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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-25] British Columbia. Supreme Court Jun 25, 1990

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 28945  Submissions by Mr. Macaulay  1 JUNE 25, 1990  2 VANCOUVER, B.C  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 25th day of June, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 MR. MACAULAY:  Mr. Rush has a submission to make, my lord.  8 MR. RUSH:  My lord, two preliminary matters before my learned  9 friend commences.  The first has to do with what was  10 raised by Mr. Willms before your lordship about the  11 discrepancy or alleged discrepancy on an argument that  12 was -- we later found out had to do with the Section 5  13 argument between what was on the hard disk or diskette  14 copy handed to your lordship and the hard copy that  15 was handed to your lordship, and I have checked the  16 hard copy that was handed to your lordship, or we  17 believe to be handed to your lordship, and the copy on  18 the diskette, and apart from changes of whether it's  19 double or single spacing, they are the same.  And I  20 have raised this with my friends, the province this  21 morning, and I provided them with copies that I took  22 off this morning of the diskette and the hard copy,  23 and I have asked them if they would check their  24 sources to see if we can determine what I think is  25 likely the case that inadvertently they were given a  26 hard copy of a draft.  27 THE COURT:  I see.  28 MR. RUSH:  And whatever the case is, if my records are correct,  29 and I have no reason to say otherwise, the hard copy  30 that your lordship has and the diskette copy are  31 virtually the same except for some very minor  32 alterations in the formating.  33 THE COURT:  All right.  Thank you.  34 MR. RUSH:  The second issue —  35 MR. PLANT:  Maybe if my friend is moving on, I should say that  36 my friend is kind enough to give us what he  37 understands to be the hard copy as given to your  38 lordship, and that we intend to try to reconcile with  39 the various materials that we have.  I can't do that  40 yet because it will take a few minutes.  41 THE COURT:  Yes, all right.  Thank you.  42 MR. RUSH:  The second issue has to do with the argument that is  43 to be commenced this morning by the Dominion, and I  44 say only this, and I don't raise this as a matter of  45 complaint, only as matter of notice, my lord, that the  46 counter-claim argument that I was presented with at  47 6:30 last evening of the -- of Canada is three times 28946  Submissions by Mr. Macaulay  1 longer than the argument that was provided to me in  2 Smithers as the counter-claim of the Dominion, and  3 there are two and-a-half days left for the plaintiffs  4 to digest this.  And to the extent that I have been  5 able to review it, my friends, of course, will say  6 that there is a good deal at which there is parallel  7 argument between the plaintiffs and the Dominion, and  8 that is so.  But there is also a good deal that isn't,  9 and I simply raise that as a matter of concern on our  10 part.  11 Your lordship has noted that you are in a position  12 of relative powerlessness in these circumstances, and  13 I don't wish to comment any further than that.  But it  14 puts the plaintiffs in a most difficult position to  15 make their reply to the extent that they would want to  16 to this argument.  17 MR. MACAULAY: I don't think the plaintiffs have a reply.  18 THE COURT:  Well, that's — that may be an answer, but —  19 MR. MACAULAY:  We are on the same side on the counter-claim.  I  20 don't see how they should reply -- why they should  21 reply.  22 THE COURT:  I haven't thought it through, Mr. Macaulay.  You may  23 have a complete answer --  24 MR. MACAULAY:  And it's true that the latter part — this has to  25 do with the post-union or post-confederation events is  26 a great deal longer than the summary.  There was a  27 summary.  The province argued every conceivable little  28 point that ingenuity of counsel or of a team of  29 counsel could dredge up, and we find ourselves in that  30 fortunate position of taking the precaution of  31 answering that fully, if it's necessary.  I'll submit  32 it isn't necessary at all.  It was only after the --  33 their argument delivered in March that we realized the  34 full extent of the thing, and that's what happens when  35 you make 89 arguments.  36 There is a matter, my lord, that I should address  37 first.  It has to do with some additional documents I  38 may have to refer to.  There are before you two books.  39 MR. RUSH:  Excuse me.  Perhaps there has been a dispute before  40 my learned friend and I over these documents, and I  41 had -- if they are the documents that he seeks to add  42 to the collection not exhibited, the plaintiffs are  43 not taking any position with regard to the referencing  44 to these, however, we do take a position with regard  45 to two documents which the province purports to file  46 as a response to these documents.  I only -- I wish to  47 save my friend any trouble in terms of making a pitch 28947  Submissions by Mr. Macaulay  1 on this point.  There is no issue between us on that.  2 MR. MACAULAY:  If there is no issue, I am not going to make a  3 submission.  4 THE COURT:  Good.  No, I shouldn't say that.  I was looking  5 forward to hearing you.  6 MR. MACAULAY:  My lord, there are two more blue books before  7 you.  8 THE COURT:  These two here.  9 MR. MACAULAY:  One is a book of authorities that we referred to  10 in our submissions.  The other is the submission  11 itself.  There is a -- the argument -- there is an  12 index, the very first -- the first two pages are the  13 index, and there are the corresponding tabs.  Then  14 there is another section of this book called  15 documents, and there is an index to those two.  These  16 are the additional documents that I was going to make  17 a submission about, but I am not going to now.  There  18 may be some objection when I am referring to one or  19 other of the documents by the province.  Perhaps we  20 can just deal with that, if and when the issue comes  21 up.  These are additional documents that we thought  22 ought to be considered by the court in connection --  23 along with the very, very substantial number of  24 documents the province relied on in its extensive  25 argument in various aspects of the counter-claim.  26 My lord, the nature of the counter-claim was at  27 some time a bit of a mystery to me.  What I am going  28 to submit is it is really a claim over or a claim for  29 indemnity.  At tab -- the first tab, that's Roman  30 numeral I entitled "nature", I first set out the  31 counter-claim, and it's the second part of the  32 counter-claim that I am addressing.  33 I have set out then a portion of the transcript.  34 This was during my learned friend Mr. Goldie's  35 submission, when your lordship asked him some  36 questions that I would like to make some comments on.  37 It was at the conclusion of the submissions, and what  38 your lordship said was well, first if there is no --  39 if you succeed, that is if the province's defence  40 succeeds, the counter-claim doesn't arise, and Mr.  41 Goldie agreed with that.  And then your lordship said:  42  43 "All right.  If you don't succeed on the first  44 one, then similarly the second one couldn't  45 arise, could it?"  46  47 And then Mr. Goldie made some reference to the 28948  Submissions by Mr. Macaulay  1 rights of Sparrow.  I assume what he meant there was  2 the use and occupation rights discussed in Sparrow,  3 and went on to say:  4  5 "If your lordship finds that it can be made  6 indeed made against the province, it's still --  7 oh, well, we may have to establish that in  8 separate proceedings."  9  10 And then your lordship says:  11  12 "... if I were to find that the only proper  13 claim would be against Canada then the action  14 would have to be dismissed as against the  15 province."  16  17 And Mr. Goldie agreed with that.  And then your  18 lordship observed:  19  20 "That being so you never need number two."  21  22 And then Mr. Goldie said this:  23  24 "If your lordship says that I am going to find a  25 liability against British Columbia, then I have  26 to go into another court and seek to establish  27 Canada's indemnity."  28  29 And that neatly sums up the position, my lord.  30 And I am submitting at page 3 that from this exchange,  31 precisely what declaration the province is seeking  32 against Canada is not very clear.  If it pertains to  33 the question of the survival, the nature and the  34 extent of aboriginal rights in any particular part of  35 the claim area, that will have to be dealt with by the  36 court on the plaintiffs' claim, and both British  37 Columbia and Canada will be found by the findings.  38 That is if your lordship says the plaintiffs have  39 aboriginal rights, and these are the -- or some  40 plaintiffs, and your lordship identifies those  41 plaintiffs, and your lordship indicates where those  42 rights are, and of course their claims to land, then  43 all the parties before the Court will be bound by that  44 decision, and there is no question of that -- those  45 issues being re-litigated in another court.  It would  46 be unthinkable.  47 And the same applies to any part of the 28949  Submissions by Mr. Macaulay  1 plaintiffs' claim.  Their claim for a declaration that  2 they are entitled to damages would be the same thing,  3 that is damages against the province for wrongful  4 alienation.  5 The determination of the issue of whether or not  6 Canada has done anything by Order in Council 1265 or  7 otherwise to -- and I am using Mr. Goldie's terms --  8 indemnify or release British Columbia vis-a-vis Canada  9 from the consequences of such a judgment is not  10 necessary to the disposal of the plaintiffs' claim.  11 These are discreet issues.  12 The question of indemnification or release of  13 British Columbia by Canada is a controversy between  14 Canada and the province; it is a claim for relief  15 against the Federal Crown and clearly ought not to be  16 heard in this court.  And it need not be heard in this  17 court in order to determine the issues, the main  18 issues, the issues that the Court has been addressing  19 all along, that is that the plaintiffs' assertion of  20 certain rights in regard to certain -- to Provincial  21 Crown lands.  22 Counsel for the province admitted that the  23 province has -- and I am using his words -- has to go  24 to another court to seek to establish Canada's  25 indemnity.  That's how he phrased it.  