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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-12] British Columbia. Supreme Court May 12, 1990

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 26357  Submissions by Mr. Rush  1  2  3  4  THE  REGIS1  5  6  7  THE  COURT  8  MR.  RUSH:  9  10  11  12  THE  COURT  13  14  MR.  RUSH:  15  THE  COURT  16  MR.  RUSH:  17  THE  COURT  18  MR.  RUSH:  19  20  THE  COURT  21  MR.  RUSH:  22  23  THE  COURT  24  MR.  RUSH:  25  26  THE  COURT  27  MR.  RUSH:  28  29  30  31  THE  COURT  32  MR.  RUSH:  33  34  35  36  37  38  39  40  THE  COURT  41  MR.  RUSH:  42  43  44  45  46  47  MAY 12, 1990  VANCOUVER, B.C.  PRAR:  Order in court.  In the Supreme of British  Columbia, this 12th of May, 1990.  Delgamuukw versus  Her Majesty The Queen at bar, my lord.  :  Mr. Grant.  My lord, we have handed up an empty binder, and it is  intended to be filled by a number of arguments, the  first of which is Ms. Mandell's argument on 735,  followed by Mr. Grant's argument on limitations.  :  Yes.  All right.  So Mr. Grant's argument on  limitations will be tab 2.  Will be tab 2.  :  Yes.  Yes, all right.  Tab 2 should be Mr. Grant's limitation argument.  :  Yes, I have that.  And, my lord, I am going to hand up an argument with  regard to reputation evidence.  :  Thank you.  Your lordship may recall that we indicated we would  return to this question.  :  Yes.  I hand that up to you please.  And this could be  placed at your tab 3.  :  Thank you.  And, my lord, I should advise you that I'll address  you on the question of reputation, and then I will  move to consideration of another matter raised by your  lordship, and that's Campbell and Hall.  :  Oh, yes.  And I will deal briefly with that, and I will pass up  to your lordship a further argument dealing with the  case of Sigeareak, a case that your lordship queried  me about very early in the days of the submission --  during the time of our submissions on the Royal  Proclamation, and I will -- depending on the time, I  may simply hand that to you for your lordship's  consideration.  :  All right.  Followed by that Mr. Jackson will submit to you on  the issues pertaining to international law, and then  Mr. Grant will submit to you on remedies.  My lord, beginning with the reputation argument.  This was an issue raised by your lordship early in the  trial, and you indicated at the time that it was  perhaps the most difficult question arising in the 2635?  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  context of the case.  And I am sure that was an  observation made very early in the day.  :  Yes.  I set out a portion of the Milirrpum decision, which  you cited in your judgment on the evidentiary issue,  and it's on page 1, and I ask your lordship to -- just  to take into account beginning the second paragraph.  You noted that the Milirrpum case not dissimilar to  this one in many respects.  And you went on to cite  Mr. Justice Blackburn's reliance on Phipson and the  distinction drawn between public and private rights,  and in the middle of the quote it states this:  "... Phipson and other authorities concluded  that the distinction between public and private  rights does not prohibit the admissibility of  declarations of a reputation about, for  example, a boundary if it affects a large or  community such as a clan.  At page 156 Mr.  Justice Blackburn refers to this private versus  public distinction advanced by the solicitor  general."  And then quoting His Lordship.  "In my opinion this argument loses sight of the  rationale of the distinction between public and  general rights, and private rights.  The real  importance of the distinction is surely that  rights affecting a large number of people are  those which are likely to be truly stated,  because large numbers of people are likely to  know the truth, and error is thus sifted as  Wigmore says.  To quote Wigmore again:  'The  matter is one which in its nature affects the  common interest of a number of persons in the  same locality, and thus necessarily becomes the  subject of active, general and intelligent  discussion.'  This requirement is plainly  satisfied in the example quoted.  It is not  displaced by arguments based on the peculiar  status of the clans vis-a-vis each other, in  this particular case."  And then your Lordship carries on.  "Mr. Justice Blackburn goes on to point out that 26359  Submissions by Mr. Rush  the question under consideration was  admissibility, not weight, and I think we have  the same situation here as the weight to be  given to evidence as a completely different  question ..."  And then you say:  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. RUSH:  MR. RUSH:  "Applying the foregoing it is my conclusion that  reputations about interest in land and  boundaries are admissible.  The weight of such  evidence depends upon many circumstances.  Inclusion in an adaawx, properly established,  would add credence, but again, I do not think  inclusion in an adaawx is an essential or  automatic qualification for admissibility."  And then your lordship went on to succinctly frame  the proper inquiry.  "... and it may be that the only proper question  to ask in chief about these matters is along  the lines suggested by Wigmore.  'What have you  heard old men, now deceased, say as to the  reputation on this subject?'  It is not of  course necessary to use that precise language,  as the law does not favour magic words, but it  is important to remember that the question is  not 'What is the reputation in the community?'  as such a reputation may not be based on  grounds (declarations by deceased persons)  which alone makes the evidence admissible."  Now, my lord, we do come to the question of weight  of the evidence, and the province argues that the  plaintiffs' evidence of the boundaries fails to meet  the criteria as set out by your lordship and by your  lordship relying on Mr. Justice Blackburn.  And we say  this is not so.  : S. 4, 5(b) is the province?  Is the province's citation in that summary argument.  The plaintiffs' evidence of territorial boundaries  and ownership of house territories, we say, meets the  criteria determined by your lordship and set out in  Milirrpum.  And we say the evidence is entitled  significant weight for these reasons:  First, the evidence is based on the statements of 26360  Submissions by Mr. Rush  1 deceased persons of competent knowledge.  2 Rights of ownership and boundaries were publicly  3 announced at feasts of the Gitksan and Wet'suwet'en,  4 and they were discussed in the community and among  5 people on the land.  6 Three, these rights affect a large number of  7 people in the Gitksan and Wet'suwet'en community,  8 today 7,000, and therefore error is sifted and  9 truthful statements of the rights is assured.  10 THE COURT: Do you know what the breakdown is between Gitksan and  11 Wet'suwet'en?  Is there any evidence of it?  12 MR. RUSH:  I'm not sure if there is any evidence, my lord, and  13 I'm not sure that off the top of my head I could  14 readily give that to you.  I think I would be reaching  15 to find that approximate breakdown, but I could find  16 it for you.  17 THE COURT:  Is there any evidence about the 7,000?  I always  18 thought it was 6.  19 MR. RUSH:  I think there is evidence -- and of course 7,000 is  20 not a fixed figure.  21 THE COURT:  All right.  22 MR. RUSH:  But my understanding is that several witnesses refer  23 to that as an approximate population size of the  24 Gitksan and Wet'suwet'en communties.  25 MR. GOLDIE:  The number 6 was also referred to, my lord.  I  26 think it's all approximate.  27 MR. RUSH:  Knowledge of boundaries and ownership is of common  28 interest to the large number of Gitksan and  29 Wet'suwet'en people in their territory, and as such  30 was and continues to be part of the active and  31 widespread intelligent discussion within their  32 community, the same locality, according to Wigmore.  33 5.  Knowledge of place names on the boundaries and  34 within the territories as proof of ownership and  35 boundary was common throughout the community.  These  36 place names are in the Gitksan or Wet'suwet'en  37 language.  38 6.  Ownership of territory, boundaries, names of  39 geographical places, signal events and house ancestors  40 were typically referred to in the adaawk and the  41 kungax, although because there are fewer migration  42 accounts among the Wet'suwet'en, there are fewer  43 accounts in which the Wet'suwet'en territories are  44 mentioned.  45 7.  With respect to the boundaries between the  46 Kitwancool Gitksan and the Gitksan chiefs who are  47 plaintiffs in the case, these boundaries were proved 26361  Submissions by Mr. Rush  1 on the Kitwancool side by Glen Williams and Solomon  2 Marsden, both of whom are Kitwancool hereditary  3 chiefs, and both called in the case.  4 And, my lord, in Milirrpum Mr. Justice Blackburn  5 relied on Phipson for the general statement of the  6 rule regarding reputation of ownership.  And I have  7 set that out at the top of page 5, and it's repeated  8 by Mr. Justice Blackburn.  9 As to reputation, Mr. Justice Blackburn in citing  10 Wigmore said:  11  12 "What is offered must be in effect reputation,  13 not the mere assertion of an individual ... but  14 reputation includes and is often learned  15 through the assertion of individuals; it is  16 therefore constantly necessary to distinguish  17 between (a) assertions involving mere  18 individual credit and (b) assertions involving  19 a community reputation.  The common form of  20 question put to a reputation witness was:  21 'What have you heard old men, now deceased, say  22 as to the reputation on this subject?'"  23  24 He went on to say:  25  26 "... The deceased individual declarant is merely  27 the mouthpiece of the reputation.  Whenever,  28 therefore, individual declarations are  29 recovered, they must appear to be, ... 'the  30 results of a received reputation'."  31  32 As to the distinction between public and private  33 rights, my lord, Mr. Justice Blackburn said:  34  35 "The real importance of the distinction is  36 surely that rights affecting a large number of  37 people are those which are likely to be truly  38 stated, because large numbers of people are  39 likely to know the truth, and error is thus  40 sifted ..."  41  42 Now, as to the scope of the community contemplated  43 by the rule as it pertained to the peoples under  44 consideration in his case, Mr. Justice Blackburn had  45 this to say on page 6:  46  47 "The group or community is the group consisting 26362  Submissions by Mr. Rush  1 of all the people of all the clans who are  2 plaintiffs.  The custom of law which they seek  3 to assert is not merely one right, of the same  4 right existing in each of a number of people to  5 do the same simple or single thing."  6  7 THE COURT:  Or the same right?  Not merely one right or the same  8 right.  9 MR. RUSH:  Or the same right existing.  Yes, my lord.  Thank  10 you.  11  12 "... in each of a number of people to do the  13 same simple or single thing, but the totality  14 of aboriginal law which says 'This land is  15 Rirratjingu land and there the Rirratjingu may  16 do certain things in certain circumstances, and  17 this land is Gumatj land and there the Gumatj  18 and the other clans may do other things in  19 other circumstances' and so forth."  20  21 And then I underscore the following:  22  23 "Once the rights assert reasonable doubt seen  24 as a complex of different but consistent  25 rights, applicable to a whole community, being  26 the group of clans who are the plaintiffs in  27 the action, the apparent difficulty  28 disappears.  There is an identity between the  29 community of people in which the reputation is  30 alleged to be held and the community of people  31 which enjoys the rights which the reputation  32 seeks to establish, to use the Solicitor  33 General's words again."  34  35 Now, my lord, on the last of the principles  36 Wigmore, in dealing with the principle ante litem  37 motam, said this:  38  39 "The limitation, already noticed as obtaining in  40 another hearsay exception, that the  41 reputation, to be admissible, must have arisen  42 ante litem motam ...  43  44 And that's to be distinguished as from the  45 statement of the reputation.  46 Now, my lord, as we see it, what these authorities  47 indicate is that there are basically three principles 26363  Submissions by Mr. Rush  1 here.  Firstly the source of the knowledge.  What do  2 old men or women now deceased say?  That is the  3 reputation of past generations.  4 Secondly, the community or the common interest of  5 a number of persons in the same locality.  6 And third, the ante litem motem principle.  7 And let me deal with the first.  The source of the  8 knowledge.  What old men and women now deceased say  9 about the reputation on the ownership and boundaries  10 of the territories.  Now, my lord, we say that the  11 reputation as to the boundaries of the territory has  12 been passed on from generation to generation from the  13 deceased ancestors and knowledgeable elders of the  14 plaintiffs.  There are hundreds of informants now  15 deceased with respect to the territorial boundaries.  16 In the overwhelming majority of the cases these  17 deceased persons were present on the territory at the  18 time they described and showed the boundaries of the  19 territories to the witnesses.  And this is plain from  20 the review of each of the territories in the action.  21 The territory and its ownership were spoken of  22 publicly in the feast, and this knowledge was common  23 in the Gitksan and Wet'suwet'en communties.  The  24 evidence in this case on this issue is replete with  25 examples, but I cite Mr. James Morrison.  26  27 "People sitting in the feast hall (here) what  28 you saying that identified boundary and they  29 know where the boundary is.  You name the place  30 where the post is, like An Lii Diks, and they  31 know where the boundary is.  It's in the feast  32 and anyone that is sitting in the feast listen  33 to you what you said the feast, Ann Lii Diks.  34 That's where the law has been passed onto  35 another chief."  36  37 Knowledge was passed to the present speakers from  38 their deceased ancestors.  And I made this point in  39 relation to the argument on Mathew, my lord.  He gave  40 the examples of Thomas George to Alfred Joseph, Rose  41 Sam to Mable Critch, and Simon Morrison to Pete  42 Muldoe.  Even though the map researchers, my lord,  43 obtained their information about the place names from  44 both deceased and living informants, and their maps  45 used as a starting point for discussions with the  46 affiants, the knowledge relied on by the affidavit  47 witnesses came from the deceased people of past 26364  Submissions by Mr. Rush  1 generations.  2 Now, my lord, again a point that I made during the  3 mapping argument.  4 In an oral society it is hardly surprising that  5 the description of the boundaries has been discussed  6 by the witnesses with other persons who are now alive.  7 The defendants appear to suggest that this prejudices  8 the source of the information.  Yet, on this argument  9 it would never be possible to demonstrate the evidence  10 of the territories in an oral society because the  11 people are always discussing their territories as an  12 integral part of their present every day lives.  The  13 deponents to the affidavits testified that the persons  14 who were the sources of information are deceased.  15 This was not undermined in cross-examination, nor, in  16 many cases, was it challenged at all.  17 Now, the second point, my lord, that is the  18 question of the community, the common interest of a  19 large number of people.  And I am on page 9 now.  The  20 community, we say, is the Gitksan on the one hand and  21 the Wet'suwet'en on the other.  The whole community,  22 to use Wigmore's term, is the Gitksan community and  23 the Wet'suwet'en community.  Each of these communties  24 represents the locality within which there exists the  25 common reputation about the territory.  Included  26 within the community, to use Mr. Justice Blackburn's  27 language, is the group consisting of all the people of  28 all the clans who are plaintiffs, as well as the  29 Kitwancool Gitksan.  This then is the community of the  30 reputation, and it is the community in which the  31 plaintiffs have demonstrated that their rights are  32 enjoyed and which they have proved exist.  33 The defendants rely on the purported claims of  34 native groups that live adjacent to the Gitksan and  35 Wet'suwet'en.  And we say the evidence of claims by  36 neighbouring groups is not admissible for the proof of  37 the statements made therein.  It is only admissible to  38 prove that they delivered certain claims to the  39 government of Canada.  Or I should add, or made  40 certain claims in other contexts.  There is no  41 evidence to support the foundation for those claims.  42 None of the peoples from those adjacent nations were  43 called to give evidence about those claims.  44 The Indian neighbours of the Gitksan and  45 Wet'suwet'en are not part of the community of  46 reputation for the purpose of public affirmation of  47 the Gitksan and Wet'suwet'en territories.  They are 26365  Submissions by Mr. Rush  1 outside the universe of laws, institutional connection  2 and community discourse which dictates participation.  3 In short, they are other nations.  Their knowledge of  4 the reputation is immaterial.  For the Gitksan and  5 Wet'suwet'en the definition of ownership and  6 determinations of boundaries is dependent on  7 reputation passed from earlier generations of their  8 ancestors.  9 This does not mean to say that the neighbours are  10 not ones who would not be able to verify Gitksan and  11 Wet'suwet'en external boundaries.  Obviously from  12 their rules and institutional norms and laws they may  13 well claim territory up to the boundaries.  They also  14 know the claims of the Gitksan and Wet'suwet'en,  15 having met on the boundaries or attended their feasts.  16 But that does not make them participants in the  17 plaintiffs' systems or contributors to the Gitksan and  18 Wet'suwet'en reputation on house territories.  19 Furthermore, there is no evidence that the  20 neighbours of the Gitksan and Wet'suwet'en are in fact  21 part of their community.  It is hard to see that  22 peoples on the opposite side of natural boundaries on  23 the land and consisting of separate national groups  24 could justify such a position.  The U.S., my lord,  25 does not depend on Canada to define its international  26 boundaries.  27 But, if they were to be, that is to say if the  28 adjacent neighbours were to be considered part of the  29 community, then we say there is no parallel proof that  30 the Nishga, the Carrier or any other of the Indian  31 neighbours are a similar community.  No evidence has  32 been called about these tribal societies, or that they  33 are organized and distinct societies.  34 Furthermore, the claims, the evidence about the  35 claims of some of the Gitksan and Wet'suwet'en  36 neighbours does not amount to the same type of  37 evidence as that proved by the plaintiffs in this  38 case.  39 That is to say, there is no proof of their adaawk  40 or oral history supporting claims to land.  There is  41 no evidence of place names or house ownership of land  42 by the neighbours; there may be claims to land based  43 on short term residence in the area, such as at Bear  44 Lake, but this is not proof of ownership.  45 Thirdly, there is no evidence of the internal laws  46 and institutions of the neighbouring peoples which  47 would support the political or social framework for 26366  Submissions by Mr. Rush  1 territorial ownership.  2 Because there, my lord, there is no like or  3 parallel evidence supporting their claims, the  4 evidence which the defendants seek to rely on to  5 challenge the reputation is of no evidentiary value.  6 The defendants rely on, and I'm sure they will like  7 this malaprop, on a bald, but not bold claims or  8 assertions.  The fact, my lord, of the claim is  9 meaningless without much more proof of the underlying  10 indices of ownerships holding up their claim.  A claim  11 by Norway to Labrador would be viewed as facetious,  12 unless, even though a claim, there was some common  13 floor, mutual standards between the parties such as  14 the recognition of the ancient deeds.  Further, absent  15 common standards, in this example, Norways claim would  16 have no effect on the weight to be given to reputation  17 of ownership of Labrador by Canada.  18 The evidence, my lord, advanced by the defendants,  19 submissions of claims to the office of native claims,  20 public statements, meetings of the Gitksan and  21 Wet'suwet'en and secondhand information reported from  22 participants, is not to be assessed on the same plane  23 as the evidence put forward on behalf of the chiefs.  24 It has no evidentiary weight in determining the  25 community reputation of the Gitksan and Wet'suwet'en  26 as to territorial ownership and boundaries.  27 Furthermore, and finally on this point, none of  28 these neighbouring groups has been put to the test of  29 examination and cross-examination as have the Gitksan  30 and Wet'suwet'en with respect to each and every part  31 of their territories.  32 And, my lord, finally on the third of the three  33 principles, the ante litem modem principle.  We say  34 that the reputation was established and arose long  35 before the litigation was contemplated, because it is  36 the reputation that must arise prior to the  37 litigation.  The deceased informants of the present  38 witnesses are shown as having spanned the last  39 century.  Many of the witnesses who are relied on --  40 many of the witnesses whose relied on their  41 information were themselves seniors and elders in the  42 community, for example, Johnny David, Stanley Williams  43 and Pete Muldoe.  Their knowledge reaches a long way  44 back into the past, and had nothing to do with this  45 court action.  It is true that some evidence with  46 respect to territorial boundary was passed on  47 subsequent to the commencement of the court action, 26367  Submissions by Mr. Rush  1 most was not.  But the cross-examination did not  2 disclose any want of accuracy or reliability on the  3 basis that the affiant might benefit from the outcome  4 of the case or was biased as a result.  This was a  5 largely absent feature in the evidence, and at best it  6 remains as a neutral factor in assessing the weight to  7 attribute to the reputation testimony.  8 And we say in conclusion, my lord, that the  9 evidence of the hereditary chiefs and knowledgeable  10 elders on the Gitksan and Wet'suwet'en territories,  11 proves the ownership and boundaries of those  12 territories.  Of course this argument must be read in  13 context of the argument on the house territories and  14 on the map.  15 My lord, I would now turn to another question  16 again raised by your lordship.  And this has to do  17 with the case of Campbell and Hall.  18 THE COURT:  At the moment I don't even recall what the context  19 was when I raised it.  It seemed to me --  20 MR. RUSH:  Well, my lord, I think you were querying its  21 application to the colony of British Columbia and to  22 the establishment of the colony of Vancouver's Island,  23 and you sought to know whether any of the principles  24 in Campbell and Hall might be applicable to the  25 establishment of the colony and the application of  26 laws there.  27 THE COURT:  All right.  28 MR. RUSH:  My lord, I don't intend to dwell on this case.  29 THE COURT:  I hope you are not dwelling on it because of some  30 casual comment I tossed out in argument, because I  31 don't remember what the context was.  32 MR. RUSH:  Well, my lord, I can tell you that I have submitted  33 to you earlier on Campbell and Hall.  34 THE COURT:  Yes.  35 MR. RUSH:  And what I have done here is to set out the factual  36 matrix at the beginning in the first paragraph, and  37 just to reacquaint yourself with -- your lordship with  38 the case, it concerned the Island of Grenada.  It was  39 taken by the British in open conflict with the French  40 and surrendered by the French.  Letters Patent were  41 issued on March 26th, 1764, and the point to note  42 here, my lord, is that it's after the Royal  43 Proclamation.  General Melville was commissioned as  44 the governor.  He was given power to establish a  45 legislature as specified in a previous Proclamation,  46 and that was the Royal Proclamation of 1763, and by  47 that problem the King had empowered and directed the 2636?  Submissions by Mr. Rush  1 government of Grenada by Letters Patent under the  2 Great Seal to summon general assemblies of the  3 representatives of the people of Grenada so soon as  4 the circumstances of the colony would allow, and with  5 their consent to make laws for the public peace,  6 welfare and good government of the colony and its  7 inhabitants.  8 And then I indicate what the nature of the second  9 Proclamation was in the last paragraph.  And then on  10 page 2 I state that the question was whether the King  11 had precluded himself from the exercise of a  12 legislative authority over Grenada by the promise of  13 an assembly in the earlier Proclamation.  And Lord  14 Mansfield, in delivering judgment, stated that prior  15 to the issue of the Letters Patent of July 20, 1764,  16 which was a taxing Proclamation, the King had  17 precluded himself from the exercise of a legislative  18 authority over the Island of Grenada by the grant of  19 assembly.  He then considered the terms of the two  20 Proclamations in relation to the nature of the  21 legislation.  22 And then, my lord, I cite two passages.  I have  23 submitted to your lordship on this during the course  24 of the Royal Proclamation.  25 And I take you over to page 3, my lord.  Basically  2 6 Campbell and Hall concerned the Crown's power to  27 legislate for local taxing matters while the Letters  28 Patent constituting a local assembly were in effect.  29 And the Privy Council later in Sammut makes clear that  30 what was at issue in Campbell and Hall was a  31 concurrent legislative power in the Crown where such a  32 power had not been reserved.  And then there is a  33 discussion as to the nature of subordinate  34 legislation, and the relationship -- the argument that  35 we made, my lord, was that prerogative legislation was  36 not impacted by subordinate legislation.  But, my  37 lord, relying on Calvin's case, the courts held that  38 laws of a conquered country continue until they are  39 altered by the conquerer.  And Grenada was taken by  40 conquest.  So the issue was what if any was the impact  41 on local laws by a conquering power.  And then of  42 course that raised the issue of what if at all occurs  43 when there is a change in sovereignty in terms of a  44 colonial regime.  45 And I go on to say, my lord, it was a well settled  46 principle of British colonial law, and which has been  47 applied to the pre-existing rights of aboriginal 26369  Submissions by Mr. Rush  1 peoples, that a change of sovereignty does not affect  2 the rights of the original inhabitants.  And this  3 principle is known as the principle of continuity.  4 And I cite Amodu Tijani, and I go on to indicate the  5 significance of the imperial supervision in regard to  6 the fundamental issue of land ownership and the  7 accommodation of pre-existing rights of aboriginal  8 peoples with the land requirements of settlers through  9 the public process of treaty making, and how we  10 demonstrated that in our analysis.  11 My lord, the point I am coming to is really on  12 page 4, and that is this:  13 That in Johnson and Mcintosh the Court dealt with  14 the question whether the Crown had the prerogative  15 power to make provision for the Indian lands in a  16 colony where it lacked legislative authority.  And  17 Chief Justice Marshall stated that in British  18 constitutional law all vacant lands were vested in the  19 crown, and the exclusive power to grant them was  20 admitted to reside there as a branch of the royal  21 prerogative.  And not only was this true in respect of  22 vacant lands, but also of lands occupied by the  23 Indians, the ultimate title to which, subject to the  24 Indians' right of occupancy, was held by the King,  25 along with the power to grant that title.  The  26 conclusion of the Chief Justice in that case was that  27 the lands covered by the Royal Proclamation of 1763  28 were lands which the King had the right to grant or to  29 reserve for the Indians.  And I should say  30 irrespective of the way in which the colony was  31 characterized or the colony was acquired.  And that  32 principle, my lord, is demonstrated then by Chief  33 Justice Marshall, and we have recited this on several  34 occasions, and I set it out once again for your  35 lordship on pages 5 and 6.  Down to the bottom of page  36 6, my lord.  Chief Justice Marshall summarized what he  37 says as the relative rights of the United States on  38 the aboriginal peoples, and he said:  39  40 "The United States then have unequivocally  41 acceded to that great and broad rule by which  42 its civilized inhabitants now hold this  43 country.  They hold and assert in themselves,  44 the title by which it was acquired.  They  45 maintain as all others have maintained, that  46 discovery gave an exclusve right to extinguish  47 the Indian title of occupancy, either by 26370  Submissions by Mr. Rush  1 purchase or by conquest; and gave also a right  2 to such a degree of sovereignty as the  3 circumstances of the people would allow them  4 to exercise."  