon the  39 strength of the title from the Crown which the United  40 States derived as a result of the successful outcome  41 of its revolution.  42 THE COURT:  I'm not sure I understand what you mean by the  43 treaties in the second line of that paragraph.  44 MR. GOLDIE:  Well, your lordship will recall that my friends  45 have placed great emphasis upon the treaties entered  46 into between the American colonies prior to the  47 revolution and the Indian peoples as foreshadowing or 26691  Submissions by Mr. Goldie  1 pre-figuring the principles of the Royal Proclamation  2 in which they say are a fundamental principle of  3 common law.  Specifically the covenant chain treaties  4 with the Iroquois and -- well, there is a whole host  5 of them.  But in Johnson and Mcintosh --  6 THE COURT:  And you say pre-peace American, pre-revolution, or  7 I'm sorry, you mean --  8 MR. GOLDIE:  Yes.  Well, some of them were actually entered into  9 after the outset of the revolution between the British  10 and the Indian peoples, but I think my friends'  11 reliance starts back in the 17th century with the  12 Dutch and the Swedish.  13 THE COURT:  Yes.  14 MR. GOLDIE:  But my point here is that the Chief Justice did not  15 say we have succeeded to the rights under the  16 treaties.  He based his decision wholly upon the  17 strength of the title inherited, I'll put it that way,  18 from the Crown.  19 Now, the Cherokee cases, and here, as I note, the  20 plaintiffs' submissions indicate the principle concern  21 of the court in Cherokee Nation v. Georgia and  22 Worcester v. Georgia was to delimit state powers and  23 to enhance the position of the judiciary as the third  24 branch of the government of the United States.  25 Now, when the Cherokee Nation, and I'm sure your  26 lordship will recall the circumstance, the Cherokee  27 Nation had entered into, and this was after the  28 revolution, had entered into treaties with the United  29 States, and in some cases with Georgia, which  30 established them as a semi-sovereign nation.  And when  31 they -- when Georgia sought to apply its laws within  32 the Cherokee territory, the first reaction on the part  33 of the Cherokee Nation was to make a direct  34 application to the Supreme Court of the United States  35 for an injunction which would have restrained the  36 application of Georgia's statutes within the territory  37 of the Cherokee Nation, all of which was within the  38 State of Georgia geographically speaking.  39 The plaintiff relied upon the supremacy clause,  40 which I have set out and referred to earlier, and it's  41 at page 9, my lord, and it establishes the supremacy  42 of the constitution, and it includes the clause:  43  44 "And all treaties made or which shall be made  45 under the authority of the United States shall  46 be the Supreme law of the land."  47 26692  Submissions by Mr. Goldie  1 And that was the -- that was the clause that the  2 plaintiffs' seeking an injunction against Georgia  3 relied upon.  It asserted that a number of treaties  4 made between it and the United States, subsequent to  5 the revolution, were treaties within the meaning of  6 that word and the supremacy clause, however, in order  7 to have that issue litigated, it was necessary to show  8 that the federal courts were the proper courts.  And  9 for this the plaintiff relied upon Article 3, Section  10 2 of the constitution which provides, amongst other  11 things that:  12  13 "The judicial power shall extend to all cases in  14 law and equity, arising under ... treaties made  15 ... between a State, ... and foreign states  16 ..."  17  18 This, if admitted, would have placed the Cherokee  19 Nation on the level of a foreign state, and that was  20 rejected by the court.  While the Cherokee Nation was  21 characterized as a distinct political society capable  22 of managing its own affairs and governing itself, and  23 not owing allegiance to the United States, it was  24 denominated a domestic dependent nation.  That was a  25 newly invented status, but it had the desired effect.  26 It took the plaintiffs out of the original  27 jurisdiction of the Supreme Court under Article 3, and  28 the action was struck out for want of jurisdiction.  2 9 THE COURT:  You say it was denominated a domestic dependent  30 nation?  31 MR. GOLDIE:  Yes.  32 THE COURT:  By whom?  33 MR. GOLDIE: The judgment of the court.  34 THE COURT:  Okay.  35 MR. GOLDIE:  What the majority of the court did was to say yes  36 indeed there are these treaties, but in terms of how  37 other nations would look at the Cherokee, they would  38 be regarded as part of the United States, although  39 they were not subjects or citizens.  And I believe the  40 Chief Justice put it this way.  He said we would  41 regard it as an unfriendly act if some other nation  42 attempted to establish relations with the Cherokee  43 Nation on the basis of it being an independent state.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  And then he arrived at the conclusion that it was a  46 domestic dependent nation, and therefore the treaties  47 that they had signed with the United States were not 26693  Submissions by Mr. Goldie  1 treaties between the United States and a foreign  2 state.  3 Within the year, however, Worcester and Georgia  4 came before the Court, and this time the Court felt  5 that it could give full effect to the constitutional  6 provisions and the supremacy clause and the commerce  7 clause.  The particular circumstance was that the  8 Georgia courts had imposed a sentence on two  9 missionaries who were within the territory of the  10 Cherokee Nation, and the result was to set aside the  11 sentence which was imposed under Georgia statutes, and  12 the statutes themselves were declared to be  13 unconstitutional.  After reciting the numerous  14 treaties between the United States and the Cherokee  15 Nation, the Court said at page 500 of the lawyers'  16 edition:  17  18 "That instrument (the Constitution) confers on  19 congress the powers of war and peace:  of  20 making treaties and of regulating commerce with  21 foreign nations, and among the several states  22 and with the Indian tribes.  These powers  23 comprehend all that is required for the  24 regulation of our intercourse with the Indians  25 ..."  26  27 And then continuing:  28  29 "The Constitution, by declaring treaties already  30 made, as well as those to be made, to be the  31 Supreme law of the land, has adopted it and  32 sanctioned the previous treaties with the  33 Indian Nation and consequently admits their  34 rank among those powers who are capable of  35 making treaties."  36  37 A very fine line is being walked here.  38 Then continuing:  39  40 "The Cherokee Nation, then, is a distinct  41 community, occupying its own territory with  42 boundaries accurately described, in which the  43 laws of Georgia can have no force, and which  44 the citizens of Georgia have no right to enter  45 but with the assent of the Cherokees themselves  46 or in conformity with treaties and with the  47 Acts of Congress." 26694  Submissions by Mr. Goldie  1  2 All of those limitations distinct community,  3 occupying its own territories, boundaries accurately  4 described, all flow from the treaties between the  5 Cherokee and the United States after the Revolution.  6  7 "The whole intercourse between the United States  8 and this nation is, by our Constitution and  9 laws, vested in the government of the United  10 States."  11  12 The Royal Proclamation is not mentioned in  13 Worcester and Georgia, although if it had any residual  14 effect, which in Johnson and Mcintosh it was  15 considered to have, it would have been an additional  16 reason for supporting the result in Georgia and  17 Worcester.  It will be recalled that in Johnson and  18 Mcintosh, when the Court was asserting the scope of  19 the sovereignty of Great Britain, the exercise of the  20 Royal prerogative, that is to say the Royal  21 prerogative as demonstrated in the Royal Proclamation  22 of 1763, was seen by Chief Justice Marshall to be in  23 the alternative.  The King had the power either to  24 grant lands to settlers or to reserve lands to the  25 Indians, and he chose the latter.  And from the  26 judgment in the Johnson and Mcintosh case this was  27 said:  28  29 "The Proclamation issued by the King of Great  30 Britain, in 1763, has been considered, and we  31 think, with reason, as constituting an  32 additional objection to the title of the  33 plaintiffs ..."  34  35 The title of the plaintiffs being based upon  36 Indian title.  And he's now talking about the effect  37 of the Proclamation.  And on page 694.  38  39 "So far as respected the authority of the Crown,  40 no distinction was taken between vacant lands  41 and lands occupied by the Indians.  The title,  42 subject only to the right of occupancy by the  43 Indians, was admitted to be in the King, as was  44 his right to grant that title.  The lands,  45 then, to which this Proclamation referred were  46 lands which the King had a right to grant, or  47 to reserve for the Indians." 26695  Submissions by Mr. Goldie  1  2 And then a little later on in the judgment:  3  4 "... The peculiar situation of the Indians,  5 necessarily considered in some respects, as a  6 dependant and in some respects as a distinct  7 people, occupying a country claimed by the  8 Britain and yet too powerful and brave not to  9 be dreaded as formidable enemies, required that  10 means should be adopted for the preservation of  11 peace and that their friendship should be  12 secured by quieting their alarms for their  13 property."  14  15 And by this he is referring to that objective.  16  17 "Was to be effected by restraining the  18 encroachments of the whites; and the power to  19 do this was never, we believe, denied by the  20 colonies to the Crown."  21  22 Now, this portion of my submission may be  23 concluded by referring once more to St. Catherine's  24 Milling.  In all four courts which dealt with that  25 case American jurisprudence and experience were fully  26 debated.  The stature of Chief Justice Marshall as a  27 jurist was acknowledged, but the constitutional  28 background was never alluded to, nor the change  29 between Johnson and Mcintosh and Worcester and Georgia  30 ever referred to.  31 Now, by change, my lord, I mean this.  In Johnson  32 and Mcintosh the supremacy of the U.S. title derived  33 from the Crown prevailed over a grant from Indian  34 tribes admitted to be sovereign entities.  And  35 Worcester, the supremacy of U.S. constitution was  36 established by holding the treaty rights created only  37 as semi-sovereign status sufficient to diminish the  38 States interest.  Of the 11 Canadian judges who  39 considered St. Catherine's Milling, two, Mr. Justice  40 Strong and Mr. Justice Gwynne, would have adopted a  41 view attributed to Chief Justice Marshall by Mr.  42 Justice Strong, a view which in my submission went far  43 beyond that expressed in Johnson and Mcintosh.  The  44 question of the Indians' consent was also argued in  45 the Supreme Court, and it was in my submission  46 disposed of by Mr. Justice Taschereau in the Supreme  47 Court report at page 649. 26696  Submissions by Mr. Goldie  1 My lord, I would like to refer to that, because of  2 Mr. Justice Taschereau -- it's in the plaintiffs'  3 authorities, volume 9 at tab 39.  The -- Mr. Justice  4 Taschereau's judgment is valuable for two reasons.  5 First, he speaks with the obvious authority of a  6 judge from the civil law background and trained in the  7 civil law applicable in Quebec, and provides an  8 indication of why in Quebec -- in old Quebec before  9 the conquest there never had been any treaties of  10 surrender or cession with the native peoples.  But he  11 also, and with that background, looked at the question  12 of the submission that has been made -- that was made  13 there, and has been made here that the only basis upon  14 which the Crown's title to the soil could be perfected  15 would be through treaties entered into with the  16 consent of the Indian peoples.  And at page 647 -- at  17 page 647 he begins at the bottom of the page after  18 discussing the result of the conquest, and after  19 discussing the Royal Proclamation and rejecting the  20 proposition that the Royal Proclamation has the effect  21 contended for by Canada in that case and by the  22 plaintiffs here.  He says towards the bottom of the  23 page about six lines up:  24  25 "Did the sovereign thereby divest himself of the  26 ownership of this territory?  I cannot adopt  27 that conclusion, nor can I see anything in that  28 Proclamation that gives to the Indians forever  29 the right in law to the possession of any lands  30 as against the Crown.  Their occupancy under  31 that document has been one by sufferance only.  32 Their possession has been in law, the  33 possession of the Crown."  34  35 And he rejects the notion that the Proclamation of  36 1763 created a legal Indian title.  And then page 648,  37 the last paragraph:  38  39 "It was further for the appellants that the  40 principles which have always guided the Crown  41 since the cession."  42  43 And when he says "cession" there he is referring  44 to the conquest and the Treaty of Paris of 1763.  45  46 "In its dealings with the Indians amount to a  47 recognition of their title to a beneficiary 26697  Submissions by Mr. Goldie  1 interest in the soil.  There is, in my opinion,  2 no foundation for this contention.  For obvious  3 political reasons and motives of humanity and  4 benevolence, it has, no doubt, been the general  5 policy of the Crown, as it had been at the  6 times of the French authorities to respect the  7 claims of the Indians.  But this, though  8 unquestionably gives them a title to the  9 favourable consideration of the government,  10 does not give them any title in law, any title  11 that a court of justice can recognize as  12 against the Crown."  13  14 And he continues.  He says:  15  16 "The Indians must in the future every one  17 concedes it, be treated with the same  18 consideration for their just claims and demands  19 that they have received in the past.  But as in  20 the past, it will not be because of any legal  21 obligation to do so, but as a sacred political  22 obligation, in the execution of which the state  23 must be free from judicial control."  24  25  26 Now, the point that I make there is that given the  27 background that he had, and the pre-conquest and  28 post-conquest, his views are entitled to some respect.  29 Continuing at paragraph 30.  30 THE COURT:  I think if you're going to a new paragraph, we will  31 take the adjournment.  32  33 (PROCEEDINGS ADJOURNED AT 11:10 A.M.)  34  35 I HEREBY CERTIFY THE FOREGOING TO BE  36 A TRUE AND ACCURATE TRANSCRIPT OF THE  37 PROCEEDINGS HEREIN TO THE BEST OF MY  38 SKILL AND ABILITY.  39  4 0    41 LORI OXLEY  42 OFFICIAL REPORTER  43 UNITED REPORTING SERVICE LTD.  44  45  46  47 2669?  Submissions by Mr. Goldie  1 (PROCEEDINGS RESUMED AT 11:30)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  Thank you, my lord.  My Lord, I'm at page 23,  6 paragraph 30.  7 THE COURT:  Yes.  8 MR. GOLDIE:  Of the addendum, and I was -- although this  9 addendum purports to deal with American cases, I have  10 digressed and I'm back at St. Catherine's Milling, and  11 now on the Judicial Committee I say the Judicial  12 Committee, as appears from the report of the argument,  13 the view now asserted in this court was fully  14 argued --  15 THE COURT:  Asserted by the plaintiffs?  16 MR. GOLDIE:  By Canada, which intervened for the first time.  17 THE COURT:  I'm sorry, but I don't know whether you say now it  18 was asserted in this court.  19 MR. GOLDIE:  Yes, by the plaintiffs.  20 THE COURT:  By the plaintiffs.  21 MR. GOLDIE:  Yes.  The argument of Canada and the Judicial  22 Committee begins at page 47 of the report, and the  23 submission that was made there, and I'm going to refer  24 to it in a little greater detail elsewhere, and I'll  25 just read one sentence from the argument at page 48,  26 the first -- the second paragraph, documentary  27 evidence was referred to to show the nature and  28 character of the Indian title:  29  30 "It was contended that the effect of it was to  31 show that from the earliest times the Indians  32 had and are always recognized as having a  33 complete proprietary interest limited by a  34 power of alienation."  35  36 And elsewhere in the argument it was referred to as  37 the absolute title being in the Indians, and I hope  38 that I have not misled your lordship in any reference  39 that I make to proprietary or non-proprietary.  I say  40 that in the Calder and St. Catherine's Milling the  41 interest that is recognized is non-proprietary, and  42 the claim that is made here by the plaintiffs is  43 proprietary.  44 Now, returning to paragraph 30, I say the issue in  45 the St. Catherine's Milling was, as we all know by  46 now, who should succeed to the benefit of an Indian  47 surrender in favour of the Dominion of lands in 26699  Submissions by Mr. Goldie  1 Ontario, and the answer depended on the nature of the  2 Indian interest in lands subject to the Royal  3 Proclamation.  This was an issue superficially similar  4 to that which had been dealt with by Chief Justice  5 Marshall, but absent the treaties which were the  6 constitutional underpinning of the judgment in  7 Worcester and Georgia.  8 The Judicial Committee rejected the view that  9 Indian title was good against the Sovereign and that  10 it could only be extinguished by consent.  It held  11 that the Indian title was one of use and occupancy and  12 its disappearance through surrender cleared the  13 underlying title of the Province rather than  14 transferring a beneficial interest to the Dominion.  15 In my submission, the Cherokee Nation and Georgia  16 provides no support for the plaintiffs' contention  17 respecting "pre-existing rights".  Now, there's a  18 passage cited at the bottom of page 73 of volume 3 of  19 the plaintiffs' final argument, and the -- it is  20 preceded by a passage on page 30, which adverts to the  21 significance of recognition in the following terms:  22  23 "The acts of our government plainly recognized  24 the Cherokee nation as a State and the Courts  25 are bound by those acts."  26  27 There is no suggestion, my lord, that but for such  28 acts of recognition the Cherokee would have  29 constituted a state in the courts of the United  30 States.  31 THE COURT:  Can I take you back to St. Catherine's.  32 MR. GOLDIE:  Yes, my lord.  33 THE COURT:  And is it your submission that the non-proprietary  34 title mentioned by their lordships in Privy Council  35 sprung from occupation, or the Royal Proclamation, or  36 a combination of both?  37 MR. GOLDIE:  It's my submission that the Royal Proclamation  38 created an interest.  It set up a reserve and it  39 created an interest.  40 THE COURT:  And was occupation then one of the essential  41 ingredients of that interest?  42 MR. GOLDIE:  Given the purpose of the Royal Proclamation, which  43 was to halt settlement, the protection of Indian  44 occupancy was a side issue, that what the Royal  45 Proclamation intended to do, and in this I think that  46 Marshall's description in Johnson and Mcintosh is  47 correct, the Sovereign in his dealings with the ceded 26700  Submissions by Mr. Goldie  1 lands could either have granted or reserved, and he  2 chose to create a reserve.  Now, undoubtedly, in order  3 to placate the Indians he protected their occupancy,  4 but he was not concerned with actual occupancy of the  5 kind referred to by the Select Committee of New  6 Zealand.  7 THE COURT:  All right, thank you.  8 MR. GOLDIE:  The Royal Proclamation is sui generis.  It was  9 addressed to a very particular problem of the day.  10 THE COURT:  I suppose you would say that there could be -- there  11 could be rights enforceable under the Proclamation  12 respecting lands not occupied by Indians.  13 MR. GOLDIE: There were rights created by the Proclamation in  14 favour of the Indians, not as against the Sovereign.  15 THE COURT:  Yes.  16 MR. GOLDIE:  But as against third parties.  One of the  17 directions of the Proclamation was that if there are  18 people who are ceded on these lands, they're to get  19 out.  Now, that could not be addressed to the  20 Sovereign, but the Sovereign expected that to be done  21 as an aid to the accomplishment of the objective of  22 the Proclamation.  And that's not the only one.  You  23 can take it there are other examples.  The --  24 undoubtedly the requirement that without further  25 licence, I think are the words, there shall be no  26 further settlement in the area created.  Well, that  27 was -- that was a protection of an interest but not as  28 against the Sovereign.  He reserved that for himself  29 to grant the licence.  