Any  26 pronouncement on the interpretation and effects of  27 Order in Council 1265 as between Canada and the  28 province would not be a finding of fact, but it would  29 be a finding of liability in favour of British  30 Columbia and against Canada.  31 The province has been urging your lordship to  32 interpret Order in Council 1265 or at least pronounce  33 on the effect of that order as between Canada and  34 British Columbia.  That would be tantamount to finding  35 liability.  It would be tantamount to making a  36 judgment on the merits in a dispute or controversy  37 between Canada and the province.  38 Now, it's not pleaded that way, but that's  39 exactly -- this is a claim over.  The counter-claim is  40 mutton are dressed as lamb.  It's a claim over,  41 although it's dressed up in a different --  42 THE COURT:  Well, if that's so, and I don't presume to suggest  43 one way or the other, it seems to me that the real  44 heart of the counter-claim is in paragraph one, and  45 that paragraph two would only operate as paragraph one  46 operates.  If the plaintiff establishes a claim to an  47 aboriginal right of some description and with relation 28950  Submissions by Mr. Macaulay  1 to some part of the territory, then the plaintiffs  2 will get judgment against the province, the only  3 defendant it has sued to that extent, and the province  4 will not be entitled to the declaration it seeks under  5 paragraph one.  Then your position, as I attempted to  6 state to Mr. Goldie, that unless he wins and gets the  7 the declaration on paragraph one, then there is  8 nothing to the counter-claim.  9 MR. MACAULAY:  That's right, my lord.  10 THE COURT:  If the plaintiffs fail entirely and the action is  11 dismissed, then there is still no reason for --  12 MR. MACAULAY:  That's the end of the matter.  13 THE COURT:  I suppose in this maze somewhere there is a need for  14 some kind of a pleading, and maybe the counter-claim  15 is the pleading that gets Canada before the Court.  16 MR. MACAULAY:  Well, my lord, this pleading, this counter-claim  17 in its present form was not pleaded when Canada was  18 brought before the Court.  The province felt that it  19 had to have Canada joined as a defendant because it  20 feared that Canada might take the position or would  21 take the position that it was not bound in some way by  22 your lordship's findings on the issues between the  23 plaintiffs and the province.  I was always mystified  24 by that submission and that fear that the province  25 expressed.  We are bound by -- bound in the sense that  26 it's subject to, of course, any right of appeal.  27 THE COURT:  But in proceedings against you they would have been  28 possible had you not been at this trial to re-litigate  29 some of the factual issues would have gone.  You could  30 say the learned trial judge erred in finding that  31 Kisgegas is in the claim territory and may want to  32 prove that it is not, and what estoppel would rise to  33 prevent you from doing that.  34 MR. MACAULAY:  I suppose that might be so, my lord.  There is no  35 chance of that now.  If your lordship --  36 THE COURT:  Now there isn't, no.  37 MR. MACAULAY:  Kisgegas is in the claim territory.  The Crown or  38 the Attorney General of Canada isn't bound by that  39 decision, and he can't re-litigate that and  4 0              wouldn't —  41 THE COURT:  Well, I'm not sure what the full impact of all of  42 this is.  It does seem to me that as a matter of  43 impression it's -- I say this with all respect, its  44 been useful to have Canada here.  4 5 MR. MACAULAY:  Well, I am glad to hear that, my lord, and I am  46 not trying to re-litigate or argue again the  47 submission I made before Mr. Justice Trainor and the 28951  Submissions by Mr. Macaulay  1 submissions that I made before the Court of Appeal.  2 I am not quarreling.  I am not making the  3 submission that Canada ought not to have taken part in  4 this action.  We did, and I hope that some of the  5 evidence we adduced and the submissions that we made  6 will be helpful to the Court.  But I am addressing now  7 this perplexing counter-claim.  I don't see how it  8 fits in, and I'm -- I took up -- I have taken up the  9 questions your lordship obviously had about it before  10 I addressed the two sets of issues, that is  11 jurisdiction and then the merits of the province's  12 argument.  13 THE COURT:  Well, I don't think one should leap to any  14 conclusions, because it's necessary to consider all  15 possibilities.  And if, for example, the result of the  16 trial was to end up in a money judgment against the  17 plaintiff, the counter-claim might then have some  18 raison detre.  19 MR. MACAULAY:  Against the defendant province.  2 0 THE COURT:  Yes.  21 MR. MACAULAY:  If there were a money judgment.  22 THE COURT:  Yes.  23 MR. MACAULAY:  A declaration, yes, then, as I will be  24 submitting, the province -- the province would then  25 have to seek indemnity.  26 THE COURT:  Yes.  But the dimensions of the plane field would be  27 then firmly established by your presence here --  28 MR. MACAULAY:  The quantum of the judgment in the sense of —  2 9 THE COURT:  Yes.  3 0 MR. MACAULAY:  The territory covered by the judgment.  31 THE COURT:  And the evidence upon which it was based.  32 MR. MACAULAY:  Yes.  Would not be something that Canada could  33 litigate again.  34 THE COURT:  Yes.  35 MR. MACAULAY:  But the province is -- appears to be going  36 farther than that.  But it's difficult to tell from  37 those last submissions of counsel for the province  38 just how far it seeks to go.  And really my first  39 submission is that if it seeks to establish Canada's  40 liability, then it's well beyond the permissible  41 limits.  42 THE COURT:  Well, I take Mr. Goldie to have recognized that that  43 wasn't available to him in this action; that he had to  44 go to another court.  45 MR. MACAULAY:  Well, I would think so, but then he makes all  46 these arguments about the effect, for instance, Order  47 in Council 751 and Order in Council 1265, that neither 28952  Submissions by Mr. Macaulay  1 of which have any great bearing on the issues before  2 your lordship.  3 THE COURT:  Well, I take that to be in part, at least, a further  4 answer to the plaintiffs' case, and while it could  5 also fall under the umbrella of the first part of the  6 counter-claim, that is counter-claim against the  7 plaintiffs for a declaration that they have no case,  8 it's an unusual and possibly redundant, even total  9 illogical allegation.  It's perhaps not a harmful one  10 that the defendant province says in its defence you  11 have no case and its counter-claim says we want a  12 declaration.  13 MR. MACAULAY:  That you have no case.  14 THE COURT:  That you have no case, both of which —  15 MR. MACAULAY:  That's not really a counter-claim either.  It's  16 like the traditional pleading wherefore the plaintiff  17 prays the defendant action be dismissed with costs.  18 THE COURT:  I can see a reason.  One has to be careful not to  19 become too creative.  I remember a lawsuit one time  20 for civil conspiracy where it was alleged that the  21 purpose was lawful but the means were unlawful, and  22 the plaintiff failed, and then it started a second  23 action to say that the purpose is unlawful but the  24 means were lawful and was stopped from doing that.  2 5 MR. MACAULAY:  Yes.  26 THE COURT:  Here I can see the province saying we want to  27 dismiss this action on the grounds alleged, and we  28 want a declaration that there are no other aboriginal  29 rights that haven't been mentioned here.  3 0 MR. MACAULAY:  Yes.  31 THE COURT:  Again it anticipates a defensive estoppel, that  32 could be left for another day, but --  33 MR. MACAULAY:  It would be a matter of res judicata surely.  34 THE COURT:  I don't want to be overly creative, but insurance  35 companies used to bring actions saying that a  36 plaintiff is not entitled to coverage under this  37 policy.  A way of getting before the Court, when the  38 plaintiff had only sued the defendant.  39 As I say, there may be possibilities that I  40 haven't considered, which would by some legal process  41 of reasoning make the counter-claim a useful thing to  42 do.  I wouldn't dismiss the process out of hand.  It  43 is difficult to see at the moment and the way the case  44 has developed where there is any need for the  45 counter-claim, but I am not able at this time to say  46 that it's totally useless --  4 7 MR. MACAULAY:  I didn't expect your lordship to hand down 28953  Submissions by Mr. Macaulay  1 reasons for judgment on that issue, and that's why I  2 have 300 pages of text.  I am forced to do that.  I  3 can assure your lordship I don't intend to read all  4 300 pages.  5 THE COURT:  I am certainly not going to give judgment or stop  6 you from making whatever submissions you think you  7 should.  8 MR. MACAULAY:  The first submission has to do with the question  9 of the jurisdiction of the court.  This, of course,  10 relates only to Part II of the counter-claim to -- if  11 Part II of the counter-claim amounts to a claim for  12 indemnification, and we can't tell whether it does or  13 doesn't, and maybe this is unnecessary.  I'll go  14 through it fairly quickly.  15 It is submitted that this court doesn't have  16 jurisdiction to grant declaration sought in Part II of  17 the counter-claim or to determine any claim for  18 indemnification in favour of British Columbia and  19 against Canada, if that's what British Columbia is  20 seeking in a round about way.  This court lacks  21 jurisdiction to determine claims, to controversies  22 between Canada and the province, and rely on Section  23 19 of the Federal Court Act and Section 1 of the  24 Federal Court Jurisdiction Act, and Section 31(C) of  25 the Crown Proceeding Act.  26 Our second position is that the Supreme Court  27 lacks jurisdiction to entertain this counter-claim and  28 to grant relief claimed in Part II of the  29 counter-claim as against Canada by virtue of Section  30 17 of the Federal Court Act.  And that was the section  31 that was considered by Mr. Justice Trainor.  32 In the alternative, if this court does have  33 jurisdiction, we will -- we submit that it should  34 exercise its discretion, which it has in the case of a  35 declaration, to decline to determine the claim that  36 appears to be made in paragraph two of the  37 counter-claim.  38 Now, the first ground -- I come back to the first  39 ground, the controversies between Canada and the  40 province.  41 This courts lacks jurisdiction to entertain claims  42 relating to controversies between Canada and B.C. in  43 the absence of special legislation.  Without such  44 special legislation there is no jurisdictional source  45 exists.  