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
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Delgamuukw Trial Transcripts
[Proceedings of the Supreme Court of British Columbia 1990-05-31] British Columbia. Supreme Court May 31, 1990
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Title | [Proceedings of the Supreme Court of British Columbia 1990-05-31] |
Creator |
British Columbia. Supreme Court |
Publisher | Vancouver : United Reporting Service Ltd. |
Date Created | 1990-05-31 |
Description | In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial. |
Extent | pages 27874-27986 : digital, DOC file |
Subject |
Trial transcripts--British Columbia. |
Person Or Corporation | Uukw, Delgam, 1937- |
Genre |
Trial proceedings |
Type |
Text |
FileFormat | application/pdf |
Language | English |
Identifier | KEB529.5.L3 B757 SCBC_351 |
Collection |
Delgamuukw Trial Transcripts |
Source | Original Format: University of British Columbia. Library. Law Library. |
Date Available | 2013 |
Provider | Vancouver : University of British Columbia Library |
Rights | Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/ |
DOI | 10.14288/1.0018529 |
AggregatedSourceRepository | CONTENTdm |
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