30 THE COURT:  So you say that the reserve existed apart from  31 occupation?  32 MR. GOLDIE:  The reserve was created without direct regard to  33 occupation.  34 THE COURT:  Yes, all right.  35 MR. GOLDIE:  The — I'll just add one other comment.  36 Unquestionably, the importance of the fur trade was an  37 element.  I think even at that stage the fur trade and  38 settlement were not regarded as wholly compatible, and  39 I don't think —  40 THE COURT:  Well, was that the reason for the exclusion of  41 Rupert's Land?  42 MR. GOLDIE:  I think — or I will submit, my lord, that the  43 exclusion of Rupert's Land was that some of the  44 provisions of the -- of the Proclamation would be  45 directly -- would directly derogate from the Charter  46 of the Hudson's Bay Company, which was a monopoly, and  47 one of the objects of the Proclamation was to have a 26701  Submissions by Mr. Goldie  1 free fur trade but a regulated one.  2 THE COURT:  Yes, all right, thank you.  3 MR. GOLDIE:  Well, I had — I had read to your lordship at the  4 bottom of page 24 an excerpt from Cherokee Nation, and  5 I had submitted that the judgment of that court does  6 not assist my friends in any suggestion that the court  7 was recognizing pre-existing rights.  8 Now, after -- on page 25 I deal with U.S.  9 Aboriginal Title Jurisprudence After Marshall, and I  10 say that Indian title issues have come before the  11 United States courts frequently in the century and a  12 half since the judgment in Mitchel.  Of the many  13 decided cases, a number are referred to by the  14 plaintiffs.  And I submit that of these, Santa Fe,  15 Tee-Hit-Ton and Oneida warrant careful reading.  16 The fact that the U.S. congress stopped making  17 treaties after 1871 supports the view that  18 treaty-making is a policy initiative which, though  19 enshrined by long usage, was not a rule of law binding  20 upon sovereign authority.  United States v. Santa Fe  21 Pacific is principally an extinguishment case.  When  22 the analysis of the court on this issue is seen in  23 light of the result in the case it is apparent, in my  24 submission, that the judgment offers no support for  25 the "specific intent" test for extinguishment  26 propounded by Mr. Justice Hall in Calder.  27 From the report of the judgment it is clear that  28 no act of congress purported expressly to extinguish  29 the tribal rights of the Walapais.  The Walapai Indian  30 Reservation was created by executive order of the  31 President in 1883.  It was found that the reservation  32 had been created at the request of the Walapai, whose  33 ancestral lands were fast being populated by white  34 settlers.  They said at page 276 of the Lawyer's  35 Edition, and I quote:  36  37 "The Walapais saw their old domain being  38 pre-empted.  They wanted a reservation while  39 there was still time to get one.  That solution  40 had long seemed desirable in view of recurring  41 tensions between the settlers and the Walapais.  42 In view of the long-standing attempt to settle  43 the Walapais' problems by placing them on a  44 reservation, their acceptance of this  45 reservation must be regarded in law as the  46 equivalent of a release of any tribal rights  47 which they may have had in lands outside the 26702  Submissions by Mr. Goldie  1 reservation.  They were in substance  2 acquiescing in the penetration of white  3 settlers on condition that permanent provision  4 was made for them too.  In view of this  5 historical setting, it cannot now be fairly  6 implied that tribal rights of the Walapais in  7 lands outside the reservation were preserved.  8 That would make the creation of the 1883  9 reservation, as an attempted solution of the  10 violent problems created when two civilizations  11 met in this area, illusory indeed.  We must  12 give it the definitiveness which the exigencies  13 of that situation seem to demand."  14  15 It will be seen that the test for extinguishment which  16 emerges from this judgment requires no specific or  17 particular action on the part of the sovereign, but  18 rather a close examination of the historical  19 circumstances coupled with a recognition that legal  20 effect may be given to the exigencies of a particular  21 situation.  22 At page 242 of that part of their final argument,  23 that's the plaintiffs' final argument, which deals  24 with U.S. cases on aboriginal title, the plaintiffs  25 argue that the statement of Justice Douglas in Santa  26 Fe that aboriginal title may be extinguished "by the  27 exercise of complete dominion adverse to the right of  28 occupancy" is inconsistent with, and I quote, "the  29 fundamental principles of the common law governing  30 legal relationships between aboriginal peoples and the  31 Crown".  In fact, the proposition that aboriginal  32 rights may be extinguished without consent and without  33 "specific intent", is fully consistent with the common  34 law recognition of the sovereignty of the Crown, a  35 principle recognized by the recent judgment of the  36 Supreme Court of Canada in Regina v. Horseman.  Now,  37 the plaintiffs go on to say in their final argument,  38 and I quote:  39  40 "...the proposition that the justness or  41 legality of extinguishment is (not) open to  42 judicial inquiry...is a proposition which  43 subsequent decisions of the U.S. Supreme Court  44 have rejected."  45  46 With respect, the cases cited in the remainder of this  47 section of the plaintiffs' argument do not support 26703  Submissions by Mr. Goldie  1 this contention.  2 It is submitted that the ratio of the decision in  3 Tee-Hit-Ton is entirely consistent with the decisions  4 in Johnson and Mcintosh and Worcester and Georgia,  5 neither of which accorded to aboriginal title status  6 as a proprietary interest for the purpose of a  7 constitutional entitlement to compensation for taking.  8 Now, the Oneida cases were decided after Calder.  9 In my submission, taken together they are authority  10 for the proposition that there is a federal common law  11 cause of action for wrongful interference with  12 unrecognized aboriginal title, but it is to be  13 observed that in these cases the wrongful interference  14 was that of the state -- if your lordship would take  15 out the word "state".  The allegation was that the  16 county had interfered with the rights and the county,  17 as I understand it, brought in the state for the  18 purpose of indemnification.  The federal government  19 was not involved, nor, in my submission, could it be,  2 0 having regard to the judgment in Tee-Hit-Ton.  And I  21 say that -- I should, before I make a further comment  22 on Oneida, it is my understanding that the Supreme  23 Court of the United States has on -- at the present  24 time, on an interlocutory basis, held that there is a  25 cause of action in federal common law, which puts it  26 into the district courts, the federal court, but as  27 against something which we would call a legislated  28 level of government.  Certainly it is no proposition  29 for the suggestion that Oneida is inconsistent with  30 Tee-Hit-Ton.  In fact, in my submission, it is  31 entirely consistent with it.  32 THE COURT:  I'm sorry, you say that —  33 MR. GOLDIE:  I say it is consistent, because the plaintiff shows  34 not the federal government to sue but shows the county  35 to sue for interference with its rights.  And it may  36 turn out, although I don't believe that the case has  37 been decided on its merits, I stand to be corrected on  38 that —  39 THE COURT:  You said something that this federal common law  40 sufficient to give district court jurisdiction, that's  41 federal district court jurisdiction?  42 MR. GOLDIE:  Yes.  43 THE COURT:  In cases against legislative governments?  44 MR. GOLDIE:  No, in cases of what we would call a municipal  45 level of government, not the sovereign level of  4 6 government.  47    THE COURT:  All right, thank you. 26704  Submissions by Mr. Goldie  1 MR. GOLDIE:  The U.S. jurisprudence on Indian self-government, I  2 deal with commencing on page 29.  In Worcester and  3 Georgia the court held that the laws of the State of  4 Georgia had no force within the boundaries of lands  5 reserved by treaty for the Cherokee nation.  The  6 question whether the Cherokee had rights of  7 self-government and, if so, the source, extent and  8 enforceability of such rights, was not before the  9 court.  One has only to read the treaties which the  10 Cherokee nation had entered into after the revolution  11 with the United States to see how far the United  12 States thought it expedient to go in dealing with the  13 former allies of the British, and obviously people who  14 were formidable adversaries.  15 Later U.S. cases have given definition to Indian  16 self-government rights, principally in the context of  17 claims of State jurisdiction to make laws applying to  18 Indians.  In the 1973 case of McClanahan versus  19 Arizona Tax Commission the Supreme Court said this in  2 0 a unamimous judgment, and I quote:  21  22 "...the trend has been away from the idea of  23 inherent Indian sovereignty as a bar to state  24 jurisdiction and toward reliance on federal  25 pre-emption.... The modern cases thus tend to  26 avoid reliance on platonic notions of Indian  27 sovereignty and to look instead to the  28 applicable treaties and statutes which define  29 the limits of state power."  30  31 Now, in that case, McClanahan case, as in others cited  32 by the plaintiffs, the analysis of Indian  33 self-government begins with the treaty or statute, and  34 the idea of Indian sovereignty "provides a backdrop  35 against which the applicable treaties and federal  36 statutes must be read".  That is, whether, and to what  37 extent, Indians are capable of asserting rights of  38 self-government against the State or federal  39 governments depends on the extent to which such rights  40 have been recognized by Congress.  41 The point may be reinforced by reference to the  42 plaintiffs' endeavour at pages 198 to 218 of volume 3  43 of their argument to place the Post-Marshall U.S.  44 jurisprudence in what they describe as its "historical  45 and political context".  The factual material cited  46 here is not part of the evidentiary record, nor is a  47 historical survey of American Indian policy a useful, 26705  Submissions by Mr. Goldie  1 let alone necessary, exercise in the case at bar, yet  2 the plaintiffs' submissions reveal the extent to which  3 Indian rights of self-government are a product of  4 Congressional legislation and policy unfettered by the  5 alleged "fundamental principles of common law".  6 The survey at pages 208 to 218 identifies eight  7 Acts of Congress, and adverts to the existence of  8 others -- I'm sorry, my lord, I'm concerned about  9 there being a typographical error on the page number  10 there, but I'll continue and I'll check that.  Page  11 500, "The Allotment Act (of 1871) was only part of a  12 series of legislative and administrative initiatives".  13 And of course I emphasize the word "a series of  14 legislative and administrative initiatives".  The  15 importance of such initiatives as the source of Indian  16 rights, and disabilities, is made clear in the passage  17 from Mr. Berger's Report of the Alaska Native Review  18 Commission cited at page 211 of the plaintiffs'  19 argument, in which Mr. Berger describes the  20 consequences of one of those initiatives, The Indian  21 Reorganization Act of 1934.  And there's a quotation  22 from his work:  23  24 "The Indian New Deal had far reaching effects.  25 Tribal governments in the Lower 48 told are  26 autonomous political bodies, capable of  27 maintaining themselves against the power of the  28 state as a third sovereignty.  For the first  29 time, Congress had enacted legislation based on  30 Marshall's conception of the relation of Indian  31 nations to the federal government."  32  33 Now, I say putting to one side the question of the  34 correctness of Mr. Berger's view that tribal  35 government may be characterized as a third  36 sovereignty, the implication of this passage and the  37 whole of this part of the plaintiffs' submission is  38 clear.  The extent to which Indian self-government in  39 the United States is a meaningful legal fact as  40 opposed to a political goal is the result of the  41 activities of legislators rather than the courts.  42 My lord, would you go back, please, to the page  43 citation line 3 of paragraph 45.  That should not be  44 500, it should be page 210 from the final argument.  4 5    THE COURT:  That would be in volume 3?  46 MR. GOLDIE:  3, I think it is, yes.  47 THE COURT:  Yes, thank you. 26706  Submissions by Mr. Goldie  1 MR. GOLDIE:  Now, I refer at paragraph 46 to an example of the  2 limited assistance offered by American cases.  And I  3 refer here to the United States v. Wheeler, an  4 authority cited by my friends, and in that case a  5 member of the Navajo tribe was convicted in the Navajo  6 Tribal court for contributing to the delinquency of a  7 minor.  He was then indicted for statutory rape by a  8 grand jury in the United States District Court for the  9 District of Arizona for the same incident.  Relying on  10 the double jeopardy clause of the Fifth Amendment, he  11 claimed that he could not be prosecuted twice for the  12 same offence.  The Supreme Court held that as the  13 tribal court was acting independently of the federal  14 government, the two prosecutions were not for the  15 "same offence" within the meaning of the double  16 jeopardy clause.  And I set out some of the relevant  17 provisions of that judgment, and I quote:  18  19 Indian tribes are, of course, no longer  20 'possessed of the full attributes of  21 sovereignty'" --  22  23 Quoting from the United States v. Kagama:  24  25 "Their incorporation within the territory of the  26 United States and their acceptance of its  27 protection, necessarily divested them of some  28 aspects of the sovereignty which they had  29 previously exercised.  By specific treaty  30 provision they yielded up other sovereign  31 powers; by statute, in the exercise of its  32 plenary control, Congress has removed still  33 others.  34 "But our cases recognize that the Indian tribes  35 have not given up their full sovereignty.  We  36 have recently said:  'Indian tribes are unique  37 aggregations possessing attributes of  38 sovereignty over both their members and their  39 territory..(They) are a good deal more than  40 'private, voluntary organizations'."  41  42 And a citation:  43  44 "The sovereignty that the Indian tribes retain  45 is of a unique and limited character.  It  46 exists only at the sufferance of Congress and  47 is subject to complete defeasance." 26707  Submissions by Mr. Goldie  1 And that emphasis is ours.  Continuing:  2  3 "But until Congress acts, the tribes retain  4 their existing sovereign powers.  In sum,  5 Indian tribes still possess those aspects of  6 sovereignty not withdrawn by treaty or statute,  7 or by implication as a necessary result of  8 their dependent status."  9  10 And a citation.  My lord, in my submission one can  11 search Canadian law in vain for any recognition that  12 Canadian Indians "retain their existing sovereign  13 powers" in the field of criminal law or any other  14 field.  In Canada Indians have only such powers of  15 self-government as are given to them by the federal  16 government exercising its plenary constitutional  17 authority under Head 24 of Section 91 of the  18 Constitution Act, 1867.  19 Now in respect -- and I add, in respect of lands,  20 Canada's authority is limited to lands reserved for  21 Indians and has no application outside those reserves  22 held by the Queen In Right of Canada for the use and  23 benefit of the bands.  24 My lord, the powers that Canada grants are  25 delegated, not inherent powers.  There is in Canadian  26 law no pre-existing right of internal self-government.  27 I submit, the power of Parliament to legislate in  28 derogation of alleged traditional rights of  29 self-government is affirmed by the cases cited by the  30 plaintiffs:  Logan v. Styres and Davey and Isaac.  31 In Logan and Styres Mr. Justice King said the  32 following:  33  34 "From the evidence before me, however, it would  35 appear the strongest case for the Six Nations  36 Indians should be based upon the submission  37 that Parliament should not make the Order In  38 Council to which objection is taken applicable  39 to the Six Nations Indians rather than that  40 Parliament cannot make such Orders In Council  41 applicable.  It seems to me much might be said  42 on that score.  43 "I am of the opinion that the Six Nations  44 Indians are entitled to the protection of the  45 laws of the lands duly made by competent  46 authority and at the same time are subject to  47 such laws.  While it might be unjust or unfair 2670?  Submissions by Mr. Goldie  1 under the circumstances for the Parliament of  2 Canada to interfere with their system of  3 internal Government by hereditary Chiefs, I am  4 of the opinion that Parliament has the  5 authority to provide for the surrender of  6 Reserve land, as has been done herein, and that  7 Privy Council Order P.C. 6015 is not ultra  8 vires."  9  10 And in paragraph 51, reference is made here to the  11 article "Canadian and United States Approaches to  12 Indian Sovereignty" by Michael Mason cited by the  13 plaintiffs and included as tab 22 of Vol. XV of their  14 authorities, and then follows an excerpt from the  15 introduction and from the conclusion.  Now, my lord,  16 the author in the part from the introduction contrasts  17 the situation in Canada and the United States, and  18 then in the conclusion he says that -- and I emphasize  19 that it's his conclusion, not -- I don't adopt it, but  20 it's his conclusion:  21  22 "Unless covert Indian governments exist,  23 Canadian Indians retain little if any  24 sovereignty.  A minority of bands retain  25 traditional government methods."  26  27 And so on.  And he says, with respect to those in the  28 United States:  29  30 "On paper, Indians in the United States who  31 retain reservations have inherent retained  32 sovereignty."  33  34 And goes on to describe the limitations on that.  And  35 then finally, my lord, I refer to some odds and ends,  36 Mohegan Indians v. Connecticut.  There's a photocopy  37 of the microfilmed book of proceedings, which was  38 before the Commissioners of Review, is now filed in  39 the grey books, that is to say, the defendant's  40 authorities under Tab M-3.  Perhaps I might refer to  41 that.  Now, this, my lord, as far as I'm aware, is a  42 complete record of the so-called Mohegan Indian case,  43 including the appendix, which follows the blue  44 separator sheet, and it's quite a substantial  45 document, especially in light of the conclusions which  46 I say can be drawn from it.  47 Now, the plaintiffs have referred, as I understand 26709  Submissions by Mr. Goldie  1 it, in their volume 3, page 3, to an application made  2 by certain tenants, who are not parties to the cause,  3 challenging the jurisdiction of the Commission, and  4 they say in the excerpt from their argument set out at  5 the top of page 38, and I quote:  6  7 "This challenge presented for the first time an  8 imperially appointed commission the opportunity  9 to determine the legal status of Indian Nations  10                     within the British Empire."  11  12 And I say, with all respect, the challenge presented  13 no such opportunity.  The issue was whether the  14 tenants' title could be impeached in extra-judicial  15 proceedings to which they were not a party,  16 particularly where, so they argued, the power to  17 undertake such an inquiry not been expressly conferred  18 upon the Commissioners.  Now, if I may digress for a  19 moment and say that the position being taken by the  20 tenants is one that we would certainly recognize a  21 court of law today having regard to if a challenge was  22 being made to a Commission under the Public Inquiries  23 Act.  The judgment of the majority of the  24 Commissioners on this preliminary objection (given by  25 Commissioner Horsmanden), read in its entirety, makes  26 it clear that the passage relied upon by the  27 plaintiffs is obiter in the purest sense, that is to  28 say, wholly unnecessary to the issue.  And in any  29 event, Commissioner Horsmanden's implication that the  30 Commission was constituted not by the laws of England  31 (as it most certainly was) but by the "law of nature  32 and nations" is, with respect, difficult to  33 understand.  What is clear is this:  The Commission  34 was appointed by letters patent issued under the Great  35 Seal; the Mohegans, be they distinct peoples or not,  36 manifestly acknowledged its jurisdiction; and the  37 final outcome of the proceeding was that the Mohegans'  38 complaint was dismissed on a number of grounds,  39 including the ruling that title to the lands in  40 question was in the Crown by virtue of the letters  41 patent which created the colony of Connecticut in  42 1662.  