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 27874  Submission by Mr. Goldie        1  Vancouver, B.C.  2 May 31, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 31st day of May, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  Ms. Mandell.  8 MS. MANDELL:  Thank you, my lord.  I'd like to hand up to your  9 lordship the diskettes from Volumes 3 to 9.  10 THE COURT:  All right.  11 MS. MANDELL:  I think that completes the plaintiffs' diskettes.  12 THE COURT:  Yes, all right.  Thank you.  I'll make them  13 comfortable in my memory somewhere.  Mr. Goldie.  14 MR. GOLDIE:  My lord, with respect to the diskettes, we were  15 advised by Mr. Rush that there were certain problems  16 with respect to providing us with copies.  I believe  17 we have solved those.  We have not received copies,  18 and I'm hopeful that they will be provided us very  19 shortly because their absence has contributed to our  20 problems in preparing argument, and I'm looking  21 forward to receiving them.  22 My lord, yesterday I had reached page 3 of Part  23 VIII, section 2, and I was just about to refer to the  24 Minister of Justice's letter of 17th December, 1913,  25 under tab 2-6 starting at page 7 in that -- in the  26 collection under that tab.  And your lordship will  27 recall the background to this.  The Nishga petition of  28 1913, which, of course, figured prominently in Calder,  29 had been received, and the Minister of Justice, Mr.  30 Doherty, is writing to the Minister of the Interior  31 and Superintendent-General of Indian Affairs.  He says  32 in paragraph 2 on page 1 that:  33  34 "The claim of the Indians is based upon the  35 proclamation of His late Majesty King George  36 III..."  37  38 And the last sentence he says:  39  40 "It is necessary for the petitioners' case, and  41 in the seventh paragraph of their petition it  42 is alleged, that the territory now known as  43 British Columbia is all part of the Indian  44 territories referred to in the proclamation.  45 You ask for my opinion as to the right of  46 the Indians to present the petition, and as to  47 what effect the support of the Dominion would 27875  Submission by Mr. Goldie        1 have upon the  legal questions involved."  2  3 And he says that he thinks the matter should be at  4 least commenced in the local courts.  Then over the  5 page he says:  6  7 "I may remind you that it was the declared  8 policy of our predecessors in office to submit  9 to the courts for decision the question of the  10 aboriginal title which is the subject of this  11 petition and has been for some years agitated  12 in British Columbia.  Questions with that  13 object in view were framed for reference to the  14 Supreme Court of Canada, but the proposed  15 reference fell through because the Government  16 of British Columbia would not agree to the  17 submission.  Afterwards the Indian Act was  18 amended by the enactment of sub-section 1 of  19 section" -- that should be 37A, my lord.  20  21 THE COURT:  Yes.  22 MR. GOLDIE:  23 "...as it now stands under section 4 of Chapter  24 14 of 1911.  By the provisions of this  25 enactment it is competent to His Majesty to  26 proceed in the Exchequer Court or in the  27 Supreme Court of British Columbia to recover  28 possession of lands for the benefit of the  29 Indians, and the enactment was devised to  30 provide a means or convenient procedure for the  31 determination by the courts of the questions  32 which are raised by this petition.  33 The agreement of 24th September, 1912,  34 between representatives of the Dominion and  35 British Columbia, which was approved by Order-  36 in-Council of 27th November following, appears  37 to evince a departure from the policy of the  38 late Government.  It is recited in the preamble  39 that it is desirable to settle all differences  4 0 between the Governments of the Dominion and the  41 province respecting Indian lands and Indian  42 affairs generally in British Columbia, and upon  43 this recital the stipulations or proposals of  44 the agreement are said to be agreed upon as a  45 final adjustment of all matters relating to  46 Indian affairs in the province.  The agreement,  47 while it provides for the ascertainment of the 27876  Submission by Mr. Goldie 1                   various Indian  reserves and the disposal  2 thereof, or confirmation of the title in the  3 manner therein provided, makes no reference to  4 the aboriginal title, and it may be considered  5 that it would be incompatible with the  6 intention of the agreement that the Dominion  7 should maintain the cause of the Indians in  8 respect of the aboriginal title, seeing that  9 this title is ignored by the agreement and that  10 the proposals or stipulations of the agreement  11 are declared to have been agreed upon as a  12 final adjustment of all matters relating to  13 Indian affairs in the Province.  14 I think, therefore, that the policy of the  15 Government in relation to the matter is a  16 preliminary question to be determined."  17  18 And he says if the government is intending to maintain  19 the claim of the Indians:  20  21 "...it would be advisable to institute  22 proceedings in a proper case under the statute  23 to which I have referred..."  24  25 That's the Exchequer Court -- that's the action of  26 trespass or ejectment.  And he says:  27  28 "If the Government do not propose to uphold the  29 claim, I think that the inadvisability of  30 making any reference of this petition should be  31 represented to the Colonial Office, and the  32 Indians would in consequence presumably be left  33 without any intervention or support from this  34 Government and in face of the deliberate,  35 opposition of the Government of British  36 Columbia, to pursue such legal remedies as on  37 their own behalf and at their own expense as  38 the very meagre prospects of the situation  39 might afford.  40 Upon the merits I think the Indian claim is  41 a very doubtful one, but I am not prepared to  42 say that it is not without sufficient  43 foundation to justify consideration by the  44 courts."  45  46 Now, my lord, in my submission that led to the  47 Order in Council of 1914, which settled the -- 27877  Submission by Mr. Goldie        1 Canada's policy.  At  least that's my submission.  And  2 before I go to the Order in Council itself, I say in  3 paragraph 7 of my summary the policy therein adopted,  4 that is to say, Order in Council P.C. 751, would  5 formally discharge British Columbia of all obligation  6 to the Indian peoples by the granting of reserves.  7 And I say this, of course, is Term 13.  The  8 consequence of a judgment in favour of the Indians on  9 aboriginal title was to be borne by the Dominion.  The  10 conditions precedent to court proceedings respecting  11 surrender and compensation became well-known and were  12 objected to by the Nishga and other Indian groups and  13 their respective advisers.  14 Now, my lord, I have a note that my friend Mr.  15 Rush said that this was designed to be refused.  I  16 know of no evidence that supports that proposition.  I  17 think the memorandum which was adopted by Order in  18 Council is to be taken at its face value, namely, to  19 place the Indians of British Columbia on the same  20 footing as their prairie brethren.  21 Now I turn to the Order in Council itself, which  22 is under tab 2-7, and the recitation is that they:  23  24 "...had before them a Report from the  25 Superintendent General of Indian Affairs, dated  26 11th. March, 1914, submitting the accompanying  27 memorandum from the Deputy Superintendent  28 General... upon the Indian claim to the lands of  29 the Province of British Columbia, in which he,"  30  31 the minister,  32  33 "concurs.  34 The Committee, on the recommendation of the  35 Superintendent General of Indian Affairs,  36 advise that the claim be referred to the  37 Exchequer Court of Canada with the right of  38 appeal to the Privy Council under the following  39 conditions:-  40  41 1. -       The Indians of British Columbia  42 shall, by their Chiefs or  43 representatives, in a binding way,  44 agree, if the Court, or, on appeal,  45 the Privy Council, decides that they  46 have a title to lands of the  47 Province, to surrender such title, 2787?  eceivmg  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  Submission by Mr. Goldie  from the Dominion benefits  1  to be granted for extinguishment of  title in accordance with past usage  of the Crown in satisfying the Indian  claim to unsurrendered territories,  and to accept the finding of the  Royal Commission on Indian Affairs in  British Columbia, as approved by the  Governments of the Dominion and the  Province as a full allotment of  Reserve lands to be administered for  their benefit as part of the  compensation."  I'd like your lordship to note particularly the words  "as part of the compensation" for their surrender of  title.  "2. -       That the Province of British  Columbia by granting the said  reserves as approved shall be held to  have satisfied all claims of the  Indians against the Province.  That the remaining considerations shall be provided and the cost  thereof borne by the Government of  the Dominion of Canada."  And providing for the representation of counsel on the  part of British Columbia and the representation of  counsel on behalf of the Indians nominated and paid  for by the Dominion.  And then there is the provision  for, in the event of loss:  "...the policy of the Dominion towards the  Indians shall be governed by consideration of  their interests and future development."  The attached --  THE COURT: What is the name?  MR. GOLDIE:  Which name, my lord?  THE COURT: That signs that.  MR. GOLDIE:  Oh, Borden.  THE COURT: And he was?  MR. GOLDIE:  He was at the time Prime Minister.  THE COURT: Prime Minister.  MR. GOLDIE:  And the authorization was the Governor-General's. this?  27879  Submission by Mr. Goldie        1  THE COURT:  What is the date of  GOLDIE:  That's June the 20th, 1914, my lord.  COURT:  Oh, yes.  Yes.  Was he Prime Minister then?  I  thought he became Prime Minister during the war.  MACAULAY:  1911, my lord.  COURT:  He became Prime Minister in 1911?  MACAULAY:  Yes.  COURT:  So he was Prime Minister throughout the war.  GOLDIE:  Yes, I think that's the case, my lord.  COURT:  Yes.  All right.  GOLDIE:  There was a reconstruction of his cabinet during  the war, I believe.  COURT:  All right.  GOLDIE:  Then Dr. Scott's report, which is the adoption,  starts off with — it's dated March 11, 1914.  He  says :  "The undersigned has given consideration to the  petition of the Nishga Indians to the Privy  Council, with reference to the alleged claim of  those Indians to title in the lands of British  Columbia and to a like claim on the part of the  other Indians of the Province.  I find  indications in the papers that the Government  is not unwilling to submit this claim to the  courts, but the difficulties which are inherent  in the claim and which may have prevented its  submission have so far not been overcome; the  two main difficulties would appear to be:-  1. The refusal of British Columbia to  consent to a stated case which would include  any reference to the Indian title.  2. Uncertainty as to the extent of  compensation which might be demanded by the  Indians if they were successful before the  courts, and if the Crown found it good policy  to extinguish the title of the Indians."  The Crown there being the federal Crown, of course.  Continuing:  "With reference to the first difficulty I  would propose that it be held that British  Columbia has fully discharged its obligation to  the natives by granting from the public domain  2  MR.  3  THE  4  5  MR.  6  THE  7  MR.  8  THE  9  MR.  10  THE  11  MR.  12  13  THE  14  MR.  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 27880  Submission by Mr. Goldie 1                   of the Province  reserve lands to be  2 administered exclusively for their benefit, and  3 that, if the Indian claim is found valid by the  4 court or the Privy Council, and, if it is  5 thought advisable to offer anything further for  6 extinguishment of title, the Dominion should  7 assume the burden and compensate the Indians  8 according to the past usage in such  9 arrangements as have been made by the good-will  10 of the Crown with the aborigines.  The Dominion  11 has interest in the lands in the Railway Belt,  12 and, to this extent, would benefit by  13 extinguishment of the Indian title."  14  15 And then he talks about two treaties:  16  17 "...which might be taken as prototypes for this  18 divided responsibility,"  19  20 Treaty No. 3 and Treaty No. 9,  21  22 "...both of these treaties are within the  23 Province of Ontario.  The first was negotiated  24 when the Dominion Government thought the  25 territory covered belonged to the Dominion.  26 When by settlement of the boundary question it  27 was discovered that most of the territory lay  28 in Ontario, the Dominion claimed from Ontario  29 for past expenditure and for the discharge of  30 future liabilities.  The case went to the  31 courts and was decided in favour of Ontario.  32 Ontario thereupon expressed her willingness to  33 grant the reserves and the Dominion bears the  34 financial outlay for annuities and the other  35 considerations."  36  37 And then Treaty No. 9 is:  38  39 "...the subject of an agreement between the  4 0 Governments of the Dominion and the Province of  41 Ontario."  42  43 And then he says:  44  45 "Dealing with the second difficulty,- it  46 would be a serious matter if the Dominion were  47 to assume the undetermined liability which 27881  Submission by Mr. Goldie        1 might arise if  the Indians' claim were upheld  2 by the courts.  The erroneous view of the  3 Indians as regards the nature of the aboriginal  4 title is shown by a memorandum from the Nishga  5 Nation, of which I attach a copy,"  6  7 and he quotes from that.  8 And I go down to the second page in which he sets  9 out his recommendations, and as your lordship has  10 seen, they're very close, almost word for word, with  11 what the Privy Council adopted.  And then there is  12 attached a statement of the Nishga to which he refers  13 in his memorandum.  14 The situation then was that, as I state in  15 paragraph 8, the proceeding contemplated by P.C. 751  16 would decide whether aboriginal title existed in the  17 province, but I say in substance it was the Dominion's  18 interest at stake.  And I say that his report makes  19 that clear because the proposal is that British  20 Columbia's interest would be limited to what it was  21 already obliged to do by Term 13.  22 Paragraph 9.  Dr. Scott's report was known to the  23 advisers to the Allied Tribes.  The reaction of the  24 Indian peoples and their advisers to P.C. 751 will be  25 referred to again.  Here, it is important to note that  26 it remained the Dominion's policy at least until the  27 Report of the Joint Committee of the Senate and House  28 of Commons in 1927 was adopted.  P.C. 751 was the  29 basis of the assurances of the members of the Royal  30 Commission to those who raised the question of title  31 that the settlement of the reserve question would not  32 prejudice the right of the Indian groups to have the  33 issue of title litigated.  On more than one occasion  34 specific reference was made to P.C. 751.  When I say  35 specific reference, I mean in the proceedings in the  36 province of the Royal Commission.  37 Under tab 2-9 is a document, a letter dated 7th of  38 May, 1920, which makes reference to the Order in  39 Council 751, and it's in here to support the statement  4 0 that I have made that it remained the federal  41 government's policy for some time.  The relevant part  42 is sidelined, makes reference to the Kitwancool  43 Indians, and at the top of the next page:  44  45 "A point that you should particularly impress  46 upon the Indians is that the Dominion  47 Government on 20th June, 1914, passed an Order- 27882  Submission by Mr. Goldie        1 in-  Council... defining the manner in which this  2 question will be submitted to the Courts..."  3  4 That is a letter from the Chief Inspector of  5 Indian Agencies in British Columbia to the Indian  6 Agent resident in Prince Rupert, and his reply -- I'm  7 sorry -- Mr. Ditchburn's letter to Dr. Scott in 1920  8 is attached, and it is here to indicate to your  9 lordship that the question of P.C. 751 and the whole  10 issue of aboriginal title was well-known in amongst  11 the people in the claims area.  12 And then there is a letter of May the 1st, 1920,  13 to Mr. Williams, president of the Kitwancool group.  14 And 1927 is a letter from the Assistant Deputy and  15 Secretary of the Department of Indian Affairs to Chief  16 Johnny Chillihitse of Douglas Lake.  17 THE COURT:  Where are you now, Mr. Goldie?  18 MR. GOLDIE:  I am at page 18.  19 THE COURT:  Oh, you're way ahead of me.  20 MR. GOLDIE:  Under tab 2-9.  21 THE COURT:  Yes.  22 MR. GOLDIE:  I'm not reading these others.  2 3 THE COURT:  No.  24 MR. GOLDIE:  They all go to the same point, my lord, of —  2 5 THE COURT:  Yes.  26 MR. GOLDIE:  -- supporting the submission that the P.C. 751 was  27 relied upon by the federal government as its policy  28 for some time after 1914 and the rejection of 751 by  29 the Allied Tribes of British Columbia.  30 This letter of November 30th, 1927, it's a little  31 hard to read, but it's the second paragraph:  32  33 "I have to inform you that the question of  34 the Indian title to British Columbia was  35 settled by the Special Committee of the Houses  36 of Common and the Senate at the last session of  37 Parliament.  I should further point out to you  38 that the Indians of the Interior of British  39 Columbia, like all other Indians, whether in  40 British Columbia or elsewhere in the Dominion,  41 are, and will be, henceforward as heretofore,  42 subject to the provisions of the Indian Act,  43 and that pursuant thereto they are under the  44 supervision of the officers of the Department  45 of Indian Affairs."  46  47 THE COURT:  He was assistant deputy and secretary of what? 27883  Submission by Mr. Goldie        1  MR. GOLDIE:  Of the Department of  Indian Affairs.  2 THE COURT:  Okay.  3 MR. GOLDIE:  Then in support of my submission that the Royal  4 Commission made reference to the P.C. 751 I refer at  5 page 19 under tab 2-9 to Progress Report No. 5 of the  6 Royal Commission addressed to the Superintendent-  7 General of Indian Affairs, and this is submitted by  8 the chairman.  And this particular report is in April  9 of 1915, the period in which hearings were held in the  10 claims area.  And he says at the bottom of page 19:  11  12 "On this occasion the Commissioners met the  13 Indians of all the tribes and bands in the  14 Agency excepting the Babines, Kuldoes and  15 Kisgegas, who were unable to be present at  16 Hazelton."  17  18 And he says now that problem is overcome.  At the top  19 of the page:  20  21 "On the visit in April the Commissioners  22 held meetings with the Indians on their  23 reserves, and were well received by all except  24 the Kitwancool, Getanmax, Kispaiox and Glen  25 Vowell Tribes.  26  27 These men refused to give any information  28 about their reserves and declared their  29 intention of adhering to this attitude until  30 the question of Aboriginal Title had been  31 settled.  32  33 Agent Loring was instructed to notify these  34 Indians that another opportunity would be  35 afforded them of meeting the Commissioners, if  36 they so desired, at the time of the July  37 meeting with the Babines."  38  39 And then he goes on to -- going over to the last page:  40  41 "On the 16th,"  42  43 I think it's the 16th,  44  45 "of July a telegram was received from Mr.  46 Loring, of the Babine Agency, stating that  47 arrangements had been made for the further 27884  Submission by Mr. Goldie        1 meetings with the  Indians of that Agency  2 according to the promise made by the Commission  3 in April, and the Chairman, with Commissioners  4 McKenna and Macdowall left Victoria for  5 Hazelton via Prince Rupert."  6  7 THE COURT:  Sorry, you said on the last page of that?  8 MR. GOLDIE:  It's the last page.  No, it's the second to last  9 page.  It's page 22.  10 THE COURT:  Thank you.  11 MR. GOLDIE:  And it's the third paragraph from the top.  12 THE COURT:  Thank you.  13 MR. GOLDIE:  And records meeting at Hazelton:  14  15 "...of the Babine and Kisgegas Tribes received  16 the Commission cordially and answered all  17 questions freely and frankly - this meeting was  18 held at the office of the Indian Agent, but the  19 Kuldoes refused to meet the Commission there  20 and invited them to another building.  On  21 arrival at this building the Indians refused to  22 answer any questions and would only speak of  23 the aboriginal title to which they laid claim.  24  25 I may mention on all occasions where the  26 claim to Aboriginal Title was advanced, the  27 Commission carefully explained the tenor of the  28 Order-in-Council relating thereto, which  29 generally satisfied the Indians, but some of  30 the tribes of the Babine Agency did not appear  31 even to care to understand."  32  33 Now, in my submission, the only Order in Council  34 to which reference could be made relating to the  35 settlement of aboriginal title is P.C. 751.  36 Now, my lord, the Province has alleged in its  37 defence that the granting of reserves affected  38 aboriginal title, and it has, of course, been pointed  39 out by the plaintiffs that some, not all, of the  40 plaintiffs protested.  Your lordship's attention has  41 been drawn to the fact that the Wet'suwet'en did not  42 fall into that category, but I'm pointing out to your  43 lordship here that the question of title was stated in  44 terms of P.C. 751, and so that even -- not even, but  45 in the time of the Royal Commission that was the  46 federal policy.  47 Now, perhaps an unsatisfactory extract is found 27885  Submission by Mr. Goldie        1 under page 24, but I can  tell your lordship it is part  2 of the transcript of the lengthy meeting which was  3 held by Dr. Scott and members of the Allied Tribes in  4 1923.  In 1922 the minister had come out and said that  5 it was highly desirable to settle all questions  6 without the necessity of resorting to the court, and  7 he was specially asked if the discussions that were  8 going on were held under the umbrella, so to speak, of  9 the Order in Council of 1914.  Mr. Kelly, who is the  10 chairman of the Allied Tribes, the Reverend Mr. Kelly,  11 said midway down the page:  12  13 "MR. KELLY:  You think you are safe, then, in  14 saying, Dr. Scott, that you can say on behalf  15 of the Government that the order-in-council of  16 1914 does not operate as far as this conference  17 is concerned?  18 DR. SCOTT:  Yes, that is the fact, it does not  19 operate at all.  That was an order-in-council  20 designed to take the case to the Courts; and  21 the Minister says, of course, as he promised to  22 you last year, that he does not wish to take a  23 case to the Courts, that he wishes to have a  24 settlement outside the Courts, and I think we  25 all hoped that that would be possible."  26  27 That conference will be referred to at a later point.  28 Going back to my summary, the Report of the Royal  29 Commission and its proposed adoption by the two  30 governments was clearly seen by the native groups and  31 their advisers to be prejudicial to unlimited claims  32 to native title.  And as a sample of that, my lord, I  33 have enclosed under tab 10 a document which was  34 published by The Conference of Friends of the Indians  35 of British Columbia in July 1915, and it is a very  36 comprehensive document, as the contents will be seen.  37 First there is the statement of the Nishga Tribe of  38 January 1913, which Dr. Scott referred to in his  39 memorandum to the -- which was adopted by the Privy  40 Council.  There is the petition to the Privy Council.  41 Of course, your lordship appreciates that my first  42 reference was to the Canadian Privy Council.  The  43 petition was to the Judicial Committee of the Privy  44 Council.  A memorandum for the Government of Canada;  45 Order in Council, June 1914, which is 751; interviews  46 with ministers, 3 and 4 of February 1915; statement of  47 the Nishga Tribe, December of 1914; supplementary 27886  Submission by Mr. Goldie        1 statement; interviews  with Mr. Scott, 5, 9 and 10,  2 February of 1915; memorandum regarding counsel;  3 further interviews with Scott, 11th of February, 1915;  4 supplementary interview with a minister and Mr. Scott,  5 17th of February; supplementary statement No. 2 of the  6 Nishga Tribe; memorandum of Nishga Tribe regarding  7 expenses; memorandum of Indian Affairs Committee;  8 memorial of Interior Tribes; answer of Minister of  9 Justice; interview with Dr. Roche and Mr. Scott the  10 25th of March, 1915; interview with Mr. Scott, 6th of  11 April; interview with Dr. Roche and Mr. Scott, 27th;  12 Order in Council, June 1915.  13 Now, that records, as I say, a period of intense  14 activity in which the Indian people sought to have  15 P.C. 751 amended, and that was rejected by the  16 government.  The Order in Council -- that Order in  17 Council is found at page 105, which is almost the last  18 page.  It says, and I'm reading from that, my lord --  19 THE COURT:  Just a minute.  Page 105?  20 MR. GOLDIE:  105 of the document.  It's page 55 in the —  21 THE COURT:  Is this 751?  22 MR. GOLDIE:  No, this is an Order in Council which rejected the  23 representations that were made after 751.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  And it states:  26  27 "The Committee of the Privy Council have had  28 before them a joint memorandum, dated 17th  29 June, 1915, from the Minister of Justice and  30 the Superintendent General of Indian Affairs,  31 submitting that - with reference to an  32 Order-in-Council, dated 20th June, 1914,"  33  34 now that's 751,  35  36 "by which it was provided that the claims of the  37 Indians of British Columbia to the lands of  38 that province be referred to the Exchequer  39 Court in Canada with right of appeal,"  40  41 and then it goes on.  And then we come to the  42 sentence -- last two sentences of that paragraph:  43  44 "As the Order-in-Council above referred to set  45 forth the conditions under which there might be  46 submission to the Courts, the Nishga Indians  47 asked the Government to consider counter 27887  Submission by Mr. Goldie        1 proposals, and  representatives from the Tribe  2 were sent to Ottawa to confer with the  3 Superintendent General of Indian Affairs.  4 Ample opportunity was accorded them for  5 discussion and the question was thoroughly  6 debated.  7 The proposals which were made by the  8 Indians and in which it is understood they are  9 supported by certain other Tribes in British  10                   Columbia, are as follows,"  11  12 and then it goes 1, 2, 3, 4, and these are commented  13 on.  And up in the right-hand column the ministers  14 comment on the second, third, and fourth proposals,  15 and they -- it reads as follows.  Well, I should read  16 the answer to the first proposal.  17  18 "It is thought inadvisable to agree to any  19 proposals which would reopen the question of  20 Indian reserves in British Columbia.  21 The Ministers further state, as regards the  22 Second, Third and Fourth proposals, that the  23 Order-in-Council of the 20th June, 1914,  24 provides that if by judicial decision the  25 Indians are found to have a title in the lands  26 of the Province, they are to surrender such  27 title receiving 'from the Dominion benefits to  28 be granted for extinguishment of title in  29 accordance with past usage of the Crown in  30 satisfying the Indian claim to unsurrendered  31 territories.'  This arrangement to which the  32 Indians of British Columbia must agree, before  33 the case is presented to the Exchequer Court,  34 fully provides for the method of compensation  35 according to well-established principles.  It  36 is thought inadvisable to accept these  37 proposals which, if adopted, would not promote  38 a satisfactory settlement of the question.  39 The Ministers, therefore, recommend, after  40 due and careful consideration, that the terms  41 of the Order-in-Council of 20th June, 1914, be  42 not modified or altered."  43  44 And that was adopted.  So that the intense efforts on  45 the part of the Nishga and other members of the native  46 peoples of British Columbia to change Order in Council  47 751 were unsuccessful. 27888  Submission by Mr. Goldie        1 Now, as I say, my  lord, this document, which was  2 printed and distributed, contains verbatim records of  3 a number of the interviews to which I have referred,  4 which took place in February, March, and April of  5 1915.  6 Now, that is just one example, however, my lord,  7 and I say that it was clearly perceived by the native  8 groups and their advisers that the report of the Royal  9 Commission and its proposed adoption by the two  10 governments was clearly seen by the native groups and  11 their advisers to be prejudicial to unlimited claims.  12 They saw that the adoption of the report would operate  13 to put the issue of Indian title outside the concern  14 of British Columbia - it having fully discharged its  15 obligations to the natives of British Columbia.  16 Now, after the Royal Commission's report was filed  17 both the Province and Canada passed legislation to  18 facilitate the settlement and adoption of the report.  19 And I quote from the legislation that was passed, the  20 enabling legislation that was passed first by British  21 Columbia, Chapter 32 of the Statutes of 1919, which  22 recites the agreement between McKenna and McBride,  23 recites Orders in Council approving that agreement,  24 and recites that the Royal Commission was appointed  25 and has since reported, and the last recital on page 2  2 6 reads, and I quote:  27  28 "And whereas the said Commission has since  29 reported its recommendations as to lands  30 reserved and to be reserved for Indians in the  31 Province of British Columbia, and otherwise for  32 the settling of all differences between the  33 said Governments respecting Indian lands and  34 Indian affairs generally in the said Province."  