5  6 Now, my lord, I make the point mid-page that these  7 passages have been repeatedly cited in later cases,  8 and Mr. Jackson submitted to you on that, and it will  9 be submitted in some of these cases, both the United  10 States and Canadian judges, had fallen into error in  11 their characterization of the relationship between the  12 Crown absolute title and aboriginal title.  But for  13 our purposes, my lord, I take you to the top of 7,  14 where we urged upon you that the doctrine of discovery  15 set out in Johnson and Mcintosh properly understood is  16 a distributional principle by which the European  17 nation determined which of them possess the exclusive  18 right to extinguish the Indian title by purchase or  19 conquest.  And then I cite the principle in Amodu  20 Tijani, which again, my lord, we have cited  21 previously, and I take you to the top of page 8 now,  22 where their lordships in Amodu Tijani summed up their  23 position as follows:  "a mere change in sovereignty is  24 not to be presumed as meant to disturb rights of  25 private owners; and the general terms of a cession are  26 prima facie to be construed accordingly."  It may be  27 remarked that although the situation under  28 consideration involved a cession, the principle is  29 stated as applicable to changes of sovereignty  30 generally.  31 Now, my lord, Mr. Justice Hall in Calder, with the  32 concurrence of Mr. Justice Spence and Laskin,  33 expressed the view that acquisition of sovereignty by  34 the Crown over a territory occupied by indigenous  35 peoples did not as such extinguish their land rights,  36 which were presumed to be respected in the absence of  37 a clear expression of the opposite intent.  These  38 rights subsisted as a burden upon the underlying title  39 of the Crown, unless or until extinguished by some  40 specific act emanating from a competent authority.  41 Therefore, my lord:  42  43 "... the proposition that after conquest or  44 discovery the native peoples have no rights at  45 all except those subsequently granted or  46 recognized by the conqueror or discoveror ...  47 is wholly wrong as the mass of authorities ... 26371  Submissions by Mr. Rush  1 establishes."  2  3 And that's a quote from Mr. Justice Hall.  And he  4 goes on at the bottom of 8:  5  6 "... when the Nishga people came under British  7 sovereignty they were entitled to assert, as a  8 legal right, their Indian title.  It being a  9 legal right, it could not thereafter be  10 extinguished except by surrender to the Crown  11 or by competent legislative authority, and then  12 only by specific legislation."  13  14 My lord, it is our submission with respect to  15 Campbell and Hall that the distinction between acceded  16 and a conquered colony gave way over time to a  17 principle which more accurately reflected the fact  18 that the British encountered lands which were occupied  19 by native inhabitants.  This principle was embodied in  20 the doctrine of discovery.  It acknowledged the  21 reality on the ground that the lands settled were  22 inhabited and occupied, and that the conquering nation  23 was obligated to purchase the Indian interest in the  24 soil.  When Britain asserted sovereignty in British  25 Columbia, the colonial government, upon establishment  26 and instruction, was empowered to make laws for the  27 colony subject to the pre-existing aboriginal title.  28 The colony could not make laws which were repugnant or  29 inconsistent with the principles affirming the  30 aboriginal title of the native people to the land.  31 And, my lord, that, we say is the context within  32 which the case of Campbell and Hall should be  33 evaluated.  34 Now, finally, my lord, I will hand up a submission  35 that we have with regard to the case of Sigeareak.  36 And very early in the day your lordship posed the  37 question as to whether or not there was any  38 authorities dealing with the Royal Proclamation and  39 its application to Rupert's Land, and at that time I  40 was not able to advise your lordship with any  41 necessary degree of specificity, but there was a case  42 in the Supreme Court of Canada called Sigeareak, and  43 it's to that case that I now direct your lordship's  44 attention.  And I just ask your lordship to make note  45 of the fact, my lord, that this --  46 THE COURT:  Should I put it in tab 5?  47 MR. RUSH:  I think you could place it in the same tab as 26372  Submissions by Mr. Rush  1 Campbell and Hall, and perhaps just make a -- a  2 marginal note that it applies to the portion of the  3 plaintiffs' argument dealing with the application of  4 the Royal Proclamation to Rupert's Land.  5 Now, my lord, this was a case -- I do not intend  6 to review this, my lord, except to say that this was a  7 case where Mr. Justice Hall found that the  8 Proclamation specifically excludes territory granted  9 to the Hudson's Bay Company.  And he said there can be  10 no question that the region in question was within the  11 area granted to the Hudson's Bay Company, accordingly  12 the Proclamation does not and never did apply in the  13 region in question, and the judgments to the contrary  14 are not good law.  15 We say, and I ask your lordship to read the  16 judgment in our argument, that these words spoken by  17 Mr. Justice Hall were obiter for the reasons indicated  18 on page 2.  And we also note, my lord, that -- we cite  19 an article by Mr. Narvey, in which Mr. Harvey  20 indicates that Mr. Justice Hall considered the  21 language of the Sigeareak case to be obiter.  And I --  22 THE COURT:  What you're saying is if you don't get your Indian  23 title on the Proclamation, you got it anyway?  24 MR. RUSH:  Yes, there is an alternative argument.  Oh, yes.  25 THE COURT:  But are you submitting that the Royal Proclamation  26 does apply to Rupert's Land?  27 MR. RUSH:  Yes, we do, for the reasons that we gave --  2 8 THE COURT:  All right.  29 MR. RUSH: And that this case does not, with our distinguishment,  30 stand as an authority to the contrary propositions.  31 THE COURT:  All right.  32 MR. GOLDIE:  My lord, I don't think the submission on the last  33 paragraph on page 3 ought to be entertained.  34 THE COURT:  Well, there is a problem with judges speaking more  35 than once, isn't there?  36 MR. RUSH:  My lord, I note that the article is an exhibit in the  37 proceedings, and we rely upon that, and to the extent  38 that your lordship can take account of Mr. Narvey's  39 observations, we commend that to you.  40 Now, my lord, that completes my submissions, and I  41 will ask Mr. Jackson to address your lordship.  42 THE COURT:  Tab 5, is it?  43 MR. JACKSON:  Yes, my lord.  My lord, paragraph 71 of the  44 Statement of Claim states:  45  46 "Customary and conventional international laws  47 requires the defendant, the provincial Crown to 26373  Submissions by Mr. Rush  1 recognize and confirm the right of the  2 plaintiffs to the ownership of and jurisdiction  3 over their territory and the right not to be  4 deprived thereof without their consent.  The  5 plaintiffs, as distinct peoples, have the right  6 of self-determination within the territory in  7 accordance with international law."  8  9 And I have set out, my lord, in the first page the  10 general distinction made in international law as  11 between customary and conventional international law.  12 Conventional international law being those norms or  13 roles found in the decisions of the international  14 courts or tribunals, such as the international court  15 of justice, international custom as reflected in the  16 practice of states, the general principles of law  17 recognized by civilized nations, and the teachings and  18 writings of scholars.  Conventional international law  19 is the law established by treaties, international  2 0 agreements and conventions.  21 MR. GOLDIE:  I wonder if my friend can refer me to the section  22 in the summary that I should be following and  23 comparing this with.  24 MR. JACKSON:  We did not have a part of the summary which dealt  25 with this, my lord.  26 MR. GOLDIE:  Thank you.  27 MR. JACKSON:  The reference to those sources, my lord, you will  28 see is -- one of them is Article 38, which is the  29 Statute under which the International Court of Justice  30 operates.  The International Court of Justice being a  31 creature although pre-dating the United Nations'  32 organization, having first come to existance as part  33 of the legal nations, now operates under the charter  34 which is part of the basic documents of the United  35 Nations.  36 In terms of the legal effects of international  37 law, my lord, essentially the question to what extent  38 can your lordship have regard to international law,  39 the distinction between conventional and customary  40 international law is of significance insofar as it  41 does make a difference between the extent to which  42 rights under international law are enforceable as a  43 matter of domestic Canadian law.  And in this regard  44 the Canadian courts have followed the English  45 position, which is that customary international law is  46 incorporated or adopted as part of the domestic law as  47 it is ex proprio vigore, unless it is in conflict with 26374  Submissions by Mr. Jackson  1 that domestic law.  By contrast conventional  2 international law, that is laws which arise on the  3 treaties, do not become part of domestic law unless  4 incorporated or implemented by legislation.  But in  5 either case the courts will seek to interpret domestic  6 law so as not to conflict with international legal  7 principles.  8 And one of the authorities I referred your  9 lordship there to is the decision of Mr. Justice  10 Meredith, and a decision affirmed by the B.C. Court of  11 a Appeal in the Gordon case which concerned the  12 question of whether or not Canadian legislation, which  13 made a fence to fish within the 200 mile zone, whether  14 to the extent that was in conflict with the  15 international law of the sea, conventional --  16 customary international law, whether or not a  17 defendant could say that the Canadian legislation was  18 ultra vires or inconsistent, and therefore  19 inapplicable because he was operating under what he  20 said was the rules of international law.  And the  21 courts said that while international law was part of  22 Canadian law to the extent that the Parliament of  23 Canada had clearly legislated in a manner  24 inconsistent, that precluded the application of his  25 defence based upon the rules of customary  26 international law.  27 On page 2 I have referred to two cases in which  28 the courts in the context of charter litigation have  29 dealt with this issue of the extent to which Canadian  30 courts should look at international covenants.  31 The first decision is that of Mr. Justice Linden  32 in the Mitchell case, which concerned the issue of  33 cruel and unusual punishment, and also the question of  34 retroactivity.  35 The second reference, which I would like to take  36 your lordship to, is the descenting judgment of Mr.  37 Justice or Chief Justice Dickson in the Public  38 Service Employees reference.  His descent on this  39 issue was on the merits, not on this particular point  40 I am referring your lordship to, and the Chief Justice  41 said in relation to the relevance of international  42 law:  43  44 "International law provides a fertile source of  45 insight into the nature and scope of the  46 freedom of association of workers.  Since the  47 close of the Second World War, the protection 26375  Submissions by Mr. Jackson  1 of the fundamental rights and freedoms of  2 groups and individuals has become a matter of  3 international concern.  A body of treaties (or  4 convention) and customary norms now constitutes  5 an international law of human rights under  6 which the nations of the world have undertaken  7 to adhere to the standards and principles  8 necessary for insuring freedoms, dignity and  9 social justice for their citizens.  The charter  10 conforms to the spirit of this contemporary  11 international human rights movement, and it  12 incorporates many of the policies and  13 descriptions of the various international  14 documents pertaining to human rights.  The  15 various sources of international human rights  16 law - declarations, covenants, convention,  17 judicial and quasi-judicial decisions of  18 international tribunals, customary norms -  19 must, in my opinion, be relevant and persuasive  20 sources for interpretation of the charters  21 provisions."  22  23 And we say, my lord, that that applies no less to  24 the interpretation of Section 35 of the Constitution  25 Act.  And His Lordship goes on at the bottom of page 2  26 over to page 3, my lord, and I will just take you to  27 the last paragraph of the citation on page 3:  28  29 "Furthermore, Canada is a party to a number of  30 international human rights conventions, which  31 contain provisions similar or identical to  32 those in the charter.  Canada has thus obliged  33 itself internationally to ensure within its  34 borders the protection of certain fundamental  35 rights and freedoms which are also contained in  36 the charter.  The general principles of  37 constitional interpretation require that these  38 international obligations be relevant and  39 persuasive factor in charter interpretation."  40  41 THE COURT:  Doesn't that obligation consist of one that Canada  42 has taken upon itself to cause its law to be made as  43 much as possible in conformity with that other  44 standard, and don't we then look at Canadian law to  45 see whether it does or not?  46 MR. JACKSON:  I think the Chief Justice is saying that, my lord,  47 but I think he is saying also something else, which is 26376  Submissions by Mr. Jackson  1 that to the extent that Canadian law does use certain  2 terms in describing fundamental rights, whereas a  3 common law or as a matter of the charter, the relevant  4 instruments developed internationally, whether Canada  5 has subscribed to them or not, provide a reservoir, a  6 repository of relevant legal principles which Canadian  7 courts can and should draw upon.  That, I think, is  8 particularly reinforced where we have signed a  9 particular document which uses a particular or  10 incorporates a particular guarantee which itself is  11 incorporated in Canadian law.  In the context of this  12 particular issue, my lord, we say that, of course,  13 Section 35 to the extent that it does affirm and  14 guarantee aboriginal rights.  15 THE COURT:  Well, that's my problem, Mr. Jackson, and you will  16 have to help me in this.  If that is so, why do we  17 have to look beyond Section 35?  18 MR. JACKSON:  Because, my lord, Section 35, as your lordship has  19 become aware, is -- uses phrases of a somewhat general  20 quality.  It talks about aboriginal rights.  There is  21 a large issue as between the plaintiffs and my friends  22 as to what those rights, if indeed they have not been  23 extinguished, as my friends' argument, on the  24 assumption they have not, what is the content of those  25 rights.  And my friends would argue that the content  26 of aboriginal rights is a narrow one, and the exact  27 narrowness of it will be measured by my friends'  28 submission in the weeks to come.  29 As your lordship is aware, the plaintiffs'  30 submissions give the content of Section 35 a large and  31 liberal interpretation, and we say it encompasses  32 proprietary interests which we characterize as  33 ownership, and that it also composes of -- comprises a  34 jurisdictional component.  And to the extent that you  35 do not read in Section 35 a particular definition of  36 aboriginal rights, we say that it is relevant to look  37 to conventional and customary international law to see  38 to what extent the indeterminacy, if I can use that  39 word, has in fact been given further shape in  40 international norms.  And that is the purpose of this  41 submission, my lord.  42 The third part of this submission, my lord, under  43 the heading of international and aboriginal rights,  44 provides something of a retrospective.  We have  45 previously demonstrated how in the very earliest  46 articulation of the rights of aboriginal peoples  47 Francisus de Vitoria grounded those rights in the 26377  Submissions by Mr. Jackson  1 context of principles of international law.  We have  2 also shown how in the 18th century in the Mohegan  3 Indians and Connecticut case the adjudication of the  4 rights of the Mohegan Indians was characterized as one  5 to be determined by the rules of international law.  6 In the 19th century Chief Justice Marshall in  7 crystallizing the fundamental principles of the common  8 law and formulating the concept of the protectorate  9 relationship between Indian Nations and the Crown  10 looked to international law and the well-developed  11 practice of European states as important precedents  12 for this concept.  13 In Worcester, Chief Justice Marshall, in affirming  14 the universal conviction that the Indian Nations  15 possessed a full right to the lands they occupied,  16 until that right shall be extinguished by the United  17 States, with their consent ground that proposition in  18 the bedrock, and should be of the numerous treaties  19 negotiated between European nations and Indian nations  20 prior to the America revolution and the settled  21 doctrine of the law of nations.  And similarly Mr.  22 Justice Chapman in the New Zealand case of Symonds  23 attributed the recognition of aboriginal rights to the  24 state practise of European nations with aboriginal  25 peoples over the course of two centuries, and how that  26 led to the adoption and affirmation by the colonial  27 courts of certain established principles of law.  And  28 in this way we say that courts established under  29 English Royal Commissions, the highest courts in the  30 United States and in New Zealand have come to see the  31 established practises of states as a source for the  32 identification of common law principles.  33 And I've referred your lordship to our previous  34 submissions in that regard.  35 The fourth section, my lord, gets back to the  36 Statement of Claim, where we state that the plaintiffs  37 have a right to self-determination.  The concept of  38 self-determination, my lord, is one which has evolved  39 dramatically in international law since the days when  40 it was first introduced.  And in the first section you  41 will see, my lord, that the first use of the term  42 self-determination arose in the aftermath of the First  43 World War, and is generally attributed to the work of  44 President Woodrow Wilson, who, of course, was a  45 principle mover in the establishment of the League of  46 Nations.  And at the end of the war state boundaries  47 in Europe were reorganized to more closely coincide 2637?  Submissions by Mr. Jackson  1 with the territories of peoples or nationalities,  2 rather than the pre-war situation of empires, which of  3 course was viewed to be a principle source for the  4 war.  And it was in fact that aftermath, my lord, as a  5 historical point of interest, that nationalities such  6 as Estonia and Lithuania were established as  7 nationalities.  Also Poland and Czechoslovakia emerged  8 as nationalities as part of that process.  9 The League of Nations, my lord, in being  10 established, placed under a mandate system of the  11 allied nations the former territories of the defeated  12 nations, and required those nations in establishing  13 the protectorate relationship with the form of  14 colonies to abide by what was referred to as a sacred  15 trust of civilization, which was seen as being the  16 eventual culmination of which was seen to be the  17 recognition of the independence of those former  18 colonies.  19 And as part of the covenant of the League of  20 Nations, my lord, there was reference in article 23(b)  21 at the bottom of page 4, which required states to  22 secure the just treatment of the native inhabitants of  23 territories under their control.  Although that was  24 only applied in a limited way to tribal populations in  25 the state of Liberia.  And so what we find in the  26 League of Nations is the embryonic recognition of  27 self-determination in relation to certain former  28 colonial territories, and a recognition of states to  29 protect the rights of tribal indigenous populations.  30 Moving, my lord, to the establishment of the  31 United Nations.  We say that since the creation of the  32 United Nations in 1945, the right of peoples to  33 self-determination has developed into one of the most  34 important principles of modern international law.  The  35 principle has been mentioned, elaborated upon, set out  36 and reaffirmed in a multitude of international  37 instruments.  Moreover, there is support in the  38 international court of justice advisory opinion on  39 Namibia in 1971 and the Western Sahara case in 1975  40 for the proposition that the right of peoples to  41 self-determination is a principle of customary  42 international law.  In the Western Sahara case Judge  43 Ammoun in a separate but concurring opinion described  44 self-determination as a general principle within  45 article 38(1)(b) of the international court of justice  46 statute, which requires the court to decide disputes  47 with reference to international custom, as evidence of 26379  Submissions by Mr. Jackson  1 a general practice accepted as law.  And he further  2 commended:  3  4 "... as for the general practise of states to  5 which one traditionally refers when seeking to  6 ascertain the emergence of customary law, it  7 has in the case of the right to peoples to  8 self-determination, become so widespread as to  9 be not merely general but universal since it  10 has been so enshrined in the Charter of the  11 United Nations and confirmed by the text that  12 have just been mentioned; pacts, declarations  13 and resolutions which taken as a whole  14 epitomize the unanimity of states in favour of  15 the imperative rights of peoples to  16 self-determination ..."  17  18 My lord, the -- does your lordship wish to take  19 the break?  20 THE COURT:  Not 'til 11:00 o'clock.  21 Are you all right Madam Reporter?  22 THE REPORTER:  Yes, my lord.  23 MR. JACKSON:  The charter of the United Nations itself refers to  24 the principle of self-determination in two articles in  25 the context of the principle of equal rights and  26 self-determination of peoples.  However, the charter  27 contains no definition of the term peoples in order to  28 distinguish them, for example, from minority,  29 sub-cultures or other social divisions.  The meaning  30 of the concept of self-determination and its  31 application has been worked out and was first worked  32 out in the context of the process of de-colonization  33 which began in practise and in earnest after the  34 Second World War.  And this was reflected in chapter  35 11 of the Charter of the United Nations, which  36 declared that colonial powers were under a sacred  37 duty, reflected in the sacred trust of civilization of  38 the League of Nations, to promote the well-being of  39 the inhabitants of designated non-self-government  40 earning territories.  De-colonization and independence  41 were only envisioned for trust territories, basically  42 colonies taken from the defeated powers and former  43 League of Nations mandate territories.  44 My lord, in 1952 the Belgium delegate to the  45 United Nations argued that the problems experienced by  46 colonized peoples in Asia and Africa, which  47 essentially were the non-self-government earning 26380  Submissions by Mr. Jackson  1 territories which were principally the subject of  2 chapter 11 of the charter, were problems which were  3 also experienced by indigenous peoples in the  4 Americas, in Latin America and Central America and in  5 North America, and the chapter 11 should be given a  6 universal application.  Opposition to what came to be  7 known as the Belgian thesis, the rights to  8 self-determination, applied to all colonized people as  9 both externally or internally, was opposed largely  10 from Latin American states and from some of the new  11 emerging African states, who developed what has been  12 called in the literature and in the international  13 discourse, the "blue water thesis".  The thrust of  14 which was that the right to self-determination applied  15 only to classic overseas colonies and not, that is the  16 oversea colonies of the imperial nations, the old  17 colonial nations of France, Britain and Germany, and  18 did not apply to peoples living within the borders of  19 pre-existing states.  20 And this clash between the right of  21 self-determination of peoples and the territorial  22 integrity of pre-existing states was resolved in a  23 series of resolutions passed by the general assembly  24 of the United Nations between 1960 and 1970, and I  25 have set out at page 6 a resolution which was passed  26 in 1960, where you have the duality of these two  27 opposing concepts placed alongside and resolved.  All  28 peoples have the right to self-determination; by  29 virtue of that right they freely determine their  30 political status and freely pursue their economic  31 social and cultural development.  32 And the declaration goes on to say they have the  33 right to freely dispose of their natural wealth and  34 resources; the right is declared to be "inalienable"  35 and universal, existing "without any distinction as to  36 race, creed or colour, or a peoples degree of  37 institutional development."  "Inadequacy of political,  38 economic social or educational preparedness should  39 never serve as a pretext for delaying independence."  40 But then in article 6, my lord, the declaration  41 goes on to say:  42  43 "Any attempt at the partial or total disruption  44 of the national unity and the territorial  45 integrity of a country is incompatible with the  46 purposes and principles of the Charter of the  47 United Nations." 26381  Submissions by Mr. Jackson  1  2 And just very briefly, my lord, the concern here,  3 particularly of the African states, was that if every  4 tribal group was recognized having the right to  5 self-determination, with the consequence that they  6 could become an independent state, the newly emerging  7 African nations would in fact be bulkenized and in  8 fact disrupted just as they were beginning to emerge  9 as national states.  10 And the result of that has been that the right to  11 self-determination, as reflected in Chapter 11 of the  12 United Nations, and is reflected in the 1960  13 declaration, has been seen as limited to overseas  14 colonies of the old classic variety.  15 What I want to move on, my lord, to is the concept  16 of self-determination under international covenants.  17 THE COURT:  Haven't you already just said that that principle  18 doesn't apply, then, in this case?  19 MR. JACKSON:  No, my lord, the concept of self-determination has  20 been affirmed in a variety of contexts.  The context I  21 am talking about right now was the idea that  22 self-determination would result in independence.  23 Chapter 11 envisages that the former colonies of  24 colonial possessions will emerge as independent  25 states, and that Chapter 11 therefore is conceived as  2 6 the method by which independence is the ultimate  27 result of the U.N. scheme, and it's only in that  28 regard in the context of Chapter 11 that the 1960  29 resolutions apply.  30 Since that time, my lord, the right to  31 self-determination has been reaffirmed in other  32 international covenants, which exist in a much broader  33 framework than that of decolonization of former  34 territorial possessions.  And what I say, my lord, at  35 the bottom of page 6 is that later formulations of the  36 right of self-determination in international documents  37 are not as restricted as that found in the 1960  38 declaration.  Article, my lord, of both the  39 international covenant on civil and political rights  40 and of the international covenant on economic, social  41 and cultural rights, the text of these were approved  42 by the general assembly in 1966, and Canada adhered to  43 these conventions in 1976.  These both claim:  44  45 "All peoples have the right of  46 self-determination.  By virtue of that right  47 they freely determine their political status 26382  Submissions by Mr. Jackson  1 and freely pursue their economic, social and  2 cultural development."  3  4 That is similar to the 1960 declaration, my lord.  5 All peoples, may, for their own ends, "freely dispose  6 of their natural wealth and resources" without  7 prejudice to any obligation rising out of  8 international economic cooperation based on the  9 principle of mutual benefit, and international law.  10 In no case may a people be deprived of its own means  11 of subsistence.  12 International law commentators, my lord, have  13 argued that the provisions in these covenants ought  14 not to be interpreted in the limited way Chapter 11 in  15 the 1960 declaration has been; that is, limited to  16 overseas colonies, and have argued vigorously that the  17 language of the 1966 covenants do not support that  18 narrow interpretation.  Thus article 1(2) reflects the  19 principle of permanent sovereignty of natural  20 resources, and it locates that principle within matrix  21 of self-determination.  Whatever the scope or effect  22 of permanent sovereignty over natural resource, it can  23 hardly be argued, that the words "all peoples" in  24 article 1(1) have a different and narrower meaning  25 than the same words in article 1(2).  And it is clear  26 that article 1(2) is of general application and is not  27 limited to peoples under colonial rule or foreign  28 occupation.  