46 By statute, Parliament and the legislature  47 designated which courts have jurisdiction to determine 28954  Submissions by Mr. Macaulay  1 these controversies between Canada and the province.  2 And B.C. has specifically excluded such controversies  3 from the jurisdiction it has conferred on the Supreme  4 Court of British Columbia, this court, by reason of a  5 provision of the Crown Proceeding Act, which I will be  6 referring to in a minute.  7 The Federal Court on the other hand has been given  8 this precise jurisdiction by virtue of Section 19 (A)  9 of the Federal Court Act and by Section 1 (A) of the  10 Federal Court Jurisdiction Act.  11 I set out the Section 19 of the Federal Court Act  12 at the bottom of page 6, and on page 7, Section 1 of  13 the Federal Court Jurisdiction Act.  And I say that  14 Parliament first provided for the hearing of  15 intergovermental controversies between Canada and the  16 provinces in the Exchequer Court in an Act passed in  17 1857, which is referred to on page 7.  And at the top  18 of page 8 I give the legislative history of those  19 provisions, which are founded in Section 19 of the  2 0 Federal Court Act.  21 Now, the legislative history of the provincial  22 legislation is set out thereto, and I might add that  23 every province has similar provisions, that is  24 provisions similar to the Federal Court Jurisdiction  2 5 Act.  26 This action is brought by the plaintiffs pursuant  27 to the Crown Proceeding Act, which allows the province  28 to be impleaded in the Supreme Court, but not in  29 respect of controversies between Canada and the  30 province.  And it's Section 3(1)(C) that makes that  31 provision.  It's fairly simple, and the meaning is  32 plain and clear.  33  34 "This act ... does not apply to proceedings to  35 which the Federal Courts Jurisdiction Act  36 applies."  37  38 The jurisdiction of the British Columbia Supreme  39 Court was considered by Chief Justice Esson in the  40 case -- in the Vancouver Island Railway case, which  41 was a judgment of the Chief Justice of this court in  42 December, 1989.  And he held that the Supreme Court  43 has the jurisdiction to hear the petition of the  44 Attorney General of British Columbia in a case where a  45 remedy involves the expenditure of money by Canada has  46 been sought.  47 Unfortunately, Section 3(1)(a) of the Crown 28955  Submissions by Mr. Macaulay  1 Proceedings Act wasn't drawn to the Chief Justice's  2 attention and was not referred to in his judgment.  3 For that reason, the judgment in the Vancouver Island  4 Railway case may not be much assistance of dealing  5 with this question.  6 THE COURT:  I don't think I have to assign five judges to hear  7 that appeal as has been requested.  8 MR. MACAULAY:  No, my lord.  I don't think so.  9 THE COURT:  All right.  I'll keep that in mind.  10 MR. MACAULAY:  It's unfortunate that that provision wasn't  11 considered.  There is also a question of a recent  12 Supreme Court of Canada Court judgment, which I say  13 has a bearing on this, the Wolff case.  14 The judgment, as your lordship knows, is currently  15 under appeal, and the Attorney General is submitting  16 that the learned Chief Justice erred in law in holding  17 that the Supreme Court does have jurisdiction in the  18 circumstances of that case, and at page 10 I refer to  19 the jurisprudence.  I am not going to expound at  20 length on it concerning Section 19, and -- but I do  21 want to make a submission regarding the Wolff  22 decision.  23 In order to understand the rationale behind the  24 enactment of the Federal Courts Jurisdiction Acts, it  25 is necessary to consider the principle of Crown  26 immunity.  That's a principle that's invoked by the  27 province in this case.  28 It's the principle that The Queen can't be  29 impleaded in her own courts unless the immunity is  30 removed by fiat or statute.  31 A quite recent decision of the Supreme Court of  32 Canada handed down the end of March of this year deals  33 with that matter, and I refer to a passage from the  34 judgment, that judgment of Mr. Justice Cory who gave  35 the reasons for judgment for the court at page 11 of  36 my submission.  The issue was whether Section 17 of  37 the Federal Court Act, Section 7(1) of the Crown  38 Liability Act of Canada which confer exclusive  39 jurisdiction on the federal court, contravened the  40 Canadian Charter of Rights and Freedoms.  And Mr.  41 Justice Cory in his judgment held as follows:  42  43 "At common law there was no jurisdiction in the  44 courts to hear an action against the Crown.  45 The ability to bring such an action was derived  46 solely from statute.  It is unnecessary to  47 delve too deeply into the history of these 28956  Submissions by Mr. Macaulay  1 actions.  It is sufficient to observe that in  2 the United Kingdom the Petitions of Right Act,  3 1860, provided that statutory base for bringing  4 actions against the Crown.  In Canada, the  5 Petition of Right Act appears in the statutes  6 of Canada 1875, but that Act and that Act  7 conferred jurisdiction on provincial superior  8 courts to hear cases against the federal  9 government subject to the enactment of enabling  10 legislation in the province.  The Petition of  11 Right Act, Canada, 1875, was repealed the  12 following year, and another Petition of Right  13 Act, 1876, which granted exclusive jurisdiction  14 to the Exchequer Court to hear petitions of  15 right against the Crown in Right of Canada.  16 There can be no doubt that without the passage  17 of these provisions, no jurisdiction existed in  18 any court to entertain an action claiming  19 damages against the Crown in right of Canada.  20 It is beyond question that only the  21 Parliament of Canada could enact statutes to  22 provide that actions could be brought against  23 the Crown in the right of Canada.  It is only  24 that body which can legislate as to the Court  25 in which those claims can be brought."  26  27 And I point out at page 12 the province does claim  28 Crown immunity, and I refer to that portion of their  2 9 argument in which the Crown Proceeding Act is invoked.  30 It seems clear that in respect to both the  31 question of the right to bring an action or to  32 determine a controversy against the Federal Crown, as  33 well as the question of the court in which to bring  34 such action or to determine a controversy against the  35 Federal Crown, are matters solely within the  36 legislative competence of the Parliament of Canada.  37 And in order to understand the rationale behind the  38 enactment of the federal and provincial legislation  39 which clothed the federal court with the jurisdiction  40 to entertain those controversies, it's also necessary  41 to examine the situation prior to the enactment of the  42 legislation before Confederation, and even for awhile  43 after Confederation there is no legal machinery  44 available for Canada and the province to settle legal  45 disputes.  The only manner of resolving disputes in  46 those days was by negotiation or arbitration or  47 agreement whereby the two governments could submit the 28957  Submissions by Mr. Macaulay  1 matter for a reference to the judicial committee.  And  2 I refer to the cases there, my lord, that support that  3 proposition.  And it's a fundamental principle of law  4 that the Crown is one and indivisible.  Her Majesty is  5 the head of both Canada and British Columbia, and I  6 refer to the judgments, the jurisprudence that are  7 relied on in that case.  8 Accordingly, in the absence of special  9 legislation, the Crown in Right of the Province of  10 British Columbia cannot implead and obtain judgment  11 against the Crown in right of Canada, since that would  12 result in The Queen suing herself.  13 The next matter, My Lord, the second aspect of  14 this submission on jurisdiction has to do with Section  15 17 of the Federal Court Act, and that's the section --  16 a section that Mr. Justice Trainor dealt with.  17 We submit that the relief claimed by the province  18 in paragraph 2 of the counter-claim for a declaration  19 that the plaintiffs' cause of action is for  20 compensation from Her Majesty The Queen in right of  21 Canada is an instance where relief was claimed against  22 Federal Crown.  If this relief was claimed by the  23 plaintiffs, it would clearly be a claim against  24 Canada.  The fact that the province makes the claim  25 doesn't change its nature.  It is still a case where  26 relief is claimed against the Federal Crown.  27 And I am now relying on the literal meaning of the  28 second part of the counter-claim.  29 Exclusive jurisdiction in cases where relief is  30 claimed against the Federal Crown is conferred on the  31 Federal Court of Canada by Subsection 17(1) of the  32 Federal -- Section 17(1) of the Federal Court Act.  33 And I quote it here.  And Section 2 defines:  34  35 "'Relief includes every species of relief  36 whether by way of damages, payment of money,  37 injunction, declaration, restitution of an  38 incorporeal right, return of land or chattels  39 or otherwise;"  40  41 Canada was added as a defendant in this action by  42 Mr. Justice Trainor at a time when he didn't have  43 before him the province's counter-claim in its present  44 form, or paragraph 41 of the province's defence, both  45 of which were added in September, 1986.  46 I want to draw to your lordship's attention a  47 portion of Mr. Justice Trainor's judgment, which is 2895?  Submissions by Mr. Macaulay  1 pages 16 and 17 of the submission.  2 And especially this quote at the bottom of the  3 page.  This is Mr. Justice Trainor who is speaking.  4  5 "This is not an appropriate court to deal with  6 the possible issues of compensation for the  7 loss of lands and resource by the defendant and  8 indemnification in respect of any damages which  9 might be awarded against the defendant."  10  11 There was only one defendant.  That was the  12 province.  13  14 "If the purpose of adding the Attorney General  15 of Canada as a defendant in these proceedings  16 is to bring those possible issues before this  17 Court, the application cannot succeed.  Those  18 are not litigable in this court."  19  2 0 Now, my lord, we say that the further amended  21 Statement of Defence, if it had been before Mr.  22 Justice Trainor, he probably would have declined to  23 add Canada as a defendant in respect of the province's  24 claim against Canada, or claim as it's expressed now  25 in the statement of the further Amended Statement of  26 Defence.  27 And then I go on to discuss very briefly the  28 judgment of Chief Justice Esson.  He held Section 17  29 did not apply in that case, Vancouver Island Railway  30 case.  