35  36 And then the operative provisions of the act.  37 Section 2 authorizes the Lieutenant-Governor in  38 Council to do everything required to carry out the  39 agreement:  40  41 "...according to its true intent, and for giving  42 effect to the report of the said Commission,  43 either in whole or in part, and for the full  44 and final adjustment and settlement of all  45 differences between the said Governments  46 respecting Indian lands and Indian affairs..."  47 27889  Submission by Mr. Goldie        1 And then section 3  provides for further  2 negotiations, and it contained the words:  3  4 "...whether with the Dominion Government or with  5 the Indians ..."  6  7 And that was -- that led to objection on the part of  8 the Dominion, that the Province had no power to enter  9 into negotiations with the Indians.  But the focus  10 that I am asking your lordship to keep in mind is with  11 respect to the significance of the words "full and  12 final settlement" in the last three lines of section 2  13 of that act.  And I'm at paragraph 12 of my summary.  14 The significance of the words "full and final  15 settlement" were understood at the time to have a  16 conclusive sense.  In the Senate a motion to remove  17 them was made on behalf of the Indians by Senator  18 Bostock and was rejected.  And the --  19 THE COURT:  But this is the statute of British Columbia, isn't  20 it?  21 MR. GOLDIE:  Yes, but there's a companion statute which was  22 passed --  23 THE COURT:  I see.  24 MR. GOLDIE:  -- when the federal act was going through  25 parliament.  Your lordship will appreciate that I'm  26 removing -- I'm not dealing with all of the documents.  27 THE COURT:  Yes.  It's the next tab.  28 MR. GOLDIE:  I'm trying to highlight this.  2 9 THE COURT:  Yes.  30 MR. GOLDIE:  And you'll see, my lord, that Senator Bostock said:  31  32 "I do not want to take up the time of the House  33 any longer, but I propose that the words 'full  34 and final' in lines 17 and 18 be struck out."  35  36 And then he reads the clause, and he says:  37  38 "I think that from what I have said honourable  39 gentlemen will realize that one of the  40 objections to this Bill, as viewed by the  41 Indians, is that those words prevent them from  42 proceeding as they think they are entitled to  43 proceed."  44  45 And that was rejected.  46 Now, my lord, after a change of government in  47 Ottawa the Honourable Charles Stewart was appointed 27890  Submission by Mr. Goldie        1 Superintendent-General  of Indian Affairs in December  1921.  He came to British Columbia in July 1922 to  initiate an attempt by Canada to negotiate a treaty  with the native peoples of the province.  Despite Mr.  Stewart's assurance that the basis of the negotiation  would be acceptance by Canada of the natives as  'aboriginal owners' the proposed implementation of the  Royal Commission's report continued to be objected to.  And the --  COURT:  Was the federal statute, Chapter 51, enacted?  Yes.  GOLDIE:  It was, but much later than the B.C. statute.  COURT:  "Assented to 1st July, 1920" it says.  GOLDIE:  I think that's the — I think that's the B.C.  statute, my lord.  Well, here is the -- yes, Chapter  51 is the B.C. statute, and it was assented to 1st of  July, 1920.   Now, the federal statute --  COURT:  Well, that document at page 3 of this tab is printed  by the King's most trusted law printer in Ottawa.  Is  that not --  GOLDIE:  Yes, that's -- oh, I'm sorry.  Yes, I think your  lordship is correct.  Yes.  I'm sorry.  I thought we  were looking at the one that precedes it.  COURT:  That's the British Columbia statute.  GOLDIE:  British Columbia.  Yes, your lordship is right.  Chapter 51 --  COURT:  It was assented to in 1919.  GOLDIE:  And then a year or so later, in July 1, 1920, the  other one was assented to.  COURT:  Well, when -- but the British Columbia statute was  disallowed.  GOLDIE:  No, it was threatened to be disallowed.  COURT:  Oh.  GOLDIE:  But it never was.  COURT:  Oh, I'm sorry, I thought it was.  All right.  All  right.  Well then, has it ever been suggested that  this Chapter 51 extinguished aboriginal rights?  GOLDIE:  No, but that was the fear.  Not extinguished  aboriginal rights.  The objection that was taken to it  by the Indian peoples at the time was that the  approval of the Royal Commission's report would be  full and final settlement so far as British Columbia  was concerned.  It didn't purport to touch aboriginal  title as such, but it would discharge British  Columbia.  That was their -- that was their concern.  COURT:  Well, I'm missing something.  If there's been a full  and final settlement of all differences between  British Columbia and Canada respecting Indian lands  2  3  4  5  6  7  8  9  10  THE  11  MR.  12  THE  13  MR.  14  15  16  17  THE  18  19  20  MR.  21  22  23  THE  24  MR.  25  26  THE  27  MR.  28  29  THE  30  31  MR.  32  THE  33  MR.  34  THE  35  36  37  MR.  38  39  40  41  42  43  44  45  THE  46  47 27891  Submission by Mr. Goldie        1 and Indian affairs in  the province, I suppose on the  2 theory that third party rights are not affected  3 whatever existing claims there is continued beyond  4 that full and final settlement.  Is that the --  5 MR. GOLDIE:  That may be so, but as far as my submission goes,  6 it is full and final settlement of Term 13, and Term  7 13 is the only obligation to which British Columbia is  8 subject.  9 THE COURT:  But unless your friend is right that there's an  10 overarching aboriginal interest of some kind.  11 MR. GOLDIE:  If there is, then that is the Dominion's  12 responsibility.  Your lordship will appreciate that in  13 1914 under P.C. 751 the Dominion proposed to litigate  14 the question of aboriginal title, but it had two  15 prongs to that.  One was acknowledgment that British  16 Columbia would have done all that was required of it  17 by the conveyance of the reserves determined upon by  18 the Royal Commission.  And the other prong was that  19 the Indians would agree that if they were right, the  20 compensation to them would consist of the reserves so  21 allotted, plus anything else which would be called for  22 under the usages observed when the numbered treaties  23 on the prairies were negotiated.  24 Now, the Indian peoples and their advisers at the  25 time said, "We don't like either of those  26 propositions."  It will be my submission that the  27 federal government, the Dominion government, after  28 seeking to negotiate a treaty in 1922, 1923,  29 nevertheless adopted the Order in Council authorized  30 under this legislation and gave effect to the first of  31 those two prongs, namely, the absolution, if I may put  32 it that way, the discharge of British Columbia.  Then  33 I'm going to come to the second prong, which is what I  34 will submit was the Dominion's implementation  35 unilaterally, but after a hearing, of the compensation  36 provisions under Order in Council 751.  It is no part  37 of my case to say to your lordship whether or not  38 aboriginal title has been extinguished in respect of  39 what is going on here.  I've had a submission with  40 respect to the effect on aboriginal title, if it  41 existed, up until 1871.  Now, I say if there was  42 anything that survived that, then we've got to look at  43 what happened through to and including the Order in  44 Council 1265.  45 THE COURT:  1265 is what again?  46 MR. GOLDIE:  Beg your pardon, my lord?  47 THE COURT:  What is 1265? 27892  Submission by Mr. Goldie        1  MR. GOLDIE:  1265 is the Order in  Council which approved the  2 report of the Royal Commission with the modifications  3 made by Ditchburn and Clark and which, in my  4 submission, acknowledged British Columbia's compliance  5 and fulfillment of Term 13 and discharged British  6 Columbia in respect of --  7 THE COURT:  We haven't come to that yet?  8 MR. GOLDIE:  No.  9 THE COURT:  No.  All right.  10 MR. GOLDIE:  This is the lead-up to it.  11 THE COURT:  Yes.  All right.  12 MR. GOLDIE:  Now, the reference that I make in paragraph 12 to  13 the -- well, I should -- I'd ask your lordship to read  14 the documents under tab 2-12.  I'm not going to read  15 them, but the first on page 3, and this is after the  16 legislation -- after the extract from the Senate  17 debate, the notes prepared by the Indians' advisers.  18 THE COURT:  I doubt if I'll read that page.  19 MR. GOLDIE:  No, that doesn't enchant me either.  2 0 THE COURT:  I don't think I could read it.  21 MR. GOLDIE:  I'll see if there's a better copy.  I think there  22 may be.  A communication that arose out of a  23 representation made to the Lieutenant-Governor of  24 British Columbia, that's found commencing at page 4.  25 The letter to the Lieutenant-Governor is signed by a  26 Mr. McTavish, who is chairman of The Friends of the  27 Indians, a society which was strongly supporting them  28 at the time made up of religious people.  29 THE COURT:  That's 1922, is it?  30 MR. GOLDIE:  Yes, my lord.  The legislation has been passed, but  31 the Order in Council implementing it, we haven't got  32 to that.  And Mr. Ditchburn's memorandum to the  33 Lieutenant-Governor.  And the Lieutenant-Governor was  34 requested by the Friends of the Indian People to  35 withhold his sanction to any further proceedings under  36 the provincial Order in Council which would ratify the  37 report of the Royal Commission.  And Ditchburn reviews  38 what happened under the McKenna-McBride, he reviews  39 the proceedings under the Royal Commission, and then  40 on the last page he says:  41  42 "During the itinerary of the Commission the  43 question of Aboriginal Title came before that  44 Body on numerous occasions but they took pains  45 to explain to the Indians that their duties  46 were restricted to deal with Indian reserves  47 and nothing else. 27893  foregoing  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  Submission by Mr. Goldie        1 From the  it is quite apparent  that the request for your withholding your  sanction to the Provincial Order-in-Council  ratifying the Report of the Royal Commission is  based on a misconception of just what powers  the Commission were endowed with and what the  Report contained."  And then there's a telegram to the Governor-  General of Canada and a letter from the Governor-  General's secretary to Mr. O'Meara, who was the  counsel for the Indians at that time.  And then, my  lord, there are extracts from the transcript of the  discussions that went on between the -- the  negotiations that went on between the federal  government in the person of the minister and later the  deputy, Dr. Scott, and the Allied Tribes and their  advisers.  And under the extract at page 13 -- and the  minister, Mr. Stewart, is addressing the question of  what would be the outcome of these negotiations  because he wishes to ensure that the whole matter is  dealt with conclusively, and this is the question he  put to Mr. Kelly.  "...I was going to ask you one question..."  THE COURT:  I'm sorry, where are you now?  MR. GOLDIE:  At page 13 under tab -- I'm sorry, I've gone over  into tab 13, and I haven't come to that in my text  yet.  THE COURT:  Yes.  MR. GOLDIE:  Let me go back to —  THE COURT:  Page 13, tab 13?  MR. GOLDIE:  Beg your pardon, my lord?  THE COURT:  What page are you on in tab 13?  MR. GOLDIE:  I'm going to go back to my summary, paragraph 12.  THE COURT:  Yes.  MR. GOLDIE:  And I had informed your lordship that after a  change in government the Honourable Charles Stewart  came to British Columbia in July 1922 to initiate an  attempt by Canada to negotiate a treaty.  And the  Royal Commission report continued to be objected to by  the Indian peoples, and the reference there is under  tab 2-12, and it's the one that I was going to speak  to before -- my lord, the extract from the report that  I was going to refer to I don't see under that tab,  and I'll come back to it then. 27894  Submission by Mr. Goldie        1 My point, however,  is one that is easily seen from  2 the exhibits that are referred to in the summary, that  3 there continued to be strong objection on the part of  4 the Allied Tribes and those associated with them to  5 the adoption by the two governments of the Royal  6 Commission's report on the grounds that it would be  7 seen as part of the full and final settlement.  8 Indeed, it would be the full and final settlement as  9 between British Columbia and would affect them.  10 On paragraph 13, and now I get to the part that I  11 was about to read, when Mr. Stewart met again with the  12 Allied Tribes in July 1923 he asked Mr. Kelly, the  13 Chairman of the Executive Committee, whether a treaty  14 would include "assigning" their aboriginal rights, and  15 that was part of -- that extract is under tab 2-13.  16 The answer Mr. Stewart took to be in the affirmative  17 and an intensive round of discussions with Dr. Scott  18 and Mr. Ditchburn followed, commencing on August 7th,  19 1923.  On the last day, August 11th, Mr. Kelly  20 referred to the words "final adjustment of all matters  21 relating to Indian affairs in the Province" as "that  22 fatal phrase."  And that is -- that's page 2 of the  23 extract from Exhibit 1203-11, and this is after there  24 have been discussions for a number of days.  25 THE COURT:  I'm sorry, where are you?  26 MR. GOLDIE:  I'm at page 2 under 2-13.  2 7 THE COURT:  Yes.  28 MR. GOLDIE:  Is that an extract of a transcript, my lord?  29 THE COURT:  No.  This looks like Hansard.  30 MR. GOLDIE:  That would be under 2-12, I believe.  31 THE COURT:  Oh, I'm sorry.  You're quite right.  Yes, it looks  32 like a transcript.  33 MR. GOLDIE:  And this is on the last day of the negotiations,  34 and they've been at it for a number of days.  And Mr.  35 Kelly, who is the principal spokesman, said:  36  37 "I do not think it will get us very much further  38 to argue that point; except this, if the  39 Governments concerned are willing to go on  40 record to say that this deals with reserved  41 lands only, then it will be a different matter.  42 If they would strike out that fatal phrase,  43 'final adjustment of all matters relating to  44 Indian affairs in this Province.'  Now we are  45 always, as we have pointed out again and again,  46 suspicious of that; in fact we are afraid of  47 it; and if it is changed it will change the 27895  Submission by Mr. Goldie        1 appearance of  everything in connection with  2 this question.  Now that is the position that  3 we take.  It was because of that that we have  4 sent in protests against the passing of the  5 Order-in-Council."  6  7 The Province had passed its Order in Council 911  8 of July 26, 1923, containing that phrase, so the  9 representations that were made in August relate to the  10 fact that the Province had passed its Order in Council  11 and they were concerned that the Dominion would pass  12 its Order in Council.  13 Now, Dr. Scott's report in October 1923 on the  14 treaty negotiation is found in Exhibit 1203-8, Section  15 X, tab 24.  The archival copy is mutilated.  It is  16 printed, however, as an appendix to the Joint Report  17 of the Senate and House of Commons at pages 65 to 71.  18 Now, under tab 2-13 is the -- page 3 is a copy of the  19 provincial Order in Council of the 26th of July, 1923,  20 which is 911, and it recites the agreement between  21 McKenna-McBride, the provincial and Dominion Orders in  22 Council which gave effect to that agreement, the fact  23 of the Royal Commission, that the Commission is  24 reported.  It refers to Chapter 32 of the Statutes of  25 British Columbia and that the Lieutenant Governor in  2 6 Council was empowered to do:  27  28 "...every act, deed, matter or thing necessary  29 for the carrying out of the said Agreement..."  30  31 And the last four lines of that paragraph at the top  32 of the next page:  33  34 "...either in whole or in part, and for the full  35 and final adjustment and settlement of all  36 differences between the said Governments  37 respecting Indian lands and Indian Affairs in  38 the Province."  39  40 And reference was made to the Ditchburn-Clark  41 matter.  And then if your lordship would look down to  42 the -- midway down the operative paragraph:  43  44 "That the report of the" —  45  46 I'm starting at the beginning of the paragraph but  47 omitting certain words. 27896  Submission by Mr. Goldie        1 "THAT the Report  of the Royal Commission... as  2 made under date of 30th day of June 1916,  3 with...amendments,"  4  5 by the Ditchburn-Clark effort.  And then skipping down  6 to the words:  7  8 "...be approved and confirmed as constituting  9 full and final adjustment and settlement of all  10 differences in respect thereto between the  11 Governments of the Dominion and the Province,  12 in fulfillment of the said Agreement of the  13 24th...of September 1912, and also of Section  14 13 of the Terms of Union, except in respect to  15 the provision for lands for Indians resident in  16 that portion of British Columbia covered by  17 Treaty No. 8, which forms the subject of  18 Interim Report No. 91 of the Royal Commission:  19 The settlement of which will be allowed to  20 remain in abeyance until some more suitable  21 time, but which shall not prevent the  22 Government of the Province from dealing with  23 vacant Crown lands under the provisions of the  24 land laws of the Province from time to time in  25 force and effect."  26  27 And then it provides for surveys, and then the final  28 paragraph:  29  30 "Provided also that upon completion and due  31 acceptance of such surveys, conveyance be made  32 by the Province to the Dominion in accordance  33 with Section 7..."  34  35 Now, that was the provincial Order in Council.  It was  36 one that contained what Mr. Kelly referred to as the  37 fatal phrase.  38 Now, in October Dr. Scott had to consider the  39 situation that existed at the time as a result of the  40 negotiations in 1922 and in 1923.  And I note that the  41 archival copy is mutilated, but it is reprinted in  42 whole in the -- as Appendix H of the report of the  43 Senate and House of Commons of 1927, and I'm going to  44 refer to a few of the provisions in it.  Does your  45 lordship have the --  4 6  THE COURT:  Yes.  47  MR. GOLDIE:  — page 11 before you? 27897  Submission by Mr. Goldie        1  THE COURT:  Page 11?  2 MR. GOLDIE:  Yes.  That's the printed version of this  3 memorandum.  4 THE COURT:  I thought it was in tab 14.  Is it not?  5 MR. GOLDIE:  Yes, it's tab 14.  6 THE COURT:  Is it not page 1?  7 MR. GOLDIE:  Well, page 1 is the original memorandum, but it's  8 been mutilated, and there's a better typed script of  9 it.  10 THE COURT:  Yes.  All right.  I have it.  Yes.  11 MR. GOLDIE:  And this is his memorandum of October 29th, 1923,  12 and he's reporting on the meetings that he had in that  13 year, and he said:  14  15 "I have the honour to transmit herewith the  16 stenographic report of the meetings with the  17 Executive Council of the Allied Tribes of  18 British Columbia in Vancouver and Victoria.  As  19 you are aware the meetings at Vancouver were  20 preliminary to the more detailed discussion  21 which took place in Victoria.  22 As you thought it advisable that some  23 representative of the British Columbia  24 Government should be present at the round table  25 conference with the Indians, I wrote to the  26 Hon. Mr. Oliver as follows,"  27  28 and then sets out the letter that he sent to -- as he  29 sent to the Premier of British Columbia.  And then Dr.  30 Scott goes on:  31  32 "As I knew that the Prime Minister,"  33  34 he's referring to the Premier of British Columbia,  35  36 "intended to leave Victoria and be absent three  37 or four weeks, I thought it well to make a  38 special trip to the capital in order to urge  39 upon him the consideration of what is known as  40 the Supplementary List of Reserves.  I  41 interviewed him on the morning of July 30th.  42 The Hon. Mr. Patullo was present during part of  43 the interview.  In discussing the matter I went  44 into it rather fully and urged very strongly  45 that the Supplementary List should be  46 favourably considered."  47 27898  Submission by Mr. Goldie 1            That came out of the  review by Ditchburn and Clark, my  2 lord.  3  4 "Mr. Patullo promised on behalf of his  5 Government to have it carefully examined by Mr.  6 MacKenzie, Grazing Commissioner, and Chief  7 Inspector Ditchburn, but he did not give any  8 assurance that any of the additional  9 applications would be granted.  Mr. Oliver  10 expressed the opinion that there could be no  11 finality of the Indian reserve question taking  12 into consideration the Thirteenth Article of  13 the Terms of Union, as under this section the  14 Province was bound to give lands for Indian  15 reserves from time to time whenever such were  16 really required.  This appeared to me to be Mr.  17 Oliver's personal opinion.  I referred to my  18 letter dated at New Westminster July 27th, and  19 asked him to consider appointing a representa-  20 tive to be present at our meetings with the  21 Indians.  He said that he would consider that  22 in Council that afternoon, and Mr. Ditchburn  23 received later a note dated 31st July, signed  24 by Mr. Oliver's... Secretary... "  25  26 And he declined to attend stating in the last  27 paragraph:  28  29 "Any questions arising in respect of the  30 Indians of B.C., involving any responsibility  31 on the part of the Province, should be adjusted  32 as between the Province and the Dominion, and  33 therefore it is not necessary or advisable that  34 the Province should be represented at any  35 conference between the Indians and the  36 Government of Canada."  37  38 THE COURT:  Is there anything in Mr. Oliver's personal opinion  39 that there was a continued obligation to provide lands  40 as they may become required?  41 MR. GOLDIE:  That was — that's so stated by Mr. Scott or Dr.  42 Scott.  43 THE COURT:  Well, he said that was Mr. Oliver's opinion, but I  44 don't have the wording of Term 13 before me.  Is there  45 anything in the terms of Term 13 that would support  46 that opinion?  47 MR. GOLDIE:  Term 13 calls upon the Province to provide 27899  Submission by Mr. Goldie        1 reserves, calls upon the  Province to continue its past  2 policy.  And if I --  3 THE COURT:  Have any reserves been established or augmented  4 since the completion of the negotiations you're about  5 to reach?  6 MR. GOLDIE:  Yes.  The Dominion has purchased some lands for  7 additional reserves.  8 THE COURT:  Yes.  All right.  All right.  9 MR. GOLDIE:  But that was -- that was a negotiation.  10 THE COURT:  Canada didn't say do British Columbia after?  11 MR. GOLDIE:  After the Order in Council?  12 THE COURT:  Yes.  13 MR. GOLDIE:  No, it did not.  It said there is a need, and we  14 will acquire the land.  15 THE COURT:  All right.  16 MR. GOLDIE:  He says:  17  18 "The meetings in Victoria opened on Tuesday  19 afternoon, August 7th."  20  21 THE COURT:  Tuesday morning, I think.  22 MR. GOLDIE:  Tuesday morning.  Thank you.  23  24 "...August 7th.  The Executive Committee of the  25 Allied Tribes was present and Mr. O'Meara,  26 their counsel.  There was some preliminary  27 discussion as to ... procedure ... They requested  28 me to allow Mr. O'Meara to make a general  29 statement... and I thought it proper to allow  30 this.  This statement will be found on pages 34  31 to 56 of the typewritten report."  32  33 That's the transcript of the report.  Then he  34 describes the progress after that.  35  36 "After Mr. O'Meara made his statement we  37 entered into a discussion of the report of the  38 Royal Commission, and at first an attempt was  39 made to deal with it somewhat in detail.  40 Although the members of the Committee had been  41 in possession of this report for some time,  42 they were not familiar with its contents.  43 After some waste of time in dealing with  44 certain agencies, it became evident that no  45 progress would be made if we were to attempt to  46 consider with minuteness the allotted reserves,  47 the reduced reserves, and the new reserves." 27900  Submission by Mr. Goldie 1            And he gives the page  references .  2  3 "I expressed willingness to go on with the  4 discussion, but the Chairman of the Committee  5 said that the task would be 'endless'.  6 The Committee then fell back on a statement  7 which had been made in a pamphlet prepared for  8 the British Columbia Government in 1920..."  9  10 When he says "prepared for," my lord, he means  11 prepared by the Indian peoples for presentation to the  12 British Columbia Government.  13  14 "...and as the discussion developed, it became  15 clear that the Indians intended to rely on the  16 claims made by that pamphlet, and in the end it  17 will be found that all the claims made there,  18 with one important addition, are now made  19 conditions for the cession of the Indian title.  20 I think it well, therefore, to place with the  21 report a copy of this pamphlet."  22  23 And that's not included with the extract here, but it  24 was part of the original memorandum.  25  26 "The Indians expressed unwillingness to accept  27 the report of the Royal Commission, giving  28 their reasons and stating what in their opinion  29 would be an adequate reserve allotment... The  30 Indians demand that all foreshores, whether  31 tidal or inland, be included in the reserves,  32 and that a per capita standard of 160 acres of  33 average agricultural land should be adopted in  34 the allotment of reserves.  While the demands  35 and their reasons are set forth in the  36 typewritten report of proceedings, it will  37 probably be more convenient for you to read  38 them in the printed pamphlet; they run from  39 page 8 to 15."  40  41 And then:  42  43 "The other conditions put forward by the  44 Committee as a basis of settlement are set  45 forth and argued in the remaining pages of the  46 report and are as follows,"  47 27901  Submission by Mr. Goldie 1            fishing rights, and I  won't go through that, hunting,  2 timber, funded monies, pelagic sealing, education,  3 medical attendance and hospitals, and I'm not going to  4 go into the detail of that, and then reimbursement of  5 expenses in the amount of $100,000.  6 And then at the middle of page 70 he said:  7  8 "This ends the transcript of the terms and  9 conditions thought by the Indians to be  10 essential for an equitable settlement of the  11 Indian title in the Provincial lands of British  12 Columbia.  At the beginning of the meeting I  13 drew the attention of the Committee to  14 statements they had made in Vancouver a few  15 days before.  You will find the words on page  16 27 of the report, but I think it well to repeat  17 it here.  18  19 We see, Sir, that the Government has  20 not got any magic powers to bring forth  21 funds, their funds must come from the good  22 will of the people of Canada; and we  23 recognize this, that to take an  24 unreasonable stand, to make our demands  25 unreasonable, would be antagonizing the  26 citizens of Canada generally, and we are  27 not prepared to go that far.  We recognize  28 the danger of taking such a stand.  29 Therefore, we are always open to reason,  30 and I can assure you, any demands - claims,  31 not demands, that we make, will always be  32 within reason.  33  34 It must be taken then that the claims which  35 are made are considered by the Committee at  36 least within reason.  37 I had expected that the discussion would  38 take a different course but it was apparent  39 from the moment the Indians referred to their  40 pamphlet prepared for the Government of British  41 Columbia that they intended to take their stand  42 upon the demands therein made.  They saw fit to  43 add to these claims a plea for a cash payment  44 which would amount, at the twenty year period  45 which was suggested, to nearly two and a half  46 millions.  That, so far as I can discern, is  47 the only new item which appears in the 27902  Submission by Mr. Goldie        1 schedule, as they  had previously claimed a  2 return of the money they had expended in the  3 prosecution of this claim.  I cannot refrain  4 from expressing the opinion that far from being  5 reasonable claims, they are exacting and  6 extravagant.  Favourable consideration would  7 lead to the expenditure of such very large sums  8 of money on the Indians of British Columbia  9 that an envious feeling would be created in the  10 minds of other Indians in the Dominion.  11 As a matter of most pressing importance was  12 the acceptance by His Excellency in Council of  13 the report of the Royal Commission, which  14 action has already been taken by the  15 Lieutenant-Governor of British Columbia in  16 Council, I directed the particular attention of  17 the Indians to it.  A short discussion on this  18 point will be found on pages 250-251.  It had  19 become clear that they did not think the report  20 of the Royal Commission was a satisfactory  21 settlement of the Indian reserve question, but  22 I pointed out that they had not stated  23 definitely that they would recommend that the  24 report be not confirmed by the Dominion  25 Government.  The other point that I pressed  26 home was our desire to obtain an expression of  27 their wish as to a judicial decision on the  28 general question of title.  This brought forth  29 a very emphatic declaration from the Chairman;  30 he said:  'We launch an emphatic negative to  31 the passing of any Order in Council, if that  32 Order in Council is going to be the final  33 adjustment of all matters relating to Indian  34 affairs in this Province.  