And also subsequent practise under a  29 number of other international instruments supports a  30 broader view of the right to self-determination  31 outside of the colonial context.  32 And I've referred there, my lord, to two of the  33 leading scholars on international law.  Professor  34 Brownlie and Professor Crawford.  35 An issue which arises, my lord, in the  36 interpretation of the two international covenants is  37 the meaning of peoples.  Your lordship will recall the  38 United Nations Charter does not have any definition  39 section telling us what peoples means, neither does  40 the two international covenants to which I have  41 referred.  And the problem here is again one of  42 establishing a dividing line between peoples and  43 cultural or religious minorities.  And, my lord, in  44 several exchanges your lordship has had with counsel,  45 we have tried to grapple with the differences between  46 the plaintiffs' rights and, for example, the rights of  47 say a voluntary association, such as a church group, 26383  Submissions by Mr. Jackson  1 or another cultural minority within Canada.  And as  2 your lordship says, that Canada prides itself on its  3 multi-culturalism, and the fact that within the  4 charter we give scope and are required to give scope  5 to the diversity of cultural minorities, language  6 minorities within Canada.  7 What is then different about the plaintiffs, in  8 terms of their asserted rights as a people.  And a  9 number of United Nation commentators have tried to  10 grapple with this.  And I have set out the attempted  11 distinction of the special Rapeurtor, Dr. Christeskew  12 in 1981, who tried to come up with a definition.  13  14 "The term 'people' denotes a social entity  15 possessing a clear identity and its own  16 characteristics; secondly it implies a  17 relationship with a territory, even if the  18 people in question has been wrongfully expelled  19 from it and artificially replaced by another  20 population; three, a people should not be  21 confused with ethnics and religious minorities,  22 whose existence and rights are recognized in  23 Article 27 of the international covenants on  24 civil and political rights."  25  26 And my lord, that definition, while its helpful to  27 some extent, in that it ties a people to a territory,  28 begs rather than resolves the question of the  29 difference between peoples and ethnic and religious  30 minority, apart from the location or the relationship  31 to a territory.  32 The international commission of jurists have  33 attempted a definition, which is, I think, a little  34 bit more helpful.  They identify a number of criteria.  35 And your lordship will recall in our Statement of  36 Claim in articulating the nature of the plaintiffs'  37 organized societies, we have listed a number of what  38 we say are the distinct features and the way in which  39 the plaintiffs have organized their lives and have  40 governed themselves.  And the international commission  41 of jurists lists you will see has nine points.  The  42 commission is very clear in saying it is not a  43 pre-requisite to peoplehood.  That one meets every  44 single one of them.  They are meant to be a set of  45 standards, but they include a common history, racial  46 and ethnic ties, cultural and linguistic ties,  47 religious and ideological ties, a common geographic 26384  Submissions by Mr. Jackson  1 location, a common economic base, a sufficient number  2 of people, consciousness of its own identity, and the  3 assertion of the will to exist.  4 THE COURT: Tell me why I should apply that definition to the  5 Gitksan-Wet'suwet'en, in view of the evidence in  6 preference to the houses, for example?  What evidence  7 do I have that the houses want to be separate Gitksan  8 and Wet'suwet'en nation?  9 MR. JACKSON:  My lord, that is not the purpose of this  10 definition.  We are saying that the Gitksan and  11 Wet'suwet'en houses collectively have a right to  12 self-determination, and we have in our submissions on  13 jurisdiction explained how in fact the houses, while  14 they worked individually in many aspects, also have a  15 collective responsibility, a collective jurisdiction.  16 THE COURT: What are you asking me to declare, that the houses  17 have a right to self-determination?  18 MR. JACKSON:  Yes, my lord.  We are asserting that the houses  19 together have a right to self-determination.  20 THE COURT:  I haven't heard any evidence of that, have I?  21 MR. JACKSON:  In using the language of self-determination, my  22 lord.  23 THE COURT:  No, I don't think they use that language, that the  24 houses seek a confederation of some kind along the  25 lines you are suggesting.  It seems to me they have  26 been pretty sedulous in asserting their separate  27 independence.  28 MR. JACKSON:  My Lord, Mr. Grant in articulating the precise  29 contours of the declarations we are seeking in the  30 form of the order your lordship make, will be  31 addressing this particular point.  For the purposes of  32 this definition, my lord, we are asking you to apply  33 this definition to the Gitksan and Wet'suwet'en  34 collectively.  We are not saying that each house in  35 order for there to be a right to self-determination in  36 the plaintiffs, each house has to meet these criteria.  37 We are saying that in the context of international  38 law, and in the context of the right to  39 self-determination, the Gitksan houses collectively,  40 and the Gitksan and Wet'suwet'en houses collectively  41 have a right to self-determination as peoples.  That  42 is our submission.  43 THE COURT:  Well, what am I to take as meant by that, that they  44 are to share each others assets?  45 MR. JACKSON:  No, my lord.  The result of a declaration that we  46 have the right to self-determination, and we will  47 be -- 26385  Submissions by Mr. Jackson  1 THE COURT:  In any which way that they later agree upon.  2 MR. JACKSON:  That would be the implication.  But what you will  3 see, my lord, when we give you the text, and we are  4 not asking for a declaration limited to the board  5 assertion of self-determination, in the sense that  6 that may not provide sufficient content for your  7 lordship.  We have gone beyond that.  And when you see  8 how far we have gone beyond that, my lord, you will  9 see that it includes the ability of the Gitksan and  10 Wet'suwet'en to determine their own internal affairs,  11 and therefore does not -- any declaration of that kind  12 would not bind them to any particular way of internal  13 sharing of all their resources or doing anything  14 inconsistent with their existing systems of house's  15 owns distinctive territories of exercising their  16 jurisdictional authority either subsumed within that  17 ownership or independent of that ownership, and also  18 exercising a collective authority when houses come  19 together for certain purposes.  The declaration of a  20 right to self-determination and the articulation of  21 what are our peoples for that purpose is not intended  22 to circumscribe or in any way delimit what peoples can  23 then do within their internal systems.  24 THE COURT:  Well, I am complimented that you would make this  25 argument before me, but are you sure you shouldn't be  26 making it before the Senate in Rome, or before the  27 Parliament of Canada.  It just seems to me to be a  28 long, long bow you are talking, to ask a trial judge  29 to make this kind of a political determination.  30 MR. JACKSON:  We say it's not a political determination.  31 THE COURT:  It clearly is.  How can you say it's not?  32 MR. JACKSON:  Well, my lord, I can say it's not for this reason,  33 and I will get back to this.  I say it's not because  34 we say that it is a principle of the common law that  35 the plaintiffs have rights of self-government within  36 the context of Canadian confederation.  And we point  37 to Worcester and Georgia, and we have sought to trace  38 some of the seeds of that.  39 THE COURT:  Chief Justice Marshall didn't go nearly as far as  40 you are suggesting.  41 MR. JACKSON:  Well, my lord, I submit —  42 THE COURT:  Not even close.  Not even close.  43 MR. JACKSON:  My lord, it is our submission that the right to  44 self-determination as -- and I will attempt to frame  45 it in more detail just monentarily, but we say, and  46 you will see, my lord, if you -- if I can take you  47 just briefly, so that you can see my point, page 12, 26386  Submissions by Mr. Jackson  1 my lord.  2 THE COURT:  I don't want to interrupt your argument.  Don't do  3 it because of what I said.  4 MR. JACKSON:  Your lordship may be comforted by this.  5 THE COURT:  I am having a terrible time following your argument,  6 because I just can't see any possibility that I can do  7 what you are asking me to do.  8 MR. JACKSON:  Go to page 12 near the top of the page, and you  9 will see that I eventually say that the right of  10 self-determination or internal self-government  11 operating within the overall context of federalism,  12 which is how the right to self-determination has been  13 characterized by international commentators, and how  14 the plaintiffs see it, is readily recognized as the  15 very doctrine articulated by Chief Justice Marshall in  16 Worcester and Georgia, and which the plaintiffs submit  17 is embedded in the common law principles underpinning  18 aboriginal rights.  19 So, my lord, when we talk about the principle of  20 self-determination as an international law principle,  21 we are not saying that that is a principle which  22 ultimately leads to independence of the Gitksan and  23 Wet'suwet'en.  We are saying that the principle of  24 self-determination has a number of meanings, one of  25 which, and the meaning which the plaintiffs assert is  26 the right to a measure of internal governments which  27 we say is recognized by the common law, and we are  28 pointing to the international law, my lord, not  29 because the right doesn't exist in Canada at the  30 moment.  We are not saying to your lordship these  31 rights do not exist in Canada, and therefore we are  32 drawing, to use your lordship's words, this one bow to  33 point to international law, and we ask your lordship  34 to interpret international law, incorporate it into  35 Canada, where nothing like it exists.  Now, that would  36 indeed be a very long bow, my lord.  That is not what  37 we are seeking to do.  We are seeking to point to the  38 developing international law to say that properly  39 understood it is in fact a reflection of what we say  40 are the fundamental principles of the common law, and  41 that, my lord, is not a political decision.  We are  42 asking the --  43 THE COURT:  You can get it out of politics if you classify it as  44 common law, but that surely is a bootstrap route to  45 take.  You say I get out of politics, so call it  46 common law.  You can call it anything you have to for  47 the purpose of the exercise.  Chief Justice Marshall 26387  Submissions by Mr. Jackson  1 wasn't talking about what you are talking about.  2 MR. JACKSON:  In Worcester and Georgia, my lord, he was talking  3 about the rights of the Cherokee nation to internal  4 self-government, and the fact that the state of  5 Georgia could not intrude and pass laws which  6 emasculated, dismantled and interfered with that  7 Cherokee right.  I mean, that was what the case was  8 about.  And Chief Justice Marshall in no uncertain  9 terms --  10 THE COURT: You don't think that factual situations are  11 sufficiently different to raise a serious impediment  12 to your argument?  13 MR. JACKSON:  Well, my lord, we have pointed to —  14 THE COURT:  There is a limit to how far I can exercise the  15 jurisdiction of this court, and it seems to me you are  16 asking me to do something that's so far beyond  17 anything that's ever been done in any common law  18 court.  19 MR. JACKSON:  Well, my lord, with respect —  20 THE COURT:  Where else?  Where else has this ever been?  I agree  21 with the proposition that judges shouldn't refuse ever  22 to do anything for the first time.  There has to be a  23 start somewhere, but in a situation of a -- where you  24 have got two people living together in relatively the  25 same area, it seems to me that Chief Justice Marshall  26 was talking about a group of Cherokees who lived  27 together and no one else lived with them, and the  28 other people were prohibited from living there.  29 That's not the situation at all.  30 MR. JACKSON:  My lord, one of the things which the — as you  31 will see in terms of the right to self-determination  32 or the right to self-government in Marshallian terms,  33 is a concept which is an evolving one, and --  34 THE COURT:  Surely it's evolving.  35 MR. JACKSON:  My lord —  36 THE COURT:  Surely you are not going to ask the judges to create  37 new states and new nations.  38 MR. JACKSON:  The thrust of these arguments is that the Gitksan  39 and Wet'suwet'en do not seek the establishment of a  40 new state.  Clearly to come before this court and say  41 to your lordship that the Gitksan and Wet'suwet'en  42 have a right under international law to  43 self-determination, and that means that that permits  44 them to set up a separate state.  Your lordship would  45 have no jurisdiction, and the plaintiffs' counsel  46 would not assert that your lordship could do that.  47 That is not what the plaintiffs are seeking.  In 263?  Submissions by Mr. Jackson  1 seeking to a right which we frame as a right to  2 jurisdiction over their internal affairs, in seeking  3 to say that they have a right to self-determination,  4 recognizing the international law, we acknowledge the  5 federal system in Canada.  We do not seek to impair  6 the integrity of that in any way.  What we say is that  7 imbedded in that federal system, as part of common law  8 principles, is a role for Gitksan and Wet'suwet'en  9 jurisdiction, the precise perameters which we will try  10 and articulate for your lordship.  And we say that is  11 supported by the developing concept of internal  12 self-determination.  13 THE COURT:  Well, I have to tell you I have the gravest  14 difficulties with your submissions.  And it may be  15 because I haven't heard what Mr. Grant is going to  16 tell me, but maybe he can focus it sufficiently so I  17 can get an intellectual grip on it, because at the  18 moment it seems to me, with respect, that I just can't  19 understand how I could possibly apply the submissions  20 you are making to the facts of this case.  21 MR. JACKSON:  My lord, Mr. Grant will seek to ground you.  22 THE COURT:  I will look forward to hearing what he has to say.  23 I think that we are halfway through the morning.  Take  2 4 the adjournment.  25 MR. JACKSON:  Thank you, my lord.  26 THE REGISTRAR: Order in court.  This court stands adjourned.  27  28 (PROCEEDINGS ADJOURNED AT 11:00 A.M.)  29  30 I HEREBY CERTIFY THE FOREGOING TO BE  31 A TRUE AND ACCURATE TRANSCRIPT OF THE  32 PROCEEDINGS HEREIN TO THE BEST OF MY  33 SKILL AND ABILITY.  34  35  3 6 LORI OXLEY  37 OFFICIAL REPORTER  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47 26389  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED PURSUANT TO MORNING ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  Yes, my lord.  I am on page 8.  6 THE COURT:  I am on page 8, also.  I am not sure you were.  Are  7 you on page 8?  8 MR. JACKSON:  Yes, my lord.  And I will just conclude this  9 piece, my lord.  And I will come back and try to  10 persuade your lordship that what we are asserting in  11 some ways is nothing knew.  That, in fact, it is  12 emerging as a principle of international law in some  13 ways is a return of international law to its roots.  14 And we say those roots are already well planted in the  15 common law.  16  17 But the point I am on at page 8, my lord, is that  18 the definition of peoples, as it's been articulated by  19 various commentors in terms of relating it to the  20 international covenance, is one which we say the  21 plaintiffs fulfill.  And your lordship will see a  22 reference also to the Mescalero Apache case to which I  23 made previous reference.  And I have given your  24 lordship the reference in the plaintiffs' submissions  25 where the Indian Claims Commission, although not  26 seeking to identify whether the Mescalero Apache had a  27 right to self-determination, but in terms of whether  28 they were an organized society for the purposes of  29 aboriginal title used a test which has some remarkable  30 similarities with the test identified by the  31 International Commission of Jurists.  32  33 And we say, my lord, at the bottom of page 8 and  34 over to page 9 that there is a merging consensus in  35 the international law community that aboriginal or  36 indigenous peoples are peoples for the purposes of the  37 international covenance and the right to  38 self-determination.  And there are two things, in  39 particular, I would draw your attention to, my lord,  40 to which I will then immediately return.  And that is  41 the reference in two draft international covenants  42 dealing with indigenous peoples which refer to  43 indigenous peoples.  The proposed International Labour  44 Organization Convention and the draft Universal  45 Declaration on Indigenous Rights.  46  47 And we say, my lord, in the final paragraph of 26390  Submissions by Mr. Jackson  1 section 4, that the language of section 35 in  2 affirming the existing aboriginal and treaty rights of  3 aboriginal "peoples" reflects the use of that concept  4 consistent with contemporary international law.  5  6 Now, my lord, I will just briefly refer your  7 lordship to the International Labour Organization  8 proposed convention.  And you will see at page 5 I  9 make the point that the I.L.O. in the 1950's, as a  10 result of a study under the United Nations auspices on  11 the position of aboriginal indigenous peoples in Latin  12 America, proposed a convention and in fact adopted a  13 convention.  The theme of which was that states should  14 respect but integrate aboriginal peoples into the  15 mainstream of society.  16  17 And you will see that the preamble of the  18 introductory article of I.L.O. Convention 107 adopted  19 in 1957 was that:  20  21 "Governments shall have the primary  22 responsibility for developing co-ordinated and  23 systemic action for the protection of the  24 populations concerned..."  25  26 that is indigenous or tribal populations,  27  28 "...and their progressive integration into the  29 life of their respective countries."  30  31 My lord, we say that that was not viewed with great  32 alactrity by indigenous peoples because it reinforced,  33 as it were, a concept already becoming outmoded which  34 was the integration and assimilation of indigenous  35 peoples into, as it were, the melting pot of other  36 countries.  And as a result of that kind of criticism,  37 in 1989 a new draft convention has been proposed.  38  39 And I have set out at page 10, my lord, some of  40 the provisions.  I just want to draw your lordship's  41 attention to the first part of the preamble which  42 articulates the evolution in this area.  43  44 "Considering that the developments which have  45 taken place in international law since 1957, as  46 well as developments in the situation of  47 indigenous and tribal peoples in all regions of 26391  Submissions by Mr. Jackson  1 the world, have made it appropriate to adopt  2 new international standards on the subject with  3 a view to removing the assimilationist  4 orientation of the earlier standards."  5  6 And I would just draw your lordship's attention to  7 part 2 of the convention.  And I, of course, make the  8 point it is a draft convention, deals with land.  And  9 Article 14 provides:  10  11 "The rights of ownership and possession of the  12 peoples concerns of the lands which they  13 traditionally occupy shall be recognized."  14  15  16 THE COURT:  You said part 14?  17 MR. JACKSON:  It is part 2, my lord, Article 14.  It is about  18 halfway down page 10.  19 THE COURT:  I see Article 15.  20 MR. JACKSON:  Above that.  And part 2 of the convention deals  21 with land.  22 THE COURT:  Oh, yes, I see.  23 MR. JACKSON:  "Article 14 provides"?  24 THE COURT:  But you say this is just a draft?  25 MR. JACKSON:  Yes, my lord.  It helps your lordship only to this  26 extent, and it is only offered to this extent,  27 international law is evolving.  The content of rights  28 as they were being articulated in these draft  29 standards, my lord, we say is of some use to your  30 lordship in identifying what is the developing trends  31 in customary international law.  And no more than  32 that, my lord.  33  34 In the same vein, my lord, we are referring your  35 lordship to the work done by the United Nations  36 working group on indigenous populations and the draft  37 universal declaration on indigenous rights.  And, my  38 lord, the Charter of the United Nations assigns signs  39 responsibility for human rights matters, particularily  40 issues arising under the 1948 Universal Declaration of  41 Human Rights and the two international covenants to  42 which Canada is a signatory, to the Economic and  43 Social Council, one of the primary agencies or organs  44 of the United Nations.  45  4 6 And the relevant bodies under the Economic and  47 Social Council are the Human Rights Commission and the 26392  Submissions by Mr. Jackson  1 Sub-Commission on the prevention of discrimination and  2 protection of minorities.  In 1971, the  3 Sub-Commission, recognizing the distinctive concerns  4 of indigenous peoples, authorized the "Study of the  5 Problem of Discrimination Against Indigenous  6 Populations".  This study was eventually completed in  7 1983.  And is known as the Martinez-Cobo report, the  8 name of the Rapporteur who authorized it.  9  10 And that report is very significant document  11 insofar as it crystallized the transition in the  12 international human rights movement from individual  13 human rights which are the concern typically of  14 minorities in terms of freedom of religion and freedom  15 of language to the collective rights of indigenous  16 peoples.  And the special Rapporteur Martinez-Cobo, in  17 referring to self-determination said:  18  19 "Self-determination in its many forms must be  20 recognized as the basic precondition for the  21 enjoyment by indigenous peoples of their  22 fundamental rights and the determination of  23 their own fate."  24  25  26 THE COURT:  But this is just what somebody has written, isn't  27 it?  28 MR. JACKSON:  It is, my lord, except that it is an United  29 Nations report which has had further consequences, the  30 nature of which I am going to draw to your attention.  31 THE COURT:  Wouldn't I be in error if I were to rely upon it as  32 an authority?  33 MR. JACKSON:  No, my lord.  You wouldn't be in error in the  34 sense that under the statute of the world court in  35 identifying, and this is perhaps one of the  36 significant differences between international law and  37 domestic law, the writings of scholarly authors is  38 regarded as one of the sources.  39 THE COURT:  I can understand you as a scholar wanting to advance  40 that theory.  But I will bet that there are scholars  41 that say quite the opposite.  What am I to do with it?  42 MR. JACKSON:  Well, my lord, this is a report.  As I say, this  43 is not a report which was born in some law school  44 professor's office and emerged in a law school law  45 review.  This was a report which was commissioned by a  46 U.N. body.  It has, in fact, as you will see, my lord,  47 led to certain consequences.  And I offer it, my lord, 26393  Submissions by Mr. Jackson  1 not because it --  2 THE COURT:  Has it been adopted by any body of the United  3 Nations?  4 MR. JACKSON:  It has led to the formation of a draft  5 declaration, my lord.  It is not authority in the  6 sense that your lordship should look at this and say:  7 "This is a statement of international law.  I need to  8 look no further, this is it."  We don't offer it that  9 way.  We offer it as the -- as evidence of a trend of  10 an emerging concept of self-determination which has  11 certain contours.  And your lordship will see from  12 reading that section that it articulates the point I  13 was trying to make before that self-determination does  14 not have any one particular face.  15  16 If your lordship will just bear with me, and  17 you'll see that at the very bottom of page 11, the  18 report and some of the commentators who have looked at  19 this have made the point that self-determination is,  20 itself, a continuum.  It does not have any particular  21 necessary content.  Citing from one international  22 scholar at the bottom of page 11, my lord, I say:  23  24 "Such complexity...  25  26 that is the complexity of claims to  27 self-determination,  28  29 ". . .can only be handled by means of a flexible  30 approach which sees self-determination as a  31 continuum of rights, as a plethora of possible  32 solutions, rather than as a rigid absolute  33 right to full 'external' self-determination in  34 the form of complete independence... Such  35 alternatives as federal schemes, autonomy...may  36 present themselves as forms of  37 self-determination best suited to the  38 particular circumstances."  39  40 And it is here, my lord, that I come back to the point  41 I made before that the idea of a right to  42 self-determination as a principle of international law  43 is, we say, basically reflective of a right to  44 self-government existing within a federal scheme such  45 as the United States, such as Canada.  And to that  46 extent is something which is not political, but we say  47 is something which your lordship can recognize as part 26394  Submissions by Mr. Jackson  1 of the common law.  2  3 Now, following up the Martinez-Cobo report, my  4 lord, a working group was struck by the Sub-Commission  5 to, among other things, and if you go to sub-paragraph  6 2 on page 12, the Working Group was to give special  7 attention to the evolution of standards concerning the  8 rights of indigenous populations, taking account of  9 both the similarities and differences in the  10 situations and aspirations of indigenous populations  11 throughout the world.  And the Chair of that Working  12 Group, my lord, Madam Erica Irene Daes of Greece was  13 authorized to prepare a draft declaration on  14 indigenous rights, and that draft was tabled, a  15 revised draft was prepared in 1989.  16  17 And I want just to take you to some of those  18 provisions, my lord.  I won't take you to all of them.  19 But if you look at Article 12.  Article 12 isn't  20 identified as Article 12.  It is the very first one.  21 It says, as part of the Charter of Rights of  22 Indigenous Peoples:  23  24 "The right of ownership and possession of the  25 lands which they have traditionally occupied.  26 The lands may only be taken from them with  27 their free and informed consent as witnessed by  28 a treaty or agreement.  29 13.  The right to recognition of their own  30 land-tenure systems for the protection and  31 promotion of the use, enjoyment and occcupancy  32 of the lands."  33  34 And, my lord, if you go over to page 13, if you go to  35 section 23.  And remember, my lord, I was suggesting  36 that the right to self-determination has a variety of  37 plethora of possibilities.  It is a right to internal  38 self-determination as it is conceived and advanced by  39 the plaintiffs.  The draft universal declaration would  40 affirm the collective right to autonomy in matters  41 relating to their own internal and local affairs,  42 including education, information, culture, religion,  43 health, housing, social welfare, traditional and other  44 economic activities, lands and resources  45 administration and the environment, as well as  46 internal taxation for financing these autonomous  47 institutions. 26395  Submissions by Mr. Jackson  1 And that right of internal autonomy, my lord, is  2 contrasted, if you look at paragraph 21 and 22, with  3 the right to participate in the national affairs of  4 the State within which they are a part.  And so you  5 see very clearly, my lord, here that this draft  6 envisages these rights existing within a larger  7 collectivity of a nation's state.  And they are not  8 seen as being inherently or necessarily inconsistent  9 one with the other.  10 THE COURT:  But they are completely inconsistent with the  11 existing law in Canada.  The aboriginal of British  12 Columbia have rights to participate in the legal  13 system and the political institutions under the  14 Elections Act and under both Canada and the Province.  15 I can't make a declaration surely that would be other  16 than those provisions, can I?  17 MR. JACKSON:  No, my lord.  If you look at Article 21 and 22  18 your lordship may well conclude, and we don't advance  19 the negative of this proposition, that Canada at the  20 moment is -- assuming these standards were adopted by  21 Canada.  They were adopted by the United Nations and  22 then by Canada.  Canada may well adhere under its  23 existing practices to some of these provisions.  24 THE COURT:  It might, yes.  25 MR. JACKSON:  Article 23, my lord, is one we say which  26 recognizes the collective right in matters relating to  27 their own internal and local affairs.  We say that  28 that is already a principle of the common law which  29 your lordship can recognize.  30 THE COURT:  Mr. Jackson, the Northwest Territories people  31 brought an action in the Yukon.  And they succeeded  32 to -- I forget precisely what it was.  They wanted to  33 in some way to become parties to the Meech Lake  34 Accord.  