As I mentioned before, there is an appeal, and  31 the position that will be taken by the Attorney  32 General of Canada on that appeal, and the one I submit  33 we take in this court, are set out under Part I, II  34 and III.  35 The third point on page 19 has to do with the  36 judgment of the Supreme Court of Canada in Wolff.  Of  37 course that judgment was handed down three months or  38 more after the judgment of the Chief Justice in the  39 Vancouver Island Railway case.  40 Now, my last submission on jurisdiction, my lord.  41 If this court has jurisdiction, it should exercise its  42 discretion to decline to determine the claim made in  43 paragraph 2 of the counter-claim.  44 Declaratory relief flows from the equitable  45 jurisdiction of the court, and the Court has a  46 discretion whether or not to grant such relief.  And I  47 refer to the statement of the law in that regard by 28959  Submissions by Mr. Macaulay  1 Mr. Justice Cozens-Hardy, the master of the roles in  2 the Dyson case.  3 The Attorney General of Canada submits that there  4 is a more appropriate forum, the federal court, for  5 the determination of the claim to the extent that it's  6 made against Canada.  Both Parliament and the  7 legislature have enacted -- provided that should read  8 probably -- that that kind of controversy be  9 determined in the federal court.  10 And in any event in the absence of proper  11 pleadings and discovery between Canada and the  12 Province, the Court should decline to deal with the  13 matter.  14 I have to turn now to -- because your lordship has  15 directed that Canada respond to the province's  16 counter-claim, to the issues raised in the province's  17 argument.  18 THE COURT:  When did I do that?  19 MR. MACAULAY:  Well, my lord, that was when your lordship  20 directed that -- after I had made a submission that  21 there wasn't a counter-claim against Canada, that  22 nonetheless we should reply to the province's  23 submissions, and we do so.  24 THE COURT:  Well, I am aware of the second part.  I must say the  25 first part has gone completely out of my head if I  26 made such an order.  I would be surprised if I would  27 instruct counsel on what submissions they should make.  28 MR. MACAULAY:  Not what submissions, but that we should make  29 submissions, and we took it that way.  30 THE COURT:  Well, you are here and you are ready to go, and I  31 shouldn't stop you.  I am surprised if you are making  32 this submission in response to what you have taken to  33 be something more than an invitation.  I have always  34 felt that counsel would be free to say "I don't need  35 to respond to that", and I thought that I could no  36 more make you make an argument than I could stop you  37 from making an argument.  38 MR. MACAULAY:  Perhaps I put it too strongly.  39 THE COURT:  I don't remember —  40 MR. MACAULAY:  We understood that your lordship wanted to hear  41 us on the merits of the various arguments, all these  42 various arguments, and so we have -- we are doing just  43 that.  It's inconsistent -- it's in the alternative,  44 and it's inconsistent with the submissions that I have  45 made on the nature of the first one, on the nature of  46 the counter-claim itself, which we say is not  47 necessary, and on the question of jurisdiction, which 28960  Submissions by Mr. Macaulay  1 we say this court hasn't got to hear the counter-claim  2 if we understand the character of the counter-claim  3 that's being made.  4 THE COURT:  Well, I certainly don't want to change anyone's  5 horses at this stage, but I am troubled by the thought  6 that anyone would think that they were required to  7 make a submission.  I certainly would like to  8 disassociate myself with that suggestion.  9 MR. MACAULAY:  Well, it certainly was open to the Attorney  10 General of Canada to instruct counsel to stand up and  11 say we make no submission.  12 THE COURT:  I certainly agree with that.  13 MR. MACAULAY:  But our instructions were to make a submission.  14 THE COURT:  All right.  Thank you.  15 MR. MACAULAY:  And I am now at page 21.  This response to the  16 counter-claim as against Canada -- this submission  17 also deals with the interpretation the province seeks  18 to place on the Constitution Act, and of the Terms of  19 Union, and subsequent matters such as Privy Council  20 Order 1265 in the province's defence and counter-claim  21 as against the plaintiffs.  So the submission really  22 serves two purposes.  And I have to say that whether  23 or not there was -- you know, that second leg of the  24 counter-claim, we would be probably be addressing the  25 Terms of Union and its effect regardless of the  26 question of jurisdiction.  27 The province claims that the plaintiffs aboriginal  28 rights, if any, have survived Confederation, in  29 Provincial Crown lands consisted only of claims  30 against Canada.  I am referring to -- and I give the  31 reference to their argument and the volume of the  32 transcript and page number when that submission is  33 made.  34 The jurisprudence establishes that the plaintiffs'  35 aboriginal rights are a burden on the provincial  36 Crown's proprietary estate in the land.  The  37 plaintiffs' claim in Delgamuukw in this case to  38 ownership and jurisdiction are in respect of  39 Provincial Crown lands.  These Crown lands are held by  40 the province under Section 109 of the Constitution  41 Act.  As a matter of law, aboriginal rights, if any,  42 in respect of Provincial Crown lands, are an interest  43 other than that of the province, and are a burden upon  44 the Provincial Crown lands.  The plaintiffs' claim in  45 provincial Crown lands are a matter for the province.  46 The province relies on Term 13 of the Terms of  47 Union, which it says determine that -- and we quote 28961  Submissions by Mr. Macaulay  1 here from their argument:  2  3 "That British Columbia would provide Indian  4 reserves and the Dominion would exercise its  5 constitutional responsibility and fulfill its  6 obligations in all other respects".  7  8 It is submitted that this argument is incorrect.  9 The wording of Term 13 doesn't support that  10 conclusion, and the historical background to the  11 negotiation of the terms and to the parallel  12 negotiation between Canada and the Hudson's Bay  13 Company indicates that the choice of wording was  14 specific and should be given full meaning.  15 Under Term 13, Canada assumed certain specifically  16 worded and defined duties.  17 THE COURT:  Can I just interrupt you for a moment.  Mr. Rush can  18 probably give us the answer to this as quickly as  19 anyone.  Does your pleading, Mr. Rush, particularly in  20 the reply where you referred to the underlying title  21 in the Crown, specify which Crown?  22 MR. RUSH:  Your lordship asked that before, but we take the  23 position the Crown provincial.  24 MS. SIGURDSON: I'm sorry, that wasn't my understanding of the  25 discussion about this earlier.  I had understood Mr.  26 Rush had referred to both Crowns or three Crowns at  27 the same time.  Is that position being changed?  28 MR. RUSH:  My learned friend does make a valid point as to what  29 time your lordship refers to, because it is true,  30 prior to Confederation that underlying the burden on  31 the underlying title of the Crown would be the  32 Imperial Crown, and in its manifestation in the colony  33 which in that manifestation would be the colonial  34 Crown after Confederation, of course it would be the  35 Provincial Crown.  36 THE COURT:  Yes, all right.  37 MR. RUSH:  And your lordship specifically asked for a  38 clarification of that, which I gave in words to this  39 effect, prior to the commencement of the argument.  40 And I think it was probably in January of this year  41 that I recollect.  42 THE COURT:  All right.  Well —  43 MR. RUSH:  I can find that for your lordship if it would be  44 helpful.  I think your lordship probably went through  45 the same exercise of endeavoring to find that  46 specificity in the pleadings.  You asked me  47 specifically, and I indicated in these -- 28962  Submissions by Mr. Macaulay  1 THE COURT:  Your position now is that the underlying title is in  2 the Provincial Crown.  3 MR. RUSH:  Post-Confederation.  4 THE COURT:  As of this time.  5 MR. RUSH:  Yes.  6 THE COURT:  All right.  Thank you.  Well, your friends are on  7 notice if they want to raise a question about that.  8 MR. MACAULAY:  Well, it seems plain as a pipe staff that it's  9 the case of the fact that its claim is against  10 provincial --  11 THE COURT:  I've never seen a pipe staff, but because I don't  12 know what they are --  13 MR. MACAULAY:  They are very plain, my lord.  14 Under Term 13 Canada assumed certain specifically  15 worded and defined duties.  Term 13 does not -- I have  16 in my text, my lord, "confer", but the appropriate  17 word is impose upon Canada the obligation to negotiate  18 treaties, to extinguish aboriginal rights, if any, in  19 British Columbia Crown lands, to pay any compensation  20 for any extinguishment that may be affected, are by  21 the province, or to otherwise deal with the claims the  22 plaintiffs are making in respect of Provincial Crown  23 lands.  Similarly, no such duties are found in Section  24 91(24) of the Constitution Act.  25 It is submitted that the province's argument  26 confuses the province's obligation under Term 13 to  27 provide lands to Canada with the existence of  28 aboriginal rights, if any, which burden Provincial  29 Crown lands.  The province's Term 13 obligation to  30 Canada is not at issue in this action.  31 The majority of the material in the provincial  32 counter-claim focuses on post-union events.  It is  33 submitted that such evidence of subsequent opinions,  34 discussions, policies and events is not helpful in  35 determining the constitutional effects of the Terms of  36 Union and the Constitution Act, which are clear and  37 plain in this matter.  38 No argument is made in the case at bar that Canada  39 and British Columbia amended this constitutional  40 arrangement.  Clearly the provincial and federal  41 governments cannot amend or waive their constitutional  42 duties and responsibilities in the Constitution Act  43 and in the Terms of Union, which is -- are  44 incorporated in the Constitution Act by Section 146.  45 The province concludes that the result of these  46 post-union events is that -- and I quote them:  47 28963  Submissions by Mr. Macaulay  1 "It was determined that British Columbia was  2 obliged to provide land reserves for Indians  3 who lived inside its boundaries, and that if  4 anything further were required, the Dominion  5 above had the responsibilities and the power."  