We claim that Indian  35 lands and Indian rights generally are just part  36 of one big question, and, therefore, we refuse  37 to have Orders in Council dealing with just one  38 matter when that matter cuts away from under  39 our feet, as it were, our constitutional  40 stand.'.  41 With reference to the question of  42 litigation, they wish to be considered as  43 willing to have a settlement out of court, but  44 if it seems impossible to get a fair and  45 equitable settlement they wish to 'press on to  46 the Judicial Committee of the Privy Council.'  47 In spite of this vigorous protest from the 27903  Submission by Mr. Goldie        1 Indians as to the  acceptance of the report of  2 the Royal Commission, I cannot, with a due  3 sense of responsibility and having the best  4 interests of these people at heart, recommend  5 any other action but the adoption of the  6 report.  The Indians will receive in the  7 aggregate a large acreage of reserve lands free  8 from any vexatious claims of the Province, such  9 as the so-called 'reversionary interest' has  10 been in the past.  While it is true that in  11 some districts it would have been more  12 satisfactory if larger reserves could have been  13 set aside for them, conditions peculiar to  14 British Columbia rendered that almost  15 impossible, but the report of the Royal  16 Commission provides reserves for these Indians  17 which can be developed and utilized by them.  18 Over against their complaint that they have not  19 sufficient lands, we must set the statement,  20 often well founded on fact, that they are not  21 making good use of the lands provided to them."  22  23 And he goes on to conclude:  24  25 "If our Government refuses to further consider  26 the report of the Royal Commission and fails to  27 use the statutory power to confirm the report,  28 I am afraid the future welfare of the British  29 Columbia Indians will be jeopardized.  The  30 report is the outcome of long negotiations  31 between the Governments, of an examination into  32 the needs of the Indians on the ground, during  33 which the evidence of Indians was taken and  34 their advice and cooperation sought, and  35 finally, there was a resurvey of the whole  36 report by officers of the Governments and  37 representatives of the Indians.  I would  38 recommend that the 'cut offs' in the Railway  39 Belt be cancelled and the reserves as  40 originally set apart in the Railway Belt be  41 confirmed.  With the reserve question finally  42 disposed of I had expected that the Indians  43 would realize that their aboriginal title was  44 in part already annually compensated for by the  45 generous grants that the Dominion Parliament is  46 making on their behalf, and would wish to add  47 to those obligations of the Dominion an 27904  Submission by Mr. Goldie        1 extension of the  educational system and some  2 better provision for hospitals and medical  3 attendance.  Such is not the case, and I have  4 to submit the facts for your consideration."  5  6 My lord, that last paragraph is set out in  7 paragraph 14 of my summary, and then I say in  8 paragraph 15 the full significance of what would  9 follow from the passage of the Dominion's Order in  10 Council was accordingly understood in Ottawa as well  11 as by the Allied Tribes and their counsel, Mr.  12 O'Meara.  Mr. Stewart took every step open to him,  13 subsequent to receiving this report, as one who had  14 stated to the Indians that "your interests are our  15 interests," a position he restated in parliament.  16 Despite the views of the Deputy Minister of Justice  17 and of his own Deputy expressed in February 1924, the  18 minister in effect requested the Deputy Minister of  19 Justice to restate his earlier opinion in the form of  20 answers to specific questions submitted by the Allied  21 Tribes.  22 Now, under tab 15 is the -- and page 3 is a  23 memorandum of Scott's of February 20th, 1924,  24 reporting on a visit from members of the executive of  25 the Allied Tribes accompanied by Mr. O'Meara and  26 stating his concern about any prolonged delay on the  27 part of the Dominion and confirming the Royal  28 Commission's report.  Then page 5 is Scott's  29 memorandum to the Deputy Minister of Justice.  30  31 "At the request of the Honourable Charles  32 Stewart, I submit herewith a memorandum  33 prepared for him by the British Columbia  34 Indians who interviewed you the other day.  The  35 Minister would be much obliged if you would  36 advise him as far as possible on the questions  37 raised in this memorandum."  38  39 And the questions are set forth in the next page.  40 And then following that is Newcombe's letter,  41 which is unfortunately fairly difficult to read, but  42 question 1:  43  44 "1.  The effect of the McKenna-McBride  45 Agreement and in particular the words - 'final  46 adjustment of all matters relating to Indian  47 affairs in the Province of British Columbia'. 27905  Submission by Mr. Goldie 1                       Answer:  I am  of opinion that as between  2 the two Governments the agreement and the  3 action of the commissioners thereunder, if  4 approved by both Governments, operate 'as a  5 final adjustment of all matters relating to  6 Indian affairs in the Province of British  7 Columbia'.  These are the words of the  8 agreement and would I should think be  9 interpreted to exclude claims by either  10 government for better or additional terms."  11  12 And then a question with respect to the legislation.  13 And then question 3:  14  15 "3.  Is the cutting off of reserved lands  16 provided for by the McKenna-McBride Agreement  17 consistent with Article 13 of the 'Terms of  18 Union'?  19 Answer:  I do not perceive any  20 inconsistency."  21  22 And then a question with respect to reversionary title  23 and a question with respect to foreshore rights.  24 That letter was sent to Mr. Andrew Paul, who was  25 one of the representatives of the Allied Tribes.  26 That's at page 10.  And that activity was in 1924.  27 And I say in paragraph 16 P.C. 1265 was approved  28 July 19, 1924 (the text with reserve schedules is  29 under tab 14 in Exhibit 1203-12) .  The schedules are  30 very extensive.  The final stage is represented by  31 B.C. Order in Council 1036 of July 29, 1938, which  32 conveyed the reserves in question.  33 Now, the P.C. 1265, my lord, without the schedules  34 is found under tab 2-16.  35 THE COURT:  Yes.  36 MR. GOLDIE:  And it recites, as your lordship would expect, the  37 agreement, the Commission, Chapter 51, which is the  38 Dominion's Act empowering the Governor in Council to  39 do all that was required to carry out the agreement:  40  41 "...according to its true intent, and for giving  42 effect to the report of the Commission, either  43 in whole or in part, and for the full and final  44 adjustment and settlement of all differences  45 between the said Governments respecting Indian  46 lands and Indian Affairs in the Province."  47 And the report is -- also further negotiations, 27906  Submission by Mr. Goldie        1 whether with the  Provincial Government or Indians.  2 And then finally, recommend that the report of the  3 Royal Commission, as amended by Messrs. Ditchburn and  4 Clark, insofar as it covers the adjustments,  5 readjustments or confirmation of the reductions,  6 etcetera, in the Royal Commission report.  And then  7 the words beginning:  8  9 "...be approved and confirmed as constituting  10 full and final adjustment and settlement of all  11 differences in respect thereto between the  12 Governments of the Dominion and the Province,  13 in fulfilment of the said Agreement of the 24th  14 day of September, 1912, and also of Section 13  15 of the Terms of Union..."  16  17 Then the same wording with respect to reserves to be  18 allotted at some future time in the area of Treaty 8.  19 Now, I say with respect to that, on its face the  20 Order in Council states the Report of the Royal  21 Commission, as reviewed and modified by Messrs.  22 Ditchburn and Clark and provided conveyance is made by  23 the Province, fulfills the agreement of September  24 24th.  That agreement declared it was "...desirable to  25 settle all differences between the  26 Governments ... respecting Indian lands and affairs  27 generally...".  28 The exclusion of aboriginal title from this frame  29 of reference was agreed to beforehand.  The scope of  30 the Commission's report and of any general  31 observations was further defined in Order in Council  32 1401 of June 19th.  33 P.C. 1265 states it is also in fulfillment of Term  34 13 except in respect of lands within the area of  35 Treaty 8.  Term 13 is not mentioned in the Agreement  36 of 1912.  It was mentioned in McKenna's report with  37 respect to the Agreement.  It is referred to in the  38 Royal Commission's report only in the historical  39 review found in the General Report.  That is to say,  40 there is nothing in the Royal Commission report which  41 deals explicitly with the Term 13.  It is introduced  42 into the Orders in Council.  43 The Order in Council thus recognizes that Term 13  44 as implemented through the agreement of September 24,  45 1912, is the only obligation itself placed on or  46 accepted by the Province in respect of Indians and  47 lands reserved for Indians. 27907  Submission by Mr. Goldie        1  THE COURT:  I'm not sure I  understand what that means.  "Is the  2 only obligation itself placed on..."  I'm not sure  3 about that word "itself."  4 MR. GOLDIE:  Oh, it simply means that the Province imposed upon  5 itself an obligation and it was continued by Term 13.  6 Term 13, just to refresh your lordship's  7 recollection --  8 THE COURT:  When you say "imposed upon itself," you mean  9 accepted as being an obligation at the founding of the  10 colony or by this agreement or by the Terms of Union?  11 MR. GOLDIE:  It was one that was in existence at the time of the  12 Terms of Union and as such had been imposed upon  13 itself —  14 THE COURT:  Yes.  15 MR. GOLDIE:  -- by virtue of Douglas' declarations and the  16 legislation which protected Indian settlements and  17 villages by withdrawing them from the pre-emption laws  18 of the colony.  19 THE COURT:  Yes, I understand.  Thank you.  20 MR. GOLDIE:  Term 13 states that:  21  22 "The charge of the Indians, and the trusteeship  23 and management of the lands reserved for their  24 use and benefit, shall be assumed by the  25 Dominion Government, and a policy as liberal as  26 that hitherto pursued by the British Columbia  27 Government shall be continued by the Dominion  28 Government after the Union."  29  30 And I say that is the only obligation outstanding, and  31 it is one that was satisfied in -- its satisfaction  32 was acknowledged in Order in Council P.C. 1225.  33 Now, when construed in light of Order in Council  34 751, which, in my submission, is an integral part of  35 the process, the Order in Council recognizes that  36 aboriginal title in British Columbia was the concern  37 of the Dominion and not that of the Province.  38 And then in paragraph 21 I say the factual  39 circumstances which gave rise to --  4 0 THE COURT:  Mr. Goldie —  41 MR. GOLDIE:  Sorry.  42 THE COURT:  — go back to paragraph 20.  43 MR. GOLDIE:  Yes.  44 THE COURT:  It seems to me that's what this case is really all  45 about.  Assuming there is some overarching aboriginal  46 interest --  47 MR. GOLDIE:  Yes. 2790?  eserves,  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  Submission by Mr. Goldie        1  THE COURT:  — additional to  that interest has to be  in relation to land --  MR. GOLDIE:  Yes.  Well —  THE COURT:  -- does it not, or certain rights relating to land?  MR. GOLDIE:  It certainly involves rights relating to land, yes.  THE COURT:  Yes.  How can that be solely the concern of the  Dominion when in the context the Dominion has no land,  that it's by the Terms of Union they've carved up the  country and given the land to British Columbia?  MR. GOLDIE:  Well, I have a minor —  THE COURT:  Well.  MR. GOLDIE:  -- correction in that, my lord, and that is that no  lands were given to British Columbia by the Terms of  Union.  They were British Columbia lands beforehand.  THE COURT:  They were British Columbia lands before and remained  British Columbia lands.  MR. GOLDIE:  And remained British Columbia lands.  Now, the  question was when British Columbia entered  Confederation what were its -- what were its  obligations to the Indian peoples, and the obligation  was stated to be the continuation of a policy of, I  call it, protecting settlements and villages.  Now --  THE COURT:  Your argument, it seems to me, is impeccable if you  put it on that basis, but if you put it on the basis  that -- not on a basis of obligation, but on existing  rights or interests, it puts it in a different  complexion, does it not?  MR. GOLDIE:  Well, we go then to the Dominion's Order in Council  751, and the Dominion said, "We will assume the  obligation."  THE COURT:  Well, that is all right for the Dominion to say, but  that, by laws relating to the jus tertii, wouldn't  bind the Indians.  MR. GOLDIE:  Well, it was the assumption of an obligation by the  sole authority which had the constitutional power to  extinguish.  British Columbia didn't have any power to  extinguish or deal with the title.  Now, in P.C. 751  the Dominion constitutionally, in my submission, said:  "Here is how we're going to deal with the question of  aboriginal title.  Now, first we're going to say to  British Columbia, 'You fulfil Term 13.'"  That's  number 1.  THE COURT:  Yes.  MR. GOLDIE:  Number 2, "We're going to say to the Indian  peoples, 'You agree beforehand to accept, if you're  right, the same kind of compensation that we gave to  the Indian peoples on the prairies in the numbered 27909  Submission by Mr. Goldie        1 treaties.'"  Now, the  Indian people said:  "No, we  2 don't accept that."  But, nevertheless, when it came  3 to P.C. 1265, the Dominion acted on that basis.  P.C.  4 751 tells us what in effect we already know:  that the  5 constitutional authority to deal with Indian title,  6 regardless of where it is in Canada, is with Canada.  7 And that Order in Council was passed in the face of  8 what the Judicial Committee had done.  9 THE COURT:  Yes.  10 MR. GOLDIE:  In the face of the negotiations that they had had  11 with Ontario and Quebec on the extension of their  12 boundaries, in the face of the -- well, the face of  13 constitutional development in 1914.  14 THE COURT:  What I'm trying to do is to fit your argument into  15 Mr. Rush's argument, and it seems to me that you're  16 almost like a couple of trains that are rushing  17 towards each other but, fortunately, on different  18 tracks, and you go by without joining issue, as  19 lawyers would say.  20 MR. GOLDIE:  Well, I join issue with the proposition that there  21 was anything left for British Columbia to do than to  22 provide the reserves.  That was the British Columbia  23 means of satisfying the interests of the native  24 peoples.  And you can call it aboriginal title, you  25 can call it what you want.  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  And I'm saying, my lord, that at the time Term 13  28 was negotiated the Dominion was well aware of  29 aboriginal title.  It was busily extinguishing that  30 title on the prairies.  So it's not a question of this  31 arising out of the thin air at some later time.  32 THE COURT:  What I had trouble doing was fitting your argument  33 around the principles of Dunlop and Selfridge, which  34 is a very fundamental way of putting it.  35 MR. GOLDIE:  Yes, but your lordship will have to, when you come  36 to that, to take into account the position that the  37 Dominion had asserted at that time that it was the  38 trustee of the Indians' interest.  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  And a trustee can deal with his beneficiary's  41 interest.  42 THE COURT:  Yes.  43 MR. GOLDIE:  If he's right, he's right.  If he's wrong, he's  44 liable to answer.  45 THE COURT:  Well, your answer in part then would be to take the  46 philosophy of Chief Justice Marshall and say that  47 everything has to start somewhere, and that upon 27910  Submission by Mr. Goldie        1 discovery or claim to  sovereignty under certain  2 circumstances certain rights and obligations kick in  3 is the way they describe it in modern vernacular  4 terminology, and you go on from there.  5 MR. GOLDIE:  That's correct.  6 THE COURT:  If you take Mr. Rush's position, and Mr. Jackson and  7 Ms. Mandell's -- they know I don't like this word, but  8 it seems to me here to be an apt one -- there is this  9 overarching right or interest that can't be dissolved  10 by agreements or -- agreements, constitutional or  11 otherwise, made by third parties.  12 MR. GOLDIE:  I would -- that's correct.  Overarching in the  13 sense that there was a pre-existing --  14 THE COURT:  Yes.  15 MR. GOLDIE:  -- right of ownership and jurisdiction.  16 THE COURT:  It's always been there.  17 MR. GOLDIE:  It's always been there.  18 THE COURT:  And hasn't been touched by any of these  19 arrangements.  20 MR. GOLDIE:  That's correct.  21 THE COURT:  Yes.  22 MR. GOLDIE:  My answer to that is the P.C. 1265 and 751 may not  23 have extinguished that.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  What it did was, on the part of Canada, which is  26 the only party who had the constitutional authority to  27 deal with such a concept, is that Canada said, "We'll  28 take care of that."  Now, you can call that  2 9 indemnity --  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  -- not extinguishment, but whatever you call it,  32 British Columbia is discharged.  33 THE COURT:  All right.  Thank you.  I think we should take the  34 morning adjournment.  Thank you.  35 THE REGISTRAR:  Order in court.  This court stands adjourned for  36 a recess.  37  38 (PROCEEDINGS ADJOURNED AT 11:05 A.M.)  39  40  41  42  43  44  45  46  47 27911  1  Submi  .ssion  by  Mr.  Goldie  ereby certify  the  foregoin  Lg to  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  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Leanna Smith  Official Reporter  UNITED REPORTING SERVICE LTD. 27912  Submissions by Mr. Goldie        1 (PROCEEDINGS  RESUMED AT 11:25 A.M.)  2 THE COURT:  Mr. Goldie.  3 MR. GOLDIE:  Thank you, my lord.  I had reached paragraph 19 on  4 page ten of my summary.  I say when construed in light  5 Order in Council 751, the Order in Council 1265  6 recognizes that aboriginal title in British Columbia  7 was the concern of the Dominion and not that of the  8 Province.  9 THE COURT:  I think you mean 751 there.  You said 1265.  10 MR. GOLDIE:  Yes.  Well, I say — no, I'm talking about  11 construing 1265.  When construed in light of P.C.  12 12 -- when construed in light of 751 --  13 THE COURT:  Yes.  All right.  14 MR. GOLDIE:  — 1265 —  15 THE COURT:  Oh, yes.  All right.  16 MR. GOLDIE:  -- recognizes that aboriginal title in British  17 Columbia was the concern of the Dominion and not that  18 of the Province.  And I say that because it operates  19 as a full and final settlement of the claims as  2 0 between the Province and the Dominion.  And, my lord,  21 I just remind yourself -- remind you that back in 1874  22 it was the Dominion that was saying aboriginal title  23 is the responsibility of the Province.  I may not have  24 the right year, but I'm referring to the comments of  25 the Federal ministers that my friend Mr. Rush brought  26 to your attention.  Mr. Mills and Mr. Laird.  27 MS. MANDELL:  Is that the disallowance?  28 MR. GOLDIE:  No, no.  I am speaking about -- I may have the year  29 wrong.  I'm speaking of after the -- after the  30 disallowance.  31 THE COURT:  All right.  32 MR. GOLDIE:  Now, on paragraph 21, the factual circumstances  33 which gave rise to P.C. 1265 extend back to Head 24 of  34 Section 91 of the 1867 Act and to Term 13 of the Terms  35 of Union.  Those circumstances explain the  36 desirabillity, if not necessity, of a final  37 disposition of the B.C. Indian Land Question.  And my  38 lord, I am not talking about extinguishment there.  39 I'm talking about final in relation to British  40 Columbia.  And that, of course, is the subject of the  41 counterclaim.  The true construction of P.C. 1265  42 requires that it be read in the context of Head 24,  43 Term 13, P.C. 751 and the instruments referred to in  44 the Order in Council itself.  The inevitable  45 conclusion, in my submission, is that P.C. 1265  46 operated to discharge British Columbia from all  47 further responsibility to the Indian peoples with 27913  Submissions by Mr. Goldie        1 respect to lands in the  's direct  responsibility.  There may be indirect in the sense  that the Dominion comes to British Columbia as it has  done in the past, since 1265, and said we want more  land for reserves and acquires that land.  Now, I say  British Columbia could not do this either by  legislative act or by negotiation - both these means  of disposing of the purported liability represented by  claims of aboriginal title being denied it by Head 24  of Section 91.  Only Canada could provide British  Columbia with the instrument of discharge and  satisfaction and this it did in the form of P.C. 1265.  And then I summarize this:  I go back to 1911.  P.C.  1081 of May 17, 1911 recited intention of the Dominion  to institute an action in the Exchequer Court on  behalf of the Indians against a Provincial grantee.  I  note in respect of that that that was the -- it wasn't  contemplated that an Indian would bring an act of  tresspass or an act of rejectment.  It was  contemplated that the Dominion on behalf of the  Indians would select a test case and thus bring the  issue of aboriginal title into the courts.  But it would be done in the name of an Indian.  Or  is that what you are saying?  :  Or a band.  It could be done in the name of an  Indian and I think it simply says on behalf of bands  or Indians.  That action was never commenced.  Instead  on May 24, 1912 Mr. McKenna was appointed a Special  Commissioner to investigate all claims.  That's P.C.  1398.  Aboriginal title having been dropped from the  ambit of the McKenna-McBride agreement of 1912, the  question was dealt with by P.C. 751 of June 20, 1914  which linked the court case with the Royal  Commission's work.  Thus, so far as the Province was  concerned, its acceptance of the Royal Commission's  Report would entitle it to be discharged from any  further obligation.  If the court case resulted in  further oblegations to the Indian peoples, such were  the responsibility of the Dominion.  It is -- it is  irrelevant, my lord, in this sense, to the  construction of 751 as assisting us in understanding  what the effect of 1265 is concerned that the Indians  refused to accept the terms of 751.  751 remained the  Dominion's policy.  And I am going to suggest,  although it is not necessary in my case, that that was  the basis upon which the Joint Committee Report of  1927 was formulated.  rovince.  Now, that  2  3  4  i  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  THE COURT:  24  25  MR. GOLDIE  26  27  28  29  1  30  31  32  33  34  1  35  36  37  38  39  40  41  42  43  44  45  46  47 27914  Submissions by Mr. Goldie        1 Now, at (d) I note  that aboriginal title was  2 referred to in respect of 751 during the course of the  3 sittings of the Royal Commission.  And I say in 23,  4 whether the procedure provided in P.C. 751 was  5 exclusive and constituted the only means by which the  6 issue of aboriginal title in British Columbia was to  7 be resolved is immaterial to the Province.  P.C. 1250  8 on any construction which has regard to the  9 circumstances giving rise to it operated to discharge  10 the Province upon the transfer of reserves pursuant to  11 its Order in Council 1036 of 1938; paragraph 2 of P.C.  12 751 and Term 13 having been thereupon satisfied.  13 Now, what I mean by that when I say whether it's  14 exclusive and constituted the only means by which the  15 issue of aboriginal title in British Columbia was to  16 be resolved is immaterial to the Province, is simply  17 this, that under my friends' contention it was open to  18 the Indian peoples at any time to commence action  19 to -- for a declaration that their title was as they  20 asserted to be.  21 THE COURT:  1036 of 1938?  22 MR. GOLDIE:  Yes.  23 THE COURT:  Isn't in your collection, is it?  24 MR. GOLDIE:  It's probably not, my lord.  2 5 THE COURT:  I don't have a tab 23.  26 MR. GOLDIE:  That's the — that's the conveyance.  27 MS. MANDELL:  My lord, I believe it's in our Series 4.  28 MR. GOLDIE:  It's in our exhibits.  It's just not in the yellow  29 binder.  30 THE COURT:  Oh, yes.  So this Order in Council 1036 is a B.C.  31 Order in Council?  32 MR. GOLDIE:  Yes, it is, my lord.  33 THE COURT:  And yet it transferred -- it authorizes conveyances,  34 does it?  35 MR. GOLDIE:  Yes.  And it has attached to it the reserve  36 schedules.  37 MS. MANDELL:  My lord, just for your own reference, it's in the  38 plaintiffs' Series 4, tab 7.  3 9 THE COURT:  Tab 7?  4 0 MS. MANDELL:  Yes.  41 THE COURT:  You will forgive me for having already forgotten  42 what Series 4 is.  43 MS. MANDELL:  Well, remember our series just continues on one,  44 two, three, four.  As we found authorities that were  45 referred to that hadn't been contained in series one  46 we created a second series, a third series, a fourth  47 series. 27915  Submissions by Mr. Goldie        1  THE COURT:  Oh, yes.  That's  Series 4 in your argument?  2 MS. MANDELL:  It's in the authorities.  In the authorities.  3 THE COURT:  All right.  In the authorities that you furnished  4 during argument?  5 MS. MANDELL:  That's correct.  6 THE COURT:  And somewhere else as an exhibit.  7 MS. MANDELL:  That's right.  8 THE COURT:  Yes.  All right.  Thank you.  9 MR. GOLDIE:  Now the —  10 THE COURT:  At some stage, and I think it was in your rebuttal  11 opening in Smithers, you said that there was an Order  12 in Council, as I recall, which acknowledged British  13 Columbia had discharged its responsibility of the  14 Terms of Union.  15 MR. GOLDIE:  The 1265.  16 THE COURT:  1265.  Yes.  17 MR. GOLDIE:  And the specific words that I have referred to, my  18 lord, are --  19 THE COURT:  Yes.  All right.  20 MR. GOLDIE:  -- are in the Order in Council.  It's expressly  21 stated that B.C. has fulfilled the terms of Term 13.  22 Now, I go to Section 3, which is the Joint Committee  23 Report, and I say the collection of documents in  24 Exhibit 1203-9, Section XII illustrates the claims put  25 forward by the Nishga and the Allied Tribes for  26 further consideration of native title in British  27 Columbia.  That is to say, after P.C. 1265.  I say Dr.  28 Scott's memorandum of July 31, 1924 was apparently  29 prepared for the press.  That's immediately after the  30 Order in Council, and the memorandum is under 3-1 and  31 it's simply headed Memorandum re British Columbia  32 Indian Reserve Settlements July 31, 1924.  And it  33 recites Term 13.  It recites that Indian title to the  34 lands in British Columbia has never been ceded.  When  35 I say recites, that's not a formal preamble or  36 anything of that order.  And that was published in an  37 Ottawa newspaper under the -- as a news story under --  38 that's evident from the next document, my lord.  And  39 then in January of 1925 Dr. Scott prepared for the  4 0 minister a long memorandum -- or a memorandum in which  41 he says:  42  43 "I think it well to prepare for your  44 information and consideration a memorandum,  45 setting forth the present position of the  46 question of Indian title in the province of  47 British Columbia, with particular reference to 27916  Submissions by Mr. Goldie 1                   the action taken  in the past by the Dominion  2 Government."  3  4 He talks about the Order in Council of January 23,  5 1875, the formation of the Indian Reserve Commission  6 in British Columbia.  Next important Order in Council  7 is May 17, 1911 when Sir Wilfred Laurier's Government  8 was in power.  And that is the -- that's the amendment  9 to the Exchequer Court Act -- or the Indian Act.  Then  10 on page two he says:  11  12 "The case rested here until June 20, 1914, when  13 an Order in Council was passed, a copy of which  14 is attached hereto."  15  16 That's 751.  17  18 "The effect of this Order in Council was that  19 the Government expressed its willingness --"  20  21 It's tab 3-2, and it's page two under that tab.  22 MS. MANDELL:  Thank you.  23 MR. GOLDIE:  24  25 "The effect of this Order in Council was that  26 the Government expressed its willingness to  27 take the case to the courts, if the Indians  28 would accept the findings of the Royal  29 Commission with reference to reserve lands and  30 accept benefits from the Dominion for the  31 extinguishment of the title, in accordance with  32 the past usage of the Crown, the Indians to  33 agree to these provisions before the case was  34 submitted to the courts.  Those advising the  35 Indians and the committees of their  36 organizations objected to the provisions of  37 this Order in Council, and no attempt was made  38 to obtain signatures to the agreement.  From  39 the nature of the demands made by the Indian  40 Committee in the summer of 1923, it is  41 perfectly clear that they are looking for  42 benefits far in excess of any that have  43 heretofore been accorded Indians for the  44 cession of an aboriginal title.  45 The Indians are now urging that their case  46 be referred to the courts and are pressing the  47 Government to take that action.  It is 27917  Submissions by Mr. Goldie 1                   necessary to  have, not only the concurrence and  2 sanction of the Government, but financial aid."  3  4 Now, I interject there that I don't think with respect  5 that it was necessary for the concurrence and sanction  6 of Government to take a case into court.  