43 The final judgment of the Commission contains no  44 express recognition of any pre-existing property  45 rights of the Mohegans, no express acknowledgment that  46 such rights could only be acquired by the Crown by  47 purchase and no express recognition of any 26710  Submissions by Mr. Goldie  1 jurisdiction over their own affairs.  2 My lord, I conclude by a few other comments in  3 paragraph 55.  In their discussion of post-Revolution  4 U.S. jurisprudence the plaintiffs borrow heavily from  5 the writings of academic commentators.  Two  6 observations may be made here which highlight the  7 difficulties inherent in extensive reliance on  8 secondary sources.  And the first example that I give:  9  10 (a)  Plaintiffs refer to the writings of President  11 Washington's Secretary of War, Henry Knox.  The  12 passage cited by them is not evidence in the case  13 at bar; it appears as a footnote to the following  14 passage discussing the legislative history  15 of the Trade and Intercourse Act in which  16 is found a comment on the Oneida case in  17 the issue of the Columbia Law Review  18 identified there.  19  2 0 And I read now as follows:  21  22 "A fair reading of the Act's legislative  23 history" --  24  25 And that is the Trade and Intercourse Act:  26  27 "-- suggests that the nonalienation provision  28 was intended to serve three broadly intertwined  29 objectives, all informed by the immediate needs  30 of the early national government rather than by  31 any pronounced solicitude for tribal welfare.  32 First and foremost, during the early national  33 period, the federal government wanted to  34 preserve peace on the frontier.  In the 1790's,  35 the United States was ill prepared to defend  36 itself in a major Indian war, and federal  37 regulation of tribal land transactions and  38 incursions into Indian territory appeared to be  39 the best means to restrain restive white  40 settlers.  Second, Congress wanted to lend  41 political force to the Indian commerce clause  42 by resting control of Indian affairs from the  43 states, for this was a point of particularly  44 heated contention between federal and state  45 governments.  Finally, in order to discourage  46 Indian reprisals against white settlements, the  47 federal government wanted to assure Indian 26711  Submissions by Mr. Goldie  1 tribes that they were secure in the possession  2 of their lands."  3  4 And then he goes to say:  5  6 "At least some politicians of the day felt a  7 strong moral compulsion to deal fairly with the  8 Indians, especially those tribes that had  9 supported the colonies during the Revolutionary  10 War.  Even so, throughout most of the early  11 national period Congress chose to ignore the  12 unlawful appropriation of Indian lands in the  13 face of political pressure for westward  14 expansion."  15  16 The passage attributed to Knox is cited in support of  17 the commentator's assertion that some politicians  18 "felt a strong moral compulsion to deal fairly with  19 the Indians".  In my submission, the plaintiffs, when  20 they rely upon this passage, blur the important  21 distinction between moral concern and legal  22 obligation.  23 THE COURT:  What was the date of that Act?  24 MR. GOLDIE:  1791, I think.  2 5    THE COURT:  Yes.  26 MR. GOLDIE:  And then the plaintiffs -- my friend referred to  27 the Seneca Lands opinion.  The passage cited by the  28 plaintiffs is one cited by Henderson in the article  29 reproduced at plaintiffs' authorities volume XIV tab  30 14, where Mr. Henderson, the only authority referred  31 to in this part of the plaintiffs' argument, says of  32 the opinion that it "reflects government policy".  33 Once again, and of course I emphasize "policy, not  34 law".  35 And then, my lord, I say, to sum up this point, in  36 short, American jurisprudence with all of its  37 constitutional convolutions is of very little, if any,  38 assistance in the resolution of the issues before this  39 court.  The plaintiffs' aspirations to self-government  40 are political in nature and can only be achieved  41 through the Parliament of Canada.  Not even Head 24 of  42 section 91 can be stretched far enough to cover a  43 dimunition in sovereignty comparable to the treaties  44 negotiated by the Indian nations and the United  45 States, either as an attempt to secure their  46 neutrality during the American Revolution or after the  47 Treaty of Versailles as an alternative to the 26712  Submissions by Mr. Goldie  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  continuation of warfare. Of course, neither of these  conditions had any application to the Mainland Colony  of British Columbia.  Now, I interject here, my lord, that the suggested  similarities between the Iroquois and the plaintiffs,  at one point in the submission made on behalf of the  plaintiffs, and between the Cherokee and the  plaintiffs, made at another point in their submission,  are, in my submission, so far-fetched as to warrant  any analysis of the differences, and I don't propose  to make that analysis.  There is one further comment to be made about  American law.  In Johnson and Mcintosh Chief Justice  Marshall stated as a rule of law that alienation by  the Indians to a private person as if they were the  absolute owners of the soil could not be admitted for  reasons of expediency, however justified by the  natural right.  Now, my lord, the Chief Justice is rightfully  lauded as a great jurist.  But for saying the same  thing in 1870, Mr. Trutch has been vilified and for  refusing in 1912 and 1913 to put the Crown's title to  the lands in British Columbia in issue, Sir Richard  McBride has been excoriated.  But that, in my submission, is not the real irony.  The treaties of the Cherokee Nation with the United  States declared by Chief Justice Marshall in  Worcester and Georgia to be the supreme law of the  land were powerless to protect the Cherokee Nation  from forcible removal.  And in my submission, by  contrast, Douglas' declarations in 1860, to which I  will come, have been adhered to and the Indians of  British Columbia have been protected in their village  sites and settlements for virtually 130 years.  This  protection, far outstripping that provided by the  treaties entered into by the Cherokee, is now, by my  friends, compared with the fate of the Cherokee.  My lord, that concludes my submission.  Mr. Plant  will take up part -- Section 4 of part III.  :  Thank you.  :  Perhaps before your lordship leaves Section 3, I  could just give your lordship a couple of page  references for the material in the Mohegan Indians  and Connecticut case or proceedings.  The first of  those references on page 38 of Mr. Goldie's addendum,  and when Mr. Goldie read about seven or eight lines  down, "The judgment of the majority of the 26713  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Commissioners on this preliminary objection", that  appears in page 100 -- sorry, on page 126 of the  material in the grey books, tab M-3.  And the  pagination for that purpose, my lord, is the  pagination at the top of the page.  And then at the  bottom of the page, the reference there to the final  outcome of the proceeding, that is a reference to the  ruling made by the Commissioners, which appears in the  five or six pages immediately preceding the blue  separator sheet, because about two-thirds of the way  through the material at the tab, and I regret that if  there are any page numbers there, they've been  obscured by the photocopying.  Now, I am going to be  making submissions with respect to Part III, Section  4, and I have made some changes to that section, and  in that regard, my lord, I have a revised version,  which I'm going to be handing up, if that's  convenient.  THE COURT:  Yes.  MR. PLANT:  That can be inserted in place of the existing  section.  And I have one for madam registrar.  I  should say that the revisions are principally the  additions of some paragraphs referring to the U.S.  Indian Claims Commission jurisprudence, and I'll  identify those when I reach them, my lord.  I'm going  to be speaking to the issue of the requirements of  proof, which my friends spoke to under the heading  "The Elements of Proof of Aboriginal Title", and in  paragraph 1 I restate what might be stated as a  proposition summarizing the burden of proof which the  plaintiffs have assumed, and that reads as follows:  "We were there" --  "We", that is the plaintiffs and their ancestors were  there:  "-- when the white people first came, governing  ourselves and our territory.  We are still  there; we still govern ourselves and our  territory; and we do so without regard to the  laws of British Columbia."  Now, what follows in this section of the argument is  an analysis of the criteria which, I submit, must be  brought to bear on an investigation of this  proposition.  I've tried in the analysis to respond to 26714  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  THE  COURT  13  14  15  MR.  PLANT  16  17  18  THE  COURT  19  20  MR.  PLANT  21  22  23  THE  COURT  24  MR.  PLANT  25  26  THE  COURT  27  28  29  MR.  PLANT  30  31  THE  COURT  32  33  MR.  PLANT  34  35  36  THE  COURT  37  38  MR.  PLANT  39  40  41  THE  COURT  42  43  44  MR.  PLANT  45  46  47  THE  COURT  the allegations in the statement of claim, but I pause  to observe that this analysis assumes that the  submission of the Province or the position of the  Province as stated in -- and summarized in paragraph  29 of the main part of the preceding section, has been  rejected.  And just going back to that for a minute,  that's on page 13 of the original Part III, section 3,  and then it is a two-part proposition.  The first is  that the plaintiffs' claim to ownership and  jurisdiction fails as a matter of law, and then the  second --  :  Sorry, I'm not with you.  I haven't found paragraph  29 because I don't know what the immediately preceding  section is.  :  Yes.  If your lordship goes through Part III,  Section 3, looking in the upper right-hand corner for  page 13, that might be the easiest way to find it.  :  Oh, yes.  Well, now, is that before or after the  addendum?  :  Well, it's before the addendum on U.S. law, and in  my version it's after Mr. Goldie's addendum on the  Pasco case, which had the map insert.  :  Well, I'm having a little trouble here.  I'm not --  :  Does your lordship have in the upper right-hand  corner of the pages Roman III comma Arabic 3?  :  I'm into 2 now, but I was in 3, but I can't find --  I can't find paragraph 29, but I'm sure it's here, but  I just haven't --  :  It may be unnecessary for me to do more than hand up  for the moment --  :  I have a divider that gets me into 4.  Why do I have  a divider -- oh, wait a minute.  It must be --  :  Could I just give your lordship a spare for the  moment, because I'm sure your lordship has it  somewhere.  :  I think I have it now.  Ill, 3 paragraph 29, you  said, didn't you?  :  Yes, and in particular it's that part of paragraph  29 which appears on page 13.  That's the problem, my  lord.  :  Sorry, I'm still in the addendum.  What good will it  be to give me a page if I can't put it in the right  place?  :  I'm not asking you to put that page into any place,  I really didn't want to take up too much time with  this .  :  Well, I'm having trouble to find a reference in your 26715  Submissions by Mr. Plant  1  2  3  MR.  PLANT  4  5  6  THE  COURT  7  MR.  PLANT  8  9  THE  COURT  10  MR.  PLANT  11  12  THE  COURT  13  MR.  PLANT  14  THE  COURT  15  MR.  PLANT  16  17  18  19  THE  COURT  20  MR.  PLANT  21  22  THE  COURT  23  24  MR.  PLANT  25  THE  COURT  26  27  28  MR.  PLANT  29  30  THE  COURT  31  MR.  PLANT  32  33  34  35  THE  COURT  36  MR.  PLANT  37  38  39  40  41  42  43  44  45  46  47  argument to a submission which sounds like it would be  a pretty important one, and I can't find it.  If your lordship starts in Part III, Section 3,  which is the submission that is entitled "Aboriginal  Title" —  Yes.  I have that.  Now, the way that my copy reads, if your lordship  flips ahead just 12 pages --  Yes, I think I have it now.  Page 12 in the upper right-hand corner, at the  bottom of that page there might be a number 29.  Yes, there is, yep.  Now --  But unfortunately that's followed by the addendum.  Exactly.  And that's followed by the parenthetical  note about the Pasco case, and what I have about that,  my lord, is a number of pages with a map folded up  followed by some extracts from the evidence.  Yes.  The last of which is the Whitten dispatch to  Douglas, which Mr. Goldie read.  The problem is putting the addendum in the middle of  a paragraph, I think.  Yes.  Yes.  I have it now.  The problem is that one of the  addendums is in -- I think I know what you mean now.  Yes.  I know what you mean now.  Thank you.  So now it's -- if I can take your lordship up to  section 4, the bottom of the first page --  Yes.  And I say that bearing in mind the considerations I  have just summarized, there are, broadly speaking,  three sets of questions for consideration here.  They  can be described as identity questions.  Yes.  Questions relating to the extent and manner of use  and occupation, "what" and "where" questions, and  lastly, questions relating to the relevant times for  the proof of title, or "when" questions.  And I'm  going to deal with them in order.  Dealing firstly with the connected issues of  standing, identity and descent, I say in paragraph 4:  By standing is meant the question:  Who should the law  recognize as having the capacity to assert and enforce  the rights claimed in this action by the plaintiffs?  Since it is difficult to separate the content of  aboriginal title from the question who holds it, 26716  Submissions by Mr. Plant  1 because both have reference to what I refer to here as  2 customary usage, that's a phrase I'll come back to,  3 the question of standing, in my submission, is linked  4 to the question of identity, that is who are the  5 plaintiffs?  And lastly -- and I don't mean who are  6 the plaintiffs in a practical sense, I mean in a legal  7 sense.  And lastly, since aboriginal title, however  8 defined, must have been acquired before the lifetime  9 of the present claimants, the issue of descent or the  10 idea of descent refers to the issue of what the law  11 requires in the way of a connection between the  12 pre-sovereignty aboriginal occupants of a claimed area  13 and the present claimants.  These issues have received  14 little jurisdiction consideration in Canada, my lord.  15 As you've seen, Calder was tried on admissions, which  16 made the questions I'm embarking on here academic, and  17 I've got a reference there to the paragraphs of the  18 admission in the -- which were reproduced in the  19 judgment of Mr. Justice Hall in the Supreme Court  20 reports, and I do want to ask your lordship to refer  21 to that.  We should be in the yellow book in -- at tab  22 Roman III/4-5.  2 3    THE COURT:  Yes.  24 MR. PLANT:  And it's on the left-hand side of the page at the  25 bottom, the admission 6 and 7:  26  27 "6.  The defendant admits that the bands  28 referred to in paragraphs 2, 3, 4, and 5 of the  29 Statement of Claim are the descendants of  30 Indians who have inhabited since time  31 immemorial the area delineated in the map  32 annexed hereto and signed by the counsel for  33 the Plaintiffs and Defendant.  34 7.  The defendant admits that the ancestors of  35 persons referred to in paragraphs 2, 3, 4, and  36 5 of the Statement of Claim in this action had  37 obtained a living since time immemorial from  38 the lands and waters delineated in the map  39 annexed hereto."  40  41 Mr. Justice Hall carries on to draw some conclusions  42 from the admissions, but they're not germane to the  43 present submission, my lord.  44 In the Baker Lake case there was a stand -- a  45 standing issue, but it related to a corporate  46 defendant or a corporate plaintiff -- or plaintiffs',  47 rather, not to the individual plaintiffs.  Mr. Justice 26717  Submissions by Mr. Plant  1 Mahoney observed that the question of standing with  2 respect to the corporate plaintiffs had not been  3 raised in the pleadings, so he declined to rule on it.  4 And while there was no issue with respect to the  5 standing of the individual plaintiffs, there is a  6 discussion in his judgment of the identification of  7 the plaintiffs, and in a few pages on in my submission  8 I'm going to take your lordship to one of the passages  9 in Mr. Justice Mahoney's judgment.  Standing was an  10 issue at trial in Bear Island, and I will be returning  11 to that judgment later.  12 My lord, the submission of the Province in this  13 case is that if aboriginal title continues to exist in  14 the claim area, it is held by Indian Act bands, as  15 successors to the communal rights of the village  16 groups from which such bands were formed, and I pause  17 to say that there is no claim in these terms, and thus  18 the evidentiary record framed in such terms is  19 incomplete.  And I say that the claim made in this  20 case for aboriginal rights held by houses fails,  21 because some groups are wanting in the elements of  22 ethnic and political integrity which I say are  23 essential requirements for proof of aboriginal title.  24 And I will also be submitting in a later part of this  25 summary that the evidence on the issues of identity  26 and descent is unreliable, contradictory, inconsistent  27 and uncertain.  28 Now, turning first to the issues of identity and  29 standing, the first proposition there, which is that  30 aboriginal title is held communally, is a proposition  31 which I do not understand to be disputed by the  32 plaintiffs, and I won't spend much time with it,  33 although my friend, Miss Pinder, Friday of last week,  34 made some submissions with respect to the effect of  35 the Court of Appeal's judgment in the Pasco case.  And  36 just to move ahead a few paragraphs in my submission,  37 my lord, I've made a reference there to the Pasco case  38 in paragraph 16, where the citations I have been able  39 to obtain so far are there given.  I say, and will  40 come back to this, the plaintiffs, having assumed a  41 burden of proof of the allegations in the Statement of  42 Claim, that the observations of the Court of Appeal in  43 the Pasco case with respect to proof of aboriginal  44 title are inapplicable, and your lordship may recall  45 that the procedural history of that proceeding is that  46 there were certain judgments given in first instance  47 by Mr. Justice Meredith in response to -- in response 2671?  Submissions by Mr. Plant  1 to a demand of interrogatories.  2 THE COURT:  I think I would like to hear you on that after  3 lunch, but before we do that, I would like to go back  4 to paragraph 9.  5 MR. PLANT:  Yes.  6 THE COURT:  I'm not sure I understand your paragraph 9.  I take  7 it it is your submission that aboriginal title is held  8 communally?  9 MR. PLANT:  Yes.  And the distinction I'm drawing is between a  10 right or title held communally as opposed to  11 individually.  12 THE COURT:  And you say the plaintiffs do not appear to dispute  13 this proposition, but I'm not sure I understand what  14 is meant by aboriginal title being held communally.  I  15 never registered that as being the kind of submission,  16 unless you're saying that within a house that's  17 communal title.  18 MR. PLANT:  Well, my first proposition is to distinguish rights  19 held communally as opposed to rights held  20 individually, and that would be a right asserted by an  21 individual.  And what I understand to be the position  22 of the plaintiffs is that there are rights asserted by  23 groups.  The problem that arises is how to define the  24 groups, and as I understand the plaintiffs' position  25 as it evolved during argument, we had reached the  26 stage where the identity of the group for purposes of  27 attributing legal rights to it depends on the nature  28 of the right being claimed.  If the right is  29 ownership, then your lordship is being asked to have  30 regard to groups known as houses, but at the  31 jurisdictional level, that is to say the rights of  32 self-government over the plaintiffs themselves, your  33 lordship has been asked to find that those rights,  34 because they consist of an interweaving of various  35 rights among the houses, are really rights that ought  36 to be considered to be accruing at what might be  37 called the national level, to the Gitksan on the one  38 hand and the Wet'suwet'en on the other.  39 THE COURT:  There's much evidence that suggests that in many of  40 these things the chief has the authority, and that  41 while he's obliged to use his power and his authority  42 and his ownership for the benefit of the house, that  43 his permission is required, which would seem to me not  44 to be a communal right.  