6  7 And that's a quote from the argument that I set  8 out, that I referred to in my text.  9 The province confuses subsequent events and  10 agreements relating to the carrying out of the  11 province's Term 13 obligation -- including the  12 establishment of the joint reserve commission in  13 1875-6 and in the McKenna-McBride agreement and its  14 implementation and approval, with the existence of  15 aboriginal rights, which burden Provincial Crown  16 lands.  The agreements between these governments in  17 1875 and 1912 did not deal with the question of  18 aboriginal rights.  This is clear from the terms of  19 the agreements themselves and the historical  20 background.  The province refused to discuss them, the  21 subject.  Its position was, and it was very clear, it  22 was that there were no aboriginal rights.  The  23 agreements could hardly deal with a matter the  24 province refused to admit or even discuss.  25 Until this counter-claim, the province's position  26 has never been that Canada had any duty to extinguish  27 or otherwise deal with aboriginal rights burdening  28 Crown lands.  Rather, the province's position has  29 always been that there were no aboriginal rights.  If  30 the province is correct, then that is the end of the  31 matter; if the province is wrong, the plaintiffs'  32 claims for interests in Provincial Crown land are a  33 matter for the province.  34 The province refers to Canada's role as guardian  35 of the native peoples in Canada.  Any duties of Canada  36 in this regard are owed to the native peoples and not  37 to the province, and such duties are not at issue in  38 the case at bar.  Canada has issued no discharge to  39 the province in respect of aboriginal rights, if any,  4 0 that may be burdening the province's Crown lands.  41 Whether it is the Crown acting in the right of the  42 province or in the right of Canada, the duty is the  43 same to uphold the honour of the Crown in all its  44 dealings.  45 Now I turn to the 1914 events.  That's Order in  46 Council 751.  The Province relied on Canada's attempts  47 to settle this issue that long ago under that Order in 28964  Submissions by Mr. Macaulay  1 Council.  If Canada, as we say, Canada had no duty to  2 deal with aboriginal claims to rights in Provincial  3 Crown lands, the fact that Canada attempted to resolve  4 as a matter of policy this -- that's how it was  5 described, vexatious issue, how it was described in  6 the Order in Council at the time, that the province  7 had refused to deal with, doesn't change the effect of  8 the constitution or the law.  Your lordship will  9 remember what that PC 751 was about.  There was to be  10 a reference to the Exchequer Court with appeals, of  11 course, to the Supreme Court of Canada and to Privy  12 Council.  There were certain conditions.  It was  13 acknowledged in the Order in Council that by doing so  14 Canada was assuming a provincial obligation in the  15 sense of relieving the province of one of its burdens,  16 but there was a proviso regarding what should happen  17 if the then petitioners succeeded.  And that is that  18 they would surrender the lands that the Court held  19 they had an interest in or were entitled to.  On the  20 payment of amounts on a scale similar to that -- those  21 that were being paid in Alberta and Saskatchewan,  22 Manitoba during the treaty making process which had  23 just ended.  The western treaty making process.  The  24 offer was never agreed to.  25 Finally, the province argues that the 1927 report  26 of the Joint Commission and the subsequent related  27 events operated to discharge the province from any  28 liability respecting the extinguishment of aboriginal  29 title to lands in the province.  We say that's without  30 merit.  The 1927 report of the parlimentary  31 resolutions that adopted it do not change the law.  32 The subsequent events are matters of government policy  33 and don't effect the duties and liabilities of the  34 Crown, federal or provincial.  They cannot be said to  35 operate as a release or a discharge of the province.  36 Much has been made and a good deal of evidence led  37 by the province concerning the B.C. Special, as if it  38 were anything more than a policy of the federal  39 government to make those payments.  As we will see  40 when I get to it, there is nothing in the various  41 Appropriation Acts that would entitle anyone to bring  42 an action, for instance, for the payment of that  43 amount on an annual basis.  There is no statute.  It  44 says -- that commits the federal government to such  45 annual payments.  And I am turning to page 26.  On  46 December 1910, Sir Richard McBride, after meeting the  47 friends of the Indians of British Columbia, have this 28965  Submissions by Mr. Macaulay  1 to say:  2  3 "You may say the imperial authority has taken a  4 certain stand and the Ottawa authorities have  5 taken a certain stand.  Despite strong  6 statements made and the array of so much  7 historic record with regard to this Indian land  8 question, this government knows nothing of it.  9 So far as we know, the Indians are peaceful law  10 abiding Indians, loyal subjects of the Crown  11  12 We will reply, gentlemen, more formally in  13 writing, and we will of course be prepared to  14 accept the responsibility of our course."  15  16 My lord, it is submitted that the provincial  17 counter-claim, as against Canada, represents a failure  18 of the province to accept the responsibilities of its  19 course  20 Now, can I turn, my lord, to the nature of the  21 rights, because that has -- in this analysis that has  22 to be kept in mind.  This is merely a brief summary of  23 the submissions made on behalf of the Attorney General  24 the other day by Ms. Koenigsberg.  They are  25 usufructuary in the sense that they are related to  26 traditional uses of land, specifically a right to  27 continue to harvest traditionally relied upon  28 resources.  They are uses related to an aboriginal way  29 of life; that is, the taking of game, fish and plant  30 life to live upon.  They are rights characterized by  31 temporary possession of land belonging to another.  In  32 this sense they are rights forming a burden on the  33 Crown's proprietary estate.  And we rely on the  34 judgments of Calder and Smith and Guerin and Sparrow.  35 They are sui generis, in the sense that they are not  36 traditional common law property rights.  They are not  37 proprietary in nature.  They are characterized by a  38 dual dependency; that they are inalienable, except by  39 surrender to the Crown, and that they are held subject  40 to the goodwill of the Crown.  This dependency is the  41 source of the fiduciary relationship characterizing  42 the Crown's dealings with aborigines.  43 Now, can I turn to the obligation to extinguish,  44 which was a central feature of the province's case on  45 this counter-claim.  46 It is submitted that at least before 1982, before  47 April, 1982, aboriginal rights, being at the pleasure 28966  Submissions by Mr. Macaulay  1 of the Crown, could be extinguished through any means  2 open to the Crown by which by its intention to do so  3 was authoritatively manifested.  The test as to  4 whether any acts of sovereign have resulted in  5 extinguishment or diminution of aboriginal right is  6 that the sovereign's intention must be clear and  7 plain, as has now been decided in -- by the Supreme  8 Court of Canada in Sparrow.  There was no obligation  9 on the Crown to make treaties with natives or to  10 purchase their rights prior to dealing with lands  11 subject to aboriginal rights.  The Crown could grant  12 an interest, such as a Crown grant in fee simple, and  13 that grant is being totally adverse to any other use  14 would thus extinguish any aboriginal right to that  15 piece of land.  16 It is submitted that the province's alternative claim  17 in paragraph 43 of its defense is predicated on two  18 things.  19 First, that the aboriginal rights in respect of  20 Provincial Crown lands are extinguished, and second,  21 the extinguishment of those rights creates a cause of  22 action for compensation.  23 It is submitted that if aboriginal rights, which  24 are held at the pleasure of the Crown, were  25 extinguished, at least in relation to the  26 extinguishment, may have been affected before 1982,  27 there is no cause of action for compensation.  In  28 other words, either aboriginal rights exist as a  29 burden on British Columbia title, or else they are  30 gone and no right to compensation continues.  31 As a matter of policy, the Crown could extinguish  32 all aboriginal rights to an entire area by treating  33 with the natives.  And that was Canada's policy in the  34 prairies, or by purchasing the rights to the lands.  35 There was no obligation to do so, but where this  36 policy was pursued, the cost of the treaty or purchase  37 was discharged, as a matter of policy, by the holder  38 of the beneficial interest in the Crown's proprietary  39 estate in land.  40 For example, when the Hudson's Bay Company  41 received -- has to do with the Hudson's Bay Company.  42 When the company received the grant of Vancouver's  43 Island, there was no thought that the British Crown  44 would be obliged to pay for the cost of the company's  45 agreements with the natives of Vancouver Island.  The  46 policy of negotiating the agreements was developed by  47 the company, and the company paid.  The British Crown 28967  Submissions by Mr. Macaulay  1 considered the matter to be solely one for the company  2 as holder of the Crown grant.  And I refer there to  3 the documents that your lordship has seen, the  4 exhibits that have been referred to before.  5 Similarly, when the House of Assembly of Vancouver's  6 Island passed a resolution recommending extinguishment  7 of aboriginal rights to the Cowichan, Chemanis and  8 Barclay Sound districts in 1861, that's after the  9 company ceased to be the land owner, the assembly  10 considered that the extinction, as they put it, of the  11 aboriginal title was obligatory on the imperial  12 government.  When Governor Douglas forwarded this  13 petition to the Duke of New Castle in 1861, he wrote  14 to the Duke in the following terms:  15  16 "I will not occupy Your Grace's time by any  17 attempt to investigate the opinion expressed by  18 the House of Assembly, as to the liability of  19 the Imperial Government for all expenses  20 connected with the purchase of the claims of  21 the aborigines to public land, which simply  22 amounts to this, that the expense would in the  23 first instance, be paid by the imperial  24 government, and charged to the account of  25 proceeds arising from the sales of public land.  26 The land itself would therefore be ultimately  27 made to bear the charge."  