But the  7 financial aid aspect was no doubt very important.  8  9 "Honourable Mr. Newcombe, when he was Deputy  10 Minister of Justice, stated that, in his  11 opinion, all matters of dispute between the  12 Dominion and the Province would be settled when  13 both governments confirmed the report of the  14 Royal Commission.  The governments have, by  15 Order in Council, confirmed the report of the  16 Royal Commission.  17 As Judge Newcombe's opinion appeals to me  18 as being correct, I cannot see how the Dominion  19 Government could support an action in the  20 courts as against the Province, asserting that  21 the Indians have an interest in the provincial  22 lands of the province that must be satisfied."  23  24 And then he talks about a new difficulty arising out  25 of -- arising out of a dispute about the Railway Belt  26 and the Province had popped up with the question of  27 reversionary interest in the Railway Belt reserves.  28 And then the last paragraph:  29  30 "The Order in Council of June 20, 1914, was  31 designed to protect the Province from the  32 necessity of giving these Indians anything more  33 than reserve lands, any other contribution of  34 benefit was to be given by the Dominion, and I  35 still think that it would be inadvisable, if it  36 be not altogether impossible, to bring British  37 Columbia into the courts.  The Indian claim is  38 at best doubtful."  39  4 0 And so on.  And he concludes by saying:  41  42 "I, therefore, recommend that we discourage the  43 submission of the claim of Indian title to the  44 Courts, and that we obtain a judicial decision  45 on the claim of the Province in the Railway  46 Belt, and, by so doing make it possible to  47 carry out the agreement in its integrity." 27918  Submissions by Mr. Goldie        1  2 The matters then continued with a Special Cabinet of  3 the committee being set up to review the  4 representations that were being made to it.  The  5 committee is apparently composed of, according to the  6 newspaper article that is under tab 3-3, composed of  7 the Minister, Mr. Stewart, Mr. King, Senator Bostock  8 Mr. Scott -- Dr. Scott, the Deputy Superintendent of  9 Indian Affairs.  The -- under the blue binder, blue  10 separator sheet page two of 3-3 is a memorandum of the  11 Allied Tribes setting forth the claims that they were  12 urging and their desire to come before the Privy  13 Council.  The -- it concludes, and this is dated the  14 15th of April, 1924.  Page ten of the memorandum which  15 is page eleven of the documents under the tab:  16  17 "The allied Tribes take their stand upon the  18 promise of Canada given by Sir Wilfred Laurier  19 and the promise of Canada given by the present  20 Minister of Interior, both which promises  21 assure them that Canada will help in securing  22 judgment of the Judicial Committee of His  23 Majesty's Privy Council deciding the Indian  24 land controversy."  25  2 6 And that —  27 THE COURT:  Where were you reading from?  28 MR. GOLDIE:  That was from a memorandum of the allied --  2 9 THE COURT:  Yes, I have that.  30 MR. GOLDIE:  Allied Tribes, and I was reading from the last page  31 of the memorandum.  32 THE COURT:  Last page.  Do they say what their claim is?  33 MR. GOLDIE:  They put it right at the beginning of the —  34 THE COURT:  Here it is, yes, I see it.  35 MR. GOLDIE:  Yes.  36  37 "The allied Tribes claim that each Indian Tribe  38 of British Columbia has in respect of the whole  39 territory of the Tribe full beneficial tribal  40 title which is of the nature of ownership and  41 constitutes an interest in the lands of the  42 Province within the provisions of Section 109."  43  44 And they say the territorial land rights so claimed  45 had been recognized by the Royal Proclamation of 1763  46 and by Statutes of the Imperial Parliament, including  47 the Act establishing the Colony of Vancouver's Island 27919  Submissions by Mr. Goldie        1 and the Act  establishing the Colony of British  2 Columbia in 1859.  I think he is there referring to  3 the Act of 1858, and then he talks about the report of  4 the Minister of Justice in January 1875, which is the  5 report by which disallowed the B.C. Land Statute.  6 Then -- well, it's a recitation of history which had  7 been recited many times in representations before  8 government officials in Ottawa from 1911 onwards and  9 before that, but with increasing frequency from 1911  10 onwards.  And I say in paragraph three of my summary  11 Special --  12 THE COURT:  I am sorry.  Oh, I am sorry.  You are in paragraph  13 three?  14 MR. GOLDIE:  Yes.  15 THE COURT:  Is that date 1923 correct?  16 MR. GOLDIE:  The Special Committee of the Federal Cabinet was  17 set up in --  18 THE COURT:  There isn't a date on this newspaper report.  19 MR. GOLDIE:  The — I have some —  2 0 THE COURT:  I rather gathered from the next document being the  21 Allied Tribes' submission which is dated 1925.  22 MR. GOLDIE:  Yes.  That may be so, my lord.  I say it continued  23 to exist into 1925 at any rate.  24 THE COURT:  Yes.  All right.  You think it is set up in 1923?  25 MR. GOLDIE:  I think it was set up in 1923.  2 6 THE COURT:  Thank you.  27 MR. GOLDIE:  But it continued to exist, as I say, into 1925 and  28 reports of what it was doing elicited submissions and  29 memoranda from the Allied Tribes.  See: Tab 13 of  30 this — this is of the Exhibit 1203-9, Section XII  31 where the claim is expressed as "full beneficial  32 Tribal title."  That's what I have just read from.  In  33 his letter to the Prime Minister of May 25, 1925, Mr.  34 O'Meara reverts to the "law of 1920."  And that, my  35 lord, is following the -- following the memorandum  36 that I have read.  It's page 12 of the collection of  37 documents, and he wants the law of 1920 changed or  38 something done with it.  I'm not too concerned with  39 what he was asking for.  My intention is to indicate  40 to your lordship that the representations were  41 continuing and they were continuing to the Dominion  42 Government after its adoption of the Royal Commission  43 and after P.C. 1265.  And Mr. O'Meara states that so  44 long as the 1920 Dominion Act is not dealt with, that  45 is to say repealed, Canada cannot bring forward any  46 proposals materially different from those in P.C.  47 751 - which had been rejected by the Allied Tribes. 27920  Submissions by Mr. Goldie        1 In June of 1925 and  April of 1926 the "Indians of  2 northern British Columbia" petitioned the King as  3 sequel to their 1908 petition.  In the 1926 Petition a  4 request was made that the "Indian Act" should not  5 apply to them, and this elicited a response.  In a  6 petition postmarked:  Kitwangah" the assistance of the  7 Governor General was sought in opening the way to a  8 meeting with the King.  The purpose of putting those  9 documents in there, my lord, is not so much the  10 content of them as again to indicate the continuing  11 representations.  12 In July 1925 Scott concluded an historical review  13 for the Minister's benefit by setting forth what he  14 conceived to be the policy alternatives.  This  15 memorandum of July 14, 1925, which is a long one with  16 attachments, it was referred to Mr. -- this memorandum  17 of July 14, 1925 was referred to Mr. Stewart's  18 successors in office as Superintendent of Indian  19 Affairs.  And that became -- that's evidenced by the  20 documents under that tab.  The last one being notes  21 for the Honourable R. V. Bennett, 21 July 1926.  Mr.  22 Bennett was the Superintendent General at that point.  23 I say all the appendices to this important memorandum  24 are collected in Exhibit 1203-10, Section 15.  25 Delegations were seen and memoranda prepared.  And I  26 am not going to go into these.  I am just endeavoring  27 to demonstrate to your lordship the level of activity.  28 In December 1926 when Mr. O'Meara delivered a  29 paper containing, quote:  30  31 "... important recent information to Members of  32 the House of Commons who during the past few  33 years have had some official relations with the  34 Indian land controversy..."  35  36 Three of the six to whom he delivered the paper were  37 to become members of the Special Joint Committee of  38 the Senate and House of Commons set up to consider the  39 Petition of the Allied Tribes presented to Parliament  40 in June of 1926.  Now, that petition sat there from  41 that date, but then action was taken on it in February  42 of 1927.  The suggestion that a Select Committee be  43 set up was made in Parliament in February 1927 and by  44 February 27 the machinery was in motion for the  45 appointment of a Joint Committee.  The Commons  46 appointed their members on March 8 and the Senate its  47 members on March 11.  And the documents are set 27921  Submissions by Mr. Goldie        1 forward.  2 Now, there were 14 members of the Select  3 Committee, my lord.  And it was a committee of the  4 Senate and House -- Joint Committee of the Senate and  5 House of Commons.  The petition in question, which was  6 referred to the Joint Committee, your lordship will  7 find under tab 3-9.  And the first -- the second  8 document under that is when the petition was placed  9 before the House of Commons in June of 1926.  10 THE COURT:  I am sorry, Mr. Goldie, you and I just agreed that  11 the Joint Committee of the House of Senate was set up  12 in 1923.  13 MR. GOLDIE:  Oh, no.  That was the Special Cabinet Committee.  14 This is a Joint Committee of the Houses of Parliament.  15 I am sorry, my lord, I didn't catch -- .  16 THE COURT:  All right.  Well, no, I saw that newspaper ad, I saw  17 the members of the Senate.  18 MR. GOLDIE:  Yes.  But it was a Cabinet Committee.  19 THE COURT:  And nothing happened to it, I suppose?  20 MR. GOLDIE:  No.  It received a lot of representations.  21 THE COURT:  All right.  All right.  Was it on Indian Affairs in  22 British Columbia or in Canada?  23 MR. GOLDIE:  I think it was a committee devoted entirely to the  24 question in British Columbia.  25 THE COURT:  All right.  Thank you.  26 MR. GOLDIE:  But I have now got to -- I am now getting to the  27 actual creation of the Senate and House of Commons  28 Committee.  And under tab 3-9 is the petition and  29 paragraph two refers to the rights of the natives to  30 territorial land claims -- territorial land claims  31 claimed by the Indian tribes of the Province and the  32 assertion that these were to be protected.  33 Now, I say in my summary:  Of these 14 members one  34 was the then Superintendent General of Indian Affairs,  35 Mr. Stewart, who had come to Vancouver in 1922 and '23  36 to meet with the Allied Tribes; one was the Speaker of  37 the Senate, Mr. Bostock, who had intervened on the  38 Indians' behalf in the debate on the 1920 enabling Act  39 and two, Messrs. Stevens and Bennett, were  40 Conservative members who had held the office of  41 Superintendent General of Indian Affairs.  42 It convened on March 22 and hearings were held on  43 March 30, 31, April 4, 5 and 6 and the report  44 delivered April 9.  45 The report itself is found in Exhibit 1203-13 and  46 in part it is found in tab 3-8 -- 3-9.  Its importance  47 lies in the fact that it dealt with a petition to 27922  Submissions by Mr. Goldie        1 Parliament which  asserted beneficial ownership of  2 territories, subject to an underlying title of the  3 Crown - not defined.  And that's -- that reference is  4 to the petition itself.  Although the prayer of the  5 Petition did not ask for a declaration of title that  6 issue was before the Committee.  And that appears  7 from -- those page numbers, my lord, are to the page  8 numbers of the report -- not the report, the  9 proceedings before the Committee.  And it's evident  10 from the proceedings at pages 77 and 90 under tab 3-9  11 that the issue of title was considered by the  12 Committee to be before it.  The Committee had before  13 it, in addition to Dr. Scott's report which covered  14 much of the same ground as the July 14, 1925  15 memorandum, some historical information.  Pages 95 to  16 100.  And I'll -- this was information given by Mr.  17 Andrew Paull, who was a witness.  The issue of  18 aboriginal title which is dealt -- not dealt with, but  19 alluded to in page 153 in response to a question by  20 Mr. Stevens:  21  22 "Q   Your real desire is to receive official  23 acknowledgement of the aboriginal title;  24 That is your point?  25 A   Yes."  26  27 The adequacy --  2 8 THE COURT:  I am not with you Mr. Goldie.  I can't find any of  29 these references.  30 MR. GOLDIE:  Oh, well, under tab 3-9, my lord.  31 THE COURT:  Yes, I'm there, but —  32 MR. GOLDIE:  And under the second blue sheet.  33 THE COURT:  Second blue sheet?  34 MR. GOLDIE:  Yes.  Beginning page five of the extract.  35 THE COURT:  Yes.  That doesn't look to me to be anything that  36 starts anywhere.  37 MR. GOLDIE:  It's headed at the top Claims of the Allied Indian  38 Tribes.  39 THE COURT:  Yes.  But this looks like a transcript.  40 MR. GOLDIE:  It is.  It's the evidence before the Special  41 Committee.  42 THE COURT:  Yes.  All right.  43 MR. GOLDIE:  And —  44 THE COURT:  But then you started talking about a page 150  45 something.  46 MR. GOLDIE:  Well, if your lordship would just turn over you'll  47 find that the page 154 is immediately before. 27923  Submissions by Mr. Goldie        1  THE COURT:  I take it this is not  a continuous transcript.  You  have just put in --  GOLDIE:  I have just put in some extracts, yes.  COURT:  All right.  Yes.  Well, that's why I am having  trouble, because I am finding no sequence in the  numbers.  GOLDIE:  It's page 15 at the lower right-hand corner.  COURT:  Oh.  Yes, that will help.  All right.  I have that.  Thank you.  GOLDIE:  Page 154 is —  COURT:  Yes.  GOLDIE:  -- a discussion.  Right at the very top, the  adequacy of reserve lands, but then page one back is  153.  The question by Mr. Stevens:  "Q   Your real desire is to receive official  acknowledgement of aboriginal title; that is  your point".  A   Yes."  Values for compensation, means of determining  compensation is found at page 160, which is page 16.  Procedure for determination of title is talked about  at page 161, 163.  Even St. Catherine's Milling got  into the discussion at that point, and a whole host of  related matters.  Dr. Scott read his report, which is  at page three to 20, and that's page 19 of these  extracts.  COURT:  When is all this happening, Mr. Goldie?  GOLDIE:  This is happening in March and April of 1927.  COURT:  Because page two is dated 1926.  I am having a --  I'm falling way behind here, I am sorry.  GOLDIE:  Yes.  You say -- your lordship says page two --  COURT:  Yes.  GOLDIE:  — is the Hansard?  COURT:  I don't know what it is, because it doesn't have a  heading.  It looks like a Hansard.  GOLDIE:  Is it just June 11, 1926?  COURT:  Yes.  GOLDIE:  That's when the petition was presented to the  Parliament.  COURT:  All right.  Just a moment.  And whose petition was  it?  GOLDIE:  It was the Petition of the Allied Tribes, my lord.  My lord, may I hand up Exhibit 1203-13 which is the  report as a whole.  COURT:  Yes.  That might help.  2  3  MR.  4  THE  5  6  7  MR.  8  THE  9  10  MR.  11  THE  12  MR.  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  THE  30  MR.  31  THE  32  33  MR.  34  THE  35  MR.  36  THE  37  38  MR.  39  THE  40  MR.  41  42  THE  43  44  MR.  45  46  47  THE 27924  Submissions by Mr. Goldie        1  MR. GOLDIE:  And the —  2 THE COURT:  Except that you have got the parts conveniently  3 sidelined here that I should look at.  It's just that  4 I can't find them when you're talking about them.  5 MR. GOLDIE:  Well, perhaps it will give your lordship an idea of  6 the organization of the report.  7 THE COURT:  Yes.  All right.  This is exhibit —  8 MR. GOLDIE:  1203-13.  9 THE COURT:  All right.  Thank you.  10 MR. GOLDIE:  And that's the whole document.  And it consists  11 firstly of a report and then of the proceedings,  12 followed by a number of appendices.  13 THE COURT:  Yes.  All right.  14 MR. GOLDIE:  But -- and the page numbers, which are in paragraph  15 nine of my summary, are, as I say, page numbers of the  16 report.  Now, the procedure for the determination of  17 the title, there is a discussion on page 161, 163.  18 The Committee's Report -- oh, I should say in my last  19 sentence Scott read his report, and that's pages 3 to  20 20, and those were Arabic 3, because the proceedings  21 begin with Arabic number one and the report itself  22 which presides it is identified by Roman page numbers.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  And Dr. Scott's report runs from pages three to 20  25 and provides substantial historical background to the  26 whole question of aboriginal title.  The Committee's  27 Report, which is pages Roman V to Roman XVII, after  28 the historical summary, refers to P.C. 751 and the  29 correspondence relative to it, and that's under tab  30 3-10.  And this is the report itself.  It recites the  31 days on which it sat and the witnesses who are  32 examined and counsel who appeared and the in 18 -- at  33 Roman VI at the bottom it refers to Lytton's  34 instructions to Douglas.  And then in the last  35 paragraph on page seven begins with the words:  36  37 "Early in the proceedings it developed that the  38 aboriginal title claimed was first presented as  39 a legal claim against the Crown about fifteen  40 years ago.  The claim then began to take form  41 as one which should be satisfied by a treaty or  42 agreement with the Indians in which conditions  43 and terms put forward by them or on their  44 behalf must be considered and agreed upon  45 before a cession of alleged title would be  46 granted."  47 27925  Submissions by Mr. Goldie 1            And then over the page,  second paragraph:  2  3 "Counsel representing the Allied Indian Tribes  4 continued to press the aboriginal title claim  5 upon the attention of successive Governments,  6 and although the Government was willing to  7 litigate the claim, Counsel for the Indians  8 sought permission to take the matter direct to  9 the Imperial Privy Council, instead of first  10 submitting it for judicial decision to the  11 Courts of Canada.  This Government very  12 properly declined to do; but at the same time  13 it made a generous offer to the Indians, the  14 details of which are embodied in an Order in  15 Council passed on June 20th, 1914.  The full  16 text of this Order in Council"  17  18 is P.C. 751.  And then over the page:  19  20 "Instead of accepting the offer thus made by  21 the Government, it was rejected and Counsel for  22 the Indians kept up a correspondence on  23 irrelevant issues with the then Minister of  24 Justice until the latter gentleman entered the  25 controversy with the following letter."  26  27 And then there is Mr. Doherty's letter and he talks  28 about the futility of urging upon this Government a  29 reference direct to the Judicial Committee.  And he  30 says in the third paragraph:  31  32 "The policy of the Government with regard to  33 the British Columbia Indian question is very  34 clearly stated in the Order in Council of 20th  35 June last, and you should, I think, be able to  36 perceive that one of the conditions upon which  37 further progress may be made is that the  38 Indians shall come under the obligation defined  39 by the first enumeration of the Order in  40 Council."  41  42 And then the report after reciting all of that states:  43  44 "The Indians did not acquiesce in the  45 conditions of the Order in Council."  46  4 7 And: 27926  Submissions by Mr. Goldie 1  2 "A change of tactics was adopted in June,  3 1926."  4  5 Does your lordship follow me?  I am on page Roman X.  6 THE COURT:  Yes.  7 MR. GOLDIE:  The — Mr. Doherty's letter ends on that page.  8 THE COURT:  Yes.  9 MR. GOLDIE:  And then I'm in the next paragraph:  10  11 "The Indians did not acquiesce in the  12 conditions of the Order in Council as the Right  13 Honourable C. J. Doherty informed their Counsel  14 in the above letter they would have to do  15 before he would move farther in the matter.  16 A change of tactics was adopted in June,  17 1926.  In that month a Petition embodying the  18 Indian claims, based on aboriginal title, was  19 presented to Parliament   20 the Petition in question was referred to your  21 Committee for enquiry and report.  22 Having given full and careful consideration  23 to all that was adduced before your Committee,  24 it is the unanimous opinion of the members  25 thereof that the petitioners have not  26 established any claim to the lands of British  27 Columbia based on aboriginal or other title,  28 and that the position taken by the Government  29 in 1914, as evidenced by the Order in Council  30 and Mr. Doherty's letter above quoted, afforded  31 the Indians full opportunity to put their claim  32 to the test.  As they have declined to do so,  33 it is the further opinion of your Committee  34 that the matter should now be regarded as  35 finally closed."  36  37 Now, the Committee then commented on the demands  38 embodied in the statement of conditions presented to  39 the Provincial Government in 1919 and that, my lord,  40 is apparent from the paragraph at the top of page  41 eleven, four lines -- fifth line down:  42  43 "The Indians, in claiming aboriginal title, had  44 given to the provincial government under date  45 of November 12th, 1919, an exhaustive statement  46 of the case, and set forth 'conditions proposed  47 as a basis of settlement.'  It is thought to be 27927  Submissions by Mr. Goldie        1 highly desirable  that your Committee should  2 review these claims and inform Parliament of  3 the extent to which the conditins are at  4 present being met, and to make recommendations  5 that would tend to meet the conditions  6 proposed, where they are not already provided  7 for."  8  9 The first one is:  10  11 "That the Proclamation issued by King George  12 III in the year 1763 and the Report presented  13 by the Minister of Justice in the year 1875 be  14 accepted by the two Governments and established  15 as the main basis of all dealings and all  16 adjustments of Indian land rights and other  17 rights which shall be made."  18  19 And the Committee's answer to that was:  20  21 "The subject matter of the foregoing paragraph  22 has already been dealt with by your Committee  23 in their Finding contained in the  24 recommendation hereinbefore made, and further  25 comment thereon is, therefore, unnecessary."  26  27 That recommendation is that they had not established a  28 claim to aboriginal title and the matter should now be  29 regard as closed.  And then following, and I am not  30 going to go into them, the demands which were  31 commented on by Dr. Scott in his memorandum that was  32 attached to P.C. 751 and the Committee then proceeds  33 to go down through each of those and concludes that  34 with a recommendation, and this is a number of pages  35 over, my lord.  It's gone through every one of these  36 requests and I said referred to in Dr. Scott's  37 memorandum attached to P.C. 751.  That's not correct.  38 He was referring to the Nishga Petition of 1913.  39 These claims were those as presented to the British  40 Columbia Government in 1919 and as commented on by Dr.  41 Scott in his memorandum on the outcome of the  42 negotiations in 1922 and 1923.  The last paragraph on  4 3 page Roman XVII:  44  45 "It may be remarked with reference to the  46 payment of annuities that the policy of payment  47 of annual sums to individual Indians was 27928  Submissions by Mr. Goldie        1 inaugurated in  the early days, having in view  2 the then condition of the Indians, and that the  3 annuity might be a source of revenue for their  4 support, but conditions have changed so  5 materially that the need and usefulness of such  6 a per capita payment to Indians of British  7 Columbia is negligible.  In lieu of an annuity  8 your Committee would recommend that a sum of  9 $100,000 should be expended annually for the  10 purposes already recommended, that is,  11 technical education, provision of hospitals and  12 medical attendance, and in the promotion of  13 agriculture, stock raising and fruit culture,  14 and in the development of irrigation projects.  15 An annual expenditure of this amount for these  16 purposes would seem to be far more applicable  17 to the Indians in their present condition than  18 the payment of any per capita amount."  19  20 My lord, that's the so-called B.C. Special, which is  21 now $300,000 a year.  22  23 "In concluding this Report your Committee would  24 recommend that the decision arrived at should  25 be made known as completely as possible to the  26 Indians of British Columbia by direction of the  27 Superintendent General of Indian Affairs in  28 order that they may become aware of the  29 finality of the findings and advised that no  30 funds should be contributed by them to continue  31 further presentation of a claim which has now  32 been disallowed.  Furthermore, the Committee  33 recommend that this report together with the  34 evidence, be printed as an appendix to the  35 Journals of the Senate, and also in blue book  36 form to the number of one thousand (1,000)  37 copies . "  38  39 The Joint Committee -- I am at paragraph 11 of my  40 summary, my lord.  The Joint Committee disallowed a  41 claim based on aboriginal title and in place of that  42 reviewed the position of the Indians of British  43 Columbia as though they had succeeded in court under  44 P.C. 751.  This is the significance of the B.C.  45 Special and of the Committee's review of the 1919  46 Statement of Conditions.  47 The report was adopted by both Houses of 27929  Submissions by Mr. Goldie        1 Parliament and  implemented by annual appropriations of  2 the B.C. Special fund.  It was viewed as a final  3 disposition of the claim to aboriginal title in  4 British Columbia.  Copies of the Report were  5 distributed throughout British Columbia.  6 Now, my lord, this report was the means whereby  7 the non-treaty Indians of British Columbia were placed  8 in the same footing as treaty Indians.  Whether it  9 constitutes the last word as between Canada and the  10 Indians of British Columbia is not in issue here.  My  11 submission is that it simply underlines the fact that  12 Canada had undertaken the responsibility which it had  13 undertaken under P.C. 751 and it implemented at least  14 to its satisfaction at that time the responsibility  15 that would have been thrust upon it if the Indian  16 peoples had succeeded in establishing aboriginal title  17 in a court proceeding under 751.  The intention of the  18 Committee in reviewing the claims made in 1919 to the  19 Provincial Government in providing for a payment which  20 was in substitution of the individual annuities paid  21 on the Prairies, was that that was the acceptance of  22 the obligation, and I go back to the submission I made  23 to your lordship and which is the essence of the  24 counterclaim, that British Columbia is absolved or, if  25 you will, indemnified in respect of aboriginal claims.  26 And I made the submission at the beginning of these  27 proceedings that essentially the plaintiffs were in  28 the wrong court; that their claim was against Canada,  29 if there is a claim, and I make no submission on that.  30 It's not part of my case.  Their claim is against  31 Canada and it should be made where claims against  32 Canada are made.  My lord, I'll be referring to that  33 again in respect of the counterclaim, but this --  34 THE COURT:  I'm looking forward to a date when the report of the  35 Special Committee was adopted by Parliament.  It looks  36 like it's in 1203 Section 9, is it?  37 MR. GOLDIE:  Yes.  It should be, my lord.  38 THE COURT:  Is this 1203?  No.  This is 13.  39 MR. GOLDIE:  It —  40 THE COURT:  I don't have 1203-9, and it's not in your tab 12.  41 MR. GOLDIE:  No.  The report was tabled in the Commons and in  42 the Senate on different dates and I'll get that for  43 your lordship.  44 THE COURT:  I just wonder, did it drag on for years or did they  45 deal with it in 1927?  46 MR. GOLDIE:  They dealt with it — the only thing that required  47 action by Parliament was the appropriation of the 27930  Submissions by Mr. Goldie        1 hundred thousand  dollars and that was done.  2 THE COURT:  Yes.  Your text suggests it's in 1203-9 Section  3 Roman XII, tab 53, page ten.  4 MR. GOLDIE:  Yes.  Well, perhaps I can -- I can turn that up, my  5 lord.  But I want to emphasize that there was nothing  6 for Parliament to do --  7 THE COURT:  Except appropriation.  8 MR. GOLDIE:  -- except the appropriation.  9 THE COURT:  Wait a minute.  I can find it out from here, because  10 there is a letter in 1927 that says -- no, it just  11 says 200 copies have been --  12 MR. GOLDIE:  Yes.  13 THE COURT:  — distributed.  14 MR. GOLDIE:  That's correct.  15 THE COURT:  But it doesn't say when it was approved by  16 Parliament.  17 MR. GOLDIE:  No.  I — I'm quite certain, my lord, that I  18 have --  19 THE COURT:  Oh, well, I can find it.  I can look up the citing  20 as well as anyone else can, I am sure.  21 MR. MACAULAY:  There is no statute, my lord.  22 THE COURT:  No.  23 MR. GOLDIE:  No.  24 THE COURT:  But they must have -- there must have been a  25 resolution of both Houses accepting the report.  26 MR. MACAULAY:  There was.  27 MR. GOLDIE:  I think it was just tabled.  28 MR. MACAULAY:  No.  There was an adoption by one House and  29 confirmation, I think, by another, by the other.  The  30 Senate and the Commons dealt with them.  There were  31 two motions.  32 THE COURT:  And they both had to then vote the Special fund.  33 MR. MACAULAY:  Well, the following year that appeared in the  34 departmental estimates.  35 MR. GOLDIE:  Yes.  36 MR. MACAULAY:  The Department of Indian Affairs, that's all that  37 happened.  38 THE COURT:  I just don't know whether this all happened in 1940  39 or 1927.  