And that was appealed to the Court of Appeal  35 for the Yukon Territory.  They lost.  And leave to  36 appeal to the Supreme Court of Canada was refused.  37 Now, surely these rights that you are talking about  38 here have to be pursued in forums where there is some  39 prospect of a remedy.  And this hasn't even been  40 accepted by the United Nations or even its  41 sub-committee.  Is it an appropriate submission for  42 you to make at this stage in this trial?  43 MR. JACKSON:  My lord, I think it is, for reasons which I will  44 come back to --  45 THE COURT:  All right.  46 MR. JACKSON:  — immediately.  47 THE COURT:  Well, you know the trouble I'm having with your 26396  Submissions by Mr. Jackson  1 submission.  2 MR. JACKSON:  Yes.  I appreciate the trouble you are having.  3 THE COURT:  I must say I am very troubled by the submission.  I  4 just don't understand how you can think I can possibly  5 give effect to it.  6 MR. JACKSON:  Well, my lord, again my point is not that these  7 are rights which you should give effect to as  8 international law in the absence of there being a  9 foundation in Canada.  We could be making a  10 submission, my lord, but I want to make it clear it is  11 not our submission that the sole basis -- if we  12 conceded, my lord, Canada does not recognize these  13 rights at the moment.  14 THE COURT:  Well, that's why I'm so troubled by your submission.  15 MR. JACKSON:  But, my lord, our position is that the common law  16 does recognize these rights at the moment, properly  17 understood.  That is our submission.  18 THE COURT:  Properly understood, that's a big word.  Those are  19 two big words.  20 MR. JACKSON:  My lord, this draft text, as I said, is at the  21 moment a draft.  It reflects, however, what we have  22 referred to as the plaintiffs' rights to ownership and  23 jurisdiction.  It puts some flesh on them.  We are not  24 adopting that flesh as the necessary definition of the  25 plaintiffs' rights.  26  27 Page 14, my lord, we make the point that the --  28 this draft text is presently being discussed.  And it  29 is anticipated that much of the activity in seeking  30 its adoption as a universal declaration will be  31 focused on the 500th year anniversay of the discovery  32 of the Americas in 1492.  33  34 And that, of course, my lord, is the point at  35 which I began these submissions some six weeks ago in  36 terms of the first point at which aboriginal rights  37 were discussed.  And I say, my lord, at page 14 that  38 history has an uncanny way of returning to its source.  39  40 And your lordship will recall that in those  41 submissions I refer to the writings of Franciscus De  42 Vitoria and how that led to the Papal Bull Sublimis  43 Deus in 1935 in which the rights of aboriginal peoples  44 were declared by Pope Paul II.  And your lordship will  45 also recall my reference to the reaffirmation of those  46 rights by Pope John Paul II on his visit to Canada in  47 1987.  And your lordship at that point had wondered if 26397  Submissions by Mr. Jackson  1 his Holiness had left any words of wisdom.  I don't  2 offer this, my lord,  obviously in terms of any legal  3 precedent.  But your lordship may be interested in  4 seeing how His Holiness related the reaffirmation of  5 rights in the 20th century to rights first affirmed in  6 the 16th century.  7  8 Because it is the brunt of our submission that we  9 are seeking a reaffirmation of rights, and that  10 section 35 does reaffirm rights.  It is not a question  11 of your lordship granting for the first time or  12 recognizing for the first time rights which have never  13 before existed in the common law.  And the Pope said:  14  15 "Let me recall that, at the dawn of the  16 churches presence in the new world, my  17 predecessor Pope Paul III proclaimed in 1537  18 the rights of the native peoples of those  19 times.  He affirmed their dignity, defended  20 their freedom and asserted that they could not  21 be enslaved or deprived of their goods or  22 ownership...My presence among you today marks  23 my reaffirmation and reassertion of that  24 teaching.  25 ... I affirm your right to a 'just and  26 equitable measure of self-governing, along with  27 a land base and adequate resources necessary  28 for developing a viable economy for present and  29 future generations."  30  31 And His Holiness ended his comments, my lord, in  32 hoping that the native people would:  33  34 "...find a just way so that Canada may be a  35 model for the world in upholding the dignity of  36 the aboriginal peoples."  37  38 And, my lord, it is the plaintiffs' submission that  39 their rights to self-determination as they are  40 recognized in the evolution of contemporary  41 international law mirror their rights to internal  42 self-government at common law.  The draft universal  43 declaration in recognizing a right of ownership to  44 lands traditionally occupied which can only be taken  45 away with free and informed consent expressed by a  46 treaty or agreement also reflects principles of the  47 common law.  In asserting these principles and asking 2639?  Submissions by Mr. Jackson  1 for this courts affirmation of them in its declaratory  2 judgment as existing aboriginal rights within section  3 35, the plaintiffs, therefore, point both to the  4 historical foundation in North America and to their  5 contemporary international significance for indigenous  6 peoples elsewhere.  In that way the judgment of this  7 Court will not only be a declaration of the legal  8 pathways to justice for the Gitksan and Wet'suwet'en,  9 but a model in upholding the dignity and rights of  10 aboriginal peoples.  11  12 And so, my lord, in essence, we are not seeking  13 your lordship to make political judgments.  We are  14 saying that the rights at international law, like the  15 rights reflected in international treaties, are  16 infused with legality.  And that that infusion of  17 legality is something which your lordship's judgment  18 should reflect.  And while those declaratory judgments  19 may be bold and innovative in the context of what  20 other judges have done recently, viewed in the  21 crucible of history and viewed in the crucible of  22 evolving international law, my lord, we say they are  23 affirmation of pre-existing rights.  24  25 Now, my lord, those are my submissions on  26 international law.  If I can perhaps just take five  27 minutes in revisiting the question your lordship put  28 to me some time ago about frozen rights.  And your  29 lordship framed that question, my lord, as to whether  30 or not the concept of frozen rights involved the  31 converse or obverse proposition that aboriginal rights  32 could be lessened after the time of the assertion of  33 sovereignty.  34  35 And my submissions on that, my lord, and if I can  36 just briefly state what it is that the plaintiffs are  37 saying about frozen rights.  And our submissions are  38 two-fold.  The first submission, my lord, is that the  39 territory in respect of which aboriginal rights can be  40 claimed is not frozen at the time of the assertion of  41 sovereignty.  We say that acquisition of territory,  42 for example, through a peace settlement with another  43 aboriginal group, for example, the Nishga, after the  44 assertion of Crown sovereignty, if supported by  45 long-term possession, will support a claim of  46 aboriginal rights.  That's the first proposition, my  47 lord. 26399  Submissions by Mr. Jackson  1 The second proposition is that the plaintiffs'  2 rights to ownership is a right to the full exclusive  3 beneficial enjoyment of the territories.  And it is  4 not frozen or limited to any particular or specific  5 manner of beneficial enjoyment existing as of the time  6 of the assertion of sovereignty.  And thus, my lord,  7 the fact that the plaintiffs may have been hunting at  8 the assertion of sovereignty in no ways limits their  9 rights to beneficial enjoyment in other ways in the  10 context of a contemporary 20th century world.  11  12 Now, in that sense, my lord, we say their rights  13 are not capable of contraction.  The manner of  14 beneficial enjoyment may change.  It may involve the  15 use of more or less intensive exploitation of the  16 resources.  It may involve shifts in villages sites to  17 take advantage of particular economic activities which  18 have become viable, and a reduction of reliance on  19 other activities which have become less economically  20 viable.  But that does not signal, as a matter of law,  21 the lessening of the right which we say is one for  22 beneficial enjoyment.  23  24 Those are my submissions, my lord.  25 THE COURT:  Is that what you say Chief Justice Dickson had in  26 mind when he said that aboriginal rights are sui  27 generis?  28 MR. JACKSON:  No.  I don't think that's what he had in mind, my  29 lord.  Because the second contention I have made, my  30 lord, I have thought is one which would be a hallmark  31 of ownership generally.  The ownership of fee simple,  32 for example, my lord, although of course we are very  33 clear in our submissions that we are not claiming a  34 right to fee simple.  But the right of fee simple is  35 not limited to any particular method of beneficial  36 enjoyment.  It is also something which can change over  37 time in light of contemporary economic realities.  38  39 So in that sense, what we say about aboriginal  40 rights, my lord, being capable of changing in terms of  41 their beneficial -- the manner of their beneficial  42 enjoyment we say is something which is a hallmark of  43 ownership and not something which is specific or sui  44 generis to aboriginal rights.  45 THE COURT:  All right.  Thank you.  46 MR. JACKSON:  Thank you, my lord.  Mr. Grant will attempt to  47 bring some of those perhaps lofty ideals of 26400  Submissions by Mr. Grant  1 self-determination down to the grouns, my lord.  2 THE COURT:  I hope he can because I am sure that you understand  3 that your submission troubles me very greatly, Mr.  4 Jackson son.  5 MR. JACKSON:  Yes, my lord.  6 THE COURT:  Mr. Grant.  7 MR. GRANT:  My lord, I am just providing you with volume 23 of  8 our authorities.  Given the time, I probably will not  9 be making direct reference to it.  But there is  10 material in there that both Mr. Jackson, Mr. Rush and  11 myself, as well as Ms. Mandell have referred to.  And  12 we feel you should have the authorities available.  13 Now, my lord, this should go into tab 6 of your  14 binder.  15 THE COURT:  Yes.  16 MR. GRANT:  And this is the last part of the last volume of our  17 arguments.  And here I wish to deal with the scope of  18 remedies.  And I hope, I intend to answer some of the  19 troubling aspects that have been raised by your  20 lordship in the course of arguments.  21 MR. GOLDIE:  Well, my lord, I hope my friend will also answer  22 the questions that Mr. Willms raised.  23 MR. GRANT:  If my friend bears with me, I certainly will.  24 MR. GOLDIE:  I remind him that they are found at 25606 of Volume  25 332.  26 MR. GRANT:  And they are summarized in the Vancouver Sun.  27 MR. GOLDIE:  Well, I am referring you to the transcript for a  28 more complete exposition.  29 MR. GRANT:  Thank you.  I am going to deal with them, my lord.  30 THE COURT:  I think we will adjourn for a moment, gentlemen.  I  31 find that very disturbing  32 THE REGISTRAR:  Order in court.  33  34 (PROCEEDINGS RESUMED PURSUANT TO BRIEF ADJOURNMENT)  35  36 THE REGISTRAR:  Order in court.  37 MR. GRANT:  My lord, in this piece I intend to deal with the  38 remedies.  I will focus on the declarations, my lord,  39 and the issues of entitlement to damages.  And I just  40 want to advise your lordship that this submission has  41 a significant part of it deals with the declaration of  42 entitlement to damages.  But I do wish to focus on,  43 both in the submission and in oral argument, the  44 declarations.  And I will spend some time on that  45 declaration that you raised earlier in the week and  46 last week.  And the issues that you've raised with my  47 colleague Mr. Jackson son at those times.  And dealing 26401  Submissions by Mr. Grant  1 with the other issues that hopefully will clarify the  2 scope of the remedy we are seeking in all respects.  3  4 Now, the first point I wish to deal with, my lord,  5 are the issue that the damages are no substitute for  6 the declaratory relief sought.  The Indian rights, my  7 lord, have so long been denied that it is our  8 submission that the time has arrived for your  9 lordship, for this court, to authoritatively recognize  10 and declare their existence.  Anything less, in our  11 submission, would abet the continuation of the denial.  12  13 Now, throughout our argument, my lord, the central  14 relief sought by us has been set out in the first four  15 declarations in the Prayer for Relief in the Statement  16 of Claim.  And I have set out those declarations as  17 they are in the Statement of Claim.  And in the course  18 of this argument, my lord, I intend to set them out,  19 recast them.  And that is recast them, break them up  20 so that they can -- to see a way of dealing with them  21 in the context of our argument.  22  23 But the first declaration, of course, is the  24 declaration of a right of ownership and jurisdiction  25 over the territory.  The second is that the ownership  26 and jurisdiction existed and continues to exist and  27 has never been lawfully extinguished.  The third is  28 the right of ownership and jurisdiction, including the  29 right to use, harvest, manage, conserve and transfer  30 the land and natural resources and make decisions in  31 relation thereto.  And the fourth declaration is the  32 right of jurisdiction includes the right to govern the  33 territory themselves and the members of the houses  34 represented by the plaintiffs in accordance with  35 Gitksan and Wet'suwet'en laws administered though  36 Gitksan and Wet'suwet'en political, legal and social  37 institutions as they exist and develop.  Now, this  38 fourth declaration, my lord, I am going to come back  39 to because it encompasses the issue that your lordship  40 has raised.  41  42 Now, my lord, I want to emphasize that although in  43 this part of the argument and in the declaration there  44 is a claim for entitlement to damages, that the  45 plaintiffs seek a declaration, and the plaintiffs seek  46 such a declaration, this claim is not intended to  47 substitute for the declaratory relief with respect to 26402  Submissions by Mr. Grant  1 the plaintiffs' ownership and jurisdiction over the  2 territory.  The claim to damage entitlement is not  3 made alternatively, but rather is subsidiary and  4 supplementary to other declarations sought, and is  5 made in respect of past wrongs.  6  7 I believe, my lord, in cross-examination of a  8 couple of witnesses this is made clear.  And, for  9 example, Mrs. Johnson when she was asked stated:  10  11 "We want the government to pay for all the  12 damages, we won't sell the land...because we  13 are thinking of those that will come behind us  14 and they will suffer if we do sell the land and  15 we are not going to sell our real inheritance.  16  17 With respect to the Wet'suwet'en example, Alfred  18 Joseph you probably recall described how in 1983 he  19 was at Owen Creek.  And he was with an elder who  20 commented on the logging trucks going by and the  21 trees.  He asked who protected those trees when they  22 were small.  And the elder told Alfred "Gyologyet  23 protected those trees."  And the last part of that  24 extract is that:  25  26 "He said that Gyoloyet protected those trees.  27 That's why those trees are going by here now.  28 There was no B.C. forest service.  There was no  29 Fish and Wildlife he said.  There was no D.I.A.  30 at the time.  So that is why I say that we  31 owned the territory.  We owned the resources  32 that are on it, because our ancestors protected  33 those resources before the coming of the  34 government or any Federal or Provincial  35 Government."  36  37 And here, my lord, you see that it is a question of  38 the stewardship that is being referred to.  And the  39 wealth of that stewardship, the caretaking of the  40 territory is now being seen by the plaintiffs as being  41 lost to them.  Stanley Williams, of course, is  42 described -- I believe this was in -- yes, this was in  43 cross-examination.  44  45 "The reason we have this court case is to fight  46 for our land and to get it back.  It is  47 rightfully ours.  We want the white people to 26403  Submissions by Mr. Grant  1 set us free on our own territory.  We could do  2 anything on our territory, whatever we want,  3 and I do not want any licence, permits or  4 registration.  We do not want that and this is  5 why we are in the court case."  6  7 Then in the next section he says:  8  9 "And we've spent so much for our territory in  10 the feast house.  We want the government to pay  11 all the damages that have been caused...that  12 they have caused on our territories."  13  14 And in that brief extract, I submit, my lord, that Mr.  15 Williams explained in his concept that if they own the  16 territory, they have authority over the territory.  17 And they want compensation for what's been caused on  18 the territory in terms of the destruction.  Mrs.  19 Michell described it the same way as the outcome of  20 the case.  21  22 "I would like to see my grandchildren who have  23 rights to the territory look after the  24 territory."  25  26 Now, my lord, these Chiefs and many other  27 witnesses have set out why they brought the case to  28 court and what remedy they are seeking.  Their rights  29 of the territory in our submission, my lord, include  30 the right to exercise authority over the territory  31 predates the assertion of sovereignty.  The Gitksan  32 and Wet'suwet'en Plaintiffs have recognized that under  33 the common law, their rights are limited by a  34 restriction on alienation except to the Crown.  35  36 Now, they also recognize, and I submit this is  37 important in the context of your questions, my lord,  38 the Gitksan and Wet'suwet'en recognize the reality of  39 today.  There are non-Indian people who have moved  40 into the territory, and we say, on the assumption that  41 the government had properly dealt with the aboriginal  42 people.  That is they pre-empted or acquired the  43 lands, assuming that there was no cloud on title of  44 the Crown, it is not the intention of the Gitksan and  45 Wet'suwet'en to penalize these settlers in the  46 territory.  And that of course is the reason for  47 Section 79 of the Statement of Claim which sets out 26404  Submissions by Mr. Grant  1 that the claim is not a challenge to fee simple  2 ownership which was "transferred to third parties and  3 were held in fee simple by third parties as of October  4 23, 1984."  5  6 But of course in our submission, my lord, and it  7 is a consideration for you, that the effect of a  8 declaration of recognition of ownership and  9 jurisdiction, ownership and authority over the  10 territory would be in effect of a stay on those  11 persons who are utilizing resources of the territory  12 under the purported authority of provincial licensing  13 except with this exception.  14 THE COURT:  I'm sorry, I don't understand what you are saying  15 now.  16 MR. GRANT:  Well, what I am saying, my lord, is that the effect  17 of the declaration of ownership, the finding by your  18 lordship of a declaration of ownership in the  19 territory in the plaintiffs, and a finding of  20 authority over the territory in the plaintiffs, would  21 have an impact on not the fee simple holders which are  22 exempted in the Prayer for Relief and otherwise, but  23 would have an effect on the third -- on those persons  24 that the provincial defendant, and those persons  25 operating under licence or permits of the provincial  26 defendant within the territory and the exploitation of  27 the resources, that's what I mean.  28 THE COURT:  I thought you were suggesting that there was some  29 reversionary interest you were claiming in the fee  30 simple properties.  You are not saying that?  31 MR. GRANT:  Not in these fee simple properties, no.  And that,  32 of course, the claim is entitlement to damages in  33 those properties.  34 MR. GOLDIE:  Excuse me, is the interest in the fee simple  35 properties excluded in its entirety?  36 THE COURT:  Well, I have always understood that.  But I think  37 that's what Mr. Grant has just said now.  38 MR. GRANT:  Yes.  There is a claim — with respect to those  39 properties in Paragraph 79 there is a claim for  40 damages for the loss of those lands.  41 MR. GOLDIE:  Yes.  But the declaration sought includes the right  42 to ratify conditionally or otherwise refuse to ratify  43 lands title or grants issued by the defendant province  44 after October 22, 1984.  I don't see a declaration  45 that confirms or exempts people who hold land in fee  46 simple prior to October 22nd.  And I had assumed that  47 the effect of the declarations sought was to transfer 26405  Submissions by Mr. Grant  1  2  3  4  5  THE  COURT  6  MR.  GRANT  7  8  THE  COURT  9  10  11  MR.  GRANT  12  THE  COURT  13  14  15  16  MR.  GRANT  17  THE  COURT  18  19  MR.  GRANT  20  THE  COURT  21  22  MR.  GRANT  23  THE  COURT  24  25  26  MR.  GRANT  27  THE  COURT  28  29  MR.  GRANT  30  31  THE  COURT  32  33  34  35  MR.  GRANT  36  THE  COURT  37  MR.  GRANT  38  39  40  41  42  43  44  THE  COURT  45  46  47  MR.  GRANT  the underlying title from the province to the  plaintiffs so that the holder of the fee simple held,  as it were, from the plaintiffs and not from the  province.  No.  I don't think so, Mr. Goldie.  No.  I believe that I explained, and I think it  is --  Let me state what I understand you are saying.  Is  that those who had fee simple before the commencement  of this action --  Yes.  -- will continue to have fee simple as tenants in  fee simple of the Crown with the full right of -- full  freedom of alienation and all the other instances of  free simple tenancy?  That's right, sir.  Anyone having an interest under the Crown as of the  date of the commencement of the action or since --  Yes.  -- will no longer have that interest, that is  interest less than fee simple.  Other interest less than that exclusion.  And anyone who obtained fee simple since the  commencement of the action will not have -- will lose  that interest?  Yes.  That's what I've understood throughout that you've  been claiming.  Yes.  And those three areas -- that's correct,  that's my understanding.  Because while you've sought a declaration, you could  confirm those fee simple post-action grants.  You may  not do so.  Unless you do, they have lost their fee  simple interest?  Right.  That's what I've understood.  Now, as I say, then, my lord, it is important to  express the priority of the various declarations  sought by the plaintiffs and outlined in the Prayer  for Relief preceding the declaration sought regarding  entitlement to damages.  And I believe it is clear to  your lordship that this case, of course, is not about  monetary damages, although that is one aspect of it.  I would be glad if somebody could give me the  exhibit numbers for the exchange of letters that  covers the --  Exhibit 20. 26406  Submissions by Mr. Grant  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:  2 0?  MR. GRANT:  Yes.  And I quoted it full in the later part of  today.  THE COURT:  Here today?  MR. GRANT:  Yes.  It is in this argument.  This, I gather, is  the letter relating to damages?  THE COURT:  Yes.  MR. GRANT:  Yes.  I quoted it in full.  The essence of the plaintiffs' claim in relief is  for affirmation and preservation of ownership and  jurisdiction over the land base upon which they have  existed since time immemorial.  This land base, my  lord, is essential to the survival of their society  and culture into the future, and not only so for  purposes of economic well-being.  And I articulate  what Mr. Stanley Williams said and Mrs. Johnson.  Now, on a very fundamental level, my lord, and  that should be a chief and house's territory, waste of  land, loss of access to lands, and diminishment of dax  gyat, all lead inevitably to loss of respect, loss of  status, loss of position at the feast, loss of esteem  in the community as whole, and, ultimately,  disintegration and loss of institutions upon which the  plaintiffs' society and culture is based.  The  temporal recompense of money damages can not salvage  the resulting undermining of the society.  Now, the impact, and I use this as an analogy of  the destruction of the Hagwilget fishery on the  Wet'suwet'en given by Mr. Joseph in evidence, is a  clear example of the failure of monetary compensation  to resolve fundamental issues effecting the society.  No matter how much money is award to the Wet'suwet'en  people for the destruction of the fishery at  Hagwilget, of course that is not an issue for your  lordship in this court.  But the adverse impact on the  society as described by Alfred Joseph cannot be  repaired.  The people, in other words, still have  nowhere to fish and their formerly highly productive  fishery has been destroyed.  Now, the primary non-monetary declarations are  sought to halt this disintegration and to lay the  legal foundations for future Gitksan, Wet'suwet'en and  non-Gitksan and Wet'suwet'en generations.  As Sarah 26407  Submissions by Mr. Grant  1 Layton said in her evidence:  2  3 "I want it back...the way the territory was in  4 the past for our future children's use, our  5 grandchildren, our great, great grandchildren,  6 so they will be able to use it the way our  7 ancestors have in the past."  8  9 Now, it is in the context of this, my lord, that I  10 will shall later move to the issue of the monetary  11 damages.  12  13 Now, you may recall, my lord, that Mr. Maclntyre  14 gave evidence for the federal defendant and was an  15 Indian agent with many years of experience.  His  16 recognition of the integral importance of the land  17 base was premised on it as a foundation for economic  18 development, and therefore does not reflect the scope  19 of importance placed upon the land by the plaintiffs,  20 which extends well beyond the economic sphere.  But  21 nevertheless, his recognition of the plaintiffs' need  22 for control of a broader land base illuminates the  23 inadequacy of money alone in resolution of the  24 difficulties faced by the plaintiffs.  His evidence  25 touched on the restrictions upon economic development  26 faced by Indian bands with limited resource bases.  27 And that last -- the first two exchanges are in his  28 cross-examination.  And the last is in response to  29 questions from your lordship in court.  30  31 The declarations outlining the contents of  32 aboriginal rights and restricting interference with  33 such rights are necessary for far more important  34 reasons.  Economic development, even in the sense  35 addressed which Mr. Maclntyre, will not serve as a  36 conclusion to the "problems" outlined by the court.  37 And that was in that exchange.  It may be appropriate  38 here to question from what source the listing of such  39 problems should come, and in this regard history may  40 be of assistance.  And I refer you to William Duncan  41 who in 1884 said:  42  43 "Ask the Indians themselves what are these  44 wrongs? I don't even feel that I should enter  45 upon it when the Indians are here to speak for  46 themselves."  47 2640?  Submissions by Mr. Grant  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  Now, my lord, if I may move from my text for a moment,  you, I submit, your lordship is in an unique position  in terms of --  THE COURT:  I really wish you wouldn't rely on that, Mr. Grant,  really.  I just wish that you are almost addressing  arguments in your argument.  MR. GRANT:  Let me rephrase it, my lord.  The evidence you've  heard includes the histories, the territories, the  laws and the practices of the Gitksan and the  Wet'suwet'en.  And this type of evidence, as your  lordship is aware, has not been presented, I submit,  before to a court.  And in that sense, there is  certainly a distinction in this case.  But I submit, my lord, that the questions of the  remedies and the problems that are listed are symptoms  of a society under siege.  The solution is not simply  to address those symptoms, but to halt the siege and  protect the foundations of the society.  And this is,  my lord, is what we are asking.  Now, before analyzing the particular declarations  and formulating the declaration which we submit you  should grant, the court should consider its  jurisdiction to issue the declaratory relief.  And, my lord, I just wish to refer you to part 2  because, really, I don't see an issue that your  lordship in terms of the jurisdiction issue of  declaratory relief, I think it is well established  that on page 9, as I say, the middle of the first  paragraph, the considerations arising in exercise of  that discretion are firstly the utility of the  declaration, if granted, and, secondly, whether such a  remedy will settle questions in dispute between the  parties.  It is precisely the unswerving history of  denial and infringement by the Defendant Province  which compel exercise of that discretion in favour of  the plaintiffs.  And I refer you to the Solosky case of the Supreme  Court of Canada which -- and I have highlighted from a  lenthy quote what I submit sets out the test.  "At least one simple 'rule' has received wide  and basic acceptance:  the discretion of the  court is almost unlimited and should not be 26409  Submissions by Mr. Grant  1 continually used to deny the declaratory  2 relief."  