28  29 And the reply was as follows:  30  31 "I am fully sensible of the great importance of  32 purchasing without loss of time the native  33 title to the soil of Vancouver Island, but the  34 acquisition of the title is a purely colonial  35 interest and the legislature must not entertain  36 any expectation that the British taxpayer will  37 be burdened to supply the funds or British  38 credit pledged for the purpose.  I would  39 earnestly recommend therefore to the House of  40 Assembly that they should enable you to procure  41 the requisite means, but if they should not  42 think proper to do so, Her Majesty Government  43 cannot undertake to supply the money requisite  44 for an object which, while it is essential to  45 the interests of the people of Vancouver  46 Island, is at the same time purely colonial in  47 its character, and trifling in the charge that 2896?  Submissions by Mr. Macaulay  1 it would entail."  2  3 It is submitted that the above correspondence is a  4 reflection of the accepted principles, I say here, of  5 fair play, but it's more than that, that the holder of  6 the beneficial interest in the Crown's proprietary  7 estate benefiting from the extinguishment of  8 aboriginal rights, and that's who would benefit,  9 should bear the cost.  10 Another example is to be found in connection with  11 the transfer of Rupert's Land from the company to  12 Canada.  Both parties to this transaction well  13 understood that principle.  The Order in Council  14 admitting Rupert's Land and the Northwest Territories  15 into the Dominion provided:  16  17 "Any claims of Indians to compensation for lands  18 required for purpose of settlement shall be  19 disposed of by the Canadian government in  2 0 communication with the imperial government; and  21 the company shall be relieved of all  22 responsibilities in respect of them."  23  24 From the company's point of view, it had been the  25 owner of Rupert's Land.  There had never been any  26 regular form of government, and the company as owner  27 had made grants of land for 1869, and these were  28 confirmed, and the company was to retain the land it  29 occupied, and it was to be granted other blocks of  30 land in other clauses of the agreement.  But as holder  31 of the proprietary estate in the lands, the company  32 was concerned about its responsibilities to Indians.  33 And then in 1870 under the -- by Order in Council  34 Canada obtained -- Canada got the beneficial interest  35 in the Crown's proprietary estate in Rupert's Land and  36 Northwest Territories.  And in 1867 and again in 1869  37 the Senate and House of Commons passed a joint  38 address, requesting the admission of the company's  39 territories into Canada, and it provided:  40  41 "And furthermore, that, upon the transference  42 of territories in question to the Canadian  43 Government, the claims of Indian tribes to  44 compensation for lands required for purposes of  45 settlement will be settled in conformity with  46 the equitable principles which have uniformly  47 governed the British Crown in its dealings with 28969  Submissions by Mr. Macaulay  1 the aborigines."  2  3 The address refers to the transfer of the  4 territories to the Canadian government.  It is  5 submitted that this can be contrasted with the cases  6 of expansion of Canada by the addition of provinces,  7 such as British Columbia, whose lands would not be  8 held by the Crown in right of Canada.  9 Canada made treaties with the Indians of the  10 Northwest Territories and the Province of Manitoba,  11 which I already listed, to extinguish aboriginal  12 rights.  But even in Manitoba, Canada had the Crown's  13 proprietary interest.  14 And in 1912, after it discovered what -- in the  15 St. Catherine's Milling and the following cases that  16 the province was under no obligation to pay Canada if  17 it mistakenly extinguished aboriginal rights and paid  18 the cost.  When Canada transferred its beneficial  19 interest, in parts of Rupert's lands to Ontario,  20 Canada obliged the province to carry on its policy of  21 obtaining surrenders of the rights of Indian  22 inhabitants and provided that "the said province shall  23 bear and satisfy all charges and expenditure in  24 connection with or arising out of such surrenders".  25 And there was a transfer on similar terms made to  26 Quebec.  27 THE COURT:  Take the morning adjournment, Mr. Goldie — I'm  28 sorry, Mr. Macaulay.  Are you finished?  2 9    MR. MACAULAY:  Yes, my lord.  30 THE COURT:  All right.  Thank you.  31 THE REGISTRAR:  Order in court.  Court stands adjourned for a  32 short recess.  33 (PROCEEDINGS ADJOURNED AT 11:15 A.M.)  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28970  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 28971  Submissions by Mr. Macaulay  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 MR. RUSH:  My lord.  4 THE COURT:  Mr. Rush?  5 MR. RUSH:  Just on point about which you interjected earlier.  I  6 believe the particular paragraph of the amended  7 statement of claim that you were looking for is  8 paragraph 72A, which was an amendment made in the  9 early part of this year.  And the passage of the  10 transcript that relates to what I advised the Court  11 about that paragraph, which is somewhat different from  12 your question to me in court earlier this morning, is  13 found at Volume 312 page 23458.  14 THE COURT:  23 thousand?  15 MR. RUSH:  458, yes, my lord.  16 THE COURT:  458.  17 MR. RUSH:  And the line reference is line 24 through to 47, and  18 to the extent that the explanation that I gave at that  19 time indicated that the plaintiffs' view was that the  20 Crown referred to in that paragraph was a Crown  21 represented provincially, whose duty upon which the  22 Indian title burdened the Provincial Crown, but we say  23 that the Crown there referred also to the Federal  24 Crown and its manifestation regarding its  25 constitutional obligations under 91(24) and 109 to act  26 administratively to -- to extinguish that title.  So  27 to that extent, I think Ms. Sigurdson -- Ms. Sigurdson  28 had a point that I was referring to Federal Crown in  29 that limited sense.  30 THE COURT:  All right.  Thank you.  Mr. Macaulay?  31 MR. MACAULAY:  Could I turn to Tab E, the Constitution Act, page  32 35 of the argument, my lord?  33 The Attorney General of Canada submits that the  34 Constitution Act, 1876 confirms the following:  First,  35 that the plaintiffs having any existing aboriginal  36 rights as a burden on Provincial Crown lands -- if the  37 plaintiffs have any existing --  38 THE COURT:  That should be if the plaintiffs have instead of  39 having?  4 0 MR. MACAULAY:  Yes.  41 THE COURT:  Thank you.  42 MR. MACAULAY:  Such rights are an interest other than that of  43 the Province within the meaning of Section 109 of the  44 Act of 1867, and they continue to be a burden on the  45 land owned by the Province; and, second, that Canada  46 was not obligated by treaty, by purchase or otherwise,  47 to extinguish any such aboriginal rights.  Under 28972  Submissions by Mr. Macaulay  1 Section 91(24), Canada was given the exclusive  2 legislative authority over Indians and lands reserved  3 for the Indians and therefore over the making of  4 treaties, but this provision was not mandatory.  It  5 didn't impose an obligation.  6  7 Canada's interpretation is supported by St.  8 Catherine's Milling and Seybold, which I believe the  9 plaintiffs described as the royalties case, the 1910  10 Dominion versus Ontario Case, and the A.G.B.C. and  11 A.G. Canada of 1889.  These cases, which were cited by  12 the Province in its argument, don't bear the  13 interpretation placed on them.  14  15 After Canada acquired title to the Northwest  16 Territories and Rupert's Land, Ontario claimed its  17 boundaries included part of the lands.  Canada  18 apparently didn't believe that and signed a treaty  19 with the Salteaux tribe, in which Canada agreed to pay  20 certain annuities and to set aside lands as  21 reserved -- as reserves.  After the surrender by the  22 Salteaux tribe, Canada did make the treaty payments  23 required and it purported to designate certain  24 reserves as it had cause to do.  In 1884 the Privy  25 Council held or made a decision which determined the  26 western boundary of Ontario.  And that decision was  27 incorporated in the Boundary Act of 1889.  That is the  28 Imperial Boundary Act of 1889.  The result was that  29 part of the treaty area was -- was part of Ontario.  30 THE COURT:  When you say treaty area, you mean treaty with the  31 Salteaux?  32 MR. MACAULAY:  Yes.  Canada thought it was dealing with Dominion  33 lands, but it found as a result of those proceedings,  34 which was confirmed by an Imperial statute, that it  35 was dealing partly with its own lands and partly with  36 Ontario land, and that gave rise to the St.  37 Catherine's Milling Case and Seybold.  38  39 In that case, the Privy Council held at page 56:  40  41 "The Constitution Act", then called the British  42 North America Act, of course, "also contains  43 careful provisions for the distribution of  44 legislative powers and of revenues and assets  45 between the respective Provinces included in  46 the Union, on the one hand, and the Dominion,  47 on the other.  The conflicting claims to the 28973  Submissions by Mr. Macaulay  1 ceded territory maintained by the Dominion and  2 the Province of Ontario are wholly dependent  3 upon these statutory provisions."  4  5 And then it goes on:  6  7 "The enactments of Section 109 are, in the  8 opinion of their Lordships, sufficient to give  9 to each control of its own Legislature the  10 entire beneficial interest of the Crown in all  11 lands within its boundaries, which at the time  12 of the union were vested in the Crown, with the  13 exception of such lands as the Dominion  14 acquired right to under Section 108 or might  15 assume for the purposes specified in Section  16 117."  17  18 And then there is the famous passage starting, and I  19 quoted at the bottom of the page:  20  21 "Had its Indian inhabitants been the owners in  22 fee simple of the territory which they  23 surrendered by the treaty of 1873, Attorney  24 General of Ontario v. Mercer might have been an  25 authority for holding that the Province of  26 Ontario could derive no benefit from the  27 cession, in respect that the land was not  28 vested in the Crown at the time of the union.  29 But that was not the character of the Indian  30 interest.  The Crown has all along had a  31 present proprietary estate in the land, upon  32 which the Indian title was a mere burden.  