45 MR. PLANT:  I quite agree.  I don't think the plaintiffs'  46 submission is supported on the evidence, my lord.  47 THE COURT:  Well, that's why — it seems to me that your 26719  Submissions by Mr. Plant  1 submission in paragraph 9 suggests that there's no  2 issue on this communal --  3 MR. PLANT:  What I meant to say there — and I think it will  4 become clearer later in the next few paragraphs, is  5 that the distinction between individual rights and  6 communal rights, I'm not there trying to say that  7 there is an agreement between us and the plaintiffs on  8 identifying the community.  And I must say, my lord,  9 that this sentence here was added after I had tried to  10 absorb the plaintiffs' summary of argument, and long  11 before I had still -- still haven't yet absorbed all  12 of the propositions made on Friday and Saturday of  13 last week.  So I don't want to mislead your lordship  14 into thinking that there is no joinder of issue on the  15 identity of the community.  16 THE COURT:  Well, I'm not looking for more difficulties than I  17 already have.  I'm taking this to mean that the  18 plaintiffs are submitting that aboriginal title  19 generally is held communally; is that what you're  20 saying, or are you saying that in this case if there  21 is aboriginal title the evidence here could only admit  22 to a communal interest?  I'm -- well, I don't want to  23 get hung up on this, I'm just very unsure that the  24 that paragraph 9 captures the whole of this issue,  25 even though it's framed in terms --  26 MR. PLANT:  It's not intending to capture the whole of the  27 issue, my lord.  I'm going to be dealing again and  28 again with that problem in the next part of this  29 argument and in the next part of the summary of  3 0 argument.  31 THE COURT:  All right.  We'll adjourn then until two o'clock,  32 please.  Thank you.  33 THE REGISTRAR:  Order in court.  Court stands adjourned.  34  35 (PROCEEDINGS ADJOURNED AT 12:35)  36  37 I hereby certify the foregoing to be  38 a true and accurate transcript of the  39 proceedings herein transcribed to the  40 best of my skill and ability  41  42  43  44  45 Graham D. Parker  46 Official Reporter  47 United Reporting Service Ltd. 26720  Submissions by Mr. Plant  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3    THE COURT:  Yes, Mr. Plant.  4  5 MR. PLANT:  I left off, my lord, somewhere between paragraphs 9  6 and 10 on the fourth page of my submission and your  7 lordship had asked me some questions about the  8 statement on the bottom of paragraph 9.  9 I think that I had intended no more by that  10 proposition than to say that on my understanding of  11 the plaintiffs' argument, the plaintiffs contend that  12 as a matter of general law, aboriginal rights are  13 communally held.  But, be that as it may, in paragraph  14 10, moving on with my submission, my lord, because the  15 existence of aboriginal title to a particular place is  16 contingent upon the identification of a group of  17 aboriginals using and occupying that place,  18 individuals have aboriginal title only to the extent  19 that they may be identified as members of the group in  20 use and occupation of the claimed area.  This  21 attribute or the attribute of communal ownership may  22 reflect traditional conceptions of the organization of  23 aboriginal societies, including patterns of land use  24 and occupation, that understanding, and obviously in  25 many cases, the features of aboriginal social  26 organizations themselves, have changed over time.  In  27 the present case, identifying the resource-holding  28 group may be impossible, given the complexities and  29 contradictions in the evidence.  Yet, it has not been  30 suggested, so far as I can see, either in argument or  31 on the pleadings, that the rights of the plaintiffs as  32 alleged here are alleged to be individual rather than  33 communal.  34 I say that if the title or right is held  35 communally, then it is necessary to identify the  36 community in which title could vest.  One way to do  37 this, and this is an example of one approach that  38 could be taken, my lord, would be by referring to the  39 territory claimed in deciding that all those who used  40 or occupied that territory or their descendents, are  41 the proper claimants, and this was the approach that  42 Mr. Justice Mahoney took in the Baker Lake case, and I  43 do wish to take your lordship to the yellow book and  44 that passage, just to identify it in the context of  45 his lordship's judgment.  And that is 3-4-12.  46 The passage is the first paragraph in his  47 lordship's judgment where he describes the cummunity 26721  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  and people of Baker Lake today, that is to say, those  who were the claimants in the action. He says:  "The Baker Lake area was defined after an  extensive series of interviews with its  resident Inuit, commissioned by the defendant  minister.  All those Inuit at the time  regularly resided within the Hamlet of Baker  Lake.  The interviews were designed to  ascertain where they hunted, fished and  trapped.  The boundaries were then defined to  encompass that entire area.  The evidence  confirms the conclusion that the Baker Lake  area embraces generally the whole of the land  upon which the Inuit resident there now  regularly carry on those traditional  activities.  It is prescribed by the range of  their gasoline-powered snowmobiles."  Now my submission, my lord, is that that approach  may have been acceptable, I am not contesting that in  a case concerning the nomadic Inuit, where the  claimants were few in number, were readily found to be  descendents of those in occupation at the time of  contact and shared a common ethnic identity.  This  straightforward approach breaks down in the face of  the complexities in the evidence before the court in  the present case.  One example of which, among the  many that could be chosen, my lord, is the presence  within the claimed area of reserves that appear to be  occupied by persons other than the present plaintiffs.  So that you can't just go to the territory claimed and  say all of the native people who live there, by  definition, constitute the appropriate claimant group  for this action.  :  Because they don't live there, is that what you're  saying?  :  Because there are others living there, among  other --  :  Not in the houses, you are concentrating on the  reserves then.  :  In that analogy, yes.  There are other reasons why  the approach taken by Mr. Justice Mahoney breaks down  in this case, and that has to do with the evidence  concerning houses and the inter-relationship of houses  and who constitutes a Gitksan person and a 26722  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  Wet'suwet'en person.  I am not denying that there is a  connection between the people, the claimant group and  the land, I am suggesting that the connection that Mr.  Justice Mahoney drew was perhaps more direct a  connection than could be drawn here.  :  Who is that you say lived on the reserves who aren't  plaintiffs?  :  There are those in Burns Lake, Omineca reserves, who  are, as I understand it, there is evidence that some  of those individuals are Carrier-Sekani.  Not all of  them.  And there are clearly people who claim to be  Wet'suwet'en who went down in that part of the claim  area also.  :  All right.  :  My lord, I say that if title is to be capable of  attribution, the group must be identifiable as of the  date that sovereignty was asserted and if the claim is  to continuing title then the group must be  identifiable today.  And, again, that -- I would  venture to say that this proposition appears to be  accepted by the plaintiffs but in this connection I  would only ask your lordship to go to their summary in  those pages and to read the allegations or the  argument advanced by the plaintiffs there.  I say that a policy of certainty requires that a  claimant group have a discrete, objectively-  ascertainable ethnic identity with criteria of  membership that perpetuate that identity.  And in this  case, the plaintiffs having assumed the burden of  proof of the allegations in paragraphs 62, 63 and 72  of the statement of claim, which are the allegations  of continuing ownership and jurisdiction, my lord,  paragraph 62 on the second page of that tab:  "The  plaintiffs continue to own and exercise jurisdiction  over all lands within the territory and in accordance  with Gitksan and Wet'suwet'en laws."  I haven't put the Pasco judgment in that tab, my  lord.  I am just going to see if it's in the materials  in the case materials.  No, it's not, my lord, but the  judgment of the Court of Appeal in that case contained  some observations about whether when a claim of  aboriginal title was advanced it was necessary to  prove continuity up to the present day of the group  who were the claimants.  And, in my submission, the  observations of the Court of Appeal in that context  don't apply here, given the allegations of continuing  ownership and jurisdiction which the plaintiffs have 26723  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  made in the present case.  And, again, dealing, if I may, at what might be  described the level of policy, I say that the group of  claimants must be sufficiently certain to permit  claims to be settled and where not settled, to ensure  that the class of persons bound by a judgment can be  ascertained with some certainty.  Another policy objective, if I can put it that way,  finality, requires that all those who share the  identity from which the claim springs, should  participate in and be bound by the disposition of the  claim.  And, again, it's connected.  I mean, that  objective is connected with the idea of certainty.  THE COURT:  Mr. Plant, in some cases I notice -- a few cases I  notice that there are interrogatories setting out who  were the members of the house, of some houses, but I  don't think that's the course of the evidence for most  of the houses.  MR. PLANT:  When your lordship has the genealogies, for both the  Gitksan and Wet'suwet'en, and there is -- it would  appear you could look at the genealogies and say all  those who are identified on those genealogies as  members of the houses, must be considered to be, for  the purposes of this action, the class of plaintiffs  or classes of plaintiffs.  Now, in some cases there  are differences between the genealogies, almost every  case, perhaps, differences between the genealogies and  the interrogatory responses.  THE COURT:  What do I do then?  MR. PLANT:  Well, I —  THE COURT:  If there are differences?  MR. PLANT:  Well, what I am going to be submitting, my lord, in  the later part of this argument, is that the evidence  when you put the two together, the genealogies and  interrogatories together, with all of the other  evidence about who belongs into houses, is that you  find that you can't do anything with it.  And the  evidence as a whole is sufficiently uncertain as to  put this case in a position where it is virtually  impossible to describe a class of plaintiffs in whom  rights of the nature claimed could vest.  That is a  matter that flows firstly from what I am stating here  to be matters of principle and then secondly from the  application of those principles to the facts.  And I  will be coming to the facts in the next sections of  the argument, my lord.  THE COURT:  All right.  Thank you. 26724  Submissions by Mr. Plant  1 MR. PLANT:  In paragraph 19, I say that the criteria by which a  2 claimant group should be defined need not be fixed,  3 for to do so would ignore the cultural diversity that  4 exists amongs aboriginal peoples.  Yet there must be  5 some threshold requirements.  It is submitted that  6 these include:  Firstly, the idea of racial integrity;  7 secondly, shared, what I have described here as shared  8 features of ethnicity, including language, culture and  9 social organization; and, thirdly, some conception of  10 group identity.  And I am going to deal with these in  11 turn, my lord.  12 Dealing with the first, racial integrity, I say  13 that the requirement of racial integrity is an aspect  14 of aboriginal title as implied by the terms of the  15 Constitution Act of 1982.  And those relevant  16 provisions are in the tabs in the yellow -- in the  17 next tab in the yellow book, my lord, applicable to  18 paragraph 20.  And I would just like your lordship to  19 turn to them because of the repetition of the phrase  20 "Aboriginal peoples of Canada" which occurs in  21 paragraph 25 and over to paragraph 35 -- I am sorry,  22 section 35, subparagraph 1:  23  24 "The existing aboriginal treaty rights of the  25 aboriginal peoples of Canada are hereby  26 recognized and affirmed."  27  28 And then in subsection 2:  29  30 "In this act, aboriginal peoples of Canada  31 includes the Indian, Inuit and Metis people of  32 Canada."  33  34  35 My submission, my lord, is that both the definition  36 in 35, sub 2, and the phrase as it appears in Sections  37 25, 35 and 37, imports criteria of racial identity or  38 integrity.  And I say that such criteria must play a  39 role in delimiting the class of plaintiffs in an  40 action for aboriginal title.  41 Now, I set out there, just after that paragraph,  42 reference to the Reference re Eskimos, a decision of  43 the Supreme Court of Canada.  What I would ask your  44 lordship to do though is note here a reference to the  45 trial judgment in the Bear Island case, and in the the  46 plaintiffs' volume of authorities, it's in Volume 1,  47 tab 9.  And, I want to read some of that to your 26725  Submissions by Mr. Plant  1  2  MR.  GRANT  3  4  5  6  7  8  MR.  PLANT  9  10  MR.  GRANT  11  12  THE  COURT  13  14  MR.  PLANT  15  16  17  18  THE  COURT  19  20  MR.  PLANT  21  THE  COURT  22  MR.  PLANT  23  THE  COURT  24  25  MR.  PLANT  26  27  28  THE  COURT  29  30  31  32  33  34  MR.  PLANT  35  36  37  38  THE  COURT  39  MR.  PLANT  40  41  42  43  44  45  46  47  lordship.  The passage begins at page 363.  Possibly, my lord, my friend -- this may be answered  in what he is going to do -- but I would like my  friend to explain what he means, because he uses it  quite a bit here, by "racial integrity", what he  specifically means by racial integrity.  But I am not  sure that I understand what he means.  What I mean is you have to be an Indian or an Inuit  or a Metis.  That's really what it comes down to.  That doesn't answer it. Does he mean Indian as  defined in the Indian Act or Indian by blood?  Or do you mean to exclude Indians or members of  Indian organizations by adoption?  That's the particular concern I have, my lord,  members of houses by adoption who are not Indian by  birth.  This is the problem which will bring this  submission into focus, my lord.  All right.  When you say Indian racial integrity,  you mean Indian by blood?  Yes.  What about half blood?  Pardon?  Half blood would be included, in view of the  inclusion of Metis?  Yes, I think a half blood would be included.  The  question comes where the line has to be drawn between  half blood and no blood.  But why should the terms of the Charter govern?  That's defining what they are talking about in the  Charter but is it not possible that there could be an  aboriginal right other than those enjoyed by Indians,  Inuit and Metis, which exist in law but not protected  by the Charter?  No such rights are claimed here, my lord.  The  rights claimed here are all said to be protected by  the Charter.  That's expressly claimed in the prayer  for relief.  All right.  Page -- tab 9, page --  In the Ontario Reports judgment, which is in the  plaintiffs' authorities, the passage that is germane  to the point I am making now, really begins at the  bottom of page 362, under the heading of standing to  sue.  And there Mr. Justice Steele says that:  "An aboriginal rights claim is not a claim to  the legal title to the land but a claim to an  equitable interest therein.  It is based on 26726  Submissions by Mr. Plant  1 abogiginal rights I will define later."  2  3 And then he says:  4  5 "Such rights are communal rights to the band or  6 tribe or nation.  They are not individual or  7 family rights.  8  9 And then at the top of the next page:  10  11 "The term Indians under Section 91(24) of the  12 Constitution Act includes all aboriginal  13 peoples in Canada, see reference whether term  14 Indians includes Eskimo..."  15  16 And so on.  Then there are references, the judgment  17 continues to analyze the question whether the action  18 in that case was properly styled.  And there was a  19 claim in that case by both a registered Indian band  20 and an unregistered group of Indians  described as the  21 Cene-Agama Anishnabay, and the analysis of his  22 lordship in that case carries on to page 365.  Well, I  23 think that's sufficient for present purposes, my lord.  24 Returning to my submission, paragraph 21, I submit  25 that in order to determine who is entitled to the  26 benefit of such protections as may be aforwarded by  27 Sections 25 and 35 of the Constitution Act of 1982,  28 the court has a duty to inquire into the validity of  29 claims of aboriginal status and to conduct that  30 inquiry on the basis of objective criteria, I say it  31 can hardly be suggested that a person in the position  32 of, for example, Heather Harris, who is a non-Indian  33 by birth, that is by blood, can acquire Section 35  34 protection by the simple expedient of adoption into a  35 house.  It would be equally unreal to suppose that  36 such persons would be entitled to claim protection  37 under the Royal Proclamation, or compensation with  38 respect to trespass to aboriginal title or rights as  39 sought in paragraph 12 of the prayer for relief.  And  40 in this context your lordship may recall that one of  41 the Gitksan houses, the House of Gitludahl, is  42 virtually extinct and what has happened is that the  43 woman has been adopted into that house for the purpose  44 of re-populating the house through her descendents.  45 So it's quite within the realm of possibility, and  46 certainly not outside Gitksan law for someone other  47 than a Gitksan person by birth to be adopted into such 26727  Submissions by Mr. Plant  1 a house, in which case within the Gitksan system you  2 could have a house that is entirely populated by  3 persons who were not Gitksan by blood.  4 I say that, therefore, if racial identity has any  5 role to play in determining the class of persons  6 entitled to claim aboriginal title in the case at bar,  7 then house membership which, by virtue of the practice  8 of adoption, in cases of cross-cultural inter-  9 marriage, is racially indiscriminate, cannot be  10 determinative of standing.  11 Here is another example, my lord, the evidence of  12 Alfred Joseph when he was cross-examined by Ms.  13 Koenigsberg, and I am referring to an extract from  14 Volume 39 of the transcript, page 2556 and line 8 --  15 well, I will start at line 5:  16  17 "Q   Is a person a Wet'suwet'en person who is  18 adopted into a house but who has no blood  19 relationship in that house?  20 A   If adopted he could be considered Wet'suwet'en.  21 Q   Are there persons whom you would say were white  22 who have been adopted into a house and are  23 considered to be Wet'suwet'en?  24 A   Yes.  25  26  27 That's Mr. Joseph on the subject of what might be  28 called Wet'suwet'en citizenship.  29 Now moving then from the issue of racial identity  30 or integrity to the idea of ethnicity as I have used  31 it, I say in paragraph 23 that the requirement of  32 shared attributes of ethnicity is implicit in the  33 first part of a four-part test for proof of aboriginal  34 title in Baker Lake.  And the reference at pages 557  35 and 558 is to the Federal Court report of the judgment  36 in Baker Lake.  All four prongs of the test are set  37 out in the tab that accompanies this paragraph of my  38 submission.  And I am going to be coming back to the  39 others.  But starting at the bottom of page 557, Mr.  40 Justice Mahoney says:  41  42 "The elements which the plaintiffs must prove to  43 establish an aboriginal title cognizable at  44 common law are:  45 1. That they and their ancestors were  46 members of an organized society...  47 2. That's the organized society occupied the 2672?  Submissions by Mr. Plant  1 specific territory over which they assert the  2 aboriginal title.  3 3. That the occupation was to the exclusion  4 of other organized societies.  5 4. That the of occupation was an established  6 fact at the time sovereignty was asserted by  7 England."  8  9  10 Now, I am going to be returning to two, three and  11 four in due course, but the idea of social  12 organization was also an important issue at trial in  13 Bear Island.  