3  4 And it goes on to say:  5  6 "What it does reveal is that the court is  7 subject to few restraints in deciding whether  8 or not to issue relief, the main and possibly  9 only restraint being that judicial discretion  10 cannot be used to assume jurisdiction where  11 none exists."  12  13  14 And after citing Sarna, the court went on to say that:  15  16 "Declaratory relief is a remedy neither  17 constrained by form nor bounded by substantive  18 content, which avails persons sharing a legal  19 relationship, in respect of which a 'real  20 issue' concerning the relative interests of  21 each has been raised and falls to be  22 determined."  23  24 And the court relied on the Pharmaceutical Society  25 and the decision of Lord Upjohn which is quoted at the  26 top of page 11 of my submission, my lord.  27  28 "A person whose freedom of action is challenged  29 can always come to the court to have his rights  30 and position clarified, subject always, of  31 course, to the right of the court in exercise  32 of its judicial discretion to refuse relief in  33 the circumstances of the case."  34  35 Now, my lord, going to the bottom, I say that on  36 the latter issue, the courts have gone so far as to  37 uphold the jurisdiction to grant declaratory relief  38 devoid of legal effect but likely to have some  39 practical consequence or utility.  And I have cited  40 some cases as well as Sarna there.  Kelso, the Supreme  41 Court of Canada case, is at volume 6, tab 2.  And  42 that's a case that related to an employee and a  43 declaration which the court couldn't really give  44 effect to the order.  But they allowed a declaration  45 of his legal rights.  46  47 Now, in the case at bar, my lord, the dispute is 26410  Submissions by Mr. Grant  1 hardly academic or hypothetical.  It is respectfully  2 submitted that the real issue for the court is what  3 declaratory remedies can and ought to be fashioned  4 that will resolve the dispute.  Those remedies  5 encompass not only the definition of the rights  6 claimed, but also the questions of advancement of  7 political solution.  8  9 The political consequences of court-ordered  10 remedies in the area have been the subject of our  11 Court of Appeal, Mr. Justice Macfarlane in the Mears  12 Island case.  And I don't need to repeat that quote  13 because I'm certain you recall it.  The other point  14 raised is in with respect to the Operation Dismantle  15 case which sets out that the view to the preventative  16 declaration sought is also appropriate.  17  18 Now, in that case, Justice Dickson stated at this  19 top of page 13, he quotes from Madam Justice Wilson.  2 0 And then he says that:  21  22 "Nonetheless, the preventative function of the  23 declaratory judgment must be based on more than  24 mere hypothetical consequences; there must be a  25 cognizable threat to a legal interest before  26 the courts will entertain the use of its  27 process as a preventative measure."  28  29 Of course that dealt with the application to prevent  30 the cruise missile tests on the -- that it was a  31 threat to life, liberty and security of a person.  And  32 the court found that too conjectural at that stage.  33  34 But the plaintiffs, my lord, have established  35 through evidence a course of conduct by the defendant  36 province, spanning more than a century, that I submit  37 can be characterized as oppresive, arbitrary,  38 unconstitution and in open breach of the rights of the  39 Indians.  And I just refer you back to the evidence in  40 review of that by my colleagues in the last week.  41  42 The plaintiffs have established cognizable threats  43 to their legal interests.  Consideration of utility  44 and the means of resolution or settlement of the  45 dispute at hand, with a view to the preventative  46 functions, compels, in our submission, the issuance of  47 declarations as to the existence of their rights, the 26411  Submissions by Mr. Grant  1 status of those rights, that is that they are not  2 extinguished or abandoned, the definition of those  3 rights, in a broad way, my lord, the constitutional  4 status of those rights, including the facts of  5 recognition and affirmation by Section 35 of the  6 Constitution Act, articulation of the impediments and  7 obligations referral to the defedant province which  8 correspond to the plaintiffs' rights, and some  9 circumscription of the Province's ability to interfere  10 with those rights.  These categories are reflected in  11 the declarations sought by the plaintiffs herein and  12 outlined in the Prayer for Relief.  13  14 Now, my lord, I now wish to go to the declarations  15 and the reformulation that I have attempted to do is  16 to break out, although the plaintiffs have ownership  17 and jurisdiction together, to break them out for you  18 and also to break out jurisdiction into two  19 components.  So dealing with ownership first, the  20 opening paragraphs of the Prayer for Relief set this  21 out.  And I say that it may be restated at follows.  22 This is a combination.  A declaration that the  23 plaintiffs have a right of ownership over the  24 territory, which extends to the full exclusive  25 enjoyment and possession of the Territory and all its  26 resources including the right to harvest, manage, and  27 conserve the natural resources and make decisions in  28 relation to the land and resources.  29  30 Now, here, my lord, what I have attempted to do,  31 or we have attempted to do, is take into account your  32 lordship's comments that the ownership may subsume the  33 jurisdiction or authority over the land and resources.  34 And this form of declaration here would reflect that  35 subsuming of the authority over the territory in one  36 declaration rather than having a separate one relating  37 to jurisdiction.  It combines, also, the first and the  38 third declarations including the harvest, manage and  39 conserve aspects.  40 THE COURT:  But you're not seeking to upset the, as I think you  41 have said several times, the Crown's underlying title?  42 MR. GRANT:  That's right.  And in fact, I believe our final  43 amendment, our late amendment expressly stated that,  44 although it had been in the reply.  45 THE COURT:  It is not in that wrap-up paragraph on page 14.  You  46 said full ownership --  47 MR. GOLDIE:  Full exclusive ownership. 26412  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Full exclusive enjoyment and possession of the  territory.  But subject to the Crown's underlying title?  The underlying title, yes.  All right.  Now, I just want to advise your lordship because I  don't want you to come to the end, I have listed -- I  did not restate these all at the end.  But I can  provide you then with a list.  But this declaration,  the one on page 14, is an alternative declaration of  ownership.  And I will provide you with the list of  the page references at the end.  Now, as your lordship suggested, the delineation  of the declaration of ownership of the territory and  the resources can include a recognition of "a system  of authority".  And this is our statement, my lord,  which I raised with you in the discussion of ownership  and jurisdiction over territory.  And you indicated  that you understood what was being said there.  So the  quote is our quote.  "A system of authority exercised  within a set of institutions and laws in the context  of an organized society extending over a defined  territory."  Now, this, by definition, would  incorporate the concept of the right to harvest,  manage, and conserve the resources within the  territories.  Now, it is our submission that your lordship  should make the declaration that the Gitksan chiefs  have a right of ownership over the territory as  dilineated in Exhibit 646 9A.  And the Wet'suwet'en  chiefs have a right of ownership over the territory as  delineated in 646 9B.  The plaintiffs have proven, in  sum, that the houses have owned the territories as  delineated in Exhibit 646 9A and 9B.  Now, I have set out the -- reiterated the meaning  of ownership as set out in our argument in the six  components on page 15.  The first is the proprietary  interest distinct from an estate in fee simple.  The  second is the plaintiffs' interest based on possession  pre-existing the assertion of sovereignty by the  Crown.  It extends to exclusive -- full exclusive  possession of the territory and all its resources.  And then the others deal with the precise legal  character of the interests in the territory is 26413  Submissions by Mr. Grant  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  determined by the analysis of the laws of the  plaintiffs in the context of their organized society.  And the plaintiffs' interest has the session hallmarks  of ownership and is legally characterized as  ownership.  The plaintiffs' ownership of the territory  is inalienable except to the Crown as a result of the  common law recognition of aboriginal title.  MR. GOLDIE:  That's the Crown right of Canada?  MR. GRANT:  Just a minute.  There was a point that I had raised  earlier, my lord, on the Gitksan chiefs --  THE COURT:  I think —  MR. GRANT:  And I say that should be the houses on the earlier  page.  THE COURT:  I think I would like to know what Crown means in  paragraph 6.  MR. GRANT:  Paragraph 7.  THE COURT:  6.  MR. GRANT:  It is in right of Canada.  And this is taken from  the earlier argument, my lord.  THE COURT:  Yes.  All right.  MR. GRANT:  Now, my lord, if I just can pause there because of  the question you've raised with Ms. Pinder yesterday  and alluded to this morning, that in the context of  ownership, it is in the house and the members of the  houses.  In the context of authority or jurisdiction,  we say there is an intertwining of collective  authority over the territory.  And the obvious way  this can be seen, my lord, is through evidence of  persons such as, I believe, Mr. Williams, Glenn  Williams.  And Mr. Matthews was an example.  Mr.  Stanely Williams, as well, of the interlocking  decision-making.  And there has often been reference  to the father's side.  And, of course, everybody  focuses on the father of the chief.  But of course  every house member has a father's side.  And you get  this intermeshing of the houses in that way.  And  that's how the authority aspect is working.  I will  return to that later in dealing with the jurisdiction.  Now, when I say the ownership of the territories  within the house, I of course mean here it is the  house members.  And the house is the group of people  who are its members.  And I have reiterated that the  house territories have defined boundaries and  ownership is underpinned by the laws of trespass pass.  Now, my lord, I submit that the legal interest has 26414  Submissions by Mr. Grant  1 been established, both in evidence and on the basis of  2 the principles of aboriginal titles enunciated in the  3 first weeks of our argument by Mr. Jackson.  The  4 plaintiffs are seeking the assistance of your  5 lordship -- of the court, of this court to restrain  6 the threat, in a preventative sense, through please  7 for declaratory relief, and in order to confirm and  8 publicly declare the their rights of ownership and  9 jurisdiction.  10  11 And I reiterate that that is -- the resolution of  12 the dispute should be clear.  But if there is not a  13 declaration issue, there is really nothing to prevent  14 the continuance of the history of relations as it has  15 gone on with non-recognition.  And I confirm the last  16 paragraph deals with the fee simple lands.  We have  17 already spoken to that.  18  19 Now, I would like to come --  20 MR. GOLDIE:  This is an important part of the submission, my  21 lord.  And I think we ought to be perfectly clear what  22 my friend is asking for.  As I understand it, and if I  23 look at the draft order that is being sought in page  24 14, it is a single declaration that the plaintiffs  25 have a right of ownership.  Really is my friend asking  26 for 51 declarations of ownership in the names of the  27 individual plaintiffs who are suing in a  28 representative capacity, or is there -- well, that's  29 what I'm asking.  Because I don't think this clarifies  30 it.  31 MR. GRANT:  Well, my lord, at the bottom of that paragraph I  32 refer -- after that declaration I refer to the -- that  33 the court should make a declaration that the Gitksan  34 houses have a right of ownership over the territory as  35 delineated in Exhibit 646 9A.  36 THE COURT:  So then you would say, yes, you would want a  37 separate declaration for each chief and each house as  38 to ownership?  39 MR. GRANT:  Yes, as to ownership.  But I say it can be dealt  40 with as two declarations.  One for the Gitksan and one  41 for the Wet'suwet'en.  And the delineation of the  42 houses is set out on 646 9A and 9B.  I think I have  43 mentioned to you that that's houses and not chiefs.  44 MR. MACAULAY:  I take it that the form of the order sought is to  45 include a provision that the land, particularily  46 reserves, held by the Queen in the Right of Canada are  47 excepted? 26415  Submissions by Mr. Grant  1  MR.  GRANT  2  3  4  5  6  THE  COURT  7  MR.  GRANT  8  9  THE  COURT  10  MR.  GRANT  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  THE  COURT  44  MR.  GRANT  45  THE  COURT  46  47  MR.  GRANT  I leave that to my friend to -- well, I think we  have visited that, my lord.  I think that the issue of  the limit of your lordship's jurisdiction on federal  lands I think we have canvassed.  And I don't think  there is a dispute over that.  Yes.  We will have to deal with that in another court on  another day.  Yes.  Now, if I can move to the issue of jurisdiction, the  Prayer for Relief, my lord, sets out that the  plaintiffs have a right of jurisdiction over the  territory.  Now, I have put in Prayer for Relief 2 and  3 here on page 17.  This is as they are formulated in  the Statement of Claim.  And I have put them in here  because -- but I am going to deal with an alternative  formulation of jurisdiction.  Now, as I say, what we mean by jurisdiction is the  system of authority exercised within a set of  institutions and laws in the context of an organized  society extending over a defined territory.  Now, in  view of your lordship's comments and concerns  expressed during our argument, I am breaking down this  system of authority into two parts.  The first as it  relates to land and resources.  Now, this again can be  dealt with in the context that the declaration on page  14 deals with both ownership and authority over the  territory.  But if your lordship sees that ownership  and authority should be dealt with separately, this is  how the authority over the territory would be  formulated in our submission.  It is important to recognize in the context of the  declaration of authority that this is a declaration  being sought from this court vis-a-vis the provincial  defendant.  The plaintiffs are seeking a declaration  that they have the right to exercise the jurisdiction  over the lands and resources of the territory.  Such  authority would include, of course, the authority to  harvest, manage and conserve all resources on the  territory.  And a more specifically --  I'm sorry, Mr. Grant.  You have got ahead of me.  I'm sorry.  I was hoping you were going do deal with item 2 on  page 17.  The declaration number 3? 26416  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  MR.  THE COURT  MR. GRANT  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT  GRANT:  COURT:  COURT:  Yes.  That's the language of your Prayer in the  Statement of Claim, is it?  GRANT:  I'm sorry, my lord.  GOLDIE:  Not quite.  GRANT:  If I can just go to -- if you look at page 18, the  heading there is "The System of Authority as it  Relates to Land and Resources."  And then on page 19  is "The Right of Jurisdiction as it Relates to Issues  Not Connected With Land and Resources."  So I have  just set out --  Can I cross out those two bolded paragraphs on page  17, then?  Well, they are the ones in the Prayer for Relief.  If you accept the ones that I have alternatively,  that's right, we wouldn't refer to these.  These are in the Prayer for Relief.  Yes.  Because I have some difficulty with that item in  line -- the start of line 3, paragraph 2 relates to  "transfer".  I take it you mean transfer within  Gitksan culture?  Yes.  Yes, that's right.  Internally, yes.  Yes, all right, sir.  I am with you now.  You've  done the first paragraph on page 18?  :  Yes.  So I'm dealing, first of all, with the  authority as it relates to land and resources.  And  what I propose, my lord, is an alternative declaration  that the plaintiffs have a system of authority  exercised with their institutions and laws in the  context of organized societies over the territories as  defined by the external boundaries set out in Exhibits  646(9 A) and (9B) and their resources thereon and  therein.  Now, in other words, this is a declaration  focusing on the authority over the territory as  opposed to the ownership.  The first alternative I  gave you included ownership and authority over the  territory.  This is an alternative that deals solely  with the authority over the territories.  Now, again, I would see this declaration --  THE COURT:  I couldn't make that declaration without saying what  that system is, surely.  MR. GRANT:  Well, I submit that in the course of your lordship's  reasons and a consideration of the evidence and the  description of the jurisdiction given in argument that  MR. GRANT 26417  Submissions by Mr. Grant  1  2  THE  COURT  3  4  5  6  7  8  MR.  GRANT  9  THE  COURT  10  MR.  GRANT  11  THE  COURT  12  13  14  MR.  GRANT  15  16  17  18  19  20  21  22  23  24  THE  COURT  25  26  MR.  GRANT  27  THE  COURT  28  29  30  31  32  MR.  GRANT  33  34  35  THE  COURT  36  37  38  39  40  MR.  GRANT  41  THE  COURT  42  MR.  GRANT  43  THE  COURT  44  45  46  47  MR.  GRANT  we have described the system of authority.  But what is there additional beyond the kind of  ownership for which you have contended that would be  required in order to fill in or flush out that word  "system"?  You've asked for full enjoyment, ownership,  the right to transfer internally.  What else do you  say your form of ownership would include?  If --  I am going back to page 14.  Right.  Right to ownership which extends to full exclusive  enjoyment and possession including harvest, manage,  and conserve the natural resources.  If you found that, my lord, that the declaration  formulated on page 14, that formulation which subsumes  the authority over the territory, if that declaration  was granted, I do agree, and I believe I sense what  your concern is, that the declaration on page 18 would  not be necessary.  But if you found a declaration of  only ownership, then we say that this would be a  separate declaration of authority.  And I agree that  the issue on page -- the declaration on page 14 does  incorporate that.  Well, then, let me ask you, would it suffice if you  stopped in the third last line at resources?  In which one, my lord?  On page 14?  Because it seems to me that if you are  going to make decisions it would have to be in  relation to the foregoing.  And, therefore, it  wouldn't be necessary.  If you could do those things,  you would be making the decisions, obviously.  Oh, you're saying after -- you would -- all its  resources including the right to harvest, manage and  conserve the natural resources, and to stop there?  Yes.  What other decisions are you talking about  other than to those to full exclusive enjoyment and  possession of the territory and the right to manage,  harvest and conserve and transfer -- I guess transfer  isn't there, is it?  No.  Transfer is not there.  Yes.  All right.  That would be encompassed.  Well, what I really have to have from you is what is  it in the way of decisions or systems within these two  frameworks that are additional to the other items  mentioned in page -- on page 14?  Thank you, my lord. 2641?  Submissions by Mr. Grant  1 THE COURT:  2 o'clock, please.  2 MR. GRANT:  I will consider that over lunch.  3 THE REGISTRAR:  Order in court.  Court stands adjourned until 2  4 o'clock.  5 (PROCEEDINGS ADJOURNED AT 12:30)  6  7 I hereby certify the foregoing to  8 be a true and accurate transcript  9 of the proceedings transcribed to  10 the best of my skill and ability.  11  12  13  14  15  16 Lisa Franko,  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 26419  Submissions by Mr. Grant  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 RESUMED PURSUANT TO LUNCHEON RECESS)  THE COURT:  Mr. Grant, I understand you're competing with a  wedding this afternoon.  MR. GRANT:  That's what somebody advised me.  If you want me to  start singing just let me know.  THE COURT:  No.  MR. GOLDIE:  I was invited to officiate.  MR. GRANT:  My lord, you'd raised a question just before lunch  hour, and I think it's just -- this is a question of  clarification, and this is on page 14.  What I would  say in response to your question that if it was  read -- and I'll just read from the -- I'll read it.  "A Declaration that the Plaintiffs have a right  of ownership over the Territory, which extends  to the full exclusive enjoyment and possession  of the Territory and all its resources  including the right to harvest, manage and  conserve the land and natural resources."  And then there's no necessity to have that added  clause. And that's what I -- actually probably is a  clearer delineation of what it should say.  THE COURT:  Well, of course, I'm not negotiating the settlement.  MR. GRANT:  Of course.  No, I know that.  THE COURT:  I'm trying to determine what the ingredients are of  the declaration you seek.  MR. GRANT:  Right.  Well, what — if we go to — when I go to —  what this was was an effort to incorporate the  ownership sections in the Prayer for Relief, and  number three said "and make decisions in relation  thereto", so I track that language.  But really it all  would be encompassed in those harvest, manage and  conserve.  And in a conceptual way I couldn't  conceive -- we can't conceive of some decision that  doesn't come within that.  THE COURT:  All right.  MR. GRANT:  I think if that was the point —  THE COURT:   That's what I was looking for.  MR. GRANT:  If that's what you were asking about I think that's  a better way of saying it.  On page 17 I would just note that I numbered those  as two and three and they're actually three and four.  THE COURT:  Yes.  MR. GRANT:  And I also wanted to re-articulate -- it may be  confusing.  I see the declaration on paragraph 18 as 26420  Submissions by Mr. Grant  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  an alternative to 14 where the declaration just deals  with jurisdiction.  But I would rephrase it in this  way, because of the whole -- it was an effort to  incorporate the definition of jurisdiction which leads  to, in my view, excessive verbiage.  And I say this:  "That a Declaration that the Plaintiffs have  the right to harvest, manage, conserve and  transfer the land and resources within the  Territory set out in Exhibits 646 (9A) and  (9B) . "  And with respect to the term transfer that would  be, of course, internal that we are dealing with  there.  THE COURT:  Are you putting that forward as an alternative to  page 14?  MR. GRANT:  Page 18.  THE COURT:  No.  Is 18 put forward as an alternative to 14 or  additional?  MR. GRANT:  It's an alternative if ownership and jurisdiction  are kept -- dealt with separately.  You see, what  would go with the one on 18, my lord, would be part of  what's number one, a declaration that the -- number  one in the Statement of Claim, my lord, which is at  the first page of my submission.  "A declaration that the Plaintiffs have a right  of ownership over the Territory."  So there would be one declaration of ownership and  a separate declaration of jurisdiction over the land.  Those two together would be an alternative to  paragraph -- to the one on page 14.  THE COURT:  All right.  MR. GRANT:  Now, and what I have just stated would be a  clearer -- yes.  What I've said is a clearer statement  of what would be on 18.  Now, in the context of this my approach to the  questions I'd intended to deal with, and some of them  are incorporated here, but I want to take the exact  question out.  I believe I've answered them all in.  But one of the questions raised by the provincial  defendant was whether the plaintiffs seek a  declaration that other aboriginal peoples have no  jurisdiction within these boundaries.  And our response to that is no.  We are not 26421  Submissions by Mr. Grant  1 seeking any such declaration about other aboriginal  2 peoples.  But we say -- we're saying -- seeking  3 declarations of the jurisdiction of the plaintiffs.  4 They do not -- the other aboriginal peoples have not  5 made a claim before your lordship of jurisdiction, and  6 in our submission don't assert any within the  7 territory.  And, of course, we're here vis-a-vis the  8 provincial defendant.  9 And I believe I have answered the question about  10 which I believe -- one of the questions raised was  11 reiterated by my learned friend Mr. Goldie about the  12 individual houses, the ownership of the individual  13 houses, and I've answered that question earlier this  14 morning.  That is that the declaration would be, with  15 the exception I believe it was with Delgamuukw Geel  16 isn't referred to on the map there, the declaration  17 would be with respect to the house territories as on  18 Exhibit 646 (9A) and (9B), my lord.  So they would be  19 separate declarations.  2 0    THE COURT:  Yes.  21 MR. GRANT:  Now, here on page 19 I would like to return to the  22 principle challenge in this case to provincial laws  23 applicable to the plaintiffs at this time are those  24 laws which purport to deal with harvest, management,  25 conservation and ownership of the land and resources.  26 Those laws to the effect that they purport to impinge  27 on the aboriginal rights of the plaintiffs in the  28 exercise of ownership and authority over the territory  29 and the resources thereon and therein are of no force  30 and effect as of the date of a judgment in this action  31 in favour of the plaintiffs.  32 Now, we are saying that the provincial laws do not  33 apply to the plaintiffs and their land only insofar as  34 they are inconsistent or repugnant with the ownership  35 and jurisdiction of the plaintiffs.  The laws of the  36 Province do apply to non-Indians within the territory  37 insofar as they are not inconsistent with the  38 plaintiffs' ownership and jurisdiction.  39 And I'm going to in the course of that  40 articulation I'll come back to that, but in my  41 argument when we deal with the jurisdiction as it  42 relates to issues not connected to land and resources  43 I'm coming to, the second arm of it though was a  44 question raised whether the provincial laws have  45 application to Gitksan and Wet'suwet'en people who are  46 residing outside the boundaries.  And, yes, they do.  47 The provincial laws would apply outside the boundaries 26422  Submissions by Mr. Grant  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  to Gitksan and Wet'suwet'en people.  And the  declarations aim only at the application of provincial  laws within the territorial boundaries.  Now, coming to the right of jurisdiction as it  relates to issues not connected with the land and  resources.  This, my lord, as I have summarized is an  issue that has been raised throughout our arguments,  and I hope that this submission will answer some of  your lordship's questions about it, the scope of it.  Firstly, I'd like to comment on the submission  that it is essential for your lordship to understand  that in the plaintiffs' view the parties affected by  your declarations are here.  It is a case of the  Gitksan and Wet'suwet'en people as represented by  their hereditary chiefs against the provincial  defendant.  And there are several cases in which this  court has recognized the authority of a band council,  for example, to a bring an action on behalf of its  members.  There's no suggestion in those  representative actions that the minors are not  represented in that action.  THE COURT:  That's true, but not with respect to this kind of a  claim that I know of.  MR. GRANT:  Well, the analogy I used of the band council is that  in those cases the band is representing its members to  protect -- well, in the B.C. Hydro case I think it was  a trespass.  And there's different cases.  A contract  in the Cache Creek Motors case, and others.  THE COURT:  But limited to the use or control or operation of a  specific piece of land or asset, not to --  MR. GRANT:  Or a contract.  THE COURT:  Not to their marriage laws and their adoption laws  and their other kind of general rights.  MR. GRANT:  Right.  THE COURT:  That's the problem that I have.  MR. GRANT:  Well, I submit, my lord, that by the time I'm  through this submission on this point you'll see that  it is all right in any case, it's not because of the  impact of the declaration we seek.  Now, the declaration that you asked me -- you  didn't want me to pass over too quickly as framed in  our pleading is the one on page 17, and it's the --  what I correctly numbered now as four.  "The Plaintiffs right to jurisdiction includes  the right to govern the territory." 26423  Submissions by Mr. Grant  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  Now, that aspect I've already discussed,  comes within jurisdiction.  That  THE COURT  MR. GRANT  THE COURT  MR. GRANT  "It includes the right to govern themselves,  the members of their Houses represented by the  Plaintiffs in accordance with Gitksan and  Wet'suwet'en laws administered through Gitksan  Wet'suwet'en political, legal and social  institutions as they exist and develop."  And that's to endeavor to show their authority.  