The  33 ceded territory was at the time of the union,  34 land vested in the Crown, subject to 'an  35 interest other than that of the Province in the  36 same', within the meaning of Section 109; and  37 must now belong to Ontario in terms of that  38 clause, unless its rights have been taken away  39 by some provision of the Act of 1867 other than  40 those already noticed."  41  42 Now, in the Province's opening, counsel for  43 British Columbia referred to the facts of St.  44 Catherine's Milling and cited the Privy Council's  45 opinion at page 59 immediately following the above  46 quote.  And what they cited was and by itself, of  47 course, bears -- if you isolate it, might bear the 28974  Submissions by Mr. Macaulay  1 meaning that the Province attributes to the St.  2 Catherine's Milling Case.  The quote they rely on is:  3  4 "In the course of the argument the claim of the  5 Dominion to the ceded territory was rested upon  6 the provisions of Section 91(24), which in  7 express terms confer upon the Parliament of  8 Canada power to make laws for 'Indians, and  9 lands reserved for the Indians'.  It was urged  10 that the exclusive power of legislation and  11 administration carried with it, by necessary  12 implication, any patrimonial interest which the  13 Crown might have had in the reserved lands...  14 It appears to be the plain policy of the Act  15 that, in order to ensure uniformity of  16 administration, all such lands, and Indian  17 affairs generally, shall be under the  18 legislative control of one central authority."  19  20 But the following portion wasn't referred to in the  21 Province's argument:  22  23 "Their Lordships are, however, unable to assent  24 to the argument for the Dominion founded on  25 section 92(24) .  There can be no a priori  26 probability that the British Legislature, in a  27 branch of the statute which professes to deal  28 only with the distribution of legislative  29 power, intended to deprive the Provinces of  30 rights which are expressly given them in that  31 branch of it which relates to the distribution  32 of revenues and assets.  The fact that the  33 power of legislating for Indians, and for lands  34 which are reserved to their use, has been  35 entrusted to the Parliament of the Dominion is  36 not in the least degree inconsistent with the  37 right of the Provinces to a beneficial interest  38 in these lands...."  39  40 My lord, it's not a matter of dispute with the  41 Province that Section 91(24) does not include Crown  42 lands upon which unextinguished aboriginal rights may  43 be a burden.  44 THE COURT:  Doesn't that include Provincial Crown lands, you  45 mean there?  46 MR. MACAULAY:  Yes.  Provincial Crown lands.  47 28975  Submissions by Mr. Macaulay  1 Counsel for the Province also notes that the -- in  2 St. Catherine's Milling the lands "were within the  3 ambit of the Royal Proclamation of 1763".  And it goes  4 on to say in lands subject to the Royal Proclamation  5 the Indian interest in unceded lands was held to fall  6 within Section 109 as "an interest other than that of  7 the interest of the Province".  8  9 And Mr. Goldie also submitted in his written  10 argument that in British Columbia Crown lands did not  11 come under the administration of the Province as a  12 result of Section 109.  And he refers to the Precious  13 Metals Case.  14  15 It's submitted that any attempt to distinguish St.  16 Catherine's Milling on the basis of the  17 non-applicabililty of the Royal Proclamation in this  18 case is without merit.  The nature of aboriginal  19 rights being a burden on the Provincial Crown's  20 proprietary estate in the land applies whether the  21 rights are based on the Royal Proclamation or not or  22 on the common law.  And we say that's clear from the  23 decision of the Supreme Court of Canada in Guerin,  24 Calder and Smith.  25  26 Any suggestion that British Columbia is not  27 included as one of the enumerated Provinces in Section  28 109 and that its lands are not burdened by "any  29 interest other than that of the Province in the same"  30 is contrary to the result in Attorney General of  31 British Columbia v. the Attorney General of Canada,  32 the 1889 case.  And I quote here at the bottom of page  33 40 the relevant passage from the judgment of the Privy  34 Council, the Seybold case.  35 THE COURT:  I didn't understand the Province to make that  36 argument, Mr. Macaulay.  37 MR. MACAULAY:  Well, I don't know whether it does or not.  38 THE COURT:  One of the enumerated -- I'm not even sure I know  39 what enumerated Provinces are, "is not included as one  40 of the enumerated Provinces in Section 109".  I'm sure  41 that argument wasn't made.  If it was, it went over my  42 head.  4 3    MR. MACAULAY:  I'll turn to Seybold.  All right.  That's the  44 royalties case that Mandell drew to your lordship's  45 attention in her able argument.  46  47 The dispute in Seybold was between rival grantees 28976  Submissions by Mr. Macaulay  1 from the two governments.  That is the governments of  2 Ontario and the Dominion.  The appellants' title was  3 granted from surrendered lands, in reserves  4 appropriated by Dominion officers following the 1873  5 treaty.  This followed on that same fact pattern, my  6 lord, that I'd referred to earlier where the Salteaux  7 tribe had made a treaty and it was later found that  8 part of the lands were within the boundaries of  9 Ontario.  10  11 And I refer your lordship particularly to the  12 judgment of the Privy Council, pages 82 and 83 of that  13 report of that decision:  14  15 "Their Lordships agree with the courts below  16 that the decision of this case is a corollary  17 from that of the St. Catherine's Milling Co.  18 V. Reg.  (1)  The argument of the learned  19 counsel for the appellants of their Lordships'  20 bar was that at the date of the letters patent  21 issued by the Dominion officers to their  22 predecessors in title the land in question was  23 held in trust for sale for the exclusive  24 benefit of the Indians, and therefore there was  25 no beneficial interest in the lands left in the  26 province of Ontario.  This argument assumes  27 that the Reserve 38B was rightly set out and  28 appropriated by the Dominion officers as  29 against the Government of Ontario, and ignores  30 the effect of the surrender of 1873 as declared  31 in the previous decision of this Board.  By  32 Section 91 of the British North America Act,  33 1867, the Parliament of Canada has exclusive  34 legislative authority over 'Indians and lands  35 reserved for the Indians'.  But this did not  36 vest in the Government of the Dominion any  37 proprietary rights in such lands, or any power  38 by legislation to appropriate lands which by  39 the surrender of the Indian title had become  40 the free public lands of the Province as an  41 Indian reserve, in infringement of the  42 proprietary rights of the Province.... Let it be  43 assumed that the Government of the province,  44 taking advantage of the surrender of 1873, came  45 under at least an honourable engagement to  46 fulfil the terms on the faith of which the  47 surrender was made, and, therefore, to concur 28977  Submissions by Mr. Macaulay  1 with the Dominion Government in appropriating  2 certain undefined portions of the surrendered  3 lands as Indian reserves.  The result, however,  4 is that the choice and location of the lands to  5 be so appropriated could only be effectively  6 made by the joint action of the two  7 Governments.  8  9 Counsel for British Columbia refers to the Seybold  10 decision and makes this submission.  He says:  11  12 Now, it will be observed that in the case of  13 British Columbia, Term 13 avoided that  14 particular difficulty because it provided for  15 the mechanism of selecting lands reserved for  16 the Government of Canada wished to allot as  17 reserves.  18  19 We agree with that submission.  But British Columbia's  20 Term 13 obligations are not at issue in this lawsuit.  21 Seybold, following St. Catherine's Milling confirms  22 the principle that aboriginal rights, where they exist  23 in respect to Provincial Crown lands, are an interest  24 other than that of the Province as section -- as  25 provided in Section 109, as mentioned in Section 109.  26  27 The other case in this connection that I want to  28 draw your lordship's attention to is the 1910 case.  29 The Province relies on this decision.  And the  30 Province's argument quotes from the submission made by  31 counsel for Canada, and the submission was this:  32  33 "... it was not competent to Ontario to make a  34 treaty with the Indians or to obtain any  35 transfer or surrender from the Indians.  36 Neither has the Provincial Government the right  37 to require the Dominion upon any terms to  38 obtain a surrender or refrain from obtaining a  39 surrender.  The whole administration is  40 exclusively in the hands of the Dominion  41 government."  42  43 We agree with that submission of Mr. Newcombe's,  44 as he then was, and we submit further that the Supreme  45 Court and the Privy Council decisions support the  46 proposition that Canada has the jurisdiction to enter  47 into treaties which may have the effect of 2897?  Submissions by Mr. Macaulay  1 extinguishing aboriginal rights which are a burden on  2 Provincial Crown lands but is not obligated to do so.  3 The Province quoted Mr. Justice Idlington's judgment  4 in the Supreme Court of Canada in that case for the  5 proposition that Section 91(24) assigned to the  6 Dominion "the high, honourable, and onerous duties of  7 the guardians of the many races of Indians".  But at  8 page 108 of the same judgment, Mr. Justice Idlington  9 had this to say:  10  11 "It is not pretended that there was anything  12 said or done on behalf of Ontario that induced  13 the Government of the Dominion to move in the  14 matter of negotiating the Indian treaty; nor is  15 it pretended that there was any actionable  16 legal obligation resting on the Dominion  17 towards Ontario to discharge this burden;..."  18  19 And on appeal to the Privy Council, Lord Loreburn  20 had this to say at the beginning of his judgment:  21  22 "In this appeal the only question argued was  23 whether or not the Dominion of Canada is  24 entitled to recover from the Province of  25 Ontario a proper portion of annuities and other  26 moneys which the Dominion bound itself in the  27 name of the Crown to pay to an Indian tribe and  28 its chiefs under a treaty of October 3, 1873."  29  30 Both the Supreme Court of Canada and the Privy Council  31 held that Canada could not recover that money from the  32 Province.  There was no legal basis for that trust,  33 agency or otherwise.  