And if your lordship turns to the next  14 tab in the yellow book, you will see the -- in fact at  15 this tab and the following tab, you will see from  16 pages 361 and 362 of the Dominion Law Report version  17 of Mr. Justice Steels judgment, you will see how he  18 introduces this subject under of the heading The  19 Entitlement to Aboriginal Rights in the Land Claim  2 0 Area.  And he begins:  21  22 "Having concluded that the relevant date for  23 determining aboriginal rights is 1763, and  24 having made findings as to the nature of these  25 aboriginal rights, it now becomes necessary to  26 review the evidence as to who has historically  27 been entitled to these rights and as to where  28 they have enjoyed them.  The first question  29 relates to the nature of Indian social  30 organization.  The second question relates to  31 the extent of territorial occupation by that  32 social organization."  33  34 And there Mr. Justice Steele cites the Baker Lake  35 case.  Then he goes on to say:  36  37 "The two questions are conceptually distinct  38 though the nature of the evidence will require  39 that they be dealt with together."  40  41  42 And skipping a tab, your lordship will find the  43 pagination continues in the judgment.  44  45 "On the first question as to the nature of  46 Indian social organization, the defendants must  47 prove that their ancestors were at the relevant 26729  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  date members of an organized society, and they  must show specifically who were its members.  They must also show who are the present members  and must trace links between the members of the  two organized societies over time.  I do not  accept the proposition that merely because some  members of the present band are descendent from  ancestors who occupied individual family  hunting territories in 1763, the existence of a  band in 1763 occupying any specific territory  can be assumed without proof."  Now that brings me back to my written submission.  I should say, it was argued in Bear Island that there  was, in effect, a presumption that once the court  found that the Royal Proclamation applied within the  claim area, that there was a presumption that came  into operation that entitled the claimants, the native  claimants, who were the defendants in the Bear Island  case, to simply point to the Royal Proclamation and  say, we don't have to prove the biological connection  between those who were there in 1763 and those of us  who are here now.  And in the last sentence of that  extract that I have quoted Mr. Justice Steele is  rejecting that contention.  :  I am not sure what he is rejecting.  If there was a  house occupying an area at the time when sovereignty  was claimed, in a social organization, and if there is  a house today still connected with that land, some of  the members of whom were descended from the original  group and some were not, why could not those who are  so descended not claim the aboriginal right and enjoy  it according to their society, which might mean  sharing with some who were not members at the time of  the claim for sovereignty?  :  May I just pause for just a second?  I just had to check something with my colleague.  We have a concern with whether you can identify a  house with any certainty.  But if you cross that  threshold, then, yes, the answer to your question is  yes, my lord.  :  All right.  Because I am not sure that is what Mr.  Justice Steele is saying.  :  I don't think Mr. Justice Steele had the  complication, if I can put it that way, of houses to  deal with. 26730  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR.  THE  MR.  THE  MR.  PLANT  COURT  PLANT  COURT  PLANT  Well, maybe he was saying "I do not accept the  proposition that merely because some members of the  present band are descendent from ancestors who  occupied individual family hunting territories in  1763, the existence of a band in 1763 occupying any  specific territory can be assumed."  Now, I wonder if  what he is saying that you -- arising out of that of  that word any, he is just saying just because you have  somebody in location A in 1763 with location somewhere  today, you can assume that somebody today were part of  an organization that existed then and now.  If that's  what he is saying, I accept that.  And I would  understand it.  But when he talks about individual  family hunting territories in 1763, then he goes on to  the existence of a band in 1763 occupying any specific  territory, it would seem to me that he is not saying  anything very helpful.  One of the issues in the Bear Island case was  whether the ancestors of the defendants in the case  were anywhere near Temagami area in 17 63.  And his  lordship here, relying, if I recall the train of  argument correctly, to some extent on the question of  Indian Act bands, is saying, as I read this, that the  plaintiffs, or it was the defendants, have to prove  the connection, both the connection of ancestry and  the connection land to land.  All right.  Well, if that's what he means, I  understand it.  That's what I take him to mean, my lord.  All right.  But -- well, turning now to paragraph 26 --  Yes?  It is to be noted that for Mr. Justice Steele,  dealing with a band-level society more closely  approximate to the present plaintiffs than the Inuit  in Baker Lake, it was not enough that the ancestors of  the plaintiffs carried on their pursuits  indiscriminately over a particular territory; it was  necessary that they function collectively as a group.  Thus, I say, in addition to proof of racial origin  and features of ethnicity shared in common, some  elements of group identity is also important.  What had been, what I have described here as a  criteria of ethnic integrity and group identity are  part of the burden which the plaintiffs have assumed  in the allegations in paragraphs 57 -- yes, paragraphs  57, 62 and 63 of the statement of claim, which really 26731  Submissions by Mr. Plant  1 just flesh out the point that the plaintiffs are  2 contending for themselves that they are an organized  3 society and that there are certain attributes of that  4 organization which permit them to claim here ownership  5 and jurisdiction.  6 I say that the idea of a distinct group identity or  7 perhaps two such identities, the Gitksan and the  8 Wet'suwet'en, is further implied by paragraph 61,  9 that's the paragraph in which the plaintiffs say that  10 they and their ancestors or predecessors exercised  11 jurisdiction over the territory as against other  12 aboriginal peoples.  And I referred earlier this week  13 to the particulars that were given in respect of  14 paragraph 61, the list of other aboriginal peoples.  15 I say, my lord, that for the plaintiffs the issue  16 of who they are is inseparably linked with the title  17 they claim.  The plaintiffs' case builds on a theory  18 that the content of aboriginal title is equivalent to  19 the customary native usage, a theory which found  20 favour with Mr. Justice Mahoney in Baker Lake at page  21 559, again of the Federal Court report, where his  22 lordship held as follows:  23  24 "The thrust of all the authorities is not that  25 the common law necessarily deprives aborigines  26 of their enjoyment of the land in any  27 particular but, rather, that it can give effect  28 only to those incidents of that enjoyment that  29 were, themselves, given effect by the regime  30 that prevailed before.  31 The fact is that the aboriginal Inuit had an  32 organized society.  It was not a society with  33 very elaborate institutions but it was a  34 society organized to exploit the resources  35 available on the barrens and essential to  36 sustain human life there. That was about all  37 they could do:  hunt and fish and survive.  The  38 aboriginal title asserted here encompasses only  39 the right to hunt and fish as their ancestors  4 0 did."  41  42 And that is the end of the quote and I have there  43 referred to an article in the Gazette of the Law  44 Society of Upper Canada which picks up on this point  45 describing it in the terms that I described it in  46 paragraph 29 of my submission.  47 I say, my lord, that the point of the inquiry into 26732  Submissions by Mr. Plant  1 identity, that is, the test of organized society, is  2 not to determine whether the plaintiffs have the right  3 to assert that identity, but whether the plaintiffs  4 are entitled to assert aboriginal title.  Aboriginal  5 title recognizes rights of use and occupancy as  6 vesting in groups which can pass the test of  7 identification by reference to the criteria which I  8 have already identified.  In summary, the test is  9 whether they are an organized society.  But aboriginal  10 title does not give legal effect to all of the  11 incidents of aboriginal social organization.  To  12 illustrate the point, while it could well be argued  13 that the plaintiffs' right to hunt and fish in certain  14 places is now, today, protected by Section 35 of the  15 Constitution Act, 1982.  I say it cannot be reasonably  16 maintained that the plaintiffs have the  17 constitutionally-protected aboriginal right to execute  18 trespasses in accordance to what they have in their  19 evidence described as their customary laws, or to  20 restrict the alienability of individually-held  21 traplines by applying the sexually discriminatory  22 rules and matrilineal descent.  Those are both extreme  23 examples but they illustrate the point, my lord.  24 MR. GRANT:  I just wanted to say, my lord, that this comes up  25 later as well, this concept my friend raises about  26 that, and I am sure he will deal with that, what he  27 means by sexually-discriminatory rules of matrilineal  28 descent.  I take issue with that.  I think that's  29 quite contrary to the evidence.  It's a matrilineality  30 not matriarchal.  I think my friends has confused the  31 two concepts and I hope he will come back and explain  32 that sexual discrimination that he alleges there.  33 MR. PLANT:  My friend had his 27 days, I will do what I can with  34 my 13 or 14 and then he will have a chance to reply.  35 And we will be coming back to that point, my lord.  36 To argue this position, however, is not, as the  37 plaintiffs have suggested, to become -- and these are  38 their words -- "enmeshed in veils of ethnocentrism."  39 It is not a matter of taking issue with, or denying  40 "the peoples' own criteria for establishing rights to  41 the lands and resources" -- that expression coming  42 from the report of Mr. Brody, the point is this, that  43 apart from establishing the requirement of social  44 organization, such criteria are, as as a matter of  45 law, irrelevant.  If the plaintiffs wish to obtain  46 legal recognition of the incidents of their "systems  47 of management and authority", again Mr. Brody's words, 26733  Submissions by Mr. Plant  1 beyond that which the law already affords them, their  2 remedy lies with parliament, not the courts.  3 My lord, the plaintiffs' experts have suggested  4 that identity may be a matter of subjective  5 perception.  Mr. Brody, the plaintiffs' ethnographer  6 advocate, put it this way, and this again comes from  7 his report, and I will take your lordship to that.  My  8 lord because I added a paragraph after the people who  9 put this yellow binder together did their work, the  10 tab sequence is now out of order.  And this will be in  11 tab 32 rather than tab 33.  12 And what Mr. Brody contends for here is expressed  13 in the words, I am going to start in the first full  14 paragraph:  15  16 "I do not..."  17  18 That is, Mr. Brody,  19  20 "...do not cease to be English or lose any  21 citizenship rights because I own a Swedish car,  22 drink French wine and earn part of my living by  23 working in Canada.  Still less does a Gitksan  24 who sells his fish, harvests some of it outside  25 his own territory and buys a substantial  26 proportion of his everyday goods at a  27 Euro-Canadian store..."  28  29 Whatever that is,  30  31 "...cease to be Gitksan or give up his  32 aboriginal title.  Here, along with the  33 criteria of use and occupancy is a test we  34 administer almost without hesitation to Indians  35 which, if applied to ourselves, we would regard  36 as outrageous.  An important anthropological  37 insight is that each individual is the best  38 authority on his or her identity."  39  40  41 I say this, my lord, that if Mr. Brody is right,  42 and all that anthropology can tell us is that each  43 individual is the best authority on his or her  44 identity, then anthropology is of no assistance to  45 your lordship in answering the question:  who is the  46 proper class of claimants in this case?  47 I submit, and I am now in paragraph 35 of my 26734  Submissions by Mr. Plant  1 submission, my lord, I submit that subjective  2 conceptions of identity cannot be sufficient to  3 support a claim of aboriginal title because accepting  4 personal conviction as determinative is akin to trying  5 to understand whether it's by reference only to what  6 authors have said about their work.  7 Surprisingly, my lord, Mr. Brody's view as to how  8 you decide what identity is, is inconsistent with the  9 plaintiffs project of proving their identity by means  10 of an extensive project of genealogical reconstruction  11 of house membership.  In other words, on this point at  12 any rate, the plaintiffs' case appears to go two  13 different directions at once.  House membership is  14 primarily determined by accident of birth and in  15 theory has nothing to do with how people perceive  16 themselves.  17 The inconsistency is well illustrated by the  18 evidence of Heather Harris, who included persons on  19 the genealogy of the House of Spookw even though, and  20 these are her words, "might think they are  21 Wet'suwet'en because they live in a Wet'suwet'en  22 village."  This will be in the yellow book at tab 35,  2 3 my lord.  24 And I do ask your lordship to refer to this.  This  25 was in cross-examination by Mr. Goldie.  And the  26 question asked at line 39:  27  28 "Q   Well, Spookw has a substantial number of  29 members who are Wet'suwet'en; is that correct?  30 A   No.  31 Q   Well, people who -- shall I put it this way --  32 turn up as claiming to be Wet'suwet'en?  33 A   Some of the young people are unaware of the --  34 how the system works and they might think that  35 they are Wet'suwet'en because they live in a  36 Wet'suwet'en village."  37  38  39 Well, on Mr. Brody's theory in they think they are  40 Wet'suwet'en, then they are Wet'suwet'en.  41 Now, paragraph 37 I say it will be submitted that  42 as separate claimant groups the Gitksan and the  43 Wet'suwet'en are wanting in the attributes of ethic  44 integrity which are necessary preconditions of ethnic  45 integrity which are necessary for any claim of  46 aboriginal title.  Such group identity as exists  47 intrnally among the Gitksan and Wet'suwet'en is, in 26735  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  large measure, a function of both the land claims  process and the administration of the claim area by  the Indian by the Department of Indian Affairs and  should, therefore, be disregarded.  :  But I would have thought that your argument, Mr.  Plant, would go no further than to exclude some  members from the group.  Why do you say it should be  totally disregarded?  Let's assume that some people  don't have a proper understanding of their genealogy  and they think they are Wet'suwet'en when they are  really Gitksan, why should that exclude the whole --  or are you saying that excludes them, that excludes  the whole claim or are you just saying -- well, what  are you saying?  :  Yes, I am actually making a slightly different point  here than the point I made in the previous paragraph,  my lord.  The -- and perhaps it's a somewhat larger  point that I will be coming back to and that is that  the difficulty of saying on the one hand that the  Wet'suwet'en constitute a discrete unit and there the  problem lies with the Babine, who are the same as the  Wet'suwet'en.  And, secondly, the Gitksan, where there  is really a two-stage process or problem:  First is  the exclusion of the Kitwancool, so if you accept that  there is something that is Gitksan at the level of  peoples, then the -- someone's been -- someone has  decided not to play.  But there is a second arm to  that problem, and that is that, I say, it's -- when  the historical record is examined in its entirety,  that the notion that there is a Gitksan national  identity, if you will, is recent, and is directly  related to both the land claims process and, as I have  said, the administration of the claim area, northern  British Columbia, over time by the Department of  Indian Affairs.  : Are you then saying that there is no adequate or  sufficient ethnic group proven which is before the  court?  :  Yes.  :  And in that respect you are saying that these houses  are not representative of Gitksan integrity, they are  a subject of recent invention?  :  No, the houses are a different matter, my lord.  It's this idea that there is something that is  collectively Gitksan that is the -- what I say is a  large measure a subject of recent invention.  And I  say that to some extent, my lord, in fact to a great 26736  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE  MR.  THE  MR.  COURT  PLANT  COURT  PLANT  extent, the difficulty here arises out of the fact  that the plaintiffs have chosen not to bring this  action, as others have done, through the medium of the  bands under the Indian Act.  But there must be equivalent disadvantages or  deficiency in the band system as well, aren't there?  Or do you just say that because they have statutory  standing that they overcome these difficulties?  Well, it's closer to the latter, but it's more than  just the latter, because I will be submitting later  that there is a considerable body of evidence that  supports the contention that the best way to make  sense of these people is in terms of villages.  And  it's around the village where the process of reserve  allocation took place, that you have the present day  descendents of the -- those who were in occupation  years ago when the reserves were allocated.  So there  is also something at the level of anthropology or  recognizing, I submit, the evidence as to how the  plaintiffs have characterized themselves and their  ancestors have characterized themselves, which comes  to bear here.  Well, I don't understand your point, Mr. Plant, and  I am sure it's my fault, but if you concede that the  houses have adequate identity and some way, presumably  to prove adequate genealogical unity, in order to  support a claim, what difference does it make whether  there is a sufficiently identifiable Gitksan and  Wet'suwet'en entity that is ethnically -- and has  ethnic integrity?  What difference does it make?  Firstly, my lord, the plaintiffs have contended that  there is.  You say the plaintiffs have contended that there is?  That the aggregate of the houses is the Gitksan.  Yes?  And that proposition flows from the reading of the  first 55 paragraphs of the statement of claim, and the  paragraphs, the paragraphs which then refer back to  those and say that the individuals named in those  first 55 paragraphs "...are the hereditary chiefs of  the Gitksan, who..." then you go on into paragraph 52,  "the Gitksan chiefs together represent all of the  Gitksan people except for the people in the Houses of  the Kitwancool chiefs.  The Gitksan, other than the people in the Houses of  the Kitwancool chiefs, share a common territory.  The Gitksan together share had a common language, 26737  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR.  THE  MR.  THE  PLANT  COURT  PLANT  COURT  laws, spirituality, culture, economy and authority."  So there is a pleaded equation between the houses  added together and something which is described as  Gitksan.  What do you say is absent or is disqualifying  insofar as this is concerned in the totality of the  houses?  Well, we don't know about the totality of the  houses.  I mean, we are going to spend some time with  the issue of houses, because that's where, in my  submission, the case breaks down.  But it is the  contention that there is some collective group that I  also say is unwarranted on the evidence.  And what's wrong with the collective group?  What's  lacking insofar as ethnic integrity is concerned in  the group?  Well, what's wrong is that the evidence doesn't  support it.  Mary McKenzie was asked, "How many clans  are there, Mrs. McKenzie?"  She said, "There are three  clans of the Gitksan."  Now later in cross-  examination it was brought to her attention that she  had left out the Eagle Clan.  The reason that she left  out of the Eagle Clan is because Mrs. McKenzie thinks  in terms of the feast hall in Hazelton or Kispiox --  Kispiox, where she is thinking of where the chiefs who  are traditionally associated with Kispiox and Kuldo,  sit.  