I am just trying to remember.  40 MR. GOLDIE:  I think the process that my friend describes, and I  41 can't put my finger on it, took place in the next  42 cession in 1928.  The appropriations I think commenced  43 in that year, but I'll just -- yes, tab 54 in the --  44 is the letter of November 12, 1927 which distributes  45 some 200 copies to British Columbia and I don't think  46 that could have been done without the acceptance of  47 the report by the -- by the House and Senate.  But I 27931  dates  and  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  Submissions by Mr. Goldie        1 believe we have those  I'll get them, my  lord.  THE COURT:  All right.  Well, I am sure I can find it somewhere  in all this paper.  Well, I should ask you, Mr.  Goldie, what do you say is the effect of the report  and its adoption, if it was adopted, by Parliament?  MR. GOLDIE:  Well, I say as far as I'm concerned it is  confirmation of Canada's acceptance of the  responsibility as set out in P.C. 751, in a sense, and  I don't express any opinion on whether it did or did  not extinguish Indian title.  That's irrelevant as far  as I'm concerned at this point.  What I say is that it  confirms the acceptance of the responsibility by the  one authority that had the constitutional power to  deal with it and it confirms the finality of 1265.  This -- the Committee, the Select Committee invited  British Columbia to send a representative to these  hearings and British Columbia said we don't need to.  Our Term 13 is there and that's all there is.  THE COURT:  Of course, at that time they hadn't yet conveyed it.  MR. GOLDIE:  They had not conveyed it, no.  THE COURT:  It wasn't quite over as far as they were concerned.  MR. GOLDIE:  That's correct.  THE COURT:  What was the delay?  Was the delay caused by the  survey problems?  MR. GOLDIE:  To my understanding that was the major contributing  factor is the -- there was a substantial survey --  surveys required and part of it in going on in 1927  was the resistance at Kitwancool to surveys which led  to prosecutions I think of three or four of the  Kitwancool people.  But the -- your lordship will  appreciate that, and I was going to emphasize this  when I came to the counterclaim, that a major reason  for joining Canada in these proceedings was to ensure  that if it becomes necessary to seek indemnity from  Canada we don't have to relitigate all that your  lordship has been dealing with over the past three  years.  Now, that assumes, of course, that the  plaintiffs are successful to some extent.  And it's  unnecessary for me to say what the legal effect was of  the Joint Committee's report.  On the face of it it  purports to deal with the matter with finality.  It  has some significance for us and my colleagues will  deal with this in terms of laches.  The Indian peoples  were put on notice that the aboriginal title had not  been proved.  And they -- nothing was done with  respect to that.  Subject to your lordship's further 27932  Submissions by Mr. Goldie        1 observations, that  completes my submission on Part  2 VIII.  3 THE COURT:  All right.  Thank you.  4 MS. MANDELL:  My lord, before my friend changes speakers and  5 gets into the next section, I would only add that  6 while if there were survey problems which contributed  7 to the delay, our understanding of it is that it was  8 also -- the delay was also substantially affected by  9 the debate over the reversionary interest and how much  10 of it the Province was going to be yielding up to the  11 Federal Government.  12 THE COURT:  I thought, yes, I heard your friend say that, but I  13 thought I heard yesterday that Sir Richard McBride had  14 agreed to not to press the Province's reversionary  15 position prior to the establishment of the Royal  16 Commission.  17 MR. GOLDIE:  That's correct, my lord.  My understanding is that  18 one of his successors thought he saw a position that  19 hadn't been covered and that is in the Railway Belt.  20 THE COURT:  Reversionary interest in the Railway Belt.  21 MR. GOLDIE:  Yes.  22 THE COURT:  Yes.  All right.  Thank you.  Are you ready to  23 proceed or do you want to start at 2 o'clock?  24 MR. GOLDIE:  Well that will be in the hands of Mr. Willms, my  25 lord.  26 MR. WILLMS:  My lord, I suggest that perhaps at the least we get  27 organized for the next section.  2 8 THE COURT:  Yes.  29 MR. WILLMS:  And have all our books ready.  30 THE COURT:  So you want to start at 2 o'clock?  31 MR. WILLMS:  No.  If I could start just a few minutes now, my  32 lord.  33 THE COURT:  Yes.  34 MR. WILLMS:  Because I have a few documents to hand up.  35 THE COURT:  I can put this volume away, I'm sure.  36 MR. WILLMS:  Yes.  That yellow book is now —  37 THE COURT:  I don't know whose copy this was of.  38 MR. WILLMS:  I think its —  39 MR. GOLDIE:  That's our exhibit, my lord.  40 THE COURT:  All right.  I will give it back.  41 MR. WILLMS:  My lord, I hope that you have Volume 3 of the  42 argument.  43 THE COURT:  Oh, dear, I'm not sure I do.  Do we?  44 THE REGISTRAR:  Yes.  Yes.  45 THE COURT:  Yes.  All right.  But we are not finished Volume 2,  46 are we?  47 MR. WILLMS:  Part IX, my lord.  Do you have — 27933  Submissions by Mr. Willms        1  THE COURT:  Part IX is in my  Volume 2.  2 MR. WILLMS:  Oh, it's in your Volume 2?  3 THE COURT:  Yes.  4 MR. WILLMS:  Oh.  5 THE COURT:  You crowded it onto the diskette.  That's why I  6 couldn't get my machine.  7 MR. WILLMS:  Well, that's fine.  As long as your lordship has  8 it.  It's Part IX that my colleague, Mr. Plant, and I  9 will be dealing with, and I will only be dealing with  10 one section, which is Section 3 of Part IX.  11 THE COURT:  Yes.  All right.  12 MR. WILLMS:  My lord, if you could turn to section 3 of Part IX,  13 and the first thing that I would like to do is hand up  14 an addendum which goes at the back.  15 THE COURT:  Do you think you should deal with this before  16 reading the judgment in Sparrow?  17 MR. WILLMS:  I have read the judgment in Sparrow, my lord.  18 THE COURT:  All right.  Thank you.  Is it true that a new trial  19 was ordered?  20 MR. WILLMS:  In Sparrow, yes, it is, my lord.  21 MS. MANDELL:  My lord, if my friend wishes, I have a copy of  22 Sparrow.  23 THE COURT:  I'll have it in my office by now I am sure.  Thanks,  24 Miss Mandell.  25 MR. WILLMS:  Now, my lord, this -- there is another section that  26 will deal with Section 35, and that's not the purpose  27 of this part of the argument.  This part of the  28 argument focuses on the laws and the jurisdiction as  29 the plaintiffs have submitted them and is an argument  30 that those laws and that jurisdiction is unenforceable  31 by this court even by way of declaration, because  32 those laws and that jurisdiction violate the Charter.  33 And so you'll see, my lord, and I am not going to read  34 it, at paragraphs one and two I set out the allegation  35 in the statement of claim about jurisdiction and laws  36 and also the relief that is being sought.  And my  37 lord, the relief has been repeated in the oral  38 argument.  So that notwithstanding that this relief is  39 in the statement of claim, it's also been repeated by  40 my friends in their oral argument.  The first part is  41 in -- and my lord, you should have a yellow book and I  42 will be starting at -- it will be IX/3 that I will be  43 going through in this part of the argument.  44 THE COURT:  Three?  45 MR. WILLMS:  Three.  4 6 THE COURT:  Yes.  47 MR. WILLMS:  And in fact, the first tab that I'd ask your 27934  Submissions by Mr. Willms        1 lordship to turn to is  tab 3 of IX/3.  So it's Roman  2 numeral IX and then there are slashes after the Roman  3 numerals.  4 THE COURT:  Yes.  5 MR. WILLMS:  To /3.  6 THE COURT:  Yes.  7 MR. WILLMS:  And then it's -3, which relates to paragraph three,  8 which is where I am in the argument right now.  So it  9 will be -- there will be a separate tab that --  10 THE COURT:  Yes.  11 MR. WILLMS:  Roman numeral IX and oblique three and then dash  12 three.  13 THE COURT:  Yes.  Indian self-government.  14 MR. WILLMS:  Indian self-government, that's correct, my lord.  15 And just to refresh your lordship's memory on what Mr.  16 Sterritt told the Penner Commission about Indian  17 self-government, and this is quoting from Mr.  18 Sterritt, Mr. Sterritt's evidence at the Penner  19 Commission.  In the second -- third paragraph down,  20 "remember":  21  22 "Remember, the feast hall is an oral tradition,  23 not written.  So how do you record the official  24 events to be sure there is truth in the event  25 and that the community understands it?  You  26 call a feast.  You call the people for miles.  27 On a major feast, the Nishga would come and  28 witness our business; or the Nishga would call  29 us, and we would go and witness their important  30 business; or other neighbouring villagers would  31 come in and say yes, that is official business.  32 So your witness was your community; the whole  33 community came to witness."  34  35 And I just like to pause there, my lord, to remind  36 your lordship about the reputation evidence and the  37 feast hall and what is the community and here Neil  38 Sterritt is telling the Penner Commission that the  39 community includes the Nishga for important business.  40 But carrying on:  41  42 "Now, if you are going to bring those people -  43 and they walked for miles in 1800 - you have to  44 feed them.  It would be nice to entertain them  45 and entertain them royally.  You have to pay  46 them; and you have to pay the high chiefs well,  47 because it is no accident they are high chiefs. 27935  Submissions by Mr. Willms 1                       Our name for  the high chief is simiget.  2 'Sim' in front of the 'giget' is very  3 important, because it speaks to the truth; it  4 speaks to what is real.  They are the people  5 with authority, with power; and therefore they  6 have to have the qualities of leadership, all  7 the qualities you require for any leadership  8 group.  9 The other people... We use that as a  10 triangle; and that applies to any society in  11 the world, including the Canadian society  12 today.  There are people with authority and  13 people without.  So it was with us.  We had the  14 simgiget and the lixgiget, and the lixgiget are  15 simply people without authority.  That does not  16 mean they are not important, just as any  17 citizen or voter in Canada is important."  18  19 Now, at this tab, my lord - and then perhaps we could  20 break - if your lordship turns to page seven of this  21 tab in the yellow book, you will see Dr. Daly, and  22 this is an extract from the cross-examination of Dr.  23 Daly at page seven in the right-hand corner.  2 4  THE COURT:  Yes.  25  MR. WILLMS:  And starting at line 20 in the cross-examination:  26  27 "At any of the Feasts that you attended, did  28 you observe any elections by the Lixgiget of  29 chiefs?  30 MR. GRANT:  Of?  31 MR. WILLMS:  Chiefs.  32 MR. GRANT:  Hereditary or elected?  33 MR. WILLMS:  34 Q   No.  Hereditary chiefs, any election, any  35 voting?  36 A   I don't know that there was anybody that  37 constituted -- any political grouping that  38 constituted Lixgiget.  39 Q   Well, I think that's clear if you turn to the  40 next page of the extract that I have handed to  41 you, Mr. Sterrit drew planning hierarchies  42 past, present and future.  By the way, did you  43 review this in preparing your report?  4 4 A   No, I didn't.  45 Q   Did you even know it existed?  4 6 A   No, I didn't.  47 MR. GRANT:  What, the Penner report or this graph? 27936  Submissions by Mr. Willms        1 MR. WILLMS:  2 Q   Neil Sterritt's evidence at the Penner  3 Commission.  4 A   No.  I didn't even know he was at the Penner  5 Commission."  6  7 And I'll turn to Mr. Daly's evidence after lunch, my  8 lord, and show how it links in with that lack of  9 knowledge.  10 THE COURT:  I'm not — Lixgiget, what — I think — is that what  11 Mr. Sterritt described in his triangles?  12 MR. WILLMS:  Yes, and I will get to the triangles, my lord.  13 It's people without authority, people that don't go to  14 the feast.  15 THE COURT:  People without authority.  16 MR. WILLMS:  People without authority are Lixgiget; no chiefly  17 names.  18 THE COURT:  All right.  Thank you.  2 o'clock.  19 MS. MANDELL:  My lord, before we go, I just wonder if my friend  20 could advise whether Part VIII Section 1 is abandoned  21 or not spoken to?  22 MR. PLANT:  I think my friend Ms. Mandell may not — you are  23 referring to Part VIII.  You said Part VIII.  24 MS. MANDELL:  Part VIII.  25 MR. PLANT:  Oh, she is referring to Part VIII.  26 MS. MANDELL:  Oh, I see.  I think it's just repeated twice in my  27 volume.  Thank you.  Sorry.  2 8  THE COURT:  All right.  Thank you.  29  30 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON RECESS)  31  32  33  34  35 I hereby certify the foregoing to  36 be a true and accurate transcript  37 of the proceedings transcribed to  38 the best of my skill and ability.  39  40  41  42  43  44 Laara Yardley,  45 Official Reporter,  4 6 UNITED REPORTING SERVICE LTD.  47 27937  Submissions by Mr. Willms        1        (PROCEEDINGS RESUMED  PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Willms.  5 MR. WILLMS:  My lord.  My lord, I was at tab 3 in the yellow  6 book.  7 THE COURT:  Yes.  8 MR. WILLMS:  And I had just read an extract from the  9 cross-examination of Dr. Daly, the portion where he  10 acknowledged that he had never seen any elections.  11 And I won't take your lordship through it, but on that  12 two-page extract from Dr. Daly as well, he  13 acknowledges that from his participant observation  14 Neil Sterritt's description of the Simgiget and  15 Lixgiget accorded with his participant observation.  16 But I would like to ask your lord to turn back to page  17 2 at that yellow tab.  18 MS. MANDELL:  I just wanted to rise on that.  I believe that  19 what Dr. Daly said is that:  20  21 "...the Simgiget and Lixgiget are linked by  22 ties of blood and marriage.  So it is  23 not -- it's quite often portrayed as though  24 it were a highly stratified class society."  25  26 And that is found between lines 13 to 19.  I believe  27 Dr. Daly agreed that there were people that were  28 chiefs and those that were not.  But he didn't -- he  29 qualified that it was stratified by demonstrating the  30 linkages by ties and marriage.  31 MR. WILLMS:  Well, my lord, maybe I will read it.  We were  32 attempting to shorten the process.  33 THE COURT:  Yes.  34 MR. WILLMS:  And my friend wants to short-circuit the reply.  35 THE COURT:  I don't know what difference it makes —  36 MS. MANDELL:  I don't know what my friends wants to make of it.  37 MR. WILLMS:  I don't know what my friend thought I meant when I  38 read through what Dr. Daly said is through a  39 participant --  40 THE COURT:  No, that's not what he said.  He said he didn't know  41 what it meant.  42 MR. WILLMS:  Perhaps I should read it.  It starts at page 6 of  43 the yellow book, line 34.  And I won't read it again.  44 That's quoting from what Neil Sterrit told the Penner  45 Commission.  And then I asked Dr. Daly:  46  47 "Q   Now, your experience in the community and your 27938  Submissions by Mr. Willms        1 participant  observation, did it confirm that?  2 Is that accurate?  3 A   Yes, it is.  4 Q   Okay. Now, just carrying on."  5  6 And I am at the bottom of the page if we turn over.  7 And I read again from Neil Sterritt at the Penner  8 Commission.  And I say:  9  10 "Q   Now, once again, based on your participant  11 observation in the community, is that accurate?  12 A   Yes, that's accurate.  And the other thing is  13 that both the Simgiget and Lixgiget are linked  14 by ties of blood and marriage.  So it is quite  15 often portrayed as though it were a highly  16 stratified class society.  But it leaves out  17 the linkages that follow through the lines of  18 blood and marriage."  19  20 Now, I am not suggesting in this section, my lord,  21 that there aren't linkages.  But I am suggesting, and  22 I am going to turn back to the diagram that Mr.  23 Sterritt gave to the Penner Commission that it is a  24 class society.  And your lordship has already heard  25 some evidence on that.  And that's why I am asking you  26 to turn back to page 2.  27 THE COURT:  Page 2 of this?  28 MR. WILLMS:  The yellow book.  2 9 THE COURT:  Yes.  30 MR. WILLMS:  And what you will find at page 2 is Mr. Sterritt —  31 page 2 at the tab.  32 THE COURT:  Yes.  33 MR. WILLMS:  This is Mr. Sterritt's planning hierarchy.  This  34 was given to the Penner Commission.  And you will see,  35 my lord, there is a function column and then past  36 traditional column in the middle of the page.  37 THE COURT:  Yes.  38 MR. WILLMS:  And you will see under function policy, and beside  39 policy past traditional is the Simgiget.  And then  40 underneath that for operations it is the Simgiget and  41 the Lixgiget.  Now, in terms of how that works and  42 what I suggest that means is exactly what it says.  It  43 is the Simgiget who make the decisions.  And it is the  44 Lixgiget who, along with the Simgiget, carry them out.  45 But the Lixgiget are not part of the decision-making  46 process.  If you look to the next page, my lord, page  47 3, you will see that Mr. Sterritt goes into a bit more 27939  Submissions by Mr. Willms        1 detail.  And you will  he sets out the traditional  2 hierarchy on the left-hand side with the Simgiget  3 above the Lixgiget.  4  5 Now, it doesn't really matter for the purposes of  6 this submission whether they are tied by kinship  7 linkages in my submission, my lord.  It is where they  8 are in relation to each other.  The interesting point  9 here is the federal hierarchy that is imposed on the  10 traditional a hierarchy overlaps with -- down by the  11 Lixgiget.  Perhaps that's because the Lixgiget, and I  12 am going to get to that in a minute, get to elect the  13 band council but they don't get to elect the chiefs.  14 And so that there is that overlap between the Lixgiget  15 and the band council and that they have the right to  16 elect.  17 THE COURT:  But I can understand that if the line means Simgiget  18 and Lixgiget in the small triangle was parallel to the  19 Hazelton Band Council, but it's not.  20 MR. WILLMS:  Well, my lord, there is a question mark there as to  21 the overlap.  And I think, and I will get to that in a  22 minute, but Mr. Sterritt described the tensions  23 between the band council and the hereditary chiefs.  2 4 THE COURT:  Yes.  25 MR. WILLMS:  And the easiest place to describe that, my lord, is  26 if you turn to tab 4 of the yellow book which  27 coincides with the portion in my argument, paragraph  28 4.  2 9 THE COURT:  Yes.  30 MR. WILLMS:  But you will see, this is again Mr. Sterritt at the  31 Penner Commission.  The third paragraph of Mr.  32 Sterritt's evidence starting with "maybe I might".  33 THE COURT:  Yes.  34 MR. WILLMS:  35 "Maybe I might have given a wrong impression  36 about the Simgiget in the tribal council.  The  37 hereditary chiefs you could say are blessing  38 the tribal council.  They see it as their  39 vehicle to work on this issue.  Over the last  40 eight years it has been at times a direct  41 struggle between the band councils and the  42 hereditary chiefs, but as the band councils  43 started to understand what was happening there  44 was a lessening of that tension, a more  45 co-operative working relationship between the  46 high chiefs and the band councils.  The tribal  47 council really is an arm of the band councils 27940  Submissions by Mr. Willms        1 by definition,  but through our activities and  2 our policies we are trying on behalf of the  3 high chiefs and trying to work also for the  4 band councils.  It is a dilemma."  5  6 The point, my lord, that I make in my argument is  7 that the band councils are elected.  And so the  8 struggle that Mr. Sterritt describes as going on there  9 is a struggle between an elective body and the  10 unelected what I say is a class organization that the  11 Plaintiffs have had since -- at least since 1850  12 according to Mr. Sterritt's evidence.  13  14 Now, my lord, if you could turn back into the  15 argument to page 3.  And I have really done paragraph  16 4, my lord.  17 THE COURT:  Yes.  18 MR. WILLMS:  But paragraph 5, and this is from Dr. Daly's  19 evidence, that the chief of the House has the right to  20 grant or withhold permission for temporary use of  21 property.  And rather than read from my argument, my  22 lord, I should go again to what Dr. Daly said in his  23 evidence which is at tab 6 of the yellow book.  And I  24 will read from his cross-examination which is at page  25 3.  And page 3, my lord, is a portion of Dr. Daly's  26 cross-examination.  And at line 31:  27  28 "In your report at page 136 in that paragraph  29 starting about the middle of the page you say:  30 'This is not to say that a man's House owns  31 his gillnetter, store or sawmill, but  32 rather that the House, at times of  33 Feast-holding, has the right, through the  34 person of its chief, to ensure that a  35 substantial portion of the income from the  36 wage occupation or the enterprise be  37 devoted to the proper conduct of House  38 affairs, and particularily to feasting  39 obligations which centre upon the  40 management of the territories and the  41 proper conduct of marriages, births,  42 deaths, and successions.'.  43 Now, just pausing there.  In your interviews  44 with the hereditary chiefs, they would like to  45 return to that system of government?  46 A   They would like to return to the decentralized  47 system somehow based on the way they organize 27941  Submissions by Mr. Willms        1 their Feasts and  the way they organize their  2 extended family economies and so on today.  The  3 degree to which such a process would be  4 systematized, I don't think they have -- not  5 all the chiefs have thought that through and it  6 is a whole thing that's in -- under discussion  7 and in the community today.  8 Q   Just turn to page 139 of your report, and it's  9 in the bottom right-hand portion.  It's that  10 last full line on page 139 you say this:  11 'In economic terms the Houses own the  12 rights to the labour of their sons and  13 daughters, and of their daughters'  14 offspring, and they of course own lands and  15 river sites as well.'.  16 Now, first of all, that ownership is exercised  17 through the person of the hereditary chief; is  18 that correct?  19 A   Yes.  And it's very clear in terms of the  20 actual productive activities on the land.  When  21 it concerns the market sector today, there is a  22 certain degree of give and take between the  23 chief and the other members of the House.  If  24 the chiefly people are going to be able to  25 continue to demand support in times of crisis  26 and feasting and so on, they have to be able to  27 provide what in the old days was a lot of  28 hospitality and support and material needs to  29 all their members.  And they have -- today they  30 have to be of assistance in social problems and  31 the fighting for job -- access to jobs and so  32 on to their members.  And in the long-run this  33 will maintain the support of their grouping in  34 times of life crisis."  35  36 And I note, my lord, that Dr. Daly confirmed in the  37 next ten lines or five lines that the vast bulk of his  38 informants were chiefs.  So that, my lord, carries me  39 over to page 4, paragraph 8.  And I have, my lord --  4 0 THE COURT:  Paragraph 4?  41 MR. WILLMS:  Page 4, paragraph 8.  42 THE COURT:  Yes.  All right.  43 MR. WILLMS:  And I have what could be inserted at tab 8 of the  44 yellow book at the very end.  I haven't numbered it.  45 THE COURT:  The end of page —  46 MR. WILLMS:  Page 3 is the end of tab 8 right now.  And this  47 could just follow that. 27942  Submissions by Mr. Willms        1  THE COURT:  Yes.  All right.  2 MR. WILLMS:  And if I can describe this document, my lord.  On  3 the first three pages of this document you will see a  4 list of names on the left-hand side.  The middle  5 column will say whether they were a Plaintiff or not.  6 And if they are a Plaintiff there will be a Y.  And if  7 they are Gitksan --  8 THE COURT:  Y means yes, they are a Plaintiff, does it?  9 MR. WILLMS:  Yes, they are a Plaintiff.  And GIT is Gitksan.  10 And all of them on the first page are Gitksan.  But  11 when you get to the next page you see WET for  12 Wet'suwet'en.  And so these first three pages -- and  13 what these first three pages show, my lord, is that of  14 the 60, and we tried to get them all.  And I hope we  15 didn't miss any, but of the 60 Plaintiff lay witnesses  16 56 had chiefly names.  In other words, we've been able  17 to determine that 56 of those 60 had chiefly names  18 from the record, two did not.  And the two were Jack  19 Thomas -- sorry, Thomas Jack and Freddy Charlie who is  2 0 on page 2.  And then there were two that we had  21 question marks for, Irene Daum and Mary Skins.  We  22 weren't clear on whether either Irene Daum or Mary  23 Skins had a chiefly name.  But when you look at that,  24 my lord, and what Dr. Daly did and what Dr. Mills did,  25 the bulk of the evidence that your lordship has heard,  26 in fact I could say the overriding majority of the  27 evidence that your lordship has heard, anthropological  28 and lay is from chiefs from Simgiget.  29 MS. MANDELL:  My lord, I feel compelled to rise to make sure  30 that the distinction isn't being missed that there are  31 chiefly names that are high chiefs and those that are  32 either subchiefs or chiefs in the house that aren't  33 subchiefs.  And that while my friend may be right, and  34 I haven't checked it, that the witnesses may have had  35 chiefly names, there is no differentiation between  36 those that are high chiefs and those that have lesser,  37 high-ranking chiefs names.  38 THE COURT:  Well, Marvin George told me he didn't have a chiefly  3 9 name.  40 MR. WILLMS:  Well, he is a little further on, my lord.  41 THE COURT:  So there are people that don't have chiefly names at  42 all.  43 MS. MANDELL:  Yes, there are.  That's right.  44 MR. WILLMS:  And, in fact, I think Dr. Daly said, and I'm sorry  45 I don't have it, but he said out of 8,000 Gitksan he  46 thought there were about 2,000 with chiefly names  47 which would mean there would be 6,000 without.  And I 27943  eference  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  Submissions by Mr. Willms        1 will try to find that  But that's my --  THE COURT:  I didn't think there were 8,000 Gitksan.  MR. WILLMS:  I think that's what —  THE COURT:  I thought it was 8,000 between the two.  MR. WILLMS:  Well, that may be.  But I recall Dr. Daly talking  about the fact that there were a significant portion,  in fact a majority, who didn't have chiefly names.  THE COURT:  Yes.  MR. WILLMS:  So there are two examples, my lord, that we know  for sure don't have them for the lay Plaintiffs.  Now,  when you turn to the third page in, this is just a  list of people who gave evidence before your lordship  but who are not Plaintiffs, Elizabeth Jack, Solomon  Marsden.  THE COURT:  The third page?  MR. WILLMS:  Fourth page, sorry.  THE COURT:  Yes.  MR. WILLMS:  And the fifth page is the Plaintiff's witnesses.  And these are the experts, Marvin George, Heather  Harris, and Susan Marsden.  And you will see Marvin  George did not have a chiefly name.  Heather Harris  had a minor chiefs names.  And, of course, Susan  Marsden was Kitwancool.  And so what we have tried to  do here is set out the witnesses that your lordship  has heard.  But in terms of the lay witnesses, the lay  Plaintiff witnesses, out of 60, 56 have chiefly names  and --  THE COURT:  Is that just Gitksan, or is that both?  MR. WILLMS:  Gitksan and Wet'suwet'en.  THE COURT:  All right.  Yes.  MR. WILLMS:  All right.  So I would like to carry on then at  paragraph 9 of my argument to say that the roots of  this class society are clear from the anthropological  and historical evidence which shows that the ancestors  of the Plaintiffs belonged to a society described as  both a class and a caste society.  And there the  distinction, my lord, was with slaves.  Because slaves  could never move and slaves were property.  Slaves  would fall into a caste society.  And that was Dr.  Robinson's evidence.  I say that Dr. Ray, in his evidence, made it clear  that during the historic period there were men, or  commoners, and he called them -- he used the word  "commoners" in his report, who had no land stake for  beaver trapping while there were nobles, or men of  property, who did have a land stake.  And those are 27944  Submissions by Mr. Willms 1            the words that Dr. Ray  used.  And I think that they  2 were faithful to what Trader Brown had used as well in  3 his description of what he was seeing.  4  5 Now, Dr. Robinson explained in her report that:  6  7 "Some people in each village owned no  8 territories.  These individuals appear to have  9 been of three types.  The first were slaves who  10 owned nothing.  The second were commoners who  11 attached themselves to a resource owning  12 household.  As it was advantageous for any  13 chief to increase his household membership with  14 dependents lacking any real ceremonial and  15 social status, they were welcome recruits.  The  16 third were invited high-ranking guests..."  17  18 And carrying on in paragraph 11, in her evidence Dr.  19 Robinson said this:  20  21 "In the northwest coast area and in the  22 adjacent areas that -- in the interior that  23 were influenced by the northwest coast, there  24 was a stratified kind of society -- or there  25 were stratified kinds of societies where there  26 were different classes of people.  Indeed, some  27 scholars have considered these cast..."  28  29 And that's what I was talking to earlier, my lord,  30  31 "...societies with reference to the slaves who  32 were people who had no property, no rights and  33 were essentially properties of other  34 individuals...  