Now, an alternative wording of that declaration, an  alternative to that I've set out on page 20 and this  may be in short form the declaration with respect to  jurisdiction over issues other than land.  "A declaration that the Plaintiffs have an  aboriginal right to self-determination in  matters relating to their internal and local  affairs, including education, language,  culture, health, housing, social welfare and  economic activities."  Now, by internal there, my lord, I am not  precluding, of course, that portion of my argument in  which I demonstrated that the authority of the Gitksan  and the Wet'suwet'en does extend to relationships with  other aboriginal groups.  And I made that argument in  Smithers.  But that we see as part of internal.  It's  not -- it's part of how they manage their affairs.  :  Well, what you're really saying is you want  jurisdiction over matters of a local or private  nature, civil rights and matters of a private nature  within the territories.  You want the same rights  within the territory the Province has under Section  92, don't you?  :  Vis-a-vis the plaintiffs, not vis-a-vis non-Indian  people in the territory.  The provincial laws would  still apply to non-Indians.  But let me -- I'd like  to —  :  Well, then you say what I have just stated is far  too broad?  :  Well, if you say what I'm seeking is -- what we are  seeking is jurisdiction -- is to move the Section 92  from the Province to the plaintiffs for all purposes  within the territory for anybody that happens to be  there, yes, that is broader than what we're seeking. 26424  Submissions by Mr. Grant  1 But we are dealing with these --  2 THE COURT:  What are you saying about highways?  3 MR. GRANT:  Well, that — I deal with each of your points, if  4 you would --  5 THE COURT:  All right.  Yes.  All right.  6 MR. GRANT:  I would like to flow through it, because then I  7 think I hope I answer your questions.  8 Now, the effect of this recognition, my lord, as I  9 say after the declaration, to govern themselves and  10 the priority of that right as opposed to the laws of  11 the provincial defendant cannot be constrained in our  12 submission in a temporal sense by the date of the  13 order.  The effect of the order will be that  14 provincial laws which impinge on the right to govern  15 themselves may be challenged at the time when they do  16 impact on the rights of the plaintiffs.  17 Now, the intent of the declaration of the right is  18 intended to restrict the conduct of the provincial  19 defendant from impeding the aboriginal right to govern  20 themselves.  21 Now, your lordship has raised the issue as to  22 whether or not the impact -- what impact this would  23 have on provincial laws relating to education, for  24 example.  This declaration would allow the Gitksan and  25 Wet'suwet'en to establish their own schools without  2 6 impediment from the provincial defendant.  And, of  27 course, you've heard evidence that they have.  But, in  28 fact, those schools are with provincial standards.  29 And at this point that judgment of -- that's a benefit  30 to the Gitksan and Wet'suwet'en.  31 But let's take another example that's maybe more  32 problematic.  I'm on page 21, my lord.  33 THE COURT:  Yes.  34 MR. GRANT:  Yeah.  35 A further example with respect to the education  36 system could be considered if a Gitksan or  37 Wet'suwet'en House, and I say house or house member.  38 It could be a member of a house.  Okay.  It doesn't  39 have to be the whole house, of course.  Decided to  40 withdraw their children from the school and educate  41 them on the territory.  They decided this was the  42 appropriate way consistent with traditional training  43 to take them out of school.  Such a situation would be  44 in conflict with the requirement that the children  45 must attend school for a certain number of days of the  46 year.  The effect of the order of a declaration of  47 self-government made by this court would be that if 26425  Submissions by Mr. Grant  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. GRANT  the provincial defendant prosecuted that family or  those families for violation of the School Act they  could raise a defence they were educating their  children in accordance with their aboriginal right of  self-determination regarding education.  But alternatively, the Gitksan House or houses or  the Wet'suwet'en House or the family could bring an  action against a school district challenging the  applicability of those provisions to the Gitksan  persons to the extent that it conflicted with the  aboriginal right to educate their own children as part  of their aboriginal right of self-government.  The  onus in such an application by the Gitksan would be to  establish the right to educate their children outside  the school system was part of the aboriginal  self-government.  That issue would have to be decided  on a specific basis with the specific facts.  But the effect of the order we're asking your  lordship to make would be that the declaration of the  recognition of self-government as one of the  aboriginal rights of the Gitksan and Wet'suwet'en,  leads to the result that the plaintiffs or petitioners  once they demonstrated that the alternative education  formed an aspect of self-government in particular  circumstances, the provincial law would not prevail.  Once they overcame that hurdle on the particular facts  on the particular case then the implication of the  order we're seeking from this court would apply.  But this is the important point.  Until the  Gitksan and Wet'suwet'en exercise their authority in  relation to education in a manner which conflicts with  the provincial School Act, that act continues to  apply.  In other words, there is no point in  theorizing about multiple challenges when there is no  conflict.  And I want to say that --  :  What about capital projects?  I mean, the Province  is going to build a school with the expectation that  no one will challenge it, and then put all that money  into a building and then the Gitksan come along and  say we've decided we are not going to use the school.  :  Well, in fact, my lord, you have evidence that has  happened in -- in the case of the community of  Gitwangak which they built their own school.  They  didn't go to the school district and say:  Hey, do you  mind, we are going to build other own school.  The  school district had its own schools and they had their  own schools.  I mean, that situation will happen.  And 26426  Submissions by Mr. Grant  1 they did build that school without -- that's in  2 evidence that situation, without the support initially  3 of the departments or anyone involved.  4 Obviously, my lord, it's like -- it makes sense  5 that if a -- and I think you've raised another aspect  6 of it.  Of course this -- it's not an island creation  7 that we're having here.  That's not the suggestion.  8 Because the reality of the world that the Gitksan and  9 Wet'suwet'en live in is it's a world in which there is  10 the Province and the Federal Government, the  11 non-Indian people in the territory.  And the reality  12 is these things have to intermesh, but we're at the  13 first step here really.  The first step of this is  14 within their aboriginal rights do they have an  15 aboriginal right to make these decisions themselves.  16 That's the question.  And we're saying they do, and  17 we're saying declare that they have that right to make  18 the decision, but --  19 THE COURT:  Each house make a separate decision?  20 MR. GRANT:  Well, I think that would depend upon the situation.  21 I think what was espoused to you with respect to the  22 fishery for example by Ms. Pinder, and what I argued  23 for last week in Smithers, or the week before, is that  24 that may be -- maybe there's more interaction there,  25 and that makes sense because of the interaction of the  26 sites and the territory.  27 In this situation it could be notional that a  28 house could decide on their own, or certain members of  29 the house say:  You know, we want to take our children  30 on the trapline for two years.  And that could happen.  31 And that may be part of their internal -- their  32 internal authority.  But that's why I say it's very  33 difficult, and I think this is one of the questions,  34 in grappling with the issues you raised it's very  35 difficult in the abstract to say:  Well, how does this  36 apply?  And I understood the concern that you raised  37 was well if I give a huge broad declaration without  38 anybody really having any sense of how it applies what  39 does that mean.  And the reality is, I submit, is that  40 at this point neither defendant recognizes --  41 recognizes or is prepared to recognize the right of  42 the Gitksan and the Wet'suwet'en to exercise their  43 authority and make decisions with their own people.  44 MR. GOLDIE:  That's not so, my lord.  The Province doesn't  45 challenge the authority of the people within their  46 reserves to substantially govern themselves.  The  47 Province doesn't make any assertion of authority with 26427  Submissions by Mr. Grant  1 respect to their reserves.  2 MR. GRANT:  Well —  3 THE COURT:  I suppose Mr. Grant's point is he wants it outside  4 the reserves.  5 MR. GOLDIE:  He wants to transform the whole of the territory  6 into 91 (24) .  7 THE COURT:  That's what I was suggesting.  Perhaps that's too  8 broad, because they're not challenging the fee-simple  9 title of other residents who are going to be living  10 within the territory.  11 MR. GOLDIE:  That's correct, my lord.  It's 91(24) except for  12 individual parcels of land.  But when my friend talks  13 about the education he's saying we want the provincial  14 authority to provide educational facilities until we  15 decide otherwise.  But it's 91(24) when it comes to  16 taxation.  17 THE COURT:  Well, I haven't even got into taxation.  18 MR. GOLDIE:  Well, my understanding is that one of these  19 declarations does deal with that.  The right of  20 self-government is --  21 THE COURT:  I better hear what Mr. Grant says about taxation  22 when he gets to it.  It seems to me it creates other  23 problems.  24 I'm very troubled by your proposition that if  25 parents just decide to take children out of school  26 they take them out of school for two years, you say.  27 My God, are you really suggesting that?  28 MR. GRANT:  No.  This is how — what happens.  What I'm saying,  29 my lord, is that for those parents to have the right  30 to take their children out of school for a period of  31 time -- now, this in actual -- I think it's reflected  32 in some of the treaties that were referred to your  33 lordship in the north that, in fact, this is what  34 happens.  But let's say they took their children out  35 of school.  First of all they say, we say we wish to  36 educate our children in a different way than under the  37 provincial education scheme.  The issue would then  38 be -- it wouldn't be solely the test of relying on  39 your declaration here in the abstract.  What they  40 intended to do with their children is that consistent  41 with Gitksan or Wet'suwet'en self-government with  42 their own -- within their own system.  43 Now, I'm taking a situation that may not come to  44 pass, but I think that it is important to say what is  45 the right, then how can it be exercised.  The issue  46 will be if there is a conflict between the plaintiffs  47 and the school authority with respect to that the 2642?  Submissions by Mr. Grant  1 plaintiffs could raise that as a defence or seek a  2 petition for an exemption based on their aboriginal  3 right of self-government.  But before they even get  4 there, my lord, what we're seeking is that they do  5 have the right to make decisions as part of their  6 system.  Now, if they can't establish in that case  7 that it's an appropriate or applicable part of their  8 system then it wouldn't apply.  That would have to be  9 established on a case by case basis.  10 And I think it's as I say later, like the equality  11 provision Section 15 of the Charter.  There was no  12 suggestion that every province had to re-enact every  13 piece of legislation to come into conformity with  14 Section 15.  They gave them three years, and I think  15 there was a review and some provinces did repeal some  16 statutes.  Most of them repealed some, including this  17 province.  And then of course there has been  18 challenges.  The question is what is the applicability  19 of the right, and that is at the point of the conflict  20 or of the clash.  But what we're seeking from you is  21 the declaration that there is a right.  We're way back  22 there.  We don't have Section 15.  We're back at the  23 recognition that there is a right to make the  24 decisions.  25 THE COURT:  Well — all right.  I was going to pose a further  26 difficulty, but I think it's unlimited so I think you  27 should proceed.  28 MR. GRANT:  I don't know if I like to say I like your  29 difficulties, but I'd like to understand --  30 THE COURT:  All right.  Doesn't your submission contravene  31 Section 15 of the Charter declaring that some citizens  32 have certain rights and other citizens have different  33 rights?  34 MR. GRANT:  Section 25, though, my lord, exempts aboriginal  35 rights from the Charter.  36 THE COURT:  Exempts them?  37 MR. GRANT:  Exempts them.  The Charter cannot be — we're  38 getting closer to the wedding.  39 THE COURT:  Somebody's objecting to the marriage, I think.  40 MR. GRANT:  Section 25 of the — sets out that the provisions of  41 the Charter cannot come into conflict with -- the  42 provisions of the Charter exempt -- the aboriginal  43 rights are exempted from the provisions of the  44 Charter.  And Section 35, of course, is outside the  45 Charter.  And I believe Ms. Mandell discussed that  4 6 with you.  47 THE COURT:  I'm not worried just about the -- the aboriginals, 26429  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  GRANT  COURT  GRANT  THE COURT  MR. GRANT  THE COURT  MR.  THE  GRANT  COURT  MR. GRANT  I'm worried about all the other citizens in Canada who  come along and say look if they have the right to do  this I have the right to do that, and Section 25  doesn't exempt me.  But that's -- I can speak louder, if possible.  I don't think you should trouble yourself --  No.  I just want to raise that that -- of course,  that goes back to the whole history of why Section 35  is there.  I mean the aboriginal peoples are treated  differently in the Constitution than others, and  there's reasons for that, and that's --  Well, it seems to me what you're asking for is a  declaration that without abrogating all the laws of  the province that might impinge upon aboriginal rights  you want a declaration that you have the right to opt  out of those laws, and the general application is as  you see fit.  Where those laws which come into conflict with the  jurisdiction of the plaintiffs that those laws the  plaintiffs could -- they would establish that they  come into conflict and having established that with  the recognition of their --  You want to a whole new series of division of power  lawsuits then.  Well, I hope --  As far as federal and provincial are interested  you've been fighting about since 1867.  You want a  whole layer of division of power of litigation.  I hope it doesn't go to litigation, and of course  neither do our clients.  That's the point.  But the  thing is there's checks and balances here.  Each of  the three levels of government -- each of the two  levels of government that are the defendants, plus the  plaintiffs, all have a say in a control of the  resources, and the logical outcome of all of this will  end up in parties coming together.  That's what makes  sense.  But if there was a challenge -- if the  particular -- if the provincial defendant saw fit that  a particular law was directly conflicted with the  plaintiffs' rights of authority, or rights of  self-determination that they wished to press that and  not work out the relationship then that kind of  challenge would be there.  But it wouldn't -- it would  be site specific.  It wouldn't be theoretical.  But  this, of course, is different than the laws relating  to the land and resources.  And I hope I made that  point clear, my lord. 26430  Submissions by Mr. Grant  1  THE  COURT  2  MR.  GRANT  3  THE  COURT  4  5  6  7  8  9  10  MR.  GRANT  11  12  13  14  15  16  17  18  THE  COURT  19  20  21  22  23  24  MR.  GRANT  25  26  THE  COURT  27  MR.  GRANT  28  29  30  31  32  33  34  35  36  37  38  THE  COURT  39  40  MR.  GRANT  41  42  THE  COURT  43  44  MR.  GRANT  45  THE  COURT  46  47  MR.  GRANT  I never had any problem with that part of it.  That's why I'm dealing with this --  The trouble is definition.  That's something I can  intellectually come to grips with, but the one you're  talking about now is the wildest creature that's ever  been inside of a courtroom, or that I have ever heard  of.  I think you've got an untamed horse here, Mr.  Grant.  I'm not surprised if you're having trouble  articulating it.  No.  I'm clearly having trouble.  I mean, I think  your lordship is right, is that in the context of this  litigation that this issue -- this issue has not been  brought before a court in the context of Section 25  and Section 35 in this country in the scope of this --  of this claim.  And that's right, I think it is a  first view of that issue.  And I'm not apologizing for  that.  I'm saying that's where we all are.  I'm not sure it's even covered by the pleadings, is  it?  Do you think there's a pleading that covers  something as broad for which you're now contending?  It seems to me there would have had to have been other  people appointed to represent interests that might be  affected by this.  Well, the plea with respect to the exercise of  jurisdiction over the resources --  Well, that's not our problem.  Well, paragraph 57 the listing without restricting  the generality of paragraphs 56 and 56A:  "Since time immemorial the plaintiffs, their  ancestors or predecessors have governed  themselves according to their laws, maintained  their institutions."  That's C.  "Maintained their institutions" is F.  "Exercised the authority over their territory through  their institutions."  But that's put forward in support of a -- a claim to  an aboriginal right.  Which is an aboriginal right of ownership and  jurisdiction.  56 presides it.  It says the plaintiffs only  exercise jurisdiction over the lands.  Right.  I have no trouble with that.  But you're taking it  way beyond that.  But — 26431  Submissions by Mr. Grant  1 THE COURT:  I don't remember now, but I'd be surprised if  2 there's anything in your opening that goes this far,  3 is there?  Certainly the course of the trial hasn't  4 indicated it.  This is a late starter in this lawsuit  5 as far as I'm concerned.  Maybe I was asleep to my --  6 asleep to the issues that you were going to argue  7 here, but --  8 MR. GRANT:  Well, I don't mean this to be a sleeper at all, my  9 lord.  The issue -- the articulation of this issue is  10 the declaration number four.  I mean, we set out that  11 they govern themselves according to their law.  And  12 from the very beginning have set out a declaration, or  13 have sought from your lordship a declaration that:  14  15 "The Plaintiffs right to jurisdiction includes  16 the right to govern the territory, themselves,  17 and the members of their Houses represented by  18 the Plaintiffs in accordance with Gitksan and  19 Wet'suwet'en laws administered through Gitksan  20 and Wet'suwet'en political, legal and social  21 institutions as they exist and develop."  22  23 And then number eight, the restriction on the  24 defendant Province is a declaration that the defendant  25 Province's jurisdiction over the territory, which is  26 an issue that we have -- you appreciate you understand  27 that.  The plaintiffs and members of the houses  28 represented by the plaintiffs is subject to the  29 plaintiffs' rights to ownership and jurisdiction.  30 So —  31 THE COURT:  Well, I'll be very frank to admit that I have read  32 that throughout as being related to the territory for  33 which you were seeking a declaration of aboriginal  34 rights.  35 MR. GRANT:  Well, I don't think it can be done in isolation of  36 the territory in that sense.  That's for sure, because  37 as I say we are not -- there's not a claim for  38 exercise of jurisdiction over Gitksan or Wet'suwet'en  39 outside of the territory.  40 Now, let me just try another example, my lord.  41 And that is on page 23.  This is with respect to the  42 Health Act.  43 In the situation in which the Gitksan and  44 Wet'suwet'en may rely on traditional healers within  45 their own society restrictions on the practice of  46 medicine which prevent those healers from operating  47 may be challenged.  They're not challenged. 26432  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  You mean surgical operations there?  I'm sorry.  From operating.  From operating.  No, not surgical operations.  You've heard evidence of the healers and their  practices.  Is there any prohibition of any of those practices?  Well, to the extent that that is considered the  practice of medicine there is a prohibition in the  Health Act against persons who are not licensed to  practice.  Once again, in such a petition the Gitksan or  Wet'suwet'en challenging that would have to  demonstrate the utilization of the healers form part  of their rights of self-government.  Once they've  established that in the circumstances of the  particular case, or on the facts of the case the  effect of the declaration of this court would be they  were paramount over provincial laws.  Now, the third example I've given is with respect  to the administration of aboriginal justice within the  community.  As your lordship may be aware there is  suggestions, there's been efforts, and I believe there  was some evidence from Mr. Williams if I recall  rightly about implementation of an aboriginal justice  system.  Now, but if the Gitksan established such a  system and the provincial defendant endeavoured to  stop that system by utilization of its legislation,  the Gitksan and Wet'suwet'en could bring an action  prohibiting the Province from restricting the Gitksan  and Wet'suwet'en system.  Once again, my lord, the  onus would be on the Gitksan and Wet'suwet'en as the  petitioner to establish the particular aboriginal  justice system formed part of their aboriginal right  to self-government.  But once they had done so the  declaration we are seeking would be triggered and that  system would take precedence over provincial law.  The difficulty that I perceive that your lordship  had, and maybe I misconceive the difficulty, is that  it's very difficult to look at any of these areas in  the abstract, and that therefore what we are trying  to -- what we are asserting, and are asking your  lordship to find, is a declaration that takes us up  the first step.  Now, hopefully after that step there  is a foundation for working out the interrelationship  between the parties.  As you say, there may not be, at  which point it would depend on the interaction. 26433  Submissions by Mr. Grant  1 Now, I go to the motor vehicle traffic regulations  2 which you mentioned.  Obviously this is an effective  3 means of minimizing injuries as a result of the use of  4 motor vehicles.  There is no conflict with the  5 exercise of authority of Gitksan and Wet'suwet'en  6 chiefs.  And I would say the same generally with the  7 highways except, of course, those provisions of the  8 highways -- I think it's the Ministers of Highways Act  9 now.  It was the Highways Act, but those provisions in  10 which they can expropriate lands and those land  11 related issues.  But there is no reason to challenge  12 the traffic regulations within the territory.  13 I've referred back to the question of general  14 health and terms of the utilization of Devil's Club,  15 or the regulation of getting Pine Mushrooms by the  16 provincial defendant.  We would say those would be  17 land based or resource based laws that would be  18 subject to restriction.  19 Now, my lord, my numbering is a little -- the next  20 pages I've written in 24A.  There was some kind of  21 glitch, if you have that.  22 Now, the attempt, my lord, by the outside society  23 to control Gitksan and Wet'suwet'en, and whether for  24 good motive or bad is irrelevant.  It is equally  25 destructive.  Really what we're seeking here, my lord,  26 is an alternative to that relationship which leads to  27 what I say is a dependency syndrome so long as the  28 outside society insists it has the final say with  29 respect to Gitksan Wet'suwet'en authority.  30 The point here, in other words, my lord, isn't  31 that the foundation of our argument is decisions made  32 by the federal defendants through the Indian Affairs  33 branch were bad or were good, or for that matter by  34 the provincial defendant.  They could be better  35 decisions.  That's not the point.  The question is  36 that it is the recognition we are seeking is that the  37 Gitksan and Wet'suwet'en have the authority to make  38 these decisions for themselves within the context of  39 our country, within the context of their rights  40 recognized under our Constitution, but they have that  41 authority to make those decisions themselves.  42 Now, I've recited the examples to demonstrate to  43 your lordship that it's not possible to go through  44 each chapter of the revised statutes and refer to the  45 list of regulations and the sections which are void as  46 in conflict.  Each circumstance has to be considered  47 individually.  But the provincial defendant denies the 26434  Submissions by Mr. Grant  1 Gitksan Wet'suwet'en have any aboriginal right to  2 self-government.  The effect of the declaration --  3 subject to what Mr. Goldie has said just now with  4 respect to that they can make decisions on Indian  5 reserves.  The effect of the declaration sought from  6 this court is that the Gitksan and Wet'suwet'en  7 aboriginal rights include the right of  8 self-government.  And that right to self-government  9 takes precedence and is paramount to provincial  10 legislation.  Even with the declaration we are  11 seeking, as I say, the Gitksan and Wet'suwet'en would  12 have to challenge a specific piece of legislation,  13 this is legislation not related to the resources, as  14 being in conflict with their declared aboriginal right  15 of self-government.  It would be at that point that  16 the court could analyze the particular regulation and  17 conflict with particular exercise of  18 self-determination to determine if the effect of the  19 right of self-determination -- you can take out the  20 word government there -- took effect to restrict the  21 application of a particular Gitksan law.  22 Now, I then go on to talk about the example of the  23 applicability of this non-land authority over Gitksan  24 and persons outside the territory.  Now, there's no  25 complusive authority on any Gitksan or Wet'suwet'en to  26 attend feasts or provide goods at feasts, much less  27 those outside the territory.  But to maintain  28 obligations and the daxgyet or authority of their  29 house there is imperative in the nature of the society  30 for them to contribute.  Furthermore, their absence  31 from the feast or refusal to participate in the feast  32 and absence from the territory makes them no less a  33 Gitksan or Wet'suwet'en.  This was explained by  34 several witnesses, Solomon Marsden in  35 cross-examination for one.  Both Sarah Layton and Joan  36 Ryan, whose evidence you heard, explained how they  37 maintained obligations as Wet'suwet'en and Gitksan  38 chiefs respectively although they lived outside the  39 territory.  A Gitksan or Wet'suwet'en person cannot  40 stop being a Gitksan or Wet'suwet'en.  41 Now, I have to emphasize that this declaration, my  42 lord, is not a declaration by which the chiefs can  43 enforce their authority against each and every Gitksan  44 who is a member of a house.  45 I pause to say there I believe you heard, I think  46 it was the evidence of Mr. Joseph, how a chief is only  47 as strong as his house members.  It's very dependent 26435  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  upon the members.  The declaration sought is a declaration that the  Gitksan and Wet'suwet'en have a right to govern  themselves.  And that right takes precedence in the  common law pursuant to the protections under Section  35 and the fundamental principles of aboriginal rights  over the jurisdiction of the Province.  And then I point out in response to another issue  raised I believe by Mr. Willms, but also for  clarification, that those persons non-Gitksan and  non-Wet'suwet'en are restricted from utilization of  resources of the territory without the consent of the  Gitksan and Wet'suwet'en to the extent that their  access to the resources is dependent on provincial  laws.  On the other hand because they are neither  Gitksan or Wet'suwet'en they are not bound by the  authority of the Gitksan and Wet'suwet'en over their  own people.  And, of course, could not rely on any  declaration to exempt themselves from provincial law.  In effect, my lord, the plaintiffs are here  seeking a declaration to grant that will protect their  right of governing themselves from the encroachment of  provincial laws which may impede the right of  self-government.  Just as the Province has been  constrained from passing legislation contrary to the  Charter of Rights and Freedoms, so is the Province  constrained from passing legislation contrary to the  aboriginal rights of the Gitksan and Wet'suwet'en to  govern themselves and their people.  