She doesn't think in pan-Gitksan terms, she  thinks in terms of where the people are in the feast  hall in her village.  That's just one example of the  kind of evidence which I say undermines the contention  that there is some collective identity.  Art Mathews junior has never been to a feast in  Kispiox.  To say that he has any meaningful  jurisdiction over the events that take place in the  feast hall in Kispiox is, in my view, fanciful.  The  jurisdiction and the identity which Art Mathews has as  a Gitksan chief is focused on his role within the  feast hall in the village of Gitwangak.  Well then, aren't you saying that if the group is  particularly large you can never -- it can never have  ethnic integrity?  Sorry, my lord --  Are you saying if the group is sufficiently large it  can never have ethnic integrity?  I guess the problem is that it is just not in the  evidence.  Are you saying that the Japanese occupants of their 2673?  Submissions by Mr. Plant  1 islands don't have ethnic integrity?  2 MR. PLANT:  Well, my lord, I don't know enough about -- are you  3 saying do the Japanese lack ethnic --  4 THE COURT:  Yes.  5 MR. PLANT:  My understanding is that there are people who live  6 in the northern island of Ohido who consider  7 themselves quite different from the southern Japanese,  8 but that's the extent of my knowledge of Japanese.  9 THE COURT:  Taking your argument to its logical conclusion, are  10 you saying there is no Canadian ethnic integrity  11 either, is there?  12 MR. PLANT:  I am sorry, I missed that one, my lord.  13 THE COURT:  Well, would it be possible — well let me go back.  14 Is it a logical extension of your argument to say  15 there is no Canadian ethnic integrity?  16 MR. PLANT:  No, my lord, I am mostly concerned with this, the  17 question is, if you are asserting a claim of  18 aboriginal title, what is the appropriate group to  19 bring that claim?  And I say that you have to find  20 some element of group identity.  That's really, it's  21 group identity that I suppose I should be focusing on  22 here, rather than the ethnic integrity.  Because it's  23 at the level of group identity that there is this  24 notion of there is a Gitksan on the one hand or a  25 Wet'suwet'en people starts to fray around the edges.  26 First of all, dealing with the question of Gitksan  27 hyphen Wet'suwet'en, that doesn't come into existence,  28 so far as I can see, until the creation of the  29 Gitksan-Carrier Tribal Council.  30 THE COURT:  I think we pretty clearly got two separate ethnic  31 groups.  All right.  Well, I am beginning to  32 understand what you're saying.  I am not sure where it  33 takes me but leave it with me.  34 MR. PLANT:  I will do that and then I will move to page 16 of my  35 argument, under the heading of descent.  36 MR. GRANT:  My lord, I now -- before my friend moves into the  37 next part of it, he did, in response, say that bands  38 are the solution and, of course, I just want you to be  39 aware that band identity, if that's how it was done,  40 would never have resolved the racial integrity which  41 he says is the first criteria, because of the  42 implication of Section 12 (1)(b) that, by marriage,  43 people with no Indian blood in them are Indians and  44 members of Indian bands.  So he says that's the  45 resolution but, of course, if that -- I would say it's  46 a straw man because that would not have met his first  47 criteria. 26739  Submissions by Mr. Plant  1 MR. PLANT:  Is my friend waiving reply, my lord?  2 I am on page 16 and the issue of descent.  3 The plaintiffs allege that their aboriginal title  4 acquired by virtue of ownership and the exercise of  5 jurisdiction from time immemorial continues unimpaired  6 today.  The claim for damages is not a claim to  7 compensate them for expropriation but rather a claim  8 in trespass for interference with continuing rights.  9 The claim to continuing rights entails a continuity  10 of identity and social organization over time, and the  11 question is what criteria should be applied to test  12 the allegation of continuity.  And I say there must be  13 both biological and political elements.  Thus the link  14 between the organized society which used and occupied  15 the claimed area as of the date of sovereignty and the  16 organized society using and occupying the area today  17 can be established where there is evidence of  18 continuity of use and occupation, continuity of social  19 organization, continuity of ethnic identity and  20 continuity of parentage.  All of this is really  21 implied by the statement of claim, my lord.  It's not  22 been suggested that descent can be presumed and there  23 is no basis for any such presumption, accordingly  24 descent must be proven. This is not to say that the  25 features of social organization are frozen but if the  26 claim is to a present day title, the claimant group  27 must be ascertainable as of the assertion of  28 sovereignty and must persist in some form recognizable  29 thereafter.  30 Turning to the next issue, which is what is the  31 nature and extent of the requisite occupation of land.  32 I say what I have in mind here is that the tests two  33 and three of the Baker Lake tests, the first of which  34 is the plaintiffs must prove that the organized  35 society occupied the specific territory over which  36 they assert aboriginal title.  37 Third, the plaintiffs must prove that the  38 occupation was to the exclusion of other organized  39 societies.  And, here there is a reference again to  40 the judgment of Mr. Justice Steele in Bear Island and  41 I already read that extract -- no I haven't.  That's  42 further down the page from the page that I read from a  43 few moments ago.  And I will just read the extract as  44 reproduced in the summary here on the second question  45 as to the extent of territorial occupation:  46  47 "The defendants must prove that as an organized 26740  Submissions by Mr. Plant  1 society their ancestors occupied the specific  2 territory over which the defendants assert  3 aboriginal title to the exclusion of other  4 organized societies, at the relevant date and  5 down to the commencement of this action."  6  7  8 Now, in formulating the tests in Baker Lake, it's  9 obvious that Mr. Justice Mahoney has drawn heavily on  10 U.S. case law.  The authors of the 1982 revision to  11 Felix Cohen's Handbook to Federal Indian Law, deal  12 with what, in American law, are the requirements of  13 proof for aboriginal title in the unrecognized  14 aboriginal title sense.  And if your lordship would  15 just make a note that this is -- the page extract here  16 is from -- is reproduced at tab 45 of this section.  17 And here the learned authors summarize the elements of  18 proof.  19  20 "In order to prove aboriginal possession, a  21 tribe must prove actual, rather than  22 constructive, possession of the land in  23 question.  The occupation shown must be have  24 been continuous and exclusive unless it was  25 during a period of forcible, involuntary  26 dispossession.  Lands used seasonally for  27 recurrent hunting and or similar purposes is  28 subject to aboriginal claims, but lands that  29 were simultaneously travelled or hunted by many  30 tribes are not subject to original Indian  31 title."  32  33 The phrase there refers unrecognized Indian title  34 in the Tee-ah-ton sense, my lord.  35  36 "Thus tribal occupancy in the claimed area  37 generally must have been shown to have been  38 exclusive of other Indian groups.  Proof that  39 two or more tribes jointly and amicably  40 occupied the land to the exclusion of other  41 tribal groups, however, will demonstrate  42 original Indian title jointly in such tribes."  43  44  45 My lord, the inquiry suggested by these statements  46 has a number of different aspects and the first is the  47 requirement to demonstrate use and occupation of 26741  Submissions by Mr. Plant  1 specific land.  The plaintiffs have assumed the burden  2 of proving the geographic extent of their land in the  3 statement of claim and logic suggests that a claimed  4 title, i.e., rights in relation to land and resources,  5 must be geographically specific.  6 Now, on these issues the plaintiffs have relied  7 extensively on the jurisprudence arising out of the  8 creation of the United States Indian Claims  9 Commission.  I say this case law must be read with  10 caution.  The commission was established by an Act of  11 Congress in 1946 and authorized to hear and determine  12 claims by Indian tribes.  It was given a broad mandate  13 to adjudicate claims based upon fair and honourable  14 dealings that are not recognized by any rule of law or  15 equity.  That phrase, although it's the -- its origin  16 is the statute itself, is -- appears in the judgments  17 of Baker Lake in the context of Mr. Justice Mahoney  18 expressing -- expression of concern over the use of  19 Indian Claims Commission jurisprudence.  20 Now just pausing for a moment, my lord, the next  21 several paragraphs here are new paragraphs and they  22 will flow throw the tab sequence way out of whack.  23 And your lordship won't find in these tabs, or any  24 tabs relating to the submissions in the next up to  25 paragraph 55.  But the material that I cite here is in  26 the plaintiffs' authorities.  27 The creation of the commission and its jurisdiction  28 are the subject of extensive analysis.  In a decision  29 of the Court of Claims, which Mr. Goldie referred to  30 earlier today, Otoe and Missouria Tribe vs. United  31 States, and I here note that the Court of Claims had  32 appellate jurisdiction in respect of decisions of the  33 Indian Claims Commission.  34 There are -- I have reproduced an extensive  35 extract from the judgment of the Court of Claims and I  36 do want to take your lordship through some of the  37 passages here, beginning:  38  39 "The Indian Claims Commission Act is both  40 remedial legislation and special legislation.  41 It broadens the Government's consent to suit  42 and as such is in derogation of its  43 sovereignty.  It confers special privileges  44 upon the Indian claimants apart from the rest  45 of the community.  It to some extent is in  46 derogation of the common law.  This was, we  47 think, because of the peculiar nature of 26742  Submissions by Mr. Plant  1 dealings between the government and the Indians  2 from very early times.  On the other hand, it  3 remedies defects in the common law and in  4 pre-existing statutory law as those laws  5 affected Indians, and it was designed to  6 correct certain evils of long standing and well  7 known to Congress..."  8 "...Congress wished to settle all  9 meritorious claims of long standing of Indian  10 tribes and bands whether those claims were of a  11 legal or equitable nature which would have been  12 cognizable by a court of the United States been  13 subject to suit and the Indians able to sue, or  14 whether those claims were of a purely moral  15 nature not cognizable in the courts of United  16 States under any existing rules of law or  17 equity.  Congress was well aware that before  18 the latter type of claim could be litigated or  19 judgment secured, it would be necessary for  20 Congress to take the necessary political action  21 of creating a cause of action and recognizing  22 liability in the government for the wrong  23 implicit in the cause if facts sufficient to  24 establish the cause provided for were presented  25 by the Indian claimant..."  26 "...in the absence of legislative direction  27 to do so, federal courts cannot consider claims  28 relative to Indian title land."  29  30  31 I pause there to note that this decision was  32 rendered before the decision in Oneida, which has  33 modified that to the extent that claims relative to  34 Indian title land, claims alleging interference with  35 unrecognized Indian title on the part of, in the  36 Oneida case, a county, do lie and are a matter of  37 jurisdiction for the federal courts.  38 But stating the position in 1955, the court  39 continues:  40  41 "Congress must first create a cause of action  42 and recognize liability in the government on  43 it, or the court is powerless under the law as  44 it exists, to adjudicate a claim concerning  45 Indian title land and render a judgment thereon  46 in favour of the claimant."  47 And I won't read the reference to the statutory 26743  Submissions by Mr. Plant  1 definition, but I do want to read the passage  2 beginning about ten lines up from the bottom with the  3 words:  4  5 "The legislative history of the Act is replete  6 with evidence that Congress was acutely aware  7 of the fact that Indians held land in two  8 general ways: (1) by virture of aboriginal use  9 and occupancy from time immorial, i.e., by  10 Indian title, and (2) by reservation or treaty  11 title, sometimes known as 'recognized' title.  12 Congress was also well aware of the fact that  13 'Indian title' created in the holders of such  14 title no legal rights against the sovereign,  15 and that its extinguishment by the sovereign  16 through solemn treaty for a consideration..."  17  18 and I want to exphasize these words, my lord:  19  20 "...was the result of a long standing policy  21 rather than any real obligation the the  22 sovereign to do so."  23  24  25 Now, I won't read the rest of the extract, my lord.  26 Moving down to paragraph 51 I say that as of decision  27 in this case demonstrates, the Indian Claims  28 Commission Act both removed the barrier of sovereign  29 immunity in respect of existing being causes of action  30 and created new causes of action.  But for this and  31 other special jurisdictional acts, there was no cause  32 of action available in respect of the taking of lands  33 subject to aboriginal title because as the Supreme  34 Court of the United States had held in the Santa Fe  35 case, extinguishment was a political, not a  36 justiciable, question.  37 The only remedy available under the Act was  38 compensation.  The Indians were given no right to seek  39 recovery of their lands.  The jurisprudence of the  40 Commission would be more application here if the  41 plaintiffs in the case at bar were seeking  42 compensation for the extinguishment of their title  43 pursuant to some similar statutory scheme.  But they  44 are not.  That is why -- well, I say that the  45 plaintiffs' claim of continuing ownership and  46 jurisdiction must be assessed according to criteria  47 appropriate to that claim.  And that does, my lord, 26744  Submissions by Mr. Plant  1 take you back to the pleadings and the allegations  2 which have been made there.  3 If your lordship finds it convenient to consider  4 whether the plaintiffs may be entitled to use and  5 occupancy rights over lands outside of reserves in the  6 claim area, notwithstanding the fact that, as I have  7 submitted, there is no such claim pleaded, the  8 commission is useful so long as it is recognized that  9 the terms of the inquiry into the aboriginal title may  10 vary according to whether the claim is for continuing  11 rights of use and occupancy, which may be at the  12 expense and clearly here are intended to be at the  13 expense of innocent third parties, but rather for  14 compensation for extinguishment, that compensation to  15 be paid for out of the public purse.  16 THE COURT:  You say the only remedy available is compensation,  17 and then you just said --  you say "we are saying you  18 have to look at the claim to see if it's one for  19 compensation or one that could but for the  20 jurisdictional bar, have led to a claim for continuing  21 right of use."  You mean then it could only be found  22 in a compensation award?  23 MR. PLANT:  That's not exactly what I had intended to say but  24 that point is a good one, my lord.  But the flow of  25 this argument was intended to be, firstly, that it's  26 difficult, and starting with paragraph 52, I say that  27 the Indian claims jurisprudence, because it takes  28 place in the context of claims for compensation for  29 extinguished rights, really has almost no application  30 to a claim where the case -- a case where the claim is  31 for continuing present ownership and jurisdiction.  32 When I say no application, I guess I don't want to go  33 that far, but I want to urge your lordship to read it  34 with caution.  But then the second point I make is in  35 paragraph 53, that I say that the terms of an inquiry  36 into aboriginal title may vary according to whether  37 the claim is for continuing rights of use and  38 occupancy at the expense of innocent third parties or  39 for compensation for extinguishment at the expense of  40 the state -- and maybe the contrast I am drawing there  41 will become clearer in the next paragraph.  42 THE COURT:  What I want to understand and make sure I  43 understand, what inquiry are you talking about in  44 paragraph 53, terms of inquiry in this case or the  45 terms of inquiry in the Court of Claims case I might  46 be considering?  47 MR. PLANT:  Well, what I am suggesting is that there are two 26745  Submissions by Mr. Plant  1  2  3  4  5  6  THE  COURT  7  8  9  MR.  PLANT  10  THE  COURT  11  12  13  14  15  MR.  PLANT  16  17  18  THE  COURT  19  20  21  MR.  PLANT  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  THE  COURT  41  42  43  44  45  MR.  PLANT  46  THE  COURT  47  MR.  PLANT  different types of inquiries:  There is the inquiry in  this case, which is the inquiry into continuing rights  of use and occupancy; then there is the inquiry which  the claims become limited to, which is compensation  for extinguished title.  But they could entertain a case for compensation  arising for two different kinds of claims, as I  understand it.  Four or five different kinds of claims.  All right.  So they could say this is a claim where  if the Indians were free they would be saying we want  a declaration that we have the right to continue to  use that land, but you can only given me damages or  compensation.  Yes.  There are also claims arising out of the  allegation that the consideration in a treaty was  grossly inadequate.  Right.  The inquiry in that open word in the middle  line of that paragraph 3 does refer to the inquiry  before the Court of Claims?  Well, no, it doesn't, my lord, because in all cases  what the Court of Claims could do and all that they  could do is give money, and it was pursuant to a  public policy that the commission was created and  exercised its jurisdiction so as to do that.  So that  you have a commission set up with a statutory purpose  to right a wrong and that is different, that's a  different kind of inquiry from the inquiry into, well,  from a claim for continuing rights and ownership,  which, in effect, will say to, in respect of a  particular piece of land, this land now belongs to  somebody else.  The claims commission never had to  grapple with that problem.  The claims commission just  had to say this is yours according to original Indian  title or it was yours where you were, you had your  lands wrongfully taken by a treaty and we can make  that better to the extent that we can do that within  our statutory mandate by giving you money.  It doesn't  affect third parties.  You see, the inquiry I am engaged in doesn't have --  this claim has incidents of continuing rights of use  and occupancy at the expense of an innocent third  party.  You say that that's what this kind of a case  is?  Yes.  Whereas, no matter --  But I don't think --  No matter how the claim comes before, or came before 26746  Submissions by Mr. Plant  1  2  3  4  5  6  7  THE  COURT  8  9  10  MR.  PLANT  11  THE  COURT  12  MR.  PLANT  13  THE  COURT  14  15  16  17  MR.  PLANT  18  19  20  21  22  23  THE  COURT  24  25  26  27  28  29  30  MR.  PLANT  31  32  33  34  35  36  37  THE  COURT  38  39  40  MR.  PLANT  41  THE  COURT  42  43  44  MR.  PLANT  45  46  47  THE  COURT  the commission, the most that the commission could  ever do was award compensation.  And it may be that I  have -- by saying compensation for extinguishment, I  have over-compressed the jurisdiction of the claimants  commission which extended beyond that in some  instances.  Well, that's not a claim that they can entertain nor  one that I can entertain, is it?  There is no claim  here for compensation for extinguishment.  In the case at bar, my lord?  Yes.  None.  All right.  Well I think -- I am still not positive  that that word inquiry in that paragraph more properly  fits this case or fits the proceedings of the Court of  Claims.  But I will think about that when I come back.  I am less concerned with the elegance of the wording  of my paragraph in the submission than I am with  drawing the distinction between a tribunal whose  jurisdiction is limited to awarding money from the  public purse to right a wrong on the one hand and on  the other hand, this tribunal.  