35 And with the commoners, these were people who  36 were probably proportionately the largest  37 number of people, who had some property rights  38 in the sense that they had access to resource  39 producing areas, specific resources, and so on,  40 but were generally -- their economic activities  41 were organized by their household leaders or  42 the chiefs who were usually of the noble  43 class."  44  45 And then I say in paragraph 12, in addition it  46 appeared, at least to Dr. Adams, that there were  47 distinctions between the Houses, although the Houses 27945  Submissions by Mr. Willms        1 were all allegedly  equal.  Dr. Adams noted that:  2  3 "... many informants have told me that the  4 resources of different chiefs are variously  5 productive, the traplines differ in length and  6 accessibility, a few chiefs have no direct  7 means of getting berries or meat and so forth."  8  9 And I have an addition, my lord, at tab 12.  And  10 it will be added in the disk.  But I have the first  11 page at the very last page, the very last page of tab  12 12.  13 THE COURT:  Yes.  Whose report is this?  What is this document?  14 MR. WILLMS:  At the very — it is an extract from —  15 THE COURT:  I'm sorry.  I didn't see the divider.  Yes, all  16 right.  17 MR. WILLMS:  This is an extract from Exhibit 1045A-15.  It is  18 one of the Plaintiffs' exhibits.  19 THE COURT:  What is it?  20 MR. WILLMS:  1040.  21 THE COURT:  No, I know.  But what is it?  22 MR. WILLMS:  What this is, is this is from Duff's Barbeau files.  23 This is Duff looking through Barbeau's files.  24 THE COURT:  Yes, all right.  25 MR. WILLMS:  And making notes of Barbeau's files.  2 6 THE COURT:  Yes.  27 MR. WILLMS:  You will note at the bottom, and this is a  28 description of the origins of Kitwanga.  But the part  29 that is relevant to this discussion, my lord, is at  30 the bottom.  The paragraph:  31  32 "Some of the people drifted"?  33  34 THE COURT:  Yes.  35 MR. WILLMS:  It is the last paragraph before the list.  36  37 "Some of the people drifted (moved?)"  38  39 It is indented about halfway between the two?  4 0 THE COURT:  Yes, I have it.  41 MR. WILLMS:  42 "...up river and started the village of  43 Laxantge'is across the river from Kitwanga near  44 the slough.  There were five houses of Simgiget  45 and others of Lekaxkiget.  The houses, in order  4 6 from downriver upward, were..."  47 27946  Submissions by Mr. Willms 1            And then I won't name  them.  But you will see that the  2 first five houses, the first names are Simgiget.  And  3 then the next three houses were Lixgiget.  So that not  4 only do we have Dr. Robinson's opinion based on her  5 analysis of the whole northwest coast and the  6 ethnology of the northwest coast, but you have got  7 Barbeau noting, in fact, that five of the houses were  8 just Simgiget, and three houses were Lixgiget.  So  9 that there is, in my submission, on the evidence, not  10 only in the past but today, a class society.  11  12 Now, I also point out, my lord, in paragraph 13  13 that one feature of the Plaintiffs' laws is the law of  14 matrilineal descent which governs the devolution of  15 property.  16  17 And I say that the Plaintiffs seek declarations of  18 this Court which would allow the unelected chiefs, the  19 Simgiget, to make decision and impose those decisions  20 on the commoners, the Lixgiget, and other inhabitants  21 of the claim area.  And that, my lord, is the last  22 reference to the yellow book which is at tab 14.  Or  23 my last reference to the yellow book, from the  24 re-examination by Mr. Rush of Neil Sterritt, line 17.  25  26 "Q   Just let me reframe the question again for you,  27 Mr. Sterritt.  You indicated in your evidence  28 that you hadn't thought about the question of  29 whether the province would make laws in respect  30 of the resources of the Gitksan people, and  31 then, as you have just heard me relate, you  32 indicated that Canada and British Columbia do  33 not have sovereignty in the Gitksan and  34 Wet'suwet'en area.  My question is can you  35 explain what you meant by the two statements?  36 A   The Gitksan and the Wet'suwet'en have  37 sovereignty within that territory, within their  38 territories.  The Gitksan-Wet'suwet'en have  39 their laws within those territories and the  40 power to make laws within those territories.  41 And the -- excuse me -- the Gitksan and  42 Wet'suwet'en laws prevail over the laws of the  43 province within that territory -- within the  44 territories.  45 Q   Is that what you meant by sovereignty or is  46 that what you mean by sovereignty?  47 A   Yes." 27947  Submissions by Mr. Willms        1  2 Now, then your lordship asked Mr. Sterritt some  3 questions about -- and it has been read to your  4 lordship earlier on the jurisdictional question.  But  5 do they have a mechanism in place to enforce the laws  6 or anything like that.  And, of course, they don't.  7 THE COURT:  I think Mr. Grant in argument limited his claim to  8 part of laws for Gitksan and Wet'suwet'en within the  9 territory.  10 MR. WILLMS:  And, my lord, although I point out that that is not  11 as far as the evidence would allow Mr. Grant to go,  12 and I am grateful that Mr. Grant has backed away from  13 the evidence to that extent.  But I am basing this  14 argument not on the application of these laws to  15 non-Gitksan and Wet'suwet'en people.  I am saying that  16 these laws in their application to Gitksan and  17 Wet'suwet'en people violate the Charter.  18  19 And so, my lord, on page 7 of my argument I set  20 out provisions of the Charter including Section 1;  21 Section 2, freedom of association; Section 3, the  22 right to vote; section 7, the right to life, liberty  23 and security of the person; and Section 15.  24 THE COURT:  Well, doesn't this argument — isn't this argument  25 self-defeating, though?  The Charter doesn't apply  26 until there is a law.  27 MR. WILLMS:  Well, my lord, I am going to get to that.  2 8 THE COURT:  All right.  29 MR. WILLMS:  Now I say in page 8, my lord, paragraph 16, I set  30 out section 52 of the Charter.  And then in paragraph  31 17 I get to what this all means, my lord.  Because I  32 say that in light of Section 52 of the Constitution  33 Act and the provisions of the Charter that this court  34 has no power to grant the declarations sought in Part  35 1 of the Plaintiffs' Prayer for Relief insofar as they  36 are jurisdictional.  And I draw the same distinction  37 that your lordship has drawn from time to time between  38 those that relate to the land.  But I cited the  39 evidence to your lordship about the ownership of  40 labour, of people's labour and the decision-making  41 process.  42  43 I point out in paragraph 18 that the devolution of  44 property rule violates Section 15.  45  46 I point out in paragraph 19 that I say there is no  47 place in Canada for a class system of government under 27948  Submissions by Mr. Willms        1 our constitution.  2  3 I point out in paragraph 20, my lord, that the  4 Plaintiffs' legal system provides that the feast is  5 both a law-making body and an adjudicating body.  It  6 allegedly makes decisions which bind those that do not  7 attend the feast.  Participation in the feasts is not  8 open to the general public but only to a few.  9 Positions of rank, I say, are by definition available  10 only to the wealthy.  And your lordship has heard  11 about the method of obtaining high chief's names and  12 throwing feasts, expensive feasts.  Thousands of  13 dollars, my lord.  14  15 Now, in paragraph 21, my lord, I submit that the  16 alleged law that the chiefs or the Simgiget own the  17 rights to the labour of the Lixgiget violates liberty  18 interests of the Lixgiget.  That the deprivation is  19 authorized through the feast system which allegedly  20 makes the law then enforces it.  But I say that that  21 is not in accordance with the principles of  22 fundamental justice.  And I just say as an example, my  23 lord, I make reference to the Wilson case where the  24 right to carry on an occupation that you are trained  25 for is something that falls within the umbrella of  26 Section 7, liberty interests.  27  28 In paragraph 22 I point out that the Plaintiffs  29 seek declarations that the chiefs, the Simgiget, are  30 entitled to govern all the Gitksan and Wet'suwet'en  31 people whether or not those people agree.  They seek  32 to impose an anti-democrat system of government where  33 the Lixgiget have no right to elect those that  34 allegedly make decisions affecting fundamental  35 personal matters such as family, employment, and  36 social relations.  37  38 And I say in paragraph 23 that on the evidence,  39 the feast system is so intrusive into the personal  40 lives of those who participate in this system that its  41 imposition on all Gitksan and Wet'suwet'en would  42 constitute a punitive interference with freedom of  43 association.  And it is clear, my lord, on the  44 evidence that there are people who have chosen not to  45 participate.  And the order that my friends seek in  46 terms of jurisdiction would end that.  47 27949  Submissions by Mr. Willms        1 I point out, my  lord, really in paragraph 24, that  2 if there is any bedrock principle of the common law in  3 this country it starts with the Magna Carta.  That is  4 a bedrock fundamental principle of the common law, yet  5 the Plaintiffs alleged system of government is  6 completely contrary to the principles of that  7 instrument.  8  9 And I say, my lord, in paragraph 25 that the  10 Plaintiffs alleged laws discriminate on the basis of  11 sex, and create a two-tiered class structure, both of  12 which violate Section 15 of the Charter.  The  13 Plaintiffs' alleged laws constitute an egregious  14 interference with an individual's freedom of movement,  15 including the right to choose one's occupation and  16 where to pursue it and, therefore violate an  17 individual's liberty interests.  In addition, the  18 alleged laws interfere with an individual's right to  19 engage in family, employment and social relations as  20 he or she may see fit and therefore violate an  21 individual's freedom of association.  And I say, my  22 lord, that this court has no power, in the face of  23 Section 52, to make the declarations sought by the  24 Plaintiffs in their Prayer for Relief.  25  26 Now, the addendum, my lord, deals with Section 25  27 of the Charter.  And, my lord, the Charter, I don't  28 know if you have the statutes binder.  2 9  THE COURT:  It is here somewhere.  30 MR. WILLMS:  Anyway, you may wish to make a note that the  31 Charter is at tab 5 of the AGBC statutes binder.  32  33 And I will just read Section 25 before I get into  34 what my friends have submitted.  But Section 25 says:  35  36 "The guarantee in this Charter of certain  37 rights and freedoms shall not be construed so  38 as to abrogate or derogate from any aboriginal  39 treaty or other rights or freedoms that pertain  40 to the aboriginal peoples of Canada."  41  42 And then is sets out the Royal Proclamation and other  43 rights and freedoms.  And your lordship has heard, and  44 this is at paragraph 26, my lord, Mr. Jackson tell  45 your lordship that:  46  47 "Aboriginal peoples, as some of my colleagues 27950  Submissions by Mr. Willms        1 have..."  2  3 and I think this should be "said", although this is  4 accurate from transcript.  But I think what he said  5 was:  6  7 "...have said before, are not the same as other  8 voluntary associations.  Other voluntary  9 assocations do not look to common law  10 aboriginal rights or any other kind of rights  11 based upon pre-existing matters prior to the  12 assertion of sovereignty to justify and found  13 their rights to govern themselves."  14  15 And that's not governing voluntarily, my lord, that's  16 governing the Gitksan and Wet'suwet'en within the  17 claim area.  Mr. Jackson again:  18  19 "What we are seeking is a declaration which  20 recognizes the rights of the chiefs to govern  21 themselves and their members of their Houses in  22 the context of the way they have done to date  23 in the framework of non-coercive society.  We  24 are not seeking a declaration which says that  25 the Gitksan and Wet'suwet'en have the exclusive  26 responsibility in relation to all matters  27 pertaining to education and that the Province  28 has no responsibilities in relation to that.  29 This evidence is designed to show how there  30 are —"  31  32 And then your lordship:  33  34 "But you said that they're entitled to govern  35 themselves and their members.  3 6               MR. JACKSON:  Yes, my lord.  37 MR. GRANT:  I'm saying I want a declaration which  38 recognizes the rights of the Gitksan to  39 determine their education.  The issue of  40 whether in accordance with --  41 THE COURT:  Which might or might not mean removal  42 of the children from school.  43 MR. GRANT:  It could mean removal of the children  44 from a school."  45  46 And this this is again Mr. Grant.  47 27951  Submissions by Mr. Willms        1 "THE COURT:  I  suppose you would say the same for  2 minimum wage, that it wouldn't apply? The  3 Factories Act and the children working in  4 sawmills wouldn't apply if they can show that  5 that was in accordance with Gitksan law?  6 MR. GRANT:  If they overcame that hurdle, and I  7 think that that hurdle would be the test of it,  8 I mean, I think that the evidence that you've  9 seen --  10 THE COURT:  What if there is no Gitksan law that  11 covers the situation?  12 MR. GRANT:  Well, I think that the Motor Vehicle —  13 THE COURT:  Never mind the Motor Vehicle Act for a  14 moment.  15 MR. GRANT:  Okay.  16 THE COURT:  All right.  Let's take the "Motor  17 Vehicle Act".  Are you saying that the Gitksan  18 can say we are not going to confine children to  19 drivers' licences at age 16, we are going to  20 start letting them drive younger.  11, 12, 13,  21 like I did.  22 MR. GRANT:  If the recognition that the Gitksan and  23 Wet'suwet'en can make the decisions as they are  24 that's a possibility.  2 5 THE COURT:  Yes.  26 MR. GRANT:  And I think you're saying not will  27 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  32 sense that they have the authority, and that's  33 where we have to recognize the right to make  34 decisions."  35  36 So just pausing there, my lord, in my submission, in  37 respect of the Gitksan and the Wet'suwet'en, there is  38 no question that the Plaintiffs are seeking a  39 declaration that they have the jurisdiction, the  40 chiefs have the jurisdiction to govern all of the  41 Gitksan and the Wet'suwet'en.  42 THE COURT:  Within the territory?  43 MR. WILLMS:  Within the territory.  So that the only way you  44 could vote, my lord, I suppose is you can vote with  45 your feet and leave the territory.  But if you're in  46 the territory, they seek an order, a declaration from  47 this court that they are entitled to govern themselves  2 8 THE COURT  2 9 MR. GRANT  3 0 THE COURT  31 MR. GRANT 27952  Submissions by Mr. Willms 1            and the members of  their House in all of these areas  2 that have been suggested.  Because as Mr. Grant quite  3 rightly put it, the test of legislation is can it be  4 done, not will it.  5  6 Now, I say in paragraph 27 that Plaintiffs'  7 counsel at one point, and this was Ms. Mandell,  8 suggested that:  9  10 "Section 25 clearly protects the collective  11 rights against the operation of the exercise of  12 individual rights which may at some time in the  13 future become in conflict with it."  14  15 And at another point, and it should be she asserts,  16 not he there, my lord, that:  17  18 "What Section 25 does is shields the collective  19 right against the application of -- the  20 assertion of an individual right."  21  22 However, I note, my lord, that Plaintiffs' counsel,  23 and this was what Mr. Grant said:  24  25 "Section 25, though, my lord, exempts  26 aboriginal rights from the Charter."  27  28 And that is the proposition that I am going to meet  29 through the balance here, the assertion by Mr. Grant  30 that Section 25 exempts aboriginal rights from the  31 Charter.  32  33 Now, I say, my lord, in paragraph 28 that Section  34 25 is a shield but doesn't exempt all aboriginal  35 rights from Charter scrutiny.  36  37 And the best example is the one put by Ms. Mandell  38 in paragraph 29 which is:  39  40 "Somebody from the Sports Federation says,  'I  41 challenge Treaty 8 and the rights protected to  42 the Indian people there to hunt because I say  43 it violates equality rights, my right to be  44 quality as everybody else under the  45 Constitution.'  And what Section 25 says is  46 that there can't -- that the collective rights  47 of the Indian people to hunt are shielded 27953  Submissions by Mr. Willms        1 against such an  attack or such.  2 THE COURT:  Well what you mean there then is  3 non-Indian individual rights.  4 MS. MANDELL:  That's right.  5 THE COURT:  Non-Indian.  6 MS. MANDELL:  That's right."  7  8 And I say in paragraph 35 here, the Plaintiffs do  9 not seek to use Section 25 as a shield, they use it as  10 a sword.  They seek a declaration from this Court that  11 they are entitled to govern Gitksan and Wet'suwet'en  12 persons without regard to the Charter.  In effect, the  13 Plaintiffs allege a blanket immunity from the Charter  14 for their laws, their system of governance and their  15 class society.  It is submitted that Section 25 of the  16 Charter was never intended to be a vehicle of  17 potential oppression or arbitrary governmental action.  18  19 And I say furthermore, my lord, and this comes back to  20 the point your lordship made a little earlier, that  21 even if Section 25 has the effect suggested by Mr.  22 Grant, this Court is bound by the Charter and can't  23 make declarations which are inconsistent with the  24 Charter.  25  26 And I cite there from the United States -- and the  27 issue is arisen in the United States, reading from  2 8 Rotunda:  29  30 "Even the judiciary may imbue the actions of  31 private individuals with state action.  When  32 judges command private persons to take specific  33 actions which would violate the Constitution if  34 done by the state, state action will be present  35 in the resulting harm to constitutionally  36 recognize rights.  The classic example of such  37 a situation appeared in Shelley v. Kramer.  In  38 this case a white property owner attempted to  39 sell his property to a member of a racial  40 minority.  This land was subject to a covenant  41 which forbade sales to racial minorities; those  42 persons with an interest in the restrictive  43 covenant sued to restrain the current owner  44 from violating the covenant by selling to a  45 black.  46 The Supreme Court held that any court order  47 which would enjoin the sale and enforce the 27954  Submissions by Mr. Willms        1 covenant would  violate the fourteenth  2 amendment; the state court order would be a  3 judicial command to the current owner - who was  4 willing to sell to an equally willing buyer -  5 to make a racial distinction in the sale of  6 property.  Such a command, interfering with a  7 willing seller and a willing buyer, violates  8 the amendment."  9  10 And so I say, my lord, when I get to paragraph 33,  11 the hereditary chiefs here, the "Simgiget", seek a  12 declaration that they are entitled to govern the  13 "Lixgiget", "people without authority".  And I say  14 second class citizens on the Plaintiffs' evidence.  15 Although counsel suggested that the Plaintiffs' laws  16 and form of government are non-coercive, there is  17 evidence of coercion, although allegedly no longer  18 applied, but still in the law.  Such coercion included  19 killing of people or beating them up for tresspassing,  20 banishing people for entering into incorrect  21 marriages, interfering with peoples' property rights,  22 including the right to gain a livelihood, if they  23 don't attend feasts.  And I submit, my lord, that the  24 judicial carte blanche that the Plaintiffs seek,  25 claiming their laws and their government are exempt  26 from the Charter, is beyond the power of this Court.  27 And I say, my lord, that this Court is constrained by  28 the Charter in the exercise of its powers.  29  30 It is submitted that Section 25 of the Charter  31 does not exempt the Plaintiffs' laws from Charter  32 scrutiny and does not allow this Court to approve the  33 Plaintiffs' ad hoc system of government and their  34 arbitrary laws.  35  36 And in that respect, my lord, I refer back, of  37 course, to our argument in Roman numeral IV, part 4.  38 You don't need to turn back to it.  But you may recall  39 my colleague Ms. Sigurdson dealt with the application  40 of the laws, how application varied, the fact that  41 enforcement took place at the feast.  And in terms of  42 the ad hoc system of the government, my lord, I refer  43 to Mr. Sterritt's answer in response to your questions  44 that they don't have any secretariat.  They don't have  45 any formal method for this.  It is ad hocery at its  46 highest.  47 27955  Submissions by Mr. Willms        1 And so what I  submit, my lord, that because of the  2 Charter and because Section 25 was never intended to  3 be a sword, or to be used as a sword, that my friends  4 can't get the declaratory relief they are seeking in  5 respect of jurisdiction.  6 THE COURT:  Thank you.  7 MS. MANDELL:  My lord, before my friend finishes, I am confused  8 as to how in paragraph 18 he says that the alleged  9 laws of matrilineal devolution of property contravene  10 Section 15 of the Charter.  And if he doesn't want to  11 expand upon it, that's certainly within his judgment  12 as to what time he has.  But I really don't understand  13 what is meant there.  14 MR. WILLMS:  Well, my lord, I think there was a federal law  15 about who could get maternity benefits, unemployment  16 insurance maternal leave.  And in that case, my lord,  17 really what the court is saying that when you look at  18 the itemized sections in Section 15 and you find a law  19 that's sectionally based, whether it is male or  20 female, it wouldn't matter if my friends had a  21 patrilineal devolution of property, what I say is  22 patrilineal, matrilineal, if it is based on sex, it  23 violates Section 15.  Because Section 15 --  24 THE COURT:  It doesn't depend on sex, it depends on direct sex.  25 It depends on the sex of one's parents.  26 MR. WILLMS:  Yes.  27 THE COURT:  For example, a son of a wealthy chief can inherit  28 his father's --  29 MR. WILLMS:  Cannot.  30 THE COURT:  Cannot participate in his father's territory.  31 MR. WILLMS:  Yes.  32 THE COURT:  Except through the exceptions amnigyot and negdeldus  33 and maybe wiltsuwitx, but probably not.  34 MR. WILLMS:  Sorry, I didn't know that my friend didn't  35 understand that.  36 THE COURT:  Well, she is not alone.  I am not sure I understand  37 it, either.  38 MR. WILLMS:  That's why I went through that quite quickly, my  39 lord.  But I thought there was ample evidence in this  40 case that rather than having an overall rule on  41 devolution of property, that property could devolve to  42 whomever the property owner wanted it to devolve to,  43 or some rule that it went back and some decision was  44 made by the house, for example, as to who property  45 would devolve to.  What they have decided is they have  46 decided to use a matrilineal theory of devolution of  47 property.  And I say whether that is an easy way to 27956  hard way  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT:  Submissions by Mr. Plant        1 make a decision or a  to make a decision, it  still violates Section 15, just as a patrilineal would  violate.  And there is quite a few cases on that  already.  I didn't know that my friend wasn't aware of  it.  That sounded like a shot.  Thank you, Mr. Willms.  My lord, I am up next.  All right.  Mr. Plant.  And I am going to start at the beginning of part IX  in the argument.  And I hope to dispose of several  sections of part IX between now and when we break  tomorrow morning.  I thought you were going to say before we break this  afternoon.  I hoped you were going to say before we  break this afternoon in 11 minutes.  MR. WILLMS:  It would be nice to think so.  THE COURT:  Do the best you can.  MR. WILLMS:  I am going to start first by adding to my task.  I  have replacement sections in part IX.  A new section  that rephrases the old sections 1 and 2 from part IX.  Shall I take 1 and 2 out?  Yes, my lord.  I thought it convenient to attempt to  combine the two topics, the first being provincial  laws of general application, and the second being  Section 87 or Section 88 of the Indian Act into one.  Does that affect your tabs in the yellow book?  There are no yellow book references for sections 1  and 2, so the answer is no.  Thank you.  Shall I take the tab out of --  It doesn't matter, my lord.  Just so I won't wonder where it is, I will put it in  at the end of your addition so I won't be without a  tab 2.  :  This is primarily a legal argument, my lord.  And I  say also that it is primarily a division of powers  argument.  And so it is not surprising that I start  with Section 91 of the Constitution Act of 1867.  And  that, as we all know, gives to the parliament of  Canada exclusive authority to legislate in respect of  "Indians, and Lands reserved for the Indians."  That section 91(24) does not wholly exclude  Provincial legislative competence either in relation  to Indians or lands reserved for them was decided  "long ago".  Those words with the words of Mr. Justice  Dickson in the Kruger and Manuel case, with the  approval the judgment of Riddell, in the relatively  THE COURT:  MR. PLANT:  THE COURT:  MR. PLANT:  THE COURT  MR. PLANT  THE COURT  MR. PLANT: 27957  Submissions by Mr. Plant 1            old Court of Appeal,  martin.  It is in the not  2 material.  But that was a case of an Indian not on a  3 reserve was convicted of an offence under the  4 Ontario Temperance Act.  So an Indian outside a  5 reserve was convicted of an offence under provincial  6 laws.  7  8 The martin case was also cited with approval in a  9 much more recent case, Cardinal v. Attorney General of  10 Alberta.  And I am not going to take your lordship to  11 that judgment.  That was a case where an Indian who  12 was charged under the provincial Wildlife Act with  13 selling meat to a -- selling moose meat to a  14 non-Indian on a reserve.  And the issue concerned the  15 application of the provincial statute to him in  16 relation to that offence.  Now, the Court divided.  17 And it is noteworthy that Mr. Justice Lasking, as he  18 then was, in dissent, said this:  19  20 "Indian reserves are enclaves which, as long as  21 they exist as Reserves, are withdrawn from  22 provincial regulatory power."  23  24 Now, that is the very issue on which the majority of  25 the court decided the other way.  And on behalf of  26 that majority, Mr. Justice Martland said this:  27  28 "A Provincial legislature could not enact  29 legislation in relation to Indians, or in  30 relation to Indian Reserves, but this is far  31 from saying that the effect of s. 91(24) was to  32 create enclaves within a Province within the  33 boundaries of which Provincial legislation  34 could have no application.  In my opinion, the  35 test as to the application of Provincial  36 legislation within a Reserve is the same as  37 with respect to its application within the  38 Province and that is that it must be within the  39 authority of s. 92 and must not be in relation  40 to a subject-matter assigned exclusively to  41 Canadian Parliament under s. 91.  Two of those  42 subjects are Indians and Indian Reserves, but  43 if Provincial legislation within the limits of  44 s. 92 is not construed as being legislation in  45 relation to those classes of subjects (or any  46 other subjects under s. 91) it is applicable  47 anywhere in the Province, including Indian 2795?  Submissions by Mr.  though Indians or Indian  2  3  4  5  6  7  Plant  1  Reserves, even  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  Reserves might be affected by it.  My point is  that s. 91(24) enumerates classes of subjects  over which the Federal Parliament has the  exclusive power to legislate, but it does not  purport to define areas within a Province  within which the power of a province to enact  legislation, otherwise within its powers, is to  be excluded."  My lord, that's really the starting point of the  analysis that follows.  7 of  THE COURT:  MR. WILLMS  THE COURT  MR. PLANT  THE COURT  MR. PLANT  And in the next paragraph I set out Section  the Indian Act, as it was enacted in 1952, and  subsequently has become Section 88.  Is that 1951 correct, or should that be 1981?  It should be Statutes Canada 1951?  Yes.  Yes.  All right.  That was the original enactment under the heading  "Legal Rights" and the side note "General Provincial  Laws Applicable" provided as follows:  "Subject to the terms of any treaty and any  other acts of the Parliament of Canada..."  You will note there are two subjects, just to sort of  pause to comment editorially there.  "...all laws..."  and I underline the word "all",  "...all laws of general application from time  to time in force in any province are applicable  to and in respect of Indians in the province,  except to the extent that such laws are  inconsistent with this Act..."  that is the Indian Act,  "...or any order, rule, regulation or by-law  made thereunder, and except to the extent that  such laws make provision for any matter for  which provision is made by or under this Act." 27959  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  Submissions by Mr.  Now,  THE COURT  MR. PLANT  Plant        1  I say that Section 87, or Section 88 as it  now is, has for its purpose the application to Indians  of provincial laws of general application which in  their particular effect might otherwise be open to  objection.  