I've already  reiterated that the context of each -- analysis of  each legislation and consideration they contravene the  rights of the plaintiffs is an issue that can only be  considered in the context of that particular piece of  legislation.  In fact, my lord, it would still not  resolve the issue if every section of every statute of  the Province in existence today was analyzed and said  this conflicts, this doesn't conflict.  Well, why?  That's what the Province has had to do  when the Charter came in.  They have not had to go to court and say that --  Well, they had to analyze every section.  The Province analyzed every section and after their  analysis they amended on the equality provisions.  Yes.  But they certainly didn't amend everything that was  in conflict, because it's been up to the courts to  determine. 26436  Submissions by Mr. Grant  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:  Well, as I understand it they went through and they  amended everything they thought conflicted with  Section 15, for example, and then other people --  people came along and said, well, this conflicts with  15, and those issues were tried out.  But all the ten  provinces, as I understand it, went through every  statute of each province and they introduced an  omnibus amendment bill and brought their legislation  in line with Section 15, as I understand it.  MR. GRANT:  That process was engaged in by the provinces, but  that process was certainly not viewed as complete.  THE COURT:  Well, I'm sure there are disagreements, as there  will be here.  MR. GRANT:  And those disagreements are before the courts.  THE COURT:  Oh, yes.  MR. GRANT:  And the federal government recognized that.  I think  they have a special branch just to deal with just  that, the equality challenges.  But what I'm saying, my lord, is that even if that  was done the point of it is that even if that process  was engaged in it wouldn't resolve the issue because  the Province -- the Province can pass legislation  tomorrow or next year.  I mean, the right is a right  that is not a frozen right in this concept.  I don't  want to use the term that Mr. Jackson explained to you  in the same way, but it's not a frozen right in the  sense that the points of conflict between the Province  and the plaintiffs in terms of the plaintiffs' rights,  aboriginal rights, is something that -- that will --  that evolves over time.  I mean, the question of where  the conflicts are cannot be predicted today or  tomorrow.  And the Province may pass legislation that  it doesn't think is in conflict, and it is.  It would  have to be subject to review.  But what I want to  focus on, of course, is that the legislation that is  in conflict is that with respect to the resources, and  that's the principal legislation.  Now, my lord, those are my submissions with  respect to this particular declaration which is on  page 18, I believe.  Page 20.  THE COURT:  Let me just make sure I understand you perfectly,  Mr. Grant.  You are saying you want a declaration  which would entitle Gitksan and Wet'suwet'en parents  to -- to exempt their children from the education laws  of the province?  MR. GRANT:  I'm saying I want a declaration which recognizes the  rights of the Gitksan to determine their education. 26437  Submissions by Mr. Grant  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.  GRANT  COURT  GRANT  THE  MR.  COURT  GRANT  THE COURT  MR. GRANT  THE COURT  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  The issue of whether in accordance with --  Which might or might not mean removal of the  children from school.  It could mean removal of the children from a school.  Yes.  But for a parent to remove their child from the  school if there was a conflict they would have to  establish that that was consistent with the Gitksan  and Wet'suwet'en system.  But they would have  ultimately the decision making in terms of education.  Method of education would be an issue related to --  would be a right that they had to make the decision.  Like, for example, I could see, my lord, let's say a  parent decided to take their children out of school so  they could go to work and support the family and the  child was under age or something like that.  Something  that was totally -- I'm trying to think of something  that was quite extreme that is not at all consistent  with Gitksan and Wet'suwet'en law.  That parent  couldn't rely on the declaration of this court to say  well, I can do what I please.  What would prevent him from doing what he pleases?  What I say is that in the -- in the demonstration of  the education system or the alternative education  system that the challenge would be that that was  consistent with the part of the self-government.  For  example, it would be education to take the child out  of school and to send him off to earn the income for  the family and just remove all requirement would be  something that both within the system and outside the  system would not be encouraged.  I suppose you would say the same for minimum wage,  that it wouldn't apply?  The Factories Act and  children working in sawmills wouldn't apply if they  can show that that was in accordance with Gitksan law?  If they overcame that hurdle, and I think that that  hurdle would be the test of it. And, I mean, I think  that the evidence that you've seen --  What if there is no Gitksan law that covers that  situation?  Well, I think that the Motor Vehicle —  Never mind the Motor Vehicle Act for a moment.  Okay.  All right.  Let's take the Motor Vehicle Act.  Are  you saying the Gitksan can say we are not going to  confine children to driver's licences at age 16, we  are going to start letting them drive younger.  11, 2643?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  12, 13, like I did.  If the recognition that the Gitksan and Wet'suwet'en  can make the decisions as they are that's a  possibility.  Yes.  And I think you're saying not will they, but can  they under that?  That's how you test legislation.  That's right.  Can it be done.  Yes.  And I'd say yes, it can be. So in that sense that  they have the authority, and that's where we have to  recognize the right to make decisions.  Thank you.  Now, going to the declaration of non-extinguishment,  my lord.  This is directly out of the Prayer for  Relief, and it's -- I've set out the declaration on  page 26 at the bottom.  Now, the plaintiffs have addressed the test for  proof of aboriginal title and non-extinguishment or  non-abandonment thereof in argument previously.  Now,  although on the latter issues the plaintiffs have  taken on the task of proof of negative propositions  the tests of proof have been met fully on the evidence  adduced.  Now, I say, my lord, that although this  declaration may appear to be an elaboration of the  first declaration, we submit there's particular  utility to this particular declaration in addition.  The plaintiffs are entitled to a declaratory statement  based upon the applicable law and supporting evidence  as to the continuity of current ownership and  jurisdiction from earlier times.  The evidence of  history; oral, expert and documentary, coupled with  the evidence of contemporary practice forms the  framework within which the progress and development of  a society can be traced.  The plaintiffs seek the  assistance of the court to confirm that history  through declaration of continuity to contemporary  ownership and jurisdiction.  And it is through this  recognition the rights of the plaintiffs to develop  their own society in directions they see fit in the  future can be maintained and protected.  The  non-extinguishment and non-abandonment aspects of the  declaration sought serve this purpose as well.  Now, I haven't on page 28 set out the declaration  six, but it is the declaration -- paragraph 6 of the 26439  Submissions by Mr. Grant  1 Prayer for Relief is a declaration of affirmation  2 under Section 35.  As your lordship recalls, of  3 course, the applicability of Section 35 was argued by  4 Ms. Mandell, and the declaration is -- we are seeking  5 the declaration in paragraph 6.  I don't think I need  6 say more about it.  7 I do set out paragraph 7 and 8, and these are  8 under part two of the Prayer for Relief, which are the  9 restrictions on the Province's title, and that they  10 are subject to the plaintiffs' rights of ownership and  11 jurisdiction.  I don't believe I need to read those  12 declarations to you, but I say that the first of them  13 also addresses constitutional status of the  14 plaintiffs' right of ownership and jurisdiction.  Not  15 with respect to the 1982 enactments, but arising from  16 those of 1867 and the division of powers between the  17 federal and provincial governments generally.  The  18 specific burden attached to the Province's assumption  19 of jurisdiction and transfer of rights of title at  20 Union must be recognized in prevention of future  21 abuse.  And that, of course, was argued fully earlier  22 this week, the applicability of Section 109.  23 And then the second addresses the constitutional  24 inhibition upon the otherwise properly exercisable  25 jurisdiction of the Province in relation to the  26 plaintiffs specifically.  27 Then paragraphs 9, 10 and 11 claim declarations of  28 restraint of interference by the Province with the  29 plaintiffs' rights.  And I set those out at the bottom  30 of page 29.  31 And on top of page 30, my lord, these declarations  32 form the core of the preventative function.  In  33 issuance, they will operate in restraint of future  34 interference with the plaintiffs' rights as defined by  35 earlier declarations.  The fact of issuance recognizes  36 the past unconstitutional and wrongful interference  37 with the rights so defined, and confirms the right of  38 the plaintiffs to determine the future of the  39 territory and to assure its integrity as the  40 foundation of their society and way of life.  41 The first flows from the constitutional  42 incompetence of the Province to so interfere.  The  43 second and third flow from the source also, and serve  44 the utilitarian purpose of stemming the  45 misappropriation of lands within the territory.  In  46 order for their to be a meaningful change in  47 utilization of resources by which the plaintiffs can 26440  Submissions by Mr. Grant  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. GRANT  exercise real control over the territory, these  declarations are necessary.  Now, at the bottom of that page, my lord, I  summarize all these in the next paragraph really what  we 're seeking.  Taken as a whole, these declarations judicially  ratify the continuity and existence of the plaintiffs'  rights, including ownership and jurisdiction as  defined by the evidence, recognize and define the  content of those rights, affirm the constitutional  position and status thereof, assert the consequent  inhibition on the Province's jurisdiction, and act in  restraint of further wrongful interference with the  continued exercise of those rights.  These  declarations form the minimal necessary basis for  cultural and societal survival and rehabilitation.  Then, my lord, I comment on the declaration,  paragraph 14 for the Prayer for Relief, of continuing  jurisdiction.  I was afraid you were going to suggest  that this might be something I shouldn't ask for.  But  what I say, my lord, is that in order for there to be  an orderly transition, in the second paragraph, with  respect to the recognition of the Province's ownership  and jurisdiction it may well be appropriate for a  justice of this court to maintain jurisdiction over  the implementation of the orders of this court.  :  You mean appropriate for the court to maintain  jurisdiction, don't you?  :  The court, yes.  Yes.  I'm sorry, my lord.  And that because of the -- I mean, because of the  exceptional nature of the very litigation and the  issues outstanding that that may well be appropriate  in this case.  Of course there's precedent with  respect to that.  Paragraph 12 of the Prayer for Relief deals with  the declaration as to entitlement to damages.  And  it's:  "A declaration that the Plaintiffs are entitled  to damages from the Defendant Province for the  wrongful appropriation and use of the Territory  by the Defendant Province or by its servants,  agents or contractors without the Plaintiffs'  consent."  And I summarize on page 32 the pleadings that of  ownership in the Statement of Claim.  And I quote 26441  Submissions by Mr. Grant  1 paragraph 75, 76 and 77 which are particularly apropos  2 on the issue of entitlement to damages.  3 Now, the plaintiffs seek a declaration of title to  4 damages, and this is not exhaustive, but this is the  5 type of areas it's obvious from the evidence.  First  6 with respect to I think it's 79, the loss of lands.  7 Paragraph 79.  The loss of lands is a result of  8 provincial grants of fee-simple to third parties prior  9 to October 23rd, 1984.  And these are the lands that  10 are outside -- that are conceded are not part of the  11 action in the sense that they're outside of the claim  12 for return of the lands, or recognition of  13 jurisdiction and ownership of the land.  14 Destruction of territory and loss of timber  15 resources as a result of directing third parties to  16 clear cut, and directing methods of logging.  And I'm  17 going to come to the arm of the Province in terms of  18 engaging in this.  19 Damages as a result of mining activity which  20 jeopardize the riverine resources.  21 Damages as a result of territorial resources  22 through licensing regimes allowing access to fish,  23 game and mineral resources.  24 Damages as a result of the destruction of  25 territorial resources caused by construction of road  26 and rail right-of-ways into the heartland and northern  27 Gitksan and the southern Wet'suwet'en territories.  28 Now, my lord, this list is not exhaustive, but is  29 indicative of the scope of type of damages sustained  30 by the plaintiff.  31 Now, I then summarize the Province's defence and  32 go to the joinder of the issue on this.  33 In essence, my lord, the plaintiffs assert the  34 rights of ownership and jurisdiction as framed  35 constitutionally constrain the jurisdiction of the  36 Province to deal with the lands within the territory,  37 and that the actions of the Province in consistent  38 with or causing interference with those rights are  39 unlawful, and actionable.  40 The Province takes the position that its  41 alienation of the interests within the territory is  42 not wrongful, and alleges inter alia such actions  43 defeat, by extinguishment or otherwise, the rights  44 claimed by the plaintiff.  45 And now we've presented our argument already.  The  46 proposition advanced here is simply that the impugned  47 past actions of the Province are actionable and 26442  Submissions by Mr. Grant  1 compensable in damages, where those past actions have  2 been beyond that constitutionally permissible.  This  3 is the principle upon which we seek that the court  4 should recognize and declare the plaintiffs'  5 entitlement to damages.  And that's the principle upon  6 which we base it on.  7 And I then summarize.  And I can go to the --  8 summarize the introduction on the law for entitlement  9 to damages.  10 And on pages 36 and 37, my lord, I set out the  11 agreement, and under either head the plaintiffs need  12 establish only entitlement to damages against the  13 Province in order to justify issuance of the  14 declaration sought.  At the commencement there was an  15 agreement to sever the trial of quantum of damages,  16 and I've exhibited the content of that agreement in  17 Exhibit 20.  I've put it in there.  18 Now, I'd like to focus on the law of trespass,  19 which is obviously where the foundation for damages  20 will lie here.  21 The trespass by its nature is a wrong against the  22 possession of land.  The threshold for entitlement to  23 damages is prove that the Province has by its own  24 actions or those of third parties under the Province's  25 authorization or direction, entered upon land to which  26 the plaintiffs have a right of possession thereby  27 directly interfering with incidents of that right of  28 possession.  29 Now, there's no proof of damage required.  While  30 this plaintiffs submit that proof of material and  31 substantial damage resulting directly from such  32 trespassory actions arises from the evidence, the law  33 demands no necessity of proof and, in fact, presumes  34 actual damage.  35 The plaintiffs' right of action under trespass,  36 I'd like to go to that, my lord.  That the right of  37 action for trespass generally lies with the possessor  38 of land whose possessory rights have been interfered  39 with.  To maintain such an action, the possessor need  40 not have legal title, but need only show a better  41 right than that of the trespasser.  And an owner out  42 of possession may maintain such an action if the land  43 is unoccupied, or if the trespassory harm damages the  44 owner's reversionary or long term interests in the  45 land.  46 My lord, were you planning on a break?  47 THE COURT:  Oh, I suppose we should.  Yes.  Thank you. 26443  Submissions by Mr. Grant  1 THE REGISTRAR:  Order in court.  Court stands adjourned for a  2 short recess.  3  4 (PROCEEDINGS ADJOURNED)  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings transcribed to  9 the best of my skill and ability.  10  11  12  13  14    15 Peri McHale,  16 Official Reporter,  17 UNITED REPORTING SERVICE LTD.  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 26444  Submissions by Mr. Grant  1    (PROCEEDINGS RECOMMENCED AT 3:15 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  I am just going to highlight this area because its  6 fairly clearly written in terms of the law, in my  7 submission, but I will just focus on those areas.  8 The plaintiffs' right of action is the setting out  9 that the right of action generally lies with the  10 possessors of land whose possessory rights have been  11 interfered with.  On page 38, my lord.  12 To maintain such an action a possessor may not  13 have legal title, but need only show a better right  14 than that of the tresspasser.  An owner out of  15 possession may maintian such an action if the land is  16 unoccupied, or if the trespassory harm damages the  17 owner's reversionary or long term interests in the  18 land.  19 Now, I refer you to the Boyle and Rogers case  20 where the owner leased the land out and sued in  21 trespass.  22 And I would like to mention the Patterson et al.  23 v. De Smit case, page 39 and 40.  And that was a  24 case, the facts were set out at the bottom there,  25 where the plaintiffs, who are suing in trespass, who  26 lived a mile from the property, from time to time they  27 visited it and walked over it, and in season gathered  28 watercress, wild flowers and ferns from part of it.  29 Those visits were not frequent or regular, nor were  30 they inspired by the thought that there might be  31 intruders there.  The plaintiffs went there because  32 they owned or at least believed they owned these lands  33 and were exercising dominion over them.  34 The Court found that:  35  36 "All the foregoing constitutes sufficient  37 evidence that the plaintiffs were in de facto  38 possession.  In all the circumstances one would  39 expect to find on their part only a more or  40 less discontinuous series of acts of dominion.  41 The plaintiffs have been dealing with those  42 lands as an occupying owner might be expected  43 to deal with them, and no one else has done  44 so."  45  46 And that language is reminiscent of Mahoney's  47 language in asserting a flexible test of assessment, 26445  Submissions by Mr. Grant  1 whether the organized society has occupied the  2 territory over which aboriginal title is asserted, and  3 I quote that there.  4 I submit, my lord, that as shown earlier in our  5 evidence of the territory and the ownership and  6 jurisdiction in argument, that the evidence is clear  7 as to the animus possidendi of the plaintiffs.  And it  8 is submitted as a consequence of the foregoing that  9 the plaintiffs have established a sufficient  10 foundation to establish firmly their capacity to sue  11 in trespass.  12 I would like to note the acts of the trespass by  13 the defendant province.  14 Now, firstly any act of entry upon land amounts to  15 trespass, absent justification at law.  The law makes  16 no particular distinction among entries upon the land  17 itself, entries below or above the surface, although  18 the latter is subject to peculiar rights of entry  19 through air space.  But it is the position of the  20 plaintiffs that any entry on the territory by persons  21 acting on behalf of the province, agents, servants or  22 contractors of the province, amounts to proof of  23 trespass.  In addition, any an act of alienation of  24 any possessory interest in the territory similarly is  25 sufficient proof of trespass.  In this latter regard,  26 it is no less an act of trespass by a party through  27 placing another onto the land of the possessor than it  28 is to enter that land in person, when absent authority  29 to place or permit that other party into possession.  30 This principle I will deal with later in the next  31 section.  32 And then I refer to the evidence of possession,  33 through, of course, the province's own alienation  34 project demonstrates this in part.  And I am not going  35 to go through each item, accept to reiterate that it  36 covers the underground resources.  And on the bottom  37 of page 42, my lord, the map overlay discloses that  38 they have occurred in a number of house territories  39 ranging from the northern to some in the west and  40 south of the territory.  Of course there is also the  41 extensive evidence of the Equity Silver operation in  42 the Wet'suwet'en territory.  43 And you may note that on page 43, my lord.  44 There is the timber alienations, and of course your  45 lordship has heard a great deal of evidence as to the  46 extent of logging within the territory pursuant to  47 provincial authorization of varying form, but 26446  Submissions by Mr. Grant  1 including those pursuant to tree farm licences and  2 cutting permits.  Then there is the agricultural  3 alienations, including grazing permits.  4 Page 44.  Water licences, licences of occupation  5 and right-of-way, and on page 45 traplines.  I would  6 like to stop on traplines for a moment.  To suggest  7 that while the evidence discloses that some traplines  8 are in fact registered in the names of the plaintiffs,  9 many are not.  Even to the extent registered to the  10 plaintiffs, the statutory regime is inconsistent with  11 the aboriginal rights of the plaintiffs.  During the  12 course of argument, I believe it was the other evening  13 or last week, your lordship's suggestion that the  14 trapline registration system has not been so much "a  15 disadvantage in over an advantage to the Indians".  16 And the question of its equivocal evidence.  Well,  17 it's my submission, my lord, that the plaintiffs'  18 submission that the fundamental disadvantage of the  19 trapline registration system is the decision-making  20 power with respect to access to the territory and  21 fur-bearing resource, as well as the power to decide  22 on the extent of harvest.  And this has been denied to  23 the Gitksan and Wet'suwet'en chiefs.  The aboriginal  24 right to self-determination with respect to -- and the  25 jurisdiction over the resources.  26 The first declaration I mentioned to you on page  27 14 must be recognized to include the right to allocate  28 the fur resources.  And this denial, as well as the  29 taking of royalties, has led to an entitlement to  3 0 damages.  31 The guide outfitter territories, what's noteworthy  32 there is that, of course, they cover the entire span  33 of the territory.  The Crown leases are referred to,  34 and then the fee simple grants.  35 Now, on the bottom of 47, my lord, with respect to  36 the evidence of actual entry by or on behalf of the  37 province, arises from the extent to which physical  38 presence is required to establish or delineate the  39 areas of alienation listed above.  I.e., by survey  40 requirements or needs or to supervise, monitor or  41 enforce provincial regulatory regimes covering the  42 areas.  And additionally in the area of wildlife  43 regulation generally.  In addition the following areas  44 afford evidence of such direct physical trespass by  45 the provincial defendant.  I haven't stated there, but  46 that's what I am referring to, it's the provincial  47 defendant.  The forestry, my lord, the forest service 26447  Submissions by Mr. Grant  1 roads, forest service sites and forest recreation  2 sites.  3 The highways, and I summarize the evidence there,  4 which are mapped, and then I say that on page 49 that  5 there is a substantial body of evidence touching on  6 various aspects of alienation, physical entry and  7 resultant damage within the evidence of territory  8 which has already been referred to.  And I am  9 referring to the territorial evidence itself.  10 Now, the plaintiffs submit, my lord, that the  11 evidence of trespass by third parties for which the  12 defendant remains responsible in trespass, there are  13 acts of trespass by them.  There is a number of  14 foundations for this, upon which liability for  15 trespass rests on the province as principle tort  16 feasor, even where the actual acts causing damages  17 were committed by third parties.  Here we are  18 addressing the actions of those third parties placed  19 in the possession by the province through alienation  20 of various sorts, continuing after the initial formal  21 acts or acts of alienation.  And I list there the  22 evidence in general touched upon the areas of activity  23 following under this descriptive head, and I have  24 listed on pages 49 and 50 some of the areas.  25 Now, then I say the first of the bases for  26 liability lies in a proper characterization of the  27 types of alienations and possessory interests affected  28 by the province.  In all cases, including grants in  29 fee simple, the province tends to maintain rights of  30 entry, possession and reversionary rights.  And I set  31 out the legislation that refers to that.  32 In addition in such cases it is the province that  33 maintains the grantee, licensee, lessee or permittee  34 in contiuing possession through its regulatory regimes  35 and through associated enforcement mechanism.  In many  36 cases, the province also imposes positive obligations  37 with respect to possession and acts in pursuance of  38 continuing possession through legislation and  39 regulation.  The requirements of clear cutting, act of  40 physical advancement of mineral claims, et cetera.  41 And I cite those for your lordship.  42 Going down to the bottom, my lord, halfway down.  43 Under the unique circumstances the province's  44 continuing involvement in the possession and actions  45 of third parties placed into possession through the  46 initial alienation, it would be incorrect to  47 characterize the act of alienation as complete as of 26448  Submissions by Mr. Grant  1 the date of formal alienation.  Under these  2 circumstances, the alienation should be viewed as  3 continuous for so long as the third party placed in  4 possession is maintained in possession or under  5 positive obligations imposed by the province.  6 The principle of continuity of trespass is well  7 established.  It's a continuing injury, lasting as  8 long as the presence of the intruder, or until an  9 offending object is removed, or the condition giving  10 rise to trespass is abated.  11 Secondly, and taking into account the foregoing,  12 holding the province responsible for the act of  13 placing a third party in possession of the lands of  14 the plaintiffs is entirely consistent with the general  15 principles of trespass laws.  As stated by Fleming:  16  17 "trespass may be committed not only by an entry  18 in person, but equally by propelling an object  19 or a third person onto the plaintiff's land."  20  21 And in this case, of course, we say that in fact  22 that's what's happened.  And the licensees, for  23 example, in the timber were placed in -- are placed  24 there or propelled there by the provincial defendant.  25 Now, I go to page 53 and refer you to Sanda and  26 Caple, and in that case the plaintiff acquired sole  27 title to the property in an earlier divorce from her  28 husband, the defendant.  The defendant never went on  29 the land in question personally, my lord, but he  30 purported to sell timber to a third party, who cut and  31 took the timber from the land.  The third party was  32 not made a defendant in the proceeding, and no claim  33 was made against it.  Nonetheless, the Court assessed  34 damages both general and exemplary against the husband  35 for trespass.  36 Now, thirdly the province may be found liable as a  37 principal for the ongoing activities of those whom it  38 has placed in possession on the foundation of being a  39 party thereto.  Apart from the province's ongoing  40 involvement in the continuing acts of such third  41 parties, as mentioned above, it can certainly be  42 properly viewed as both aiding and abetting the  43 continuing possession and ongoing actions of such  44 third parties, and thus its liabilities is as  45 principal.  And I cite Fleming on Torts.  46 And finally the fourth point on this is that the  47 participation of the province can be clearly seen as 26449  Submissions by Mr. Grant  1 being in concert with third parties it has placed into  2 possession, in pursuit of a common purpose.  3 And I refer you on page 55 to the Horseshoe Bay  4 Retirement Society case, in which two defendants were  5 found liable in trespass.  