Well, what I am really wondering about is what do  you mean when you say the jurisprudence of the  commission becomes more useful and under what  circumstances is it more useful?  That's why I would  have thought that inquiry of proceedings before the  commission -- I would like look at what proceedings  they are looking at to decide how useful it is.  Right.  Again, it's a sort of -- it's a sequence of  propositions, my lord, that weren't really intended to  be as difficult as I am apparently now finding them to  be.  If your lordship reaches the point in this case  where, notwithstanding the pleadings, you're  investigating the issue of whether there is a use and  occupancy claim, then I say you can --  Not a use and occupancy claim, a claim to continued  occupancy. Or are you relating this to a Calder-type  case?  Yes.  So you say that if I am looking at Calder-type  rights, the commission's jurisprudence becomes more  useful?  Than if you're looking at continuing ownership and  jurisdiction rights.  That's the first level of the  distinction, if I can interrupt.  All right.  Thank you. 26747  Submissions by Mr. Plant  1  2 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  3  4  5  6  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings herein to the best of my  11 skill and ability.  12  13  14  15  16 Wilf Roy  17 Official Reporter  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 2674?  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECOMMENCED AT 3:40 P.M.)  THE REGISTRAR  THE COURT  MR. PLANT  Order in court.  :  Mr. Plant.  :  I was at page 534 on page 23 of my submission, my  lord, where I say that it is an overstatement to  describe the commission's work as judicial in nature,  referring again to the Indian Claims Commission.  This  was recognized by Judge Nicholls in the case of Gila  River.  He was, I think, a concurring judgment in that  case, and this is a passage which was relied upon by  the plaintiffs as taken from their summary.  He  says -- the judge says:  "... The commission is not a court but a body of  the executive branch ... Under the Act the task  is made to look primarily judicial, but  management rather than adjudication must  occasionally be the dominant theme.  They must  at times adjudicate the unjusticiable."  Now, there is one further caveat with respect to  the use of the Indian Claims Commission jurisprudence,  and that rings back to a particular subsection of the  Act under which a particular case has been decided,  and if the case before the commission is being decided  under the broader equitable mandate in 2(5), then  the -- I suppose you could put it this way, on the  spectrum of usefulness those decisions would be  further away from the useful than the cases dealing  with Section 2(4), where there is an issue about  whether lands were actually owned or occupied by the  claim, and the statutory language there set out on  page 21, a few pages back in my submission.  I here make reference to the Claims Commission  cases.  Its really to add two cases to the collection  that appears in the plaintiffs' collection of  materials, and in paragraph 56 I refer to the  Muckleshoot Tribe case and the report of that judgment  is at Tab M-4, the province's binders of authorities.  This was a case where specificity of territory was at  issue, and the relevant extracts, those which are set  out in my submission, are reproduced in the yellow  book, and now this would be at Tab 49.  That's where  you will find the photocopied pages from the decision  of the commission.  And I will read just a few of  the -- about half of what I have reproduced here. 26749  Submissions by Mr. Plant  1  2 "Bearing in mind the estimated number of Indians  3 as being from 88 to 130 and admittedly  4 abundance subsistence afforded by the nature in  5 this time and area, it does not seem that these  6 Indians were obliged to roam far beyond their  7 village area for their living.  As was common  8 in the country around Pujet Sound the economy  9 of the Indians was primarily marine whether  10 based on the ocean, bays or rivers.  Such was  11 the case with these Indians.  They depended  12 upon salmon runs for a major portion of their  13 subsistence and supplemented that with roots,  14 berries and potatoe patches.  Such hunting as  15 was done in the mountains was minor, and more  16 particularly, in conformance with the accepted  17 practice of the area, was done over the same  18 areas as many other groups.  These Indians did  19 occupy definite sections of the country, and  20 such occupancy was controlled by their need for  21 subsistence area ..."  22  23 Pausing there, my lord.  Really the highest I  24 could put this is to say that here is an example of  25 reasoning that responds to the evidence that was  26 before the commission in that case, and it indicates  27 the type of inquiry which the commission was prepared  28 to engage in, and it takes some of its interest from  29 the fact that there are so few Canadian cases where  30 these issues have been litigated at length.  31 Following onto the bottom, the last paragraph on  32 the page, there the Court sums up beginning with the  33 sentence:  34  35 "The claimants have not been able to  36 satisfactorily maintain their claimed  37 boundaries in the face of the non-exclusive use  38 pattern followed by the Indians with regard to  39 the area outside of the subsistence area  40 surrounding their villages.  In other words,  41 claimant's ancestors did not exclusively use  42 and occupy a part of the area claimed in their  43 petition or their requested findings, as  44 mentioned before, however, they did use and  45 occupy a part of the area claimed and based  46 upon the record in this case the commission  47 feels that the occupancy of that part was 26750  Submissions by Mr. Plant  1 exclusive."  2  3 Now, another example of a case where the  4 boundaries of a claimed territory were disputed is the  5 Confederated Tribes of Warm Springs Reservation of  6 Oregon case.  And that, my lord, is in Tab C-7 of the  7 province's authorities.  8 Here the land in question had been ceded by a  9 treaty, and it's really the last sentence in this  10 paragraph that I have quoted here that is germane,  11 where the commission -- the Court of Commission holds  12 there must be a showing of actual exclusive and  13 continuous occupancy for a long time prior to the loss  14 of the land.  That is actually the ruling of the Court  15 of Claims on appeal from the commission.  The  16 commission found that some of the lands had been  17 wandered, travelled, hunted, fished and fought over  18 not only by the Wayampan, but also the Snake Indians  19 at the material time, which in this case was the half  20 century preceding the treaty, and therefore was not  21 subject to aboriginal title.  22 Now, a second issue raised under this heading is  23 the nature or character of the occupation which must  24 be established.  And it follows from Baker Lake that  25 an entitlement based on customary usage requires proof  26 of use in fact, and I say here, quoting the phrase  27 that appears in the U.S. jurisprudence "constructive  28 occupation" cannot suffice.  And I don't think that  29 there is an issue here, because the plaintiffs have  30 said that their claim is founded on possession in  31 fact, or rooted in possession.  32 A third issue raised by the question of the nature  33 and extent of aboriginal occupation is the requirement  34 of exclusivity.  The third of the Baker Lake tests.  35 Mr. Justice Mahoney appears to derive this from the  36 judgment of Mr. Justice Douglas from the Supreme Court  37 in the Sante Fe case, where the Court held that:  38  39 "Occupancy necessary to establish aboriginal  40 possession is a question of fact to be  41 determined as any other question of fact.  If  42 it were established as a fact that the lands in  43 question were included in, the ancestral home  44 of the Walapais in the sense that they  45 constituted definable territory occupied  46 exclusively by the Wallapais (as distinguished  47 from lands wandered over by many tribes), then 26751  Submissions by Mr. Plant  1 the Walapais had 'Indian title' which unless  2 extinguished survived the railroad grants of  3 1866."  4  5 Now, the court in Sante Fe wasn't required to  6 apply these principles, because, as Mr. Goldie said  7 earlier, the primary focus of that case was on the  8 issue of extinguishment.  However, the requirement of  9 exclusivity was both discussed and applied in the  10 Court of Claims judgment in Strong and United States  11 in 1975 judgment.  And I'll just -- I think I will  12 take your lordship through this.  13  14 "Generally, mixed and non-exclusive use of  15 occupancy of an area precludes the  16 establishment of any aboriginal title by any of  17 the users of the subject property."  18  19 There is a reference there.  20  21 "The purpose of this requirement is fairly  22 obvious.  In order to award compensation to the  23 Indians for the value of land ceded to or taken  24 by the government, it is essential that the  25 commission first determine that the land in  26 question was truly 'owned' by the ancestors of  27 the particular claimant or claimants.  28 Certainly, one of the primary characteristics  29 of ownership is the desire and ability to  30 exclude others from the area over which  31 ownership is claimed.  Confronted with a  32 similar issue recently the Court stated in  33 United States v. Pueblo of San Ildefonso as  34 follows:  35  36 Implicit in the concept of the ownership of  37 property is the right to exclude others.  38 Generally speaking, a true owner of land  39 exercises full dominion and control over it; a  40 true owner possesses the right to expell  41 intruders.  In order for an Indian tribe to  42 establish ownership of land by so-called Indian  43 title, it must show that it used and occupied  44 the land to the exclusion of other Indian  45 groups."  46  47 And carries on.  In this case the claims 26752  Submissions by Mr. Plant  1 commission had rejected title claims by various tribal  2 claimants to large areas of what is now the State of  3 Ohio and a small contiguous area in Indiana.  On  4 appeal the Court of Claims noted that the requirements  5 for an Indian claimant to prove aboriginal title under  6 the Act was proof of actual exclusive and continuous  7 use and occupancy for a long time prior to the loss of  8 the property.  And my friend Mr. Jackson referred to  9 the judgment Sac & Fox Tribe from which that phrase  10 comes.  The obstacle that faced the claimants in this  11 action was the requirement of exclusivity, and the  12 commission found that with certain exceptions the  13 areas as a whole was inhabited, controlled or wandered  14 over by many tribes or groups.  That was enough for  15 the court to deny the claim of aboriginal title.  16 Now, in the present case, my lord, the plaintiffs  17 have expressly pleaded exclusivity, and that's the  18 allegation in paragraph 61, which deals with other  19 aboriginal groups.  20 I say that in the period before sovereignty was  21 asserted, exclusivity is only an issue with respect to  22 other aboriginal peoples.  After contact, when  23 non-natives have entered the territory, it would seem  24 difficult to characterize the Indians' use and  25 occupation of territory as exclusive, unless it was  26 exclusive as against both white and other aboriginal  27 groups.  There is no express pleading of exercise of  28 jurisdiction or ownership as against non-Indians.  29 There is no plea that follows paragraph 61, but the  30 whole thrust of the claim of ownership is to exclusive  31 right of ownership.  32 Now, this discussion in paragraph 63 is also new,  33 and in -- the materials that I refer to here are not  34 in my yellow book or the grey binders of authorities,  35 but the cases are contained in the plaintiffs'  36 collection of materials.  The plaintiffs have relied  37 on the Pueblo of San Ildefonso and Iowa Tribes cases  38 in support of the proposition that the exclusivity  39 requirement should be modified or rejected in favour  40 of a test which permits title to be held by two or  41 more groups where "joint and amicable" possession can  42 be demonstrated.  A first point I want to make here is  43 that if your lordship reads the cases where this kind  44 of possession has been demonstrated, there is an  45 extremely close connection between the groups that are  46 said to jointly and amicably occupy a territory.  You  47 have got a very close connection in order to come 26753  Submissions by Mr. Plant  1 within this heading.  An example is the San Ildefonso  2 case where the Court summarized the evidence on this  3 point in the extract that appears at the top of the  4 next page of my submission.  5  6 "... Both pueblos believed for a very long time  7 that they owned the disputed area in joint  8 tenancy under a 1770 land grant from the  9 Spanish Crown.  They asked the Court of private  10 land claims in 1898 to confirm that grant over  11 the entire area in both of them jointly.  By a  12 narrow vote, the Court of private land claims  13 confirmed only the northern 1,100 acres, but  14 that area is adjacent to the tract now in  15 dispute ..."  16  17 And so on.  But the next sentence.  18  19 "The factual picture which has emerged here adds  20 up to significantly more than mere use and  21 occupancy of a particular area by two or more  22 tribes at the same time.  These two Pueblos had  23 in joint Spanish grant which they believed to  24 encompass a large area."  25  26 So it's really the objective basis -- it's really  27 the fact that there was an objective basis for the  28 belief in joint ownership, and that the objective  29 basis was found in the joint grant.  That's what  30 allowed the Court in that case to find joint and  31 amicable possession.  32 The second point dealing with this sub-issue, if I  33 can call it that, is to question the significance of  34 this digression for the present case, because the  35 plaintiffs are not claiming that they hold joint  36 aboriginal title with any neighbouring Indian peoples.  37 Paragraph 61 of the Statement of Claim pleads exactly  38 the opposite.  Nor is there any claim that the Gitksan  39 and Wet'suwet'en jointly hold title to the whole of  40 the claim area.  Again, the separation on paragraphs  41 56 and 56A of the Statement of Claim suggests the  42 opposite.  The evidence that there are common use  43 rights, which is referred to in the plaintiffs'  44 summary of argument, undermines the claim to discreet  45 house territories.  It's not evidence of two or more  46 tribes sharing use of a place, but rather is evidence  47 of territorially indiscriminate intra-tribal resource 26754  Submissions by Mr. Plant  1 use, which has nothing to do with the idea of joint  2 and amicable aboriginal title described in the U.S.  3 cases.  4 Now, I am wondering if I should pause here for a  5 moment for the reporters.  6 THE COURT:  I think they would appreciate that.  7  8 (CHANGE OF REPORTER)  9  10 I HEREBY CERTIFY THE FOREGOING TO BE  11 A TRUE AND ACCURATE TRANSCRIPT OF THE  12 PROCEEDINGS HEREIN TO THE BEST OF MY  13 SKILL AND ABILITY.  14  15    16 LORI OXLEY  17 OFFICIAL REPORTER  18 UNITED REPORTING SERVICE LTD.  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 26755  Submissions by Mr. Plant  1 (CHANGE OF REPORTERS)  2  3 THE COURT:  Go ahead, Mr. Plant.  4 MR. PLANT:  Thank you, my lord.  The last general heading is the  5 issue of relevant times and dates, and there are  6 really three aspects to this, my lord:  The relevant  7 date for the establishment of title, for how long  8 prior to that date must occupation be demonstrated to  9 satisfy the requirement, and in this case, the  10 pleading, of time immemorial, and thirdly, for how  11 long after that date must the occupation continue for  12 the claim to be maintained.  13 The answer provided by Baker Lake to the first  14 question is set out in the fourth test, and that is in  15 these words, that:  16  17 "The Plaintiffs must prove that their occupation  18 was an established fact at the time sovereignty  19 was asserted by England."  20  21 It is the assertion of sovereignty which creates the  22 context for the creation of aboriginal title.  23 Acordingly, the time at which the aboriginal title  24 vests is in the period at or after sovereignty is  25 asserted.  Aboriginal title can only vest in a  26 particular group in fact if that group was in  27 occupation of the territory claimed at that time.  And  28 again, while my friend and I differ on the  29 significance of the assertion of sovereignty, I do not  30 understand my friends to take issue with the  31 proposition that the date upon which sovereignty is  32 asserted is the relevant date for determination of  33 title.  34 THE COURT:  Well, throughout most of the trial, and until quite  35 near the end, everything seemed to be proceeding, I  36 thought, at the time of contact.  Is there any  37 authority for that proposition at all, or is that just  38 an assumption, an erroneous assumption that I've made?  39 MR. PLANT:  The only authority I'm aware for that, my lord, is  40 the Bear Island judgment, which is referred to in  41 paragraph 68, where Mr. Justice Steele at trial said  42 that the relevant date is the coming of settlement.  4 3    THE COURT:  Yes.  44 MR. PLANT:  But in his judgment he offers no authority, nor his  45 reasons, he offers no authority for that.  46 THE COURT:  I think probably my misconception or conception was  47 the evidence of the anthropologist that seemed to pin 26756  Submissions by Mr. Plant  1 so much on the date of contact, and they have their  2 prehistoric, protohistoric and historic period, and it  3 may be that that's where I assumed that the way that  4 issue was being raised was clearly that that's the  5 date that perhaps counsel are going to be directing  6 their argument to.  I take it that at the moment now  7 we are talking about time allegation or the  8 plaintiffs' claim of sovereignty.  9 MR. PLANT:  Yes, my lord.  10 MR. JACKSON:  Perhaps before Mr. Plant continues, my lord, one  11 small reservation which I related to your lordship  12 last week.  The plaintiffs' position, while generally  13 agreeing the assertion -- the date of the assertion of  14 sovereignty is the relevant date, your lordship will  15 recall that we did also make the submission that in  16 relation to certain particular territories, long-time  17 possession after the date of assertion of sovereignty,  18 as against other aboriginal groups, could vest in  19 aboriginal title.  2 0    THE COURT:  Mm-hmm, yes.  21 MR. PLANT:  That takes me to the bottom of page 33, which is the  22 issue of for how long prior to the relevant date for  23 the establishment of aboriginal title must occupation  24 be demonstrated to satisfy the requirement of "time  25 immemorial".  2 6    THE COURT:  Yes.  27 MR. PLANT:  Mr. Justice Mahoney in Baker Lake, I'm here now at  28 paragraph 70 of my submission, held that time  29 immemorial, these are his words, "runs backs from the  30 date of assertion of English sovereignty over the  31 territory".  He did not determine what length of time  32 would constitute time immemorial.  It appears on the  33 facts before him, however, he did not have to.  34 The concern implied by this question is well  35 expressed by the U.S. Court of Claims in the Warm  36 Springs case in a passage which I've set out here, but  37 which was referred to also by my friend, Mr. Jackson,  38 during the course of his submissions, where the court  39 says:  40  41 "The time requirement, as a general rule, cannot  42 be fixed at a specific number of years.  It  43 must be long enough to have allowed the Indians  44 to transform the area into domestic territory  45 so as not to make the Claims Commission Act 'an  46 engine for creating aboriginal title in a tribe  47 which itself played the role of conqueror but a 26757  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  MR.  THE  PLANT  COURT  PLANT  COURT  MR. PLANT  THE  MR.  COURT  PLANT  THE COURT  few years before'."  And in that case it was held that the claimants'  occupation of a part of the claim area was held to be  "of such recent character that it had not yet ripened  into 'Indian title'".  And the next page I refer to an extract in the  U.S. Supreme Court decision in Holden and Joy, which  re-expresses the phrase "Immemorial possession" in  these terms as "commencing ages before the New World  was known to civilized man".  My lord, if the basis of aboriginal title is  customary usage it follows that the alleged uses must  have been carried on for some time if they can be  considered as "customary".  This is one reason why Dr.  