And I cite as authority for that  proposition both the Kruger and Manuel case and Dick.  And I am going to start first with Kruger and Manuel.  And I am hopeful that volume 6 of the Plaintiffs'  authorities might be somewhere close at hand.  :  I am sure it is.  :  Volume 6, tab 4, my lord.  Now, in this case the  accused, two of them, charged with offences under the  British Columbia Wildlife Act in relation relation to  hunting activities which had taken place off reserve,  upon unoccupied Crown land which for the purpose of  the prosecution was admitted to be the traditional  hunting ground of the Penticton Indian Bands of which  the accused were members.  The Crown relied upon  Section 88.  The accuseds argued that the Wildlife Act  was inapplicable to them because in its operation it  affected Indian people in a manner quite different  than it affected non-Indian people, and for that  reason could not be considered as a law of general  application within the meaning of Section 88.  This  argument was rejected by the Court.  And starting at  page 110, Mr. Justice Dickson -- well, starting at  page 109 is the section "Laws of General Application".  And then over the page to page 110 where his lordship  at the top of the page says this, and I pause just to  say that what he is doing here is providing some  guidance as to whether or not a provincial law is a  law of general application.  He says:  "There are two indicia by which to discern  whether or not a provincial enactment is a law  of general application.  It is necessary to  look first to the territorial reach of the Act.  If the Act does not extend uniformly throughout  the territory, the inquiry is at an end and the  question is answered in the negative.  In other  words, it is not a law of general.  If the law  does extend uniformly throughout the  jurisdiction the intention and effects..."  and I pause to note that it is both the intention and  the effects of the enactment which need to be 27960  Submissions by Mr. Plant  will become apparent when I turn  1  considered.  And that  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  to one of my friend's submissions later in this  section of the argument.  So:  "...the intention and the effect of the  enactment need to be considered.  The law must  not be 'in relation to' one class of citizens  in object and purpose.  But the fact that a law  may have graver consequence to one person than  to another does not, on that account alone,  make the law other than one of general  application.  There are few laws which have a  uniform impact.  The line is crossed, however,  when an enactment, though in relation to  another matter, by its effect, impairs the  status or capacity of a particular group."  And then his lordship draws an analogy to the company  cases which feature in the jurisditional discourse on  Section 88 of the Indian Act.  Now, what he then does is apply the criteria that  he has just identified to the case at bar in the  passage that follows.  :  I have forgotten this case.  Was he dealing with --  was he worried about laws of general application  because of the language of Section 88?  :  It was argued that the Wildlife Act was not a law of  general application.  Is the language that Section 88 uses --  Yes.  -- laws of general application?  Yes.  But there is another issue is that whether  provincial laws of general application are capable of  applying to Indians of their own force, or whether  they only apply by virtue of being incorporated under  Section 88.  THE COURT:  MR. PLANT:  THE COURT:  Yes.  And that's  judgment.  All right.  really sort of the second arm of this  MS. MANDELL:  My lord, my friend is correct.  And I don't wish  to interrupt him.  But I do, on that point, think it  is important for your lordship to recall on page 108  and 109 of the judgments that Mr. Justice Dickson for  the Court is expressly not dealing with aboriginal  title or issues involving the Royal Proclamation, but 27961  applicati  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  Submissions by Mr. Plant        1 is dealing with the  on of provincial law  through Section 88 where issues of aboriginal title  are not being raised.  THE COURT:  Yes.  All right.  Thank you.  MR. PLANT:  I haven't been keeping up with the court hours, my  lord.  Are we going to quarter past?  THE COURT:  We will go to the next reporter arrives.  MR. PLANT:  And I will carry on.  THE COURT:  Yes.  MR. PLANT:  I was in the midst of tracking his lordship's  application, the criteria that he has set out on page  110 in respect of the Wildlife Act where he says.  "There is no doubt that the Wildlife Act has a  uniform territorial application.  Similarly it  is clear that in object and purpose the Act is  not aimed at Indians.  Section 4 of the  Wildlife Act under which the accused were  charged commences:  "No person shall" and so,  on its face, applies to all persons."  And carrying on, the statutory analysis conditions.  And later on down the page:  "From this, it is clear that the other sections  are intended to apply to Indians, as well as  all other persons within the Province.  Provincial game laws, which have as their  object the conservation and management of  provincial wild life resources, have been held  by this Court not to relate to Indians qua  Indians."  And the Cardinal judgment is relied on in support of  that proposition.  Now, carrying on to the point of page 111, his  lordship says there:  "However abundant the right of Indians to hunt  and to fish, there can be no doubt that such  right is subject to regulation and curtailment  by the appropriate legislative authority.  Section 88 of the Indian Act appears to be  plain in purpose and effect.  In the absence of  treaty protection or statutory protection  Indians are brought within provincial 27962  Submissions by Mr. Plant        1 regulatory  legislation."  2  3 And, my lord, it will be my submission that since  4 there really is no constitutional magic to a claim of  5 aboriginal title, that is a proposition that applies  6 irrespective of whether the action in question is one  7 that is said to derive from the exercise of an  8 aboriginal right.  9  10 And I now turn to what I said was the second arm  11 of the judgment.  And that is the issue of referential  12 incorporation.  And that discussion begins on page 115  13 of the judgment.  And here his lordship sets out the  14 issue there is in the legal literature a juridical  15 controversy respecting whether Section 88  16 referentially incorporates provincial laws of  17 application or whether such laws apply to Indians ex  18 proprio vigore, a Latin phrase which I understand to  19 mean "of their own force" or "of its own force".  The  20 issue was considered by this Court in the  21 Natural Parents case.  22  23 And I may say, my lord, that the issue was not  24 resolved in that case.  There were a number of  25 expressions of opinion and no consensus of the Court  26 emerged.  So that the appellants here are arguing that  27 the issue comes up for determination again in  2 8 Kruger and Manuel.  And what the Court does on -- by  29 way of disposing of the question begins on page 116 of  30 the judgment when Mr. Justice Dickson says:  31  32 "On either view of this issue present  33 appellants must fail.  If provisions of the  34 Wildlife Act are referentially incorporated by  35 s. 88 of the Indian Act, appellants, in order  36 to succeed, would have the burden of  37 demonstrating inconsistency or duplication with  38 the Indian Act or any order, rule, regulation  39 or bylaw made thereunder.  That burden has not  40 been discharged and, having regard to the terms  41 of the Wildlife Act, manifestly could not have  42 been discharged.  Accordingly, such provisions  43 take effect as federal legislation in  44 accordance with their terms.  Assuming, without  45 deciding, that the theory of aboriginal title  46 as elaborated by Mr. Justice Hall in the Calder  47 case is available in respect of present 27963  Submissions by Mr. Plant 1                   appellants it has  been conclusively decided  2 that such title, as any other, is subject to  3 regulations imposed by validly enacted federal  4 laws."  5  6 The case cited there is Derriksan v. The Queen.  Now,  7 I am going to ask your lordship to make a note here,  8 Sparrow.  Because while my submission at the moment is  9 directed to division of powers rather than the effect  10 of Section 35, the Supreme Court of Canada in the  11 judgment in Sparrow today has, I suppose you could  12 say, undermined, at least re-interpreted, the  13 authority of this Derriksan judgment.  14  15 I think that was the Fisheries case where the  16 Court held that, assuming that there was an aboriginal  17 right to fish, it was beyond dispute that the right  18 was susceptible to regulation by the Federal  19 Parliament.  And the regulations at issue in that case  20 applied to the accused and his conviction was upheld.  21 But turning over the page, leaving aside his  22 lordship's other references, to the top of page 117 of  23 the judgment turns to the other side of the question.  24 It says this:  25  26 "If s. 88 does not referentially incorporate  27 the Wildlife Act, the only question in issue is  28 whether the Act is a law of general  29 application.  Since that proposition has not  30 been here negatized, the enactment would apply  31 to Indians ex proprio vigore.  It is,  32 therefore, immaterial to the present appeals  33 whether s. 88 takes effect by way of  34 referential incorporation or not.  In either  35 case, these appeals must fail."  36  37 So that the accused could be convicted under the  38 Wildlife Act either with or without the assistance of  39 Section 88.  40 MS. MANDELL:  It is with or without the system of referential  41 incorporation.  It is all through Section 88.  42 MR. PLANT:  Well, that is one reading of the judgment.  And, in  43 my respectful submission, that's not the correct  44 reading of the judgment.  45 THE COURT:  I am not sure that I understand exactly what the  46 difference between you is.  You are saying, Ms.  47 Mandell, that the ratio of the cases they could be 27964  Submissions by Mr. Plant        1 convicted because of  Section 88?  2 MS. MANDELL:  That's right.  Whether you have referential  3 incorporation or you just interpret Section 88 as  4 embodying constitutional principles.  5 MR. PLANT:  I'll explain what my friend is saying by reference  6 to the Natural Parents case.  Because in that case  7 there were judgments of the Supreme Court that said  8 that all that Section 88 really did was declare the  9 existing constitutional principle.  That principle  10 would be that provincial laws that were otherwise  11 within the excess of the province under 92 would apply  12 to Indians of their own force, except to the extent  13 that they intruded upon the exclusive federal  14 legislative authority.  15  16 Now, Mr. Justice Laskin in that judgment said:  17 Oh, no, that's not what Section 88 does.  If that's  18 all that Section 88 did, there would be no need for  19 Section 88.  I want to presume that parliament meant  20 something when they enacted Section 88.  So I think  21 that what Section 88 does is it referentially  22 incorporates laws that would not otherwise apply to  23 Indians but for Section 88.  24  25 Now, that's the controversy.  And I am going to  26 come back to it in the context of the Dick case.  I am  27 not sure if that answers your lordship's question.  28 But, in my submission, the effect in Kruger and Manuel  29 is that the court has decided that either way,  30 however -- whichever of these two roads you choose,  31 the Wildlife Act applies to these two accused.  Either  32 it applies to them because it is a law of general  33 application which does not affect them in their  34 Indianness, and therefore under general constitutional  35 principles is valid and applicable.  Or,  36 alternatively, it applies to them because it has been  37 referentially incorporated under -- by virtue of  38 Section 88 of the Indian Act and thereby made federal  39 legislation.  40 THE COURT:  But surely if he is saying that it doesn't matter —  41 I'm sorry, are you sure he is not saying that it  42 doesn't matter?  Because he says if Section 88 does  43 not referentially incorporate the Wildlife Act --  44 MR. PLANT:  Then the only question in issue is whether the Act  45 is the law of general application.  46 THE COURT:  He must be saying that it is.  47 MR. PLANT:  Yes.  I think he is saying both.  I mean he is 27965  saying that he can  convict  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  Just a minute.  If not  Submissions by Mr. Plant        1  the accused going either  way.  THE COURT:  Well, is he saying that?  incorporated --  MR. PLANT:  Then it is the law of general application and  applies of its own force.  THE COURT:  Well, if it is a law of general application then,  therefore, it has force because of Section 88.  Well,  has force of its own not taken away by the Indian Act  because of Section 88.  MR. PLANT:  Yes.  I am not sure whether that is any different  from what I was saying.  But that's another way of  putting the same point.  THE COURT:  Just a minute.  All right.  But if it is  incorporated because of Section 88, it seems to me  that it must still apply of its own force or Section  88 wouldn't give it any life.  MR. PLANT:  Well, it may be that your lordship's assumption  should be put on hold until we look at the Dick case.  THE COURT:  All right.  MR. PLANT:  Because, in my submission, one way of looking at  Section 88 is that it gives life to that which would  otherwise not have life.  THE COURT:  Yes.  I used to know Mr. Kruger's grandfather.  And  I am sure that he never thought that this was going to  come to this difficulty.  He had the fastest horse in  the Okanagan at one time.  If any of you know  Penticton, you go down the hill from Kaledon (phon) to  Skaha Lake.  At the very foot is the house.  His home  is right on the end.  MR. PLANT:  Of Skaha.  THE COURT:  Right where the Skaha Highway goes down to the  airport.  He has the Kruger family farm right there.  As I said, he had the fastest horse in the valley.  All right.  I think we will take the afternoon  adjournment now.  THE REGISTRAR:  Order in court.  Court stands adjourned.  (PROCEEDINGS ADJOURNED at 3:15)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Lisa Franko, Official Reporter,  UNITED REPORTING SERVICE LTD. 27966  Submissions by Mr. Plant  (PROCEEDINGS RESUMED AT  3:35 P  .M.  )  2  3  THE  COURT  4  MR.  PLANT  5  6  7  8  THE  COURT  9  10  MR.  PLANT  11  12  THE  COURT  13  14  15  MR.  PLANT  16  17  THE  COURT  18  MR.  PLANT  19  THE  COURT  20  21  22  MR.  PLANT  23  THE  COURT  24  25  MR.  PLANT  26  27  28  29  30  31  THE  COURT  32  MR.  PLANT  33  34  35  36  37  38  39  40  41  42  43  44  THE  COURT  45  46  47  All right.  Thank you, Mr. Plant.  The Arthur Dick versus the Queen case, my lord, is  next, and that's in Volume 4 of the plaintiffs'  authorities at tab 12.  And I'm at paragraph ten of my  submission.  Can you tell me in a word or two, Mr. Plant, to what  is this argument addressed?  Yes.  The part that Section 88 has to play in this  case --  Who cares -- what does Section 88 have to do with  this case or the Indian Acts?  Just give me a  framework that I can --  I wish I could give it to you in a word or two,  but —  I do too, but do the best you can.  Let me see if I --  I don't ask this question in any critical sense.  It's just that I -- except it's critical to my  understanding of --  Yes.  Well —  -- what you are doing, because at the moment I don't  see what Indian Act has got to do with this case.  The first thing is I am responding to an argument  that my friends have made, which is that the Section  88 doesn't apply to any uses of Indian lands that may  be considered integral to the aboriginal title to such  lands.  And I am going to be responding to that  argument.  Is this related to the claim to jurisdiction?  Yes.  It's partly related to the claim to  jurisdiction.  My submission will be a number of  things.  First of all, the enactment of Section 88 in  1951 is in effect an act of extinguishment with  respect to all of the jurisdiction claimed.  That is  the jurisdiction claimed other than the jurisdiction  incidental to land claim.  But that is part of it.  The second part of it is to try and identify what  Provincial legislative competence there is in the  claim area within the existing constitutional  arrangements.  And my submission will be that  section --  I rather took Mr. Grant's argument to accept the  vitality of Provincial laws in the claim territory and  asserted a right merely to opt out at them or some of  them as the chiefs elect, but I did not understand him 27967  1  to be questioning the  vitality  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. PLANT:  Submissions by Mr. Plant  or the operation of  the -- of Provincial laws.  :  Well, with respect, Mr. -- that -- I believe your  lordship may have characterized his position  correctly.  But that position finds no support in the  existing law within the existing constitutional  arrangements, and one of the reasons it doesn't is  Section 88.  Well, maybe I could say this, my lord,  that one of the reasons I'm having difficulty  answering your lordship's question is because in part  because of the position taken by Mr. Grant that  after -- somehow after all this struggle and after all  this evidence and all this argument the plaintiffs  really aren't saying much except next time around when  we challenge the law, we want to have some umbrella of  protection.  Now, I'm trying to define part of what  this exercise is about to -- is to define the terms  within which your lordship's discretion to issue a  declaration as sought can be exercised given the  plaintiffs' recognition that the existing  constitutional arrangements are admitted.  And if I  could say this also, my lord, that the original  argument on Section 88 is three or four pages long and  I was trying to come to terms with what the effect was  on our submissions of the plaintiffs' argument as it  was delivered and the only way that I could see clear  in doing that was to start for purposes of analysis  more or less from the beginning, and I realize that in  some respects that's a tedious exercise, but we are  halfway through that exercise and it may be that if I  finish the exercise by explaining the Dick case then I  can --  Yes, all right.  -- make my submission.  I am beginning to get a glimmer of an  understanding,, but maybe you can just answer me this:  Are you saying that Section 88 will be an answer to  the plaintiffs if they decide to opt out of a  Provincial law?  : Yes. Yes, within limits. The limit being that this  case is not concerned with reserves. So we're talking  about outside reserves.  :  But if -- it seems to me that that argument would  only be valid if the Indians were saying in defence of  the right of self-government that they were in some  way protected by the Indian Act, wouldn't it?  Section  88 doesn't -- Section 88 just --  THE COURT  MR. PLANT  THE COURT  MR. PLANT:  THE COURT: 2796?  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  Submissions by Mr. Plant        1  MR. PLANT:  They —  THE COURT:  -- provides an exemption to the operation of the  Indian Act for Provincial laws of general application?  MR. PLANT:  No.  That's not an exception to the Indian Act.  Section 88 is -- my submission Dick says this in  Section 88, makes and incorporates into Federal  legislation all Provincial laws of general  application.  So that the Education Act of British  Columbia or the Schools Act, or whatever it's called  now, applies to Indians within the claim area now.  Full stop.  By virtue either because it's the law of  general application or by virtue of incorporation by  reference in Section 88.  A proposition that the  plaintiffs can or have the right to opt out, which is  what Mr. Grant's submission is, can't work within the  existing constitutional arrangements.  That's -- maybe  that's the short answer that I should have given to  your lordship.  THE COURT: All right. Well, I have had a lot of trouble with  Mr. Grant's proposition and I'm having an equal  difficulty with yours trying to answer his. I think  maybe you best go on and tell me about the Dick case  and perhaps the light will go on somewhere along the  line here.  At the moment I'm in the dark.  MR. PLANT:  I will keep your lordship's concern in mind.  MS. MANDELL:  My lord, I don't want to add confusion to  confusion --  THE COURT:  You would never do that, would you?  MS. MANDELL:  I will try not to.  But I do want to advance the  two points that I hope will frame in the discussion of  Section 88 from the plaintiffs' point of view.  MR. PLANT: Well, I've had the benefit of my friend's argument  and I am trying to respond to it. Now, if my friend  wants to argue the proposition again, then that only  raises this particular logistical difficulty, which I  may not be able to cope with a new argument between  now and 4:30. My friend's argument on Section 88 is  over.  THE COURT:  I will give Miss Mandell 30 seconds.  MR. PLANT:  I will give her a minute if she promises to be  helpful and I am sure she will.  THE COURT:  All right.  MS. MANDELL:  The Province — the plaintiffs advance Section 88  to demonstrate that there is -- in fact is a  constitutional magic to the division of power and that  lands and laws, Provincial laws affecting lands are  not caught within Section 88 or the incorporation by 27969  Submissions by Mr. Plant        1 reference that Dick  stated, and so we were responding  2 to the continuation of the right after Confederation  3 and that right not being capable of being infringed  4 upon by Provincial law.  And that's the purpose of our  5 Section 88 argument.  With respect to jurisdiction,  6 the plaintiffs argue that it was part of the Federal  7 common law and is now an existing right within Section  8 35.  And I wished your lordship to be aware of those  9 two separate basis upon which the plaintiffs both used  10 and didn't use Section 88, because I do take issue  11 with what my friend said.  Section 88 can -- I say is  12 not an answer to us and wouldn't be either for land or  13 jurisdiction for an analysis of rights outside of the  14 reserve.  15 THE COURT:  You've done what I said you wouldn't do.  16 MS. MANDELL:  Took longer than 30 seconds?  17 THE COURT:  No, no.  You confused me more.  I don't understand  18 any of this.  I will be perfectly blunt with you all.  19 I don't understand much of this.  So we'll carry on  20 and maybe I'll understand it as we go along.  At the  21 moment I just don't see what it's got to do with the  22 case.  And I say that as a crie de coeure.  I am sure  23 there is something to it.  It's just that I don't  24 understand it.  25 MR. PLANT:  My lord, if the question was anything other than  26 difficult I might be able to answer it a little more  27 easily.  I have my friend's two points and it's -- I  28 have some sense of what she is saying and I believe  29 that I'll be able to respond to those two observations  30 in the fullness of time.  31 THE COURT:  All right.  32 MR. PLANT:  The Dick case was another off reserve hunting case.  33 Now, here the appellant hunted within -- within  34 traditional hunting lands outside of his reserve and  35 he was charged with killing a deer out of season  36 without being the holder of a permit.  Now, at trial  37 there was evidence about the importance of hunting in  38 the band's culture and the appellant's argument was  39 that the Provincial Wildlife Act struck at the core of  40 Indianness and therefore was required to be read down  41 so as not to apply to him in the circumstances.  42 Now, so the first issue if I can say before the  43 Supreme Court of Canada was whether the Wildlife Act,  44 to use these words again, struck at the core of  45 Indianness and therefore would not apply to him.  And  46 the court's conclusion on that point is at page 137 of  47 the judgment.  Does your lordship have that? 27970  Submissions by Mr. Plant        1  THE COURT:  Yes.  2 MR. PLANT:  Where Mr. Justice Beetz, speaking for unanimous  3 court, says in the second or third -- well, I will  4 start about halfway down the second paragraph:  5  6 "In the case at bar, there was considerable  7 evidence capable of supporting the conclusions  8 of Mr. Justice Lambert to the effect that the  9 Wildlife Act did impair the Indianness of the  10 Alkali Lake Band, as well as the opposite  11 conclusions of the courts below."  12  13 Mr. Justice Lambert was a dissenting judge in the  14 Court of Appeal.  And Mr. Justice Beetz goes on:  15  16 "I am prepared to assume, without deciding,  17 that Mr. Justice Lambert was right on this  18 point and that appellant's submission on the  19 first issue is well taken."  20  21 So for the purpose of the decision Mr. Justice Beetz  22 is proceeding on the assumption that in its operation  23 the Wildlife Act impairs the Indianness of the members  24 of the Alkali Lake Band and as he says just above the  25 new heading Roman numeral IV:  26  27 "it follows that the Wildlife Act could not  28 apply to the appellant ex proprio vigore, and,  29 in order to preserve its constitutionality, it  30 would be necessary to read it down to prevent  31 its applying to appellant in the circumstances  32 of the case."  33  34 Subject to the question of referential incorporation,  35 which is the second issue.  Now, Mr. Justice Beetz  36 held that notwithstanding -- well, he goes on to hold,  37 applying Kruger and Manuel, but the Wildlife Act does  38 apply to the appellant by reason of Section 88 and  39 accordingly Mr. Dick's appeal is dismissed.  He, Mr.  40 Justice Beetz, held that notwithstanding the  41 assumption that he made that -- I am taking your  42 lordship through -- that the application of the  43 Wildlife Act to the appellant would have the effect of  44 regulating him qua Indian, the Wildlife Act remained a  45 law of general application and was incorporated by  46 Section 88.  And the -- his lordship's analysis begins  47 on page 137 and continues all the way to Section 141 27971  Submissions by Mr. Plant 1            where it really is an  application of the principles of  2 Kruger and Manuel.  And at the top of page 141 Mr.  3 Justice Beetz says:  4  5 "It has already been held in Kruger and Manuel  6 that on its face, and in form, the Wildlife Act  7 is a law of general application.  In the  8 previous chapter, I have assumed that its  9 application to appellant would have the effect  10 of regulating the latter qua Indian.  However,  11 it has not been demonstrated, in my view, that  12 this particular impact has been intended by the  13 provincial legislator.  While it is assumed  14 that the Wildlife Act impairs the status or  15 capacity of appellant, it has not been  16 established that the legislative policy of the  17 Wildlife Act singles out Indians for special  18 treatment or discriminates against them in any  19 way.  20 I accordingly conclude that the Wildlife  21 Act is a law of general application within the  22 meaning of Section 88 of the Indian Act."  23  24 And he then goes on to deal with what I describe as  25 the referential incorporation controversy.  And below  26 the quote from Kruger and Manuel it says:  27  28 "This controversy has so far remained  29 unresolved in this Court.  30 I believe that a distinction should be  31 drawn between two categories of provincial  32 laws.  There are, on the one hand, provincial  33 laws which can be applied to Indians without  34 touching their Indianness, like traffic  35 legislation;"  36  37 Pausing there.  Or another example is the Martin case  38 and which I referred to earlier, and there is a  39 reference to that at the bottom of the next paragraph.  40 That's the temperance case.  41  42 "there are, on the other hand, provincial laws  43 which cannot apply to Indians without  44 regulating them qua Indians.  45 Laws of the first category, in my opinion,  46 continue to apply to Indians ex proprio vigore  47 as they always did before the enactment of 27972  Submissions by Mr. Plant  1951, then numbered Section 87."  2  Section  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  Skipping over the references.  "I have come to the view that it is to the laws  of the second category that Section 88 refers.  I agree with what Chief Justice Laskin wrote in  the Natural Parents case when he said:  When Section 88 refers to 'all laws of  general application from time to time in  force in any province' it cannot be assumed  to have legislated a nullity but, rather,  to have in mind provincial legislation  which, per se, would not apply to Indians  under the Indian Act unless given force by  Federal reference.  I am fully aware of the contention -- '"  :   Does he mean there when not applied to Indians  because of the Indian Act, under the Indian Act?  Would not apply to Indians.  Because of --  Well, under Indians who are subject to the Indian  Act may be what he means there.  All right.  But they would not apply to Indians because --  No, I am sorry.  I think he means would not apply to  Indians because of Section 91(24).  Yes, it's 91 (24) .  Yes.  All right.  "'I am fully aware of the contention that it is  enough to give force to the several opening  provisions of Section 88, which, respectively,  make the 'provincial' reference subject to the  terms of any treaty and any other federal Act  and subject also to inconsistency with the  Indian Act,"  So on,  "'That contention would have it that Section 8?  is otherwise declaratory.  On this view,  however, it is wholly declaratory save perhaps  in its reference to 'the terms of any treaty', 27973  Submissions by Mr. Plant 1                   a strange reason,  in my view, to explain all  2 other provisions of Section 88.  