Without requirement of  6 proof they either physically in trespass or even  7 directing in trespass.  In that case, Justice Shaw,  8 after canvassing the authorities, found those  9 defendants to have acted in concert with the defendant  10 who actually directed logging on adjoining properties,  11 for the common purpose of gaining a better ocean view  12 from their own properties, and held them liable in  13 trespass.  14 Now, my lord, what's important here is that the  15 common purpose as between the province and its  16 grantee, licensees, permitee or lessee in any  17 particular case will be the very purpose for which  18 alienation was effected.  For instance, in the case of  19 grants in fee simple, there is a clear common purpose  20 on the part of both the province and grantee to affect  21 ongoing settlement.  This was evidenced in Dr. Lane's  22 opinion on the settlement of the Boer War veterans in  23 the territory.  In addition, Dr. Duffy, or Mr. Duffy,  24 the Surveyor General, confirmed the Crown's intent in  25 granting agricultural leases to encourage lands  26 cultivation in development of the area of the grant.  27 I would like to now go to the question of the  28 entitlement on page 56.  The entitlement to the  29 declaration, my lord.  30 By virtue of the agreement to sever, the province  31 reserved the right to argue the damage claim of any  32 plaintiff unable to prove actual damages should be  33 dismissed.  And I am citing Exhibit 20.  34 To the extent that the province contends that  35 there must be proof of actual damage, we say that  36 contention is untenable in light of the actionability  37 of trespass per say.  38 To the extent that the province contends there  39 must be strict proof of trespass or other actionable  40 acts within the house territories of each plaintiff  41 chief, then this contention is met by the evidence at  42 trial, including that arising from the province's own  43 alienation project, all of which prima facie  44 establishes at least a bruising of grass and treading  45 of soil in the territories of each of the plaintiff  46 chiefs.  It should be sufficient for these purposes to  47 refer to the establishment of the guide outfitter 26450  Submissions by Mr. Grant  1 regime, within which authorizations have issued with  2 respect to each and every house territory.  3 In any event, my lord, a distinction exists  4 between entitlement to damages in a house chief for  5 damage to the land and resources within that house  6 territory and entitlement to general damages or damage  7 to the more communal complex of authority and  8 obligation that comprises the jurisdictional rights of  9 the plaintiffs.  In the former case, the interlocking  10 nature of ownership and access rights to a house  11 territory, running beyond simple house membership,  12 serves to broaden the base of entitlement to damages  13 arising within a particular house territory to more  14 than just the particular house chief, and members I  15 should say there.  16 In the latter case, damage to the jurisdictional  17 structures of the plaintiffs arising from wrongful  18 actions occurring within a particular house territory  19 can entitle each of the plaintiffs to damages arising,  20 to the extent the authority or status of the  21 plaintiffs other than the house chief have been  22 harmed.  23 MR. GOLDIE:  I didn't understand that second head of claim as  24 included in this action.  Paragraph 12 of the Prayer  25 for Relief seeks a declaration that the plaintiffs are  26 entitled to damages from the defendant province for  27 the wrongful appropriation and use of the territory by  28 the defendant province or by its servants, agents or  29 contractors without the plaintiffs' consent.  I see  30 nothing in that that extends to jurisdictional  31 structures.  32 MR. GRANT:  Well, the damages, of course, flows from the -- the  33 damages flows from the trespass and from the wrongful  34 appropriation and use of the territory.  The  35 quantification of damages would include the impact of  36 that wrongful appropriation on the plaintiffs as a  37 whole.  38 With respect to all other alienations of  39 possessory interest, the plaintiffs claim damages for  40 diminution of value of the alienated lands,  41 encompassing loss of profits and with reference to  42 unjust enrichment of the province and others for whom  43 the province is found liable, for loss of use and loss  44 of opportunity to use those lands, and for  45 non-pecuniary damages.  46 Now, where damages are assessed for removal of  47 resources in trespass, general damages are generally 26451  Submissions by Mr. Grant  1 quantified as the value of that taken.  In the case of  2 accidental trespass, there will be deduction from the  3 amount of costs incurred by the tort feasor in removal  4 of the resource.  5 Now, then I refer to the doctrine of unjust  6 enrichment arises as a consideration in assessment of  7 damages, my lord.  And that's the emphasis in which it  8 is.  I refer you to the Atlas Cabinets case recent  9 decision of the Court of Appeal in which Justice  10 Lambert for the majority set out the test of unjust  11 enrichment.  But the point is on page 60 that -- that  12 case, by the way, is in the last set of authorities  13 that I have just delivered to you this morning.  And  14 as has already been argued at length in the case at  15 bar, the provincial defendant has been unjustly  16 enriched by its acquisition of revenues taken from the  17 territory of the plaintiffs.  All I am saying here, my  18 lord, is that's a basis of quantification, and in  19 assessing quantum of damages these factors should be  20 taken into account.  And of course that's not an issue  21 that we need deal with here at this stage of the  22 trial.  23 Now, I would like to go over to page 62, and I am  24 dealing with the heads of damage there.  The evidence  25 establishes substantial harm to the plaintiffs through  26 the above described means, and I just ask if you would  27 note on page 62, my lord, to make a note to also refer  28 back to 33, because I have given you a summary of some  29 of the categories on page 33.  30 There's been damage to the land itself, both  31 directly and through consequential enviromental  32 degradation, damage to natural resources, animate and  33 inanimate, interference with access to parts of the  34 land and to resources thereon, interference with the  35 exercise of the plaintiffs' rights, and perhaps most  36 damaging, interference with the exercise of the  37 authority and jurisdiction of the plaintiffs over  38 their society and their lands.  39 With respect to the loss of property, the measure  40 of damages is based on the value of property, either  41 at the time of taking or at a later date, depending on  42 circumstances.  And that would deal with the issue of  43 fee simple lands.  44 As to non-pecuniary damages, the plaintiffs will  45 assert the proposition they are entitled to assessment  46 of general damages for factors such as inconvenience  47 and hardship, loss of aesthetic values, loss of 26452  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  enjoyment, diminishment of societal and cultural  integrity, loss of way of life, including interference  with their exercise of jurisdictional powers.  And that is a question consequential upon the  taking of the land, and I have given citations there.  We also seek aggravated or exemplary damages, which of  course may not be specifically pleaded.  You say have not been specifically pleaded?  Need not be specifically pleaded.  All right.  On page 64 I would like to direct your lordship to  the concept we raised in terms of the tort of  interference to the aboriginal title or rights.  Now, as noted above, my lord, the plaintiffs'  argue further that a declaration as to entitlement of  damages against the province should be made on the  general bases of breach by the province of the  plaintiffs' aboriginal title and rights, or  interference with them.  It is submitted that such a  characterization of the plaintiffs' right of recovery  is more appropriate to the sui generis nature of  aboriginal title and rights in law, and more  descriptive of the breaches thereof.  This would also be reflective of a judicial trend  of caution in application of English property law  terminology to unique concepts of aboriginal rights.  I refer you there to Guerin and of course the  well-known statement of Justice Dickson, that any  aapparent inconsistency derives from the fact that in  describing what constitutes a unique interest in land,  the courts have almost inevitably found themselves  applying a somewhat inappropriate terminology drawn  from the general properties law.  And you already  heard the quote from Amodu Tijani.  Basically, my  lord, in the vernacular the pigeon holes are for  pigeons, and that what we should be saying here is  this is a tort of interference of aboriginal title.  That's what we are dealing with.  Now, we would urge in addition thereto that  certain conduct, just as Chief Justice Dickson dealt  with the decision in Syliboy, that such language is no  longer acceptable in Canadian law, and indeed is  inconsistent with a growing sensitivity to native  rights.  The parallel I am making here is that we  would urge in addition, on page 66 thereto, that  certain conduct is also no longer acceptable.  And I  refer you to Fleming on torts, that categories for the 26453  Submissions by Mr. Grant  1 proposition that categories of tortious conduct remain  2 neither static nor closed.  3 On page 67 I would like to refer you to the  4 submission that the question is not whether a "new"  5 tort should be created, but whether a proper  6 descriptive characterization should be applied to the  7 wrong which demands redress.  The test here is whether  8 the plaintiff has a right at common law giving rise to  9 a right of legal protection.  As articulated in Ashby  10 and White, the watershed decision on this:  11  12 "If the plaintiff has a right, he must of  13 necessity have a means to vindicate and  14 maintain it, and a remedy if he is injured in  15 the exercise or enjoyment of it; and indeed it  16 is a vain thing to imagine a right without a  17 remedy; for want of right and want of remedy  18 are reciprocal."  19  20 And that was a case where the plaintiff had sought  21 damages for interference with his asserted right to  22 vote in the English parlimentary elections.  There was  23 a sole voice in the Court of Appeal supporting his  24 right of action, was the Chief Justice Holt, which  25 eventually found approval in the House of Lords.  And  26 he said that there was a right to vote, and that it  27 was no answer that no cause of action for interference  28 with that right had to that point been articulated by  29 the courts.  We say there is an aboriginal right, and  30 the interference of that aboriginal right, the fact  31 that damages for interference of the aboriginal right  32 haven't been framed that way is no reason it can't be  33 now.  34 Now, Madam Justice Wilson, as she then was in the  35 Ontario Court of Appeal, relied on Ashby and White in  36 the Bhadauria case, holding that the right to be free  37 from discrimination on the basis of ethnic origin was  38 a right arising of common law, and the common law was  39 merely reflected in the provisions of the Ontario  4 0 Human Rights Code.  She went on to find a cause of  41 action in the plaintiff as a result.  In that case the  42 plaintiff had been discriminated against.  43 As you probably recall, my lord, that case went to  44 the Supreme Court of Canada, who overruled Madam  45 Justice Wilson's decision on the basis that the  46 Ontario Human Rights Code was enacted in an area  47 outside a fully recognized area of common law duty, 26454  Submissions by Mr. Grant  1 and queried whether the asserted right was a right at  2 all.  But the ultimate ruling of the Supreme Court was  3 based on detailed and extensive remedies provided  4 under the Ontario statute.  And they found that it  5 replaced or it wasn't necessary to go to the common  6 law as the statute that dealt with it.  7 The consideration which moved the Supreme Court in  8 Bhadauria -- I'm on page 69, my lord -- to preclude  9 common law recourse to the courts in the case of  10 alleged discrimination are not present in the case at  11 bar.  12 I am just saying we don't have an Indian claims  13 commission.  If we did, then of course that would make  14 everything quite different in that sense.  A statutory  15 body for example.  16 It is fundamental to the plaintiffs' argument that  17 they are possessed of common law rights with respect  18 to aboriginal title and the incidents thereto.  19 As the Court Privy Council said in Southern  20 Rhodesia:  21  22 "There are indigenous peoples, whose legal  23 conceptions, though differently developed, are  24 hardly less precise than our own.  When once  25 they have been studied and understood they are  26 no less enforceable than rights arising under  27 English law."  28  2 9 The same wording as you find in Ashby and White.  30 Where there is a right, there is a remedy.  31 That such rights are worthy of legal protection  32 should not require argument, but if support need be  33 found for the proposition, it can be taken from  34 Section 35 and from the modern decisions in this  35 province and others where the courts have granted  36 injunctive and declaratory relief to Indians for  37 breaches of aboriginal and treaty rights.  And the  38 Saanichton Marina case is an example of that.  39 Now, I have already referred to -- I would like to  40 go to the top of page -- or go to page 70, halfway  41 down.  To summarize, my lord, the plaintiffs submit  42 that in order to establish an entitlement to damages  43 under the more fitting heads of interference with  44 aboriginal title and rights, they must prove or  45 establish only that their aboriginal title and rights  46 are rights of common law giving rise to a right of  47 legal protection. 26455  Submissions by Mr. Grant  1 The plaintiffs have suffered from the denial of  2 their authority over their territory.  The description  3 by Alfred Joseph of the adverse impact of blasting of  4 Hagwilget Rock by Canada is a microcosm for the  5 cumulative attack.  And I say it's an analogy, that  6 the cumulative attack on the Gitksan and Wet'suwet'en  7 way of life by the defendants' increasingly  8 aggressive -- and I say by aggressive more exploitive  9 at a higher rate of the resources -- and corresponding  10 denial of the plaintiffs' authority.  The inevitable  11 social impact of such a substantial attack are  12 well-known and have been presented in evidence with  13 the symptoms such as the high drop-out rate,  14 alcoholism and crime.  15 And that was led in evidence through Mr. Williams,  16 Glen Williams.  17 Now, my lord, we have argued above that the  18 characterization of the province's misappropriation  19 and use of plaintiff lands, as interference with  20 aboriginal title and rights, may be more appropriate  21 than as trespass to land.  This is all the more so  22 when considering appropriate heads of damages.  As has  23 been noted above, the harm suffered by the plaintiffs  24 is in large measure to rights with respect to which  25 damage is difficult to assess, but certainly of no  26 less importance than interference with the use of  27 land.  And I have reiterated those there, the damage  28 to status, power and rights of jurisdiction can be  29 seen as much greater gravity in terms of impact than  30 simple interference with access to lands, although the  31 former flows from the latter.  And that's -- they are  32 connected.  Characterization of wrongful conduct as an  33 interference with aboriginal right provides a frank  34 framework in which to assess the resultant damges.  35 By way of analogy, the characterization in Ashby  36 and White that the tortious conduct is interference  37 with the right to vote, allowed the Court to assess  38 damages in light of the circumstances, but also in  39 light of the perceived importance both societally and  40 to the injured party of the right infringed.  In fact,  41 Chief Justice Holt was of the view that such an  42 interference with an important right should give rise  43 to substantial damages without the proof of actual  44 loss, and exemplary damages if committed by public  45 officials.  46 Simply put, my lord, the considerations under  47 heads of damages outlined under the trespassory claim 26456  Submissions by Mr. Grant  1 above appear to be more capable of recognition and  2 realistic assessment in the context of recognition of  3 the real nature of the wrong.  I.e., as breach of a  4 complex of individual and societal rights arising from  5 ownership of and jurisdiction over land, rather than  6 as simply interference with rights of possession.  7 Similarly, my lord, the characterization of  8 wrongful conduct as a continuing wrong, as discussed  9 above under trespassory law, appears more capable of  10 realistic application under this head, in light of the  11 ongoing systematic provincial incursions into the  12 plaintiffs' territory.  13 In summary, then, the plaintiffs' submit that a  14 declaration should be issued as entitlement to damages  15 for not only trespass, but also for interference by  16 the province of their aboriginal title and rights.  17 And as I say, we are seeking the costs.  18 I would just like to say in conclusion, my lord,  19 that, as I pointed out, this case is rather unique, in  20 that the Gitksan and Wet'suwet'en and I dare say no  21 aboriginal group has presented a case demonstrating  22 the complexity of their system as has been presented  23 to your lordship in this case.  The plaintiffs are  24 asking this court to grant the declarations that I  25 have summarized for you.  The reality is that the  26 Gitksan and Wet'suwet'en were peoples whose  27 territories were under assault at this time, in terms  28 of the exploitation of resources.  You have seen the  29 territory, and you have heard the witnesses.  The law  30 which gives you the legal foundation to grant relief  31 has been presented to you, my lord.  We say quite  32 clearly the province has no legal right to pre-empt  33 the land or take the resources.  We say that the  34 federal defendant has stood idly by for over a hundred  35 years and watched the plaintiffs lands and resources  36 be exploited and taken without their consent.  37 My lord, this may be too far an analogy, but as  38 Lord Mansfield 200 years ago recognized that slavery  39 was contrary to British common law, and Chief Justice  40 Marshall recognized the fundamental principles of  41 aboriginal rights in 1830, we are asking this court to  42 assert the legal recognition of the rights of the  43 Gitksan and Wet'suwet'en to ownership over their  44 territory and the right to exercise  45 self-determination, both of which are rights we say  46 are founded in our legal system.  You are the first  47 judge to have heard such an explication of these two, 26457  Submissions by Mr. Grant  1 and I dare say of any civilizations in this way.  2 We are asking you to grant declaration of  3 ownership and jurisdiction over the territory.  The  4 plaintiffs are asking for the protection of this court  5 against continued unconstitutional incursions of the  6 provincial defendant into the territory.  My lord, the  7 time is running out for any effective protection, as  8 the wealth of the territory is being hauled away.  9 This depletion has increased tremendously since 1984,  10 and evidence has been led to show that.  11 It is time for the court to declare to the  12 provincial defendant that it, the provincial  13 defendant, can no longer ignore the obligations to the  14 plaintiffs which it has ignored for over a 125 years.  15 Everybody, my lord, everybody in this court room knows  16 that the treatment and recognition of the rights of  17 aboriginal peoples in this province must change.  The  18 issue for your lordship is how much of the plaintiffs'  19 rights should you recognize in your decision.  We say  20 that the declarations of ownership and jurisdiction  21 over the territory and resources and the consequent  22 declarations are the standard of declarations which  23 must be set by this court.  24 Your lordship has the opportunity to demonstrate  25 that the Canadian courts are willing and prepared -  26 THE COURT:  Please, Mr. Grant, constantly reminded on a basis  27 such as this is really quite unfair --  28 MR. GRANT:  I say that we have given you a legal foundation --  29 THE COURT:  You are putting it on a personal basis, Mr. Grant.  30 MR. GRANT:  No, my lord.  I say that —  31 THE COURT:  Its difficult enough to deal with it on a legal  32 basis, let alone on a personal basis.  33 MR. GRANT:  I am certainly not intending to, my lord.  What I  34 am saying is that we provided you with the legal  35 foundation in the explication of the laws, as Mr.  36 Jackson has told you, and the iteration of those laws,  37 and that it's a serious decision, and I only say that  38 it's important to consider those laws -- the  39 principles of common law, and that's what we say is  40 reflected in Section 35.  And consideration of those  41 laws and those principles would be a foundation in law  42 for the rights that we are asking the plaintiffs to  43 have.  And that, of course, is why the plaintiffs have  44 come to the Court, for the protection of the law.  45 My lord, those are my submissions.  That concludes  46 the plaintiffs' submissions, subject to it -- as your  47 lordship knows, we would ask for some time for a chief 2645?  Proceedings  1  2  3  THE  COURT:  4  5  6  7  MR  GRANT  8  9  10  THE  COURT:  11  12  13  MR  GRANT  14  15  16  17  THE  COURT:  18  19  MR  GRANT  20  21  22  THE  COURT:  23  24  25  26  MR  GRANT  27  28  29  30  31  32  THE  COURT:  33  34  35  36  MR.  GRANT:  37  THE  COURT:  38  MR.  GRANT:  39  40  THE  COURT:  41  42  43  44  MR.  GRANT:  45  46  47  THE  COURT:  to make a statement.  We anticipate that will be on  Monday morning, if that's --  Yes.  I am troubled by what it is that you are  suggesting for Monday morning.  I have no -- as I  understand it, you want some chiefs, I don't know how  many, to make some kind of a statement.  :  It may be one or two, and it would be nothing more  than, in terms of time and context, than in the nature  of what happened at the opening.  I want to make sure I understand what it is that you  are seeking. It isn't evidence and it isn't argument,  what is it?  :  The chiefs have requested that they would make, as  they made an opening statement at the beginning before  we started, that they would just make a brief closing  statement to the Court.  Well, are you -- do you disagree with the statement  that it isn't argument and it isn't evidence?  :  It's not evidence.  We would state that it would be  the conclusion -- the final conclusion of our  argument.  How do I have the right to allow somebody who is not  a member of the bar to make an argument?  I am  prepared to hear them, but I want to know on what  basis you want me to hear it.  :  It's on the basis in the same context as I believe  your lordship, when we requested at the beginning of  the trial, to allow a statement of the chiefs at the  opening, which your lordship agreed to it in that  context.  The final closing of the plaintiffs' case  basically.  It may be that I shouldn't have done that, but there  is a difference.  An opening, it's agreed usually that  an opening is not evidence, it isn't argument.  It's  an outline of what the case is about.  Right.  I have had three years of the case.  As I say, the plaintiffs requested -- instruct us to  request this of you.  I have acceded to the request.  It's just that I  want to make sure I know what it is that -- on what  basis and what status it is to have.  If you say it's  argument, I have some difficulty with that.  Well, if it comes within the context of a closing  statement of the chiefs, then that could be  characterized in that way.  I don't think that's too helpful.  I did not 26459  Proceedings  1 understand your friends to object, and therefore it's  2 a question of having some idea of what it is that  3 I'm -- what I'm hearing.  I think I know what I am  4 going to be hearing.  I am going to be hearing a  5 statement of personal beliefs and views by one or more  6 of the plaintiffs.  7 MR. GRANT:  It will just be -- as I say, a closing statement at  8 the conclusion of the trial -- the conclusion of the  9 plaintiffs' case.  10 THE COURT:  Is it something that in your view the defendants  11 would have to respond to?  12 MR. GRANT:  I think it's important that the statement be made  13 before the defendants have the opportunity to raise  14 their defence, and they will have -- if they -- if  15 there is something said there that they wish to  16 respond to or not, certainly I don't believe that we  17 would take any objection to that.  We want to  18 before --  19 MR. GOLDIE:  Could we have the statements over the weekend, my  20 lord, so that we can consider our position?  21 MR. GRANT:  I don't have the statement.  22 MR. GOLDIE:  Well, it turned out that in the opening statement  23 they were all reading from material.  24 MR. GRANT:  And if I had the statement I would.  25 THE COURT:  I am not going to require it to be delivered in  26 writing now.  It might have been a good idea, but I  27 don't think it's possible at this point.  Well, you  28 are putting it forward as argument, then.  29 MR. GRANT:  My concept of it was basically as the plaintiffs  30 made an opening statement and requested it, they  31 wished to make a closing statement.  As I say, it's  32 not very long, and it comes at the end of our  33 argument, but it's not -- I understand the concern you  34 are raising, that it's not really argument in that  35 way.  I think that it would be artificial for the  36 plaintiffs to dismiss us and then hire us again.  That  37 would be an artificial creation.  That's basically  38 what it is.  39 THE COURT:  Well, as I said, I am going to listen to it.  It's  40 an open question in my mind as to what effect or  41 weight it has or I should give to it.  Perhaps you  42 might think about that and --  43 MR. GRANT:  I would like to be able to discuss it.  44 THE COURT:  When you have a chance to tell me, perhaps, in your  45 reply, by that time whether it is part of the -- I  46 can't say it's not going to be part of the proceedings  47 of the trial.  I am just uncertain.  So I'll ask you 26460  Proceedings  1 to give that some thought, and tell me what it is  2 that -- I am probably not going to hear anything that  3 I haven't heard already, or anything that's going to  4 be -- to create any new aspects or complexities to the  5 case.  I expect it will be in a general way, but I  6 will want to know at some point what you say the  7 effect of it is.  8 MR. GRANT:  I would like to be able to discuss it with my  9 colleagues and come back on that point, my lord.  And  10 I want to --  11 THE COURT:  All right.  Well, then, I think we decided we would  12 do that 9:00 o'clock on Monday?  13 MR. GRANT:  Yes.  I want to advise, because it may affect my  14 friends, that after that my friends -- right now from  15 my instruction I don't anticipate it will take an  16 hour.  It may take half an hour at the most.  17 THE COURT:  All right.  Well, Mr. Goldie or whoever it is starts  18 can resume either at 10 o'clock or immediately upon  19 the completion.  Mr. Goldie, can you tell me what we  20 might expect next week?  21 MR. GOLDIE:  Yes, my lord.  I propose following the three volume  22 summary of argument that has been filed, and I propose  23 following it in the order in which it is contained.  24 There will be a number of insertions and addenda, and  25 of course we can't do that as we go along in all  26 respects.  There will be probably a submission at the  27 end to pick up those points which we do not pick up in  28 the course of the presentation of the material and the  2 9 three volume summary.  30 THE COURT:  Thank you.  Do you have a view now of what sort of  31 hours?  32 MR. GOLDIE:  We anticipate starting at -- asking your lordship  33 to start at 9:30 and going through until 4:30,  34 normally that is, and sitting on Saturday the 26th.  35 And with that we anticipate we will be able to finish.  36 We will be asking your lordship to start later on  37 Friday the 18th and picking up those hours on  38 Wednesday and Thursday or possibly even only on  39 Thursday the 17th.  4 0 THE COURT: You mean in the evening.  41 MR. GOLDIE:  No.  I think if we sit probably until 5:00 o'clock  42 and then have a break.  43 THE COURT:  You are not presently anticipating sitting beyond  44 4:30 or 5:30 or in evenings?  45 MR. GOLDIE:  We will reassess this again on Wednesday and  46 Thursday, to see if the timetable that we have set  47 ourselves is being met. 26461  Proceedings  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  MR.  THE  THE  GRANT  COURT  GRANT  COURT  All right.  Thank you.  Mr. Grant, there is a list  of counsel at page 75.  That, I take it, is not  intended to be in completeness of all the counsel who  appeared on the case?  No.  Mr. Patterson isn't there.  I'm not sure if there is anybody else missing.  That's correct, Mr. Patterson was here this week.  If Mr. Patterson is added to it, is that a complete  list?  recall, it is.  We'll adjourn then until Monday morning.  GRANT:  Yes, as I  COURT:  All right  Thank you.  REGISTRAR:  Order  in court.  Court stands adjourned until  9:00 o'clock on Monday.  (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.

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