Sheila Robinson's opinions with respect to the changes  in Gitksan or Carrier patterns of resource  exploitation in the protohistoric period are  significant.  The risk of focusing on activities at a  specified date; for example, the date of sovereignty,  to the exclusion of the previous course of development  is that the determination of title becomes  unnecessarily artificial, in a sense frozen, because  all cultures are constantly experiencing change.  The third aspect of the issue of time, which I  summarized a few moments ago, is the question of how  long after the relevant title or relevant date for the  determination of title --  Before you leave this part, what significance if any  does the intrusion by Europeans into the claim  territory between the time of contact and the claim of  sovereignty. There wasn't a great deal, but there was  some. There was a fort established at Hazelton, there  was a store, there was white penetration into the area  prior to -- well, I don't know.  I think the store in Hazelton comes after.  Came after?  Maybe everything came after.  I beg your pardon?  When did the Hudson's Bay establish their fort at  Hazelton; 1856, that's three years before.  I'm not sure, my lord.  I think what I can do to  assist your lordship at this point is that --  But Ogden came through, Brown came through.  Yes, there is McGillivray and some other explorers  have clearly passed through or on the fringes of the  claim area before sovereignty.  Yes. 2675?  Submissions by Mr. Plant  1  MR.  PLANT  2  3  4  THE  COURT  5  MR.  PLANT  6  7  8  9  10  11  THE  COURT  12  13  MR.  PLANT  14  15  16  17  18  19  20  THE  COURT  21  22  23  MR.  PLANT  24  25  26  27  28  THE  COURT  29  30  31  32  33  MR.  PLANT  34  35  THE  COURT  36  37  38  39  THE  COURT  40  MR.  PLANT  41  42  THE  COURT  43  44  MR.  PLANT  45  46  47  :  And the extent of contact between the native  inhabitants and these individuals is going to be the  subject of Mr. Willms' submission.  :  All right.  :  The point that your lordship has asked me really  should more properly be left for consideration in  light of the evidence, but at the legal level the  starting point is that the -- it's the assertion of  sovereignty that affects the changing legal relations  or in fact creates legal relations.  :  Yes, all right.  No doubt your friends have  something to say about that in reply as well.  :  Now, the aspect or the question of how long after  the relevant date for the determination of title must  the use and occupation continue if title is to be  maintained is answered in this case.  I say, by the  pleadings, which allege the continuity of use and  occupation, although those words are not their words,  from time immemorial to the present.  :  Again, I would like to know if anyone has any views  on whether white settlement in the claim territory  since that time has any relevance.  :  Your lordship will hear about that, my lord, in the  context of, among other things, the argument with  respect to latches and acquiescence and the relevance  of the evidence of the alienations mapping project  surrounding evidence, if I can put it that way.  :  Well, I'm just not sure that it's evidence that  would be confined to those discrete legal principles  that it would bear in any way, and I won't have a view  one way or the other on the question of aboriginal  title.  :  Well, it does, and I didn't mean to confine the  discussion to the examples I gave your lordship.  :  Yes, all right.  Now, I have finished then with  section 4 of part III, and that takes me to the first  section of part IV of the summary of argument, which  is an introduction to the submissions.  :  I have a section here called part III, section 5.  :  Yes.  Mr. Goldie went through that yesterday  afternoon.  :  Yes.  I have it, I just don't have the first page  marked up.  All right, thank you.  :  So moving ahead over the submission which Mr. Goldie  has so indelibly marked in your lordship's  consciousness, to Part IV, Section 1, the submissions  in Part IV will be directed to the evidence relating 26759  Submissions by Mr. Plant  1 to the plaintiffs' effort to construct a model of  2 distinct and yet interwoven societies identified as,  3 these are their words, the "Gitksan and Wet'suwet'en  4 Nations", to explain the origin of those societies and  5 to trace their continuation within the Claim Area down  6 to the present day.  7 My lord, it will be submitted that the model  8 articulated by the plaintiffs has not been proven on  9 the evidence.  This is not to say, as has sometimes  10 been suggested by the plaintiffs, that the position of  11 the Province is that the plaintiffs do not exist.  12 Their presence in the courtroom bears vibrant witness  13 to their existence.  But in opening their case, the  14 plaintiffs assumed the following burden:  "The  15 evidence" -- and these are their words:  16  17 "...the evidence will show that... Gitksan and  18 Wet'suwet'en ... ownership of their territory and  19 their authority over it has always existed; and  20 that they have shaped a distinctive form of  21 confederation between Houses and clans.  22  23 The purpose of this part of the summary is to  24 identify how, and in what respect on the evidence, the  25 plaintiffs have not discharged the burden that they  2 6 have assumed.  27 I say it is impossible to introduce the subject of  28 the plaintiffs' evidence without referring to the  29 challenge of making any sense of a picture which, both  30 at the level of concept or idea, and in the  31 enormousness of its detail, is so riddled with  32 inconsistency as to be virtually without coherent form  33 or substance.  By contending that their evidence can  34 only be understood if viewed through the filter of the  35 plaintiffs' epistemology, and that's Mr. Brody's  36 contention, the plaintiffs have conceded as much.  37 Now, at the level of concept the point may be made  38 by reference to the problem presented by the evidence  39 of oral history.  And I've made this point already, my  40 lord.  In opening the plaintiffs' case counsel invents  41 propositions with respect to the presentation of oral  42 historical evidence in the use to which it would be  43 put in this trial and the -- what it was -- what it is  44 that your lordship is being asked to do with it.  And  45 I summarized or extracted from the plaintiffs' opening  46 on pages 2, 3, and 4, the contention made at the  47 opening at trial with respect to the use of oral 26760  Submissions by Mr. Plant  1 history, and the point -- I'm not going to reread  2 the -- or read these extracts, because I've made this  3 point yesterday.  4 The passage -- and I'm now at paragraph 6.  The  5 passage from the opening speaks of the need for, and  6 the fact that your lordship would be hearing evidence  7 of corroboration.  The problem is a simple one:  8 Either there was a giant grizzly bear or there was a  9 landslide.  If it was a landslide, then the adaawk is  10 wrong.  If it was a grizzly bear, why call evidence  11 about landslides?  This is a fundamental contradiction  12 in the evidence of the plaintiffs, and it is never  13 addressed by them, who mask it in their arguments by  14 elusive references to an undefined something called,  15 and these are their words, the "reality of Gitksan and  16 Wet'suwet'en history".  17 Now, moving to the level of detail, I say it is  18 not easy to embark upon a consideration of any part of  19 the plaintiffs' evidence without encountering  20 difficult obstacles.  And I have here set out some  21 examples.  The first, which I've put under the heading  22 "Time Depth and Territorial Continuity", these  23 extracts in subparagraphs (i) and (ii) are taken from  24 the plaintiffs' argument under the heading "History of  25 People In Their Homeland" at page 42.  And they were  26 offered in their argument in support of plaintiffs'  27 argument about the maintenance of territorial  28 boundaries and ownership.  Solomon Marsden said at  29 transcript 94:  "It's ever since" -- and the word  30 "the" should be deleted, my lord, that's incorrect.  31 I've looked at the transcript there and the word "the"  32 doesn't appear:  33  34 "It's ever since beginning of time the  35 boundaries have always been the same.  What --  36 the ancient times the people know where the  37 boundaries are.  They are still there today and  38 there are no gaps between them.  And it's still  39 like this today."  40  41 Second example from the evidence of Stanley Williams  42 on commission:  43  44 "These territories have been passed down from  45 generation to generation.  The boundaries are  46 always the same.  We always go by these  47 boundaries because we've had these boundaries 26761  Submissions by Mr. Plant  1 for thousands of years now and they are still  2 the same today."  3  4 And later in his evidence Mr. Williams said this:  5 "Our powers" -- and this is just a quotation from the  6 plaintiffs' argument -- or rather I've taken this  7 extract straight out of the plaintiffs' argument:  8  9 "Our powers never changed and the same with our  10 boundaries, it has never changed.  And...ever  11 since time began we had these territories and  12 the boundaries never changed and it's the same  13 today."  14  15 Well, that is the evidence of Mr. Marsden and the  16 evidence of Mr. Williams.  However, the evidence of  17 Neil Sterritt is to a different effect, and this was  18 not taken from that part of the plaintiffs' argument,  19 it came from another part of the plaintiffs' argument.  20 We don't have the reference.  Here's what Mr. Sterritt  21 said at transcript 131:  22  23 "There is an example where the vitality of the  24 Gitksan system in that a member of the House of  25 Djogaslee assisted the House of Skiik'm lax ha,  26 and for that reason the House of Skiik'm lax ha  27 turned over a portion of their territory to the  28 House of Djogaslee.  And I can't -- and there  29 have been examples where that has occurred,  30 even in the 1960's, so to assume that the  31 internal boundaries are static, or will remain  32 static in the future, is to assume that the  33 system is static as well and it's not.  The  34 people -- continue to feast, they continue to  35 have relationships and people provided benefits  36 to other people.  There could be a change in a  37 boundary for a specified period of time for a  38 specified purpose -- so the system has  39 continued to work, continued to exist -- I  40 can't say that the system is static."  41  42 Now, my lord, I want to pause here for a moment,  43 because I submit that the apparent contradiction in  44 these -- between these statements can be reconciled in  45 this way, and that is by characterizing the nature of  46 the statements made.  I think if you take the  47 statements of Mr. Marsden and Mr. Williams and cross 26762  Submissions by Mr. Plant  1 them with the statement of Mr. Sterritt, what you have  2 is a contrast between statements made in the abstract  3 as opposed to statements made in the concrete.  Or to  4 put it another way, you have statements, a belief or  5 faith, set aside statements of fact, and this is,  6 apart from these examples, a significant reason why I  7 urge that distinction upon you, and I have included in  8 the material in tab IV/1-7, Exhibit 446-2, which is  9 one of the --  10 THE COURT:  Sorry, what was the second reference?  IV dash --  11 MR. PLANT:  The exhibit number is 446-2.  And at the tab number  12 is -- well, it corresponds to paragraph 7 in this  13 section of the argument.  14 THE COURT:  Well, is this any different from what Lord Denning  15 used to do when he went -- launched into something  16 wholly new and say "Of course all I've done is now  17 identified what the law has always been, I haven't  18 made it up, I'm just enunciating it".  Is that perhaps  19 what these two seemingly different statements are,  20 that two elderly gentlemen say the boundaries have  21 never changed and Mr. Sterritt says "Well, it takes us  22 a while to find out what they've always been, but this  23 is what they've always been".  24 MR. PLANT:  I don't think Mr. Sterritt is saying they've always  25 been that way, I'm saying Mr. Sterritt and others have  26 identified actual changes in boundaries that have  27 occurred in boundaries as a result of compensation for  28 wrongs done or for favours done and territories have  2 9 been divided over time and over the recent time.  30 THE COURT:  All right.  31 MR. PLANT:  This is just an example of the phenomenon which  32 recurs throughout the evidence.  33 THE COURT:  All right.  34 MR. PLANT:  And there is -- I'm not saying that your lordship  35 shouldn't take this as a contradiction, I say that  36 there is a contradiction here on the evidence, and I'm  37 offering your lordship one explanation for what you  38 can do with this contradiction.  39 And if I can turn now to the affidavit, the  40 territorial affidavit of Stanley Williams, which is on  41 the fifth page of the material in this tab, in the  42 yellow book, this is probably the longest of the  43 territorial affidavits, and the statements that I want  44 to direct your lordship's attention to are firstly in  45 paragraph 8 on the bottom of page 3, where describing  46 a territory, and this isn't the same territory that  47 Mr. Sterritt refers to, Mr. Williams said that the -- 26763  Submissions by Mr. Plant  1 says that:  2  3 "The boundary of that territory has remained the  4 same through my lifetime and Sam Gwis Gyen and  5 Arthur McDames told me that it has remained the  6 same since long before the arrival of European  7 people here."  8  9 Now, that's an assertion -- well, it carries on:  10  11 "Sam Gwis Gyen and Arthur McDames told me that  12 the members of the House of Gwis Gyen and Hax  13 Bagwootxw had owned, harvested and looked after  14 the name of the territory from generation to  15 generation."  16  17 Now, moving ahead to paragraph 15, if I could, my  18 lord.  I should have started at paragraph 8.  19 Paragraph 15 is in exactly the same terms, except for  20 the name of territory.  Jumping ahead again to  21 paragraph 22, here the name of the territory is again  22 different and the names.  Informants have changed, but  23 the character of the statement is the same.  And I  24 suggest that the character of the statements made here  25 in these paragraphs, and they continued throughout the  26 balance of the affidavit, is more similar to the  27 character of the statements made by Mr. Marsden and  28 Mr. Williams that I have quoted earlier than it is  29 similar to the statement of Neil Sterritt.  And the  30 reason that becomes significant, my lord, is, in the  31 context of the plaintiffs' submission, that for some  32 reason -- well, I'm sorry, that because the affidavits  33 were not successfully attacked on cross-examination  34 with respect to some of these statements and  35 statements of this sort, that they should be taken as  36 read, as it were, that they should be just admitted as  37 evidence, and I say that they are not of a character  38 that is susceptible to cross-examination.  They are  39 more statements of belief than they are assertions of  40 fact, and for that reason your lordship should view  41 them in a different light than the statements of the  42 sort which I've given from the evidence of Mr.  43 Sterritt.  44 THE COURT:  I haven't located the reference to the — this  45 territory affidavit in your text.  Is it in the text  46 or is it just an illustration?  47 MR. PLANT:  You haven't found the affidavit? 26764  Submissions by Mr. Plant  1 THE COURT:  I've found the affidavit.  2 MR. PLANT:  My point has nothing to do with the specific  3 territory, my point has do with the character of the  4 language that's being used.  5 THE COURT:  Is the affidavit mentioned in your text under --  6 MR. PLANT:  No.  7 THE COURT:  It's not?  8 MR. PLANT:  In the text of my submission?  9 THE COURT:  Yes.  10 MR. PLANT:  No.  I added it after the submission had been  11 prepared, and it's to give an example of how the  12 distinction that I've attempted to draw here, if your  13 lordship accepts it, can have application to a very  14 large body of evidence.  15 The next category, if I can put it that way, of  16 problems with the plaintiffs' evidence, and I should  17 say these are just examples, they are not intended to  18 exhaustively define all of the areas where there are  19 contradictions and difficulties of this order in the  20 plaintiffs' evidence.  Under the heading of "Missing  21 Plaintiffs" is a process that starts with the original  22 Statement of Claim, the allegation that the plaintiffs  23 are the hereditary chiefs of the Gitksan, and in  24 paragraph 50 of the original Statement of Claim --  25 this material is in the tab, my lord, but I don't need  26 to refer to it right now -- the allegation that the  27 Gitksan chiefs represent all members of the Gitksan.  28 At that time there was no mention in the Statement of  29 Claim of the plaintiff Geel.  Now, after the almost a  30 year and a half after the commencement of the action  31 in January of 1986, when Martha Brown was being  32 cross-examined during the course of her evidence on  33 commission, the following series of questions and  34 answers took place:  35  36 "Q   Who is the chief of -- who is Geel today?  37 What is the English name of Geel today?  38 A  Walter Harris.  He doesn't -- he's not  39 really eager to be amongst a situation like  40 this.  41 Q   Geel is not part of the court action, is  42 it?  43 A   I don't know.  Neil John mentioned that he  44 is about ready to participate.  45 Q   Neil John being Mr. Sterritt?  4 6                     A   Yes."  47 26765  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. GRANT  THE COURT  MR. PLANT  And then later in the transcript:  "Q The house of Geel is there, is it not?  A Yes.  Q And the name of the chief who holds that  name is Walter Harris, is that correct?  A Yes.  Q And that house holds territory?  A Yes.  Oh, there is some question and answer left out there,  but they don't add much to the submission:  "Q   Geel is not a plaintiff in the action?  A   The family can't get him to speak.  He's  too shy.  He's not a verbal man."  I think I like him.  Excuse me, my lord?  I think I like him.  He didn't give evidence, my lord.  I still like him.  "Q   Nobody speaks for Geel in this court  action, do they?  A   I'm not the only one who keeps -- because I  see how much territory he has, he could  easily become a millionaire if he goes up  behind the headwaters of the Skeena and  he could easily find gold and bring it  out. "  Now, in the summer of that year, in support of an  application to amend the Statement of Claim, Mr.  Sterritt swore an affidavit which he said:  I have been instructed by Geel" --  That is Walter Harris:  "-- to have him added as a plaintiff."  And then following that application, the Statement of  Claim is amended and paragraph 17, as it then read as  follows:  "The plaintiff, Geel, is the hereditary chief of 26766  Submissions by Mr. Plant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the House of Geel, and is bringing this action  on behalf of himself and the House of Geel."  And I say the allegation in the original Statement of  Claim that the named Gitksan chiefs represented all  members of the Gitksan was thus manifestly false in  that Geel, later admitted to be a Gitksan chief, a  head chief of a house, was not party to the action.  And incidentally, my lord, paragraph 50 was equally  wrong because of the time it suggested by inference  that the Kitwancool were not represented in the  action.  Now, obviously it could be said that this is an  example of an error being corrected, or something of  that sort, that while the actione was commenced, not  all of the named -- not all of the head chiefs of all  of the houses were parties to it, that's now been  fixed, and so there's no problem.  But in this context  I would say that your lordship now has another  problem, because it's been contended that the Babine  or Wet'suwet'en thus contradicting the allegations in  paragraphs 53 and in 54 of the Statement of Claim,  that implied that the Wet'suwet'en hereditary chiefs  comprise all of the Wet'suwet'en or represent all of  the Wet'suwet'en people.  So we have, from the outset  of the action up until the present, the continuing  uncertainty as to whether the claim as advanced --  whether there is evidence that supports the claim as  advanced with respect to the issue of identity.  Now, my lord, I'm happy to continue, but --  All right.  -- I see the hour.  Thank you.  We'll adjourn until 9:30 tomorrow  morning.  THE REGISTRAR:  order in court.  Court stands adjourned.  (PROCEEDINGS ADJOURNED AT 4:30)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter  United Reporting Service Ltd.  THE COURT  MR. PLANT  THE COURT

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