I think too  3 that the concluding words of Section 88 'except  4 to the extent that such laws make provision for  5 any matter for which provision is made by or  6 under this Act' indicate clearly that  7 Parliament is indeed effecting incorporation by  8 reference."  9  10 Now, Mr. Justice Beetz goes on to say:  11  12 "I also adopt the suggestion expressed by  13 Professor Lysyk"  14  15 in an article which he has already cited and it's  16 really the beginning with the second sentence of that  17 quotation, but I'll read it all:  18  19 "'Provincial laws of general application will  20 extend to Indians whether on or off reserves.  21 It has been suggested that the constitution  22 permits this result without the assistance of  23 Section 87 of the Indian Act, and that the only  24 significant result of that section is, by  25 expressly embracing all laws of general  26 application (subject to the exceptions stated  27 in the section), to contemplate extension of  28 particular laws which otherwise might have been  29 held to be so intimately bound up with the  30 essential capacities and rights inherent in  31 Indian status as to have otherwise required a  32 conclusion that the provincial legislation  33 amounted to an inadmissible encroachment upon  34 section 91(24) of the British North America  35 Act."  36  37 So it -- in summary, Section 88 makes applicable to  38 Indians laws of general application which would not  39 otherwise be applicable.  They still have to pass the  40 laws of general application test, but even if they are  41 in their effect such laws impair the status and  42 capacities of Indians, they are saved by Section 88  43 subject to Section 35 of the Constitution Act and the  44 Sparrow judgment.  But that would be a later subject.  45 THE COURT:  All right.  Well, I understand all that.  46 MR. PLANT:  Good.  Well, then, you may even be a step or two  47 ahead of me.  But I do have a couple of observations 27974  Submissions by Mr. Plant        1 at the bottom of page 9  of my submission before I turn  2 to what I hope is the beginning of some illumination.  3 There is a reference to a submission by the plaintiffs  4 in the transcript reference in turn gives a reference  5 to their written argument where I say that there is an  6 incorrect reading of the Chief Justice Laskin's  7 judgment in Natural Parents and then a reference to  8 the Derrickson case, and I won't trouble your lordship  9 with that now.  But I will turn to paragraph 13 where  10 I try to summarize the position thus far as follows:  11 First, Provincial laws of general application which  12 can be applied to Indians without touching their  13 Indianness apply to Indians of their own force.  14 Second, Provincial laws of general application which  15 cannot apply to Indians without regulating them qua  16 Indians are nonetheless made applicable by virtue of  17 Section 88 of the Indian Act; that is, they become  18 applicable as Federal legislation.  19 Now, paragraph 14 I say that in considering the  20 application of these principles to the case at bar it  21 must be borne in mind, firstly, that the plaintiffs  22 have contended that they do not seek to disturb the  23 existing constitutional arrangements within  24 Confederation.  Secondly, the plaintiffs have not  25 challenged the competence of Parliament to enact  26 Section 88.  And thirdly, no issue arises with respect  27 to Provincial competence in relation to "Lands  28 reserved for the Indians", That's the second arm of  29 91(24), as the claim at bar is made in respect of  30 lands outside Indian reserves.  The claim area is not  31 "lands reserved for the Indians" within the meaning of  32 91 (24) .  33 Now, I say that if existing constitutional  34 arrangements are not to be disturbed then the position  35 is clear: provincial laws apply to the plaintiffs  36 outside reserves, whether of their own force, or as  37 federally incorporated laws pursuant to Section 88.  38 The plaintiffs submit, and this is a quote from  39 their argument, "that Section 88 has no application to  40 such uses of Indian lands as may be considered  41 integral to the aboriginal title to such lands."  I  42 say with respect, there is no support for this  43 proposition, and that it should be observed that with  44 the exception of Kruger and Manuel and Dick, all the  45 cases cited by the plaintiffs concern the operation of  46 provincial laws within reserves.  And that takes them  47 outside the ambit of interest, if I can put it that 27975  Submissions by Mr. Plant        1 way, for this case.  2 Now, I say -- I say in paragraph 17 that there is  3 no constitutional magic to a claim of aboriginal  4 title.  And what I mean by that is that calling into  5 play the phrase aboriginal title doesn't affect any  6 alteration of the division of powers.  Within the  7 existing division of powers provincial competence is  8 limited by 91(24), but that limitation extends only to  9 two subjects "Indians" and "Lands reserved for  10 Indians."  If there is such a thing as aboriginal  11 title outside reserve lands in British Columbia then  12 provincial competence can only be excluded if laws  13 relating to such title are properly characterized for  14 constitutional purposes as laws relating to "Indians."  15 The constitutional foundation for the position  16 which we have taken that the Province lacks the  17 competence to extinguish aboriginal title therefore  18 must lie, can only lie in the first half of 91(24),  19 "Indians."  Provincial legislation expressly  20 purporting to extinguish aboriginal title would  21 necessarily be discriminatory both in its territorial  22 application and in its application to one class of  23 citizens in its object and purpose, and there would  24 not be -- it couldn't be a law of general application.  25 And would not be saved by Section 88.  26 Carrying on, my lord, in paragraph 19.  The  27 proposition that for constitutional purposes  28 legislation relating to aboriginal title must be  29 considered to be legislation in relation to "Indians"  30 is entirely in keeping with the non-proprietary  31 characterization of aboriginal title in the St.  32 Catherine's Milling case, and other cases, as a  33 "personal and usufructuary" right.  And I'm going to  34 come to the difference between aboriginal title and  35 what the plaintiffs are here claiming in a minute.  36 But in paragraph 20 I say that to admit that the  37 Province is incapable of extinguishing aboriginal  38 title is not to admit complete legislative  39 incompetence in the field.  Provincial competence to  40 enact general legislation remains untouched.  And such  41 legislation continues to apply to Indians either of  42 its own force, or by virtue of Section 88.  The uses  43 of land at issue in Kruger and Manuel and Dick, which  44 were hunting cases, are among the uses comprised  45 within the definition of aboriginal title as a  46 personal and usufructuary right.  Thus, apart from any  47 effect which Section 35 might have on this analysis, 27976  Submissions by Mr. Plant        1 the Province is  constitutionally competent to enact  2 laws which affect the exercise off-reserve of those  3 rights recognized as comprising the incidents of  4 aboriginal title.  But the Province could not make  5 laws in relation to Indians, but it can make laws in  6 relation to the subject matters within its competence,  7 which in their incidental effect may affect the  8 exercise of aboriginal rights.  9 Now, the plaintiffs -- and this is one of the  10 points that my friend Miss Mandell made a few days  11 ago, but it's not among the points that she just made.  12 The plaintiffs argue that the Dick case is bad law  13 because subsequently decided case having enlarged the  14 concept of discrimination to include what is sometimes  15 described as adverse effect or systemic  16 discrimination, that is, a discrimination which arises  17 not by the intention of an act but by the reason of  18 its effect.  Treating people equally, it is said, does  19 not always result in equal treatment.  20 Well, I say with respect, that this argument  21 misreads Kruger and Manuel and Dick.  In these cases  22 the Court held that the issue whether a provincial law  23 applies to Indians of its own force, or is  24 referentially incorporated by Section 88.  Pausing  25 there.  In other words, the issue of whether  26 provincial law is a law of general application, is to  27 be determined by examining the intent and the effect  28 of the law, and that's exactly what Mr. Justice Beetz  29 said in Dick when he was explaining Kruger and Manuel.  30 Now, obviously if the intent of a provincial law  31 is to discriminate then it will be by definition be  32 ultra vires.  But if the operation of what is  33 otherwise a law of general application results in the  34 impairment of the status or capacities of Indians, in  35 other words, adverse effect discrimination, then it  36 will not apply of its own force but it may nonetheless  37 apply by virtue of Section 88.  It follows from Chief  38 Justice Laskin's observation in Natural Parents, which  39 were adopted in the Dick case, that the whole point of  40 Section 88 is to make operable provincial statutes  41 which otherwise would, by reason of their effect in  42 relation to Indians, intrude upon Federal  43 Jurisdiction.  44 Now, I want to stop for a moment because I have  45 been using the term aboriginal title.  And as I say in  46 paragraph 24, it must here be recalled that the  47 plaintiffs in this case have claimed "ownership and 27977  Submissions by Mr. Plant        1 jurisdiction"; and the  claim to ownership, while not  2 in terms a claim to ownership in fee simple, is  3 manifestly a claim to ownership in the fullest  4 possible proprietary sense.  There is a limitation  5 with respect to alienability, but that's not material  6 for purposes of this argument.  7 I say it is impossible to conceive of any concept  8 of ownership and jurisdiction that has the meaning  9 claimed by the plaintiffs in the face of the  10 combination of Provincial laws referentially  11 incorporated under Section 88 and those Provincial  12 laws of general application applicable ex proprio  13 vigore, or by their own force.  My submission is  14 that -- further submission is that the enactment of  15 Section 88 in 1951 necessarily extinguished any rights  16 inconsistent therewith, including in particular any  17 allegedly inherent rights of self-government which are  18 inconsistent with the full panoply of general laws of  19 application thereby made applicable to Indians,  20 notwithstanding that such application may be said to  21 have impaired them in their status and capacities.  22 Even assuming that the claimed rights of jurisdiction  23 existed, the enactment of Section 87 (as it then was)  24 in 1951 necessarily put an end to them.  25 But there is another wrinkle to this, my lord, and  26 that is the wrinkle that relates to the ownership half  27 of the claim.  I say that proprietary rights to lands  28 outside Indian reserves as a constitutional matter do  29 not fall within the purview of 91(24) and would appear  30 therefore to fall within exclusive Provincial  31 legislative competence.  Accordingly, if the existing  32 constitutional arrangements are to be respected, as  33 the plaintiffs have conceded, provincial land laws  34 constitutionally speaking are in full force and effect  35 within the claim area outside the Indians reserves.  36 That's because 91(24) as far as lands are concerned  37 stops at the reserve boundary.  And an example of a  38 Provincial law that would be caught here is Section 5  39 of the Land Act.  And Section 5 is concerned with the  40 disposition of Crown land.  41  42 "5. (1)  A person may not acquire by  43 prescription, occupation not lawfully  44 authorized or a colour of right, an interest in  45 Crown land, or in any land as against the  46 interest in it of the Crown."  47 27978  Submissions by Mr. Plant        1 That's I say valid  Provincial legislation enacted  2 within Provincial competence under 92(13) which does  3 not entrench upon Federal competence under 91(24)  4 because it's not a law that touches either the subject  5 matter of Indians or lands reserved for the Indians.  6 Now, if I could go to paragraph 27 of my  7 submission.  I am floating here, my lord, in a place  8 without authority, and I say that the absence of any  9 authority on this point is nothing more than a  10 reflection of the novelty, and in my respectful  11 submission and in constitutional terms, the absurdity  12 of the plaintiffs' claims.  It's no answer to say, as  13 the Plaintiffs do and as my friend has just done a few  14 minutes ago, that aboriginal title is federal common  15 law.  Even if the judgment in the Roberts case, and  16 that's the case -- the federal court jurisdiction  17 case, even if that judgment is correct on the question  18 of whether aboriginal title is federal common law, it  19 applies only with respect to aboriginal title in  20 reserve lands and the point of the present argument is  21 that the plaintiffs at bar have advanced no such  22 claim.  That is, their claim is neither to aboriginal  23 title nor is it a claim to reserve lands.  And I say  24 that if aboriginal title is federal common law, then  25 Section 88 applies to incorporate all provincial laws  26 in general application.  But I emphasize again that  27 the analysis of aboriginal title and the relationship  28 of aboriginal title to Section 88 of the Indian Act  29 would be of some interest if there were a claim to  30 aboriginal title, but a claim to proprietary ownership  31 in lands outside reserves is not a claim to aboriginal  32 title, and is not a claim which falls within the  33 umbrella of 91(24).  It's not a subject matter which  34 falls within the exclusive legislative competence of  35 Canada.  36 And in the last paragraph of this section, my  37 lord, I say it's not an answer to say that the  38 plaintiffs alleged rights are sui generis.  If they  39 are not caught by 91(24) or by 92 then they must  40 derive from a third order of sovereignty and the  41 plaintiffs have expressly disclaimed such sovereignty  42 here.  Now, that's my attempt to put Section 88 into  43 the matrix of the issues in this case.  44 THE COURT:  Well, let me just see if I follow you.  The  45 plaintiffs say that the School Act doesn't apply if  46 they opt out of it.  And they want me to so declare.  4 7  MR. PLANT:  Yes. 27979  1  THE COURT:  If I so declare and it  doesn't  Submissions by Mr. Plant  apply to them, if  it's in conflict with their aboriginal rights, then  are you saying that I shouldn't make that order  because Section 88 says that the School Act does apply  to the Indians?  :  Yes.  I am saying that provided your lordship is  satisfied that Section 88 is a law of general  application then your lordship can't make the order  which has been sought.  :  If it's a law of general application.  :  That's the hurdle that the law has to pass in order  to qualify under Section 88.  :  But they say that it affects their Indianness, if I  can use that unusual word, if it affects their  Indianness.  :  If it impairs their status and capacities as Indians  is a longer way of putting that.  :  Yes.  :  Then I say it applies and is saved nonetheless by  the Dick case.  That's really the whole point of the  Dick case.  Mr. Justice Beetz says I am going to  assume that the Wildlife Act has affected Arthur Dick  and his Indianness, but I nonetheless find it to be a  law of general application and therefore applicable to  him.  :  You say that if it does affect or impair their  capacity and status as Indians, i.e. their Indianness,  then under Dick the School Act still applies?  :  Yes.  It still has to be a law of general  application.  :  Yes.  :  It can't be a law relating to the status and  capacities of Indians.  :  Yes.  :  But if it's a law of general application then even  though it may have a more unusual impact on Mr. Dick  or one of the plaintiffs, it is nonetheless - saved  may not be the right word, but saved by Section 88.  :  What determines whether it affects their capacity  and status as Indians?  Is that the -- the operation  and effect test?  I —  See, it seems to me that --  It's both the intent --  -- what the plaintiffs are saying is that if it's  part of our law, and we can't follow our law, then it  affects us as Indians.  2  3  4  5  6  MR.  PLANT  7  8  9  10  THE  COURT  11  MR.  PLANT  12  13  THE  COURT  14  15  16  MR.  PLANT  17  18  THE  COURT  19  MR.  PLANT  20  21  22  23  24  25  26  THE  COURT  27  28  29  MR.  PLANT  30  31  THE  COURT  32  MR.  PLANT  33  34  THE  COURT  35  MR.  PLANT  36  37  38  39  THE  COURT  40  41  42  MR.  PLANT  43  THE  COURT  44  MR.  PLANT  45  THE  COURT  46  47 27980  Submissions by Mr.  fulfilling definition of  Plant  1  MR. PLANT:  Yes.  That's a self-  2  3  THE  COURT  4  MR.  PLANT  5  6  7  8  9  THE  COURT  10  11  MR.  PLANT  12  THE  COURT  13  MR.  PLANT  14  THE  COURT  15  16  17  MR.  PLANT  18  THE  COURT  19  20  21  MR.  PLANT  22  23  THE  COURT  24  25  MR.  PLANT  26  27  28  29  30  THE  COURT  31  MR.  PLANT  32  THE  COURT  33  MR.  PLANT  34  35  36  37  38  39  40  41  42  43  44  45  THE  COURT  46  MR.  PLANT  47  Indianness.  Yes, it is .  Which I oppose.  It's I mean as if  I say it has no basis in the law.  you say I say it affects me and  And Mr. Grant was  therefore I am not caught by it.  driven to admit that proposition in the context of the  Factories Act, the Education Act and so on.  Yes.  Well, that's where I got into the  Humpty-Dumpty argument: it's what I say it is.  Yes.  Saying it three times makes it so.  No.  Mr. Humpty-Dumpty just said it once.  No.  That was Lewis Carroll said that.  All right.  Well, then, you are saying that even if  it affects their Indianness, laws of general  application still apply it to them?  Yes, my lord.  And --  And therefore you are saying I should not make a  declaration that I would have the effect of saying  that those laws do not apply to them?  Yes.  They apply because they have been incorporated  by reference made federal legislation.  All right.  I think I understand your submission.  I  didn't think I would, but I think I do.  All right.  Some of this is going to arise again when I try to  explain the Limitation Act and how it works.  The next  issue, though, my lord is Section 4, which is all fact  and no law.  I have got a revision, a replacement  section for Section 4.  All of Section 4?  All of it, yes, my lord.  Yes.  The subject of Section 4 is "Extension of Dominion,"  the Alienation and Administration of Crown Lands and  Resources in British Columbia.  My lord, the Crown in  right of, first the Colony and subsequently the  Province, has, from Downie's trip across the Claim  Area in 1859 upon the instructions of James Douglas to  the present, administered the land and resources of  the Claim Area on behalf of the people of British  Columbia, including the plaintiffs and their  forebears.  Now, I am going to be making reference to  the yellow book because there are some evidentiary  references here.  And --  I can put away this book of authorities?  I don't think there will be any case law here, my  lord. 27981  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  Submissions by Mr. Plant        1  THE COURT:  All right.  MR. PLANT:  So the references will start with Roman numeral  IX/4-2.  THE COURT:  Yes.  MR. PLANT:  And the first reference follows the proposition that  the construction crews of the Collins Overland  Telegraph project were present in the Claim Area  because the project was considered to be in the  Imperial interest.  And your lordship there has a copy  of one of the enclosures in a despatch from the  Attorney General to the Colonial Secretary.  And as  your lordship will see in the first paragraph:  "Ordinance No. 5 entitled 'The International  Telegraph Ordinance 1865' has been framed to  carry out instructions of Her Majesty's  Government."  To administer the laws of the Colony -- and back --  this my submission, my lord.  To administer the laws  of the Colony and to facilitate a work deemed to be of  Imperial significance a magistrate was attached to the  construction crews.  And the reference here, my lord,  is to an extract from the Opinion Report of David  Williams, and I've extracted three pages of his report  summarizing the activities of the Overland Telegraph  crew.  And on the third of those pages, which is the  page six in the tab under a letter (d), you see there  the reference:  "Construction crews had a travelling magistrate  with them, Thomas Elwyn, whose pay was shared  equally by the company and the colonial  government.  He was the first official in the  area.  There are, however, no references to any  cases conducted by him, but he was certainly a  prominent member of the construction party; in  fact when, late late in 1866, other company  officials left the area, Elwyn was placed in  charge."  Back to my submission, my lord.  THE COURT:  All right.  MR. PLANT:  The extension of dominion represented by the  implementation of the relevant ordinance was an  unmistakeable assertion in the colonial period of the  Crown's right to control the lands in the Claim Area. 27982  other re  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  Submissions by Mr. Plant        1 Actually, there was one  ference I wanted to --  yes.  If you turn back in the yellow book just one  page, to page five, under heading (b):  "About 175 miles of line was constructed in the  Claim Area.  It skirted Burns and Decker Lakes,  followed the Bulkley to Hagwilget, then ran  northward to Kispiox and beyond to 55 degrees  44 minutes latitude north."  THE COURT  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  Just in terms of latitude, my lord, that's  approximately the latitude of Kisgegas and Kuldo  reserves.  I thought your lordship might like that  reference.  I can't remember if we were stopped at the Slamgeesh  Lake and Mr. David Blackwater showed us the trail.  That would be the --  That could have been --  The later.  The later trail to --  Yes.  -- Telegraph creek?  Yes.  All right.  Because at Slamgeesh Lake you are considerably  north.  Not that far.  Well, maybe not then.  Not far.  All right.  Thank you.  Moving ahead a few years.  Edgar Dewdney laid out a  townsite, set aside a reserve for the protection of a  small Indian community at Hazelton in 1871.  The  history of the settlement of the townsite by white  pre-emptors, their settlement elsewhere and the  subsequent arrival of government officials who  administered the laws of the Province and the Dominion  is set out in David Williams' report and the  supporting documents.  That the Crown regulated -- and those references  are not included in the yellow book, my lord.  That  the Crown regulated the use of land, including the  construction of roads and trails and licensed the  extraction of resources were open and notorious facts,  known to the forebears of the plaintiffs.  Some of  them became the holders of Free Miners' Certificates  as Douglas had urged in 1860.  Now, I want to give your lordship a couple of 27983  aren t in  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  Submissions by Mr. Plant        1 references there that  the text.  The first  is to add to the tab, the next tab, an extraction from  Mr. Williams' report.  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  Add to tab 4?  And this should be in tab 4.  At the end?  Yes, that's fine.  Under the heading "Employment"  Mr. Williams writes:  "Starting with the Collins Overland, Indians in  the Claim Area were employed or participated in  the economic activities of the white man.  In  the 1870's, there was a gold rush into the  Omineca, a region linked physically to the  claim area by the Babine Trail and economically  because of the coming and going between  Hazelton and the mines.  Skeena River Indians  were employed in the mines and often by  government officials; they packed and  freighted, sometimes as entrepreneurs.  In the  later rush in the Omineca in 1897, Indian mined  on their own account as well as being employed.  I can identify at least three Indians from the  claim area who had free miners' certificates,  and there may have been a half a dozen more."  Now, if your lordship moves to the beginning of this  tab I have got -- I have set out there some  extractions from the complete record of the free  miners' certificate index, which comes from Exhibit  1175.  And on the first page, if your lordship has  that, the first name there appears on my reading to be  David Hagwilgate.  It's Hagwilgate.  And then three or  four names down there is Donny with "Indian" in  brackets and two, three more names down another Donny,  Indian.  Over the page a name at the top Plug Hat Tom,  although that may or may not be an Indian.  And then  over to the next page about ten names down a name that  I can't read, that looks like Sam Acquilgate.  And  then three names below that Shanoss, Indian.  And my  lord, turning over the next page, which is the record  from which the first three pages were taken, your  lordship goes down that page about, oh, three-fifths  of the way, there is a name there Au Lum, L-u-m.  On the first page?  No.  This would be page four of the tab.  Yes.  Page four of the tab, yes.  Au Lum.  Yes. 27984  1  MR. PLANT:  And that's  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  Submissions by Mr. Plant  THE COURT:  20823.  MR. PLANT:  That is likely to be Jessie Sterritt's father.  Chief Wii 'goob'1.  THE COURT:  Why do you say that?  MR. PLANT:  Because in her evidence she identifies her father as  having been Au Lum, a Chinese prospector.  THE COURT:  Oh.  All right.  MR. PLANT:  Just a matter of interest.  Now, the other material,  though, in this tab that is of interest or that is of  relevance to the proposition made in paragraph four is  Governor Douglas' despatch to the Duke of Newcastle of  1860 which begins at page 30 of the material on the  tab.  And I want to make it clear that while in this  despatch it's obvious that Douglas was urging the  Indian as Cayoosh to engage in mining, he wasn't  making that urging -- he wasn't saying that to the  ancestors of the plaintiffs.  The passages of  relevance are at the bottom of page 33 of the tab, the  beginning of paragraph 35 of the despatch where  Douglas says:  "I had an opportunity of communicating  personally with the native Indian tribes, who  assembled in great numbers at Cayoosh during my  stay."  THE COURT  MR. PLANT  And as best as I can figure Cayoosh is at or near  Lillooet.  :  Yes.  :  Over the page about seven or eight lines down, we  have -- it's part of Douglas' recounting of his  remarks on that day:  "that on their becoming registered free miners  they might dig and search for gold, and hold  mining claims on the same terms precisely as  other miners."  Now, back to paragraph five of my submission.  In 1885  the stipendiary magistrate, that's a Mr. Graham, at  Lome Creek reported that he was adjudicating disputes  between Indians.  The administration of the Criminal  Law was an obvious and accepted fact.  And the next material in the yellow book, my lord,  is a letter from Graham to the Provincial secretary of  the 20th of June, 1885.  And on the second page Mr. 27985  Submissions by Mr. Plant  1  Graham writes:  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  THE  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  MR. PLANT  "We have a number of Indians here from various  tribes.  They have many trivial grievances  among themselves."  I emphasize "trivial" because there is some suggestion  that that might say "tribal," but I am pretty sure in  evidence it was established that the best reading of  that is "trivial."  "... trivial grievances among themselves which  they bring to the government Judge to settle.  I have to hear cases almost daily and I have to  employ an interpreter.  My cook Indian acts for  me now.  I pay him $30 per month and board  which I trust the government will allow.  The  Indians are all peaceable and friendly towards  the miners here and along the Skeena River."  My lord, the major disputes between native and white  have been remarked upon by a number of witnesses and  the contemporary documentation, including newspaper  accounts, Orders in Council and all sorts of other  kinds of evidence, provides full details of the  extension of dominion arising out of these incidents.  The day to day nature of the inhabitants'  existence is harder to re-create but in my submission  the available documentation seems clear: the rule of  the Queen's law was the norm; the administration of  resource use was evident to all and, subject of course  to the exceptions of the Indian reserves, applicable  alike to white and native.  :  I think we should adjourn.  :  Yes.  Because I propose to spend a moment or two  tomorrow -- more than a moment or two with the  alienation maps.  :  All right.  Will you be able to finish this  tomorrow?  :  I actually hope that I am going to be able to finish  Section 5, but I don't aspire to getting much beyond  that.  All right.  I am certainly going to try to get as far as I can.  Yes.  All right.  And do you want to start at 9  o'clock?  That would be fine. 27986  Submissions by Mr. Plant        1  THE COURT:  Is that convenient?  2 MR. PLANT:  From 9 to 11?  3 THE COURT:  Yes.  Yes.  4 MS. MANDELL:  My lord, if I am just a little late, start without  5 me.  6 THE COURT:  Oh, no.  We will start at 9:15.  7 MS. MANDELL:  All right.  Thank you.  8  9 (PROCEEDINGS ADJOURNED UNTIL JUNE 1, 1990 AT 9:15  10 A.M.)  11  12  13 I hereby certify the foregoing to  14 be a true and accurate transcript  15 of the proceedings transcribed to  16 the best of my skill and ability.  17  18  19  20  21  22 Laara Yardley,  23 Official Reporter,  24 UNITED REPORTING SERVICE LTD.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47