And Lord Loreburn noted:  34  35 "It may be that, as a matter of fair play  36 between the two governments, as to which their  37 Lordships are not called upon to express and do  38 not express any opinion, the province ought to  39 be liable for some part of this outlay."  40  41 The decision wasn't based upon any obligation on  42 the part of Canada to extinguish aboriginal rights to  43 provincial lands.  It's on the contrary.  The Privy  44 Council held at page 646:  45  46 "It is enough to say that the Dominion  47 government... did not pay off the Indian 28979  Submissions by Mr. Macaulay  1 incumbrance for the benefit of these lands, but  2 for distinct and important interests of their  3 own."  4  5 Now, the Dominion, in treating with the Indians,  6 didn't have as its object the extinguishment of  7 aboriginal title, although it in fact accomplished  8 that.  Whatever was the intention when it made the  9 treaty, it believed it held the Crown title.  And Lord  10 Loreburn noted that Canada acted "in the belief that  11 the lands were not within the Province".  12  13 In his argument -- in his opening submission on the  14 counterclaim -- rather, in his opening submission at  15 the beginning of this trial, Mr. Goldie submitted:  16  17 Now, the necessary corollary was that the  18 Province, that is the Province of Ontario, was  19 precluded from surrender negotiations with the  20 Indians resident within their boundaries.  That  21 was the situation then and it is the situation  22 today.  23  24 Well, in the case of Treaty 9, that was a treaty  25 with Indians who lived in Northern Ontario, the  26 commission included a member appointed by and  27 representing Ontario.  The report of the commissioners  28 states:  29  30 In one essential particular the constitution of  31 the commission to negotiate this treaty  32 differed from that of others which undertook  33 similar service in the past.  One member was  34 nominated by the province of Ontario under the  35 provisions of clause 6 of the statute of  36 Canada, 54-55 Victoria, Chapter V, which reads:  37 "That any further treaties with the Indians in  38 respect of territory in Ontario to which they  39 have not before the passing of the said  40 Statutes surrendered their claim aforesaid  41 shall be deemed to require the concurrence of  42 the government of Ontario."  The concurrence of  43 the government of Ontario carried with it the  44 stipulation that one member of the commission  45 should be nominated by and represent Ontario.  46  47 I come now, my lord, to the Terms of the Union. 28980  Submissions by Mr. Macaulay  1 The Attorney General of Canada submits that the Terms  2 of Union confirm the principles we have just  3 discussed, and they're in conformity with the  4 Constitution Act of 1867.  5  6 The most important term, of course -- and I'm at  7 page 486 of my submission now -- is Term 13, which I  8 set out at page 48.  We say that this term doesn't  9 affect the distribution of powers and responsibilities  10 under the Constitution Act, Sections 91(24) and  11 Section 109, nor does it confer upon the Government of  12 Canada the obligation to negotiate treaties, to  13 extinguish aboriginal rights that may be burdening  14 Provincial Crown lands, to pay any compensation for  15 extinguishment which may be affected, or otherwise  16 deal with the claims the Plaintiffs are making in  17 respect of Provincial Crown lands in this case.  18  19 Under this term, Canada assumed the charge of the  20 Indians.  That provision has in mind the traditional  21 expenses required for their advancement, health and  22 education, relief, et cetera.  And we have evidence  23 that in this trial -- in this case and the claim area  24 that those -- Canada did assume that responsibility.  25 The term refers to the charge of the Indians and not  26 the charge of any Indian interest in Crown lands.  27 This duty must be read in the light of the  28 pre-confederation colonial policy Canada was to  29 continue.  And I refer there and for that proposition  30 to Jack v. The Queen, which dealt with Term 13 and  31 the -- in the matter of fisheries.  32  33 Canada also assumed under this term the  34 trusteeship and management of lands reserved for the  35 Indians' use and benefit.  The duties under this  36 provision are clear and well-defined.  As with the  37 charge of the Indians, the duties respecting reserved  38 lands must be read in light of the policy that Canada  39 was to continue.  40  41 With respect to the duty to continue after union,  42 a policy as liberal as that hitherto pursued by the  43 British Columbia Government, the Attorney General  44 submits that -- we say that the policy of the  45 government of the Colony of British Columbia did not  46 include treaties or purchases of aboriginal rights.  47 It certainly didn't in 1871 when that Term 13 was 28981  Submissions by Mr. Macaulay  1 drafted and was adopted by both governments and was  2 incorporated in the constitution.  3  4 The British Columbia policy was established by Sir  5 James Douglas in his capacity as governor of British  6 Columbia.  The Imperial Government, when the colony  7 was formed in 1858, instructed Douglas to secure the  8 protection of the Indians in the colony but directed  9 him to determine the means by which these interests  10 were to be protected, the Indians were to be  11 protected.  12  13 Douglas set out the prominent features of the  14 system that he proposed to adopt in regard to the  15 Indians in a despatch of March 14th, 1859.  The  16 essential characteristic of that policy was the  17 reservation of lands for the benefit and support of  18 Indians.  The reservations would include the  19 cultivated fields and village sites and contain enough  20 land to enable Indian settlements to be  21 self-supporting through the use or the sale or the  22 lease of the lands.  This proposed system didn't  23 include a policy of treating with the Indians or  24 purchasing aboriginal rights.  The system of land  25 reservations for Indians set out by Douglas in that  2 6 despatch was approved by the Imperial Government and  27 was applied as the Indian policy of the Colony.  28  29 After Douglas's retirement in 1864, the colonial  30 government continued that policy and it remained the  31 policy of the colony right up to the time of  32 confederation in 1871.  33  34 In its argument the Province suggests that:  35  36 "Term 13 simply acknowledges the transfer of  37 London's role with respect to Indians to  38 Ottawa..."  39  40 Well, I don't know if we have to comment on that,  41 but London's role did not include any obligation to  42 pay the cost of extinguishing aboriginal title to  43 lands.  We'd seen earlier that the Imperial Government  44 refused to take on that burden and dealt with it as  45 a -- characterized it as a purely local matter.  46  47 We adopt the following submission by the Province, 28982  Submissions by Mr. Macaulay  1 this submission which is set out at page 52.  And we  2 particularly draw your lordship's attention to that  3 portion at the bottom of the page, which reads:  4  5 It is submitted that the answer which should  6 have been given to the Governor General's  7 question was that no such compensation had ever  8 been made in British Columbia, and that the  9 Dominion Government was not obliged by any  10 provision of the Terms of Union, the  11 Constitution Act, 1867, or any other statute or  12 legal or equitable principle to institute such  13 a policy in British Columbia."  14  15 So we say the -- Canada has no constitutional  16 obligation to extinguish title by making treaties or  17 otherwise making payments for aboriginal rights.  18 THE COURT:  Well, do you say -- or do you find it necessary to  19 say that that's -- that the same applies to the  20 Province?  21 MR. MACAULAY:  We don't find that necessary to say.  We don't  22 say the Province has that obligation.  23 THE COURT:  You don't say they have the obligation, but you  24 don't subscribe to the view that they do not have the  25 obligation?  26 MR. MACAULAY:  Well, my lord, it's a burden on the Province's  27 title.  2 8 THE COURT:  Yes.  29 MR. MACAULAY:  It's a fetter on the use of the land.  3 0 THE COURT:  Yes.  31 MR. MACAULAY:  The Province can leave it as it is, now at a  32 cost.  33 THE COURT:  Yes.  That's what I'm getting at.  You're not saying  34 there is an obligation to the Province to discharge  35 the title?  36 MR. MACAULAY:  No, no, we're not.  What we're affirming is that  37 there is no obligation on the part of Canada, either  38 under Term 13 or under the provisions of Section  39 91(24) of the constitution.  4 0 THE COURT:  Yes.  41 MR. MACAULAY:  Now, in order to determine just what Term 13  42 addressed, we submit that the historical background,  43 that is what had gone on before, not what went on  44 afterwards, what had gone on before, ought to be  45 considered by the Court.  And we refer to Professor  46 Hogg's dictum or statement on that point and also the  47 decision that Professor Hogg cites in support of his 28983  Submissions by Mr. Macaulay  1 proposition taken from the judgment of the Supreme  2 Court of Canada in Re Upper House.  3  4 The historical background to the drafting of the  5 term -- which subject your lordship heard a great deal  6 from the Province.  They were trying to show that the  7 Province -- I don't know how that helps them really,  8 but it must or they wouldn't have spent so much time.  9 The Province went great lengths in trying to persuade  10 your lordship that it had nothing -- and its  11 emissaries, particularly Mr. Trutch, had nothing to do  12 with Term 13; that that was between London and Canada.  13 But we say that if one looks at the historical  14 background to Term 13, it was not intended to obligate  15 Canada to extinguish the plaintiffs' aboriginal rights  16 to Provincial Crown lands or otherwise provide for the  17 claims of the Plaintiffs relating to Provincial Crown  18 lands.  19  20 The historical setting was that -- and it was  21 referred to at great length by the Province, and we  22 agree with some of it, including the following:  23  24 George Cartier as Canada's chief negotiator did  25 negotiate the -- on behalf of Canada the agreement  2 6 with the Hudson's Bay Company over Rupert's Land and  27 he was involved in the development of Indian policy,  28 Canada's Indian policy for the Northwest Territories  2 9 and Manitoba.  30  31 And we agree with the Province that at the time of the  32 negotiation of Term 13, the B.C. terms generally,  33 Canada had developed or was developing a policy that  34 was going to be applied to the Northwest Territories  35 and Manitoba, and that is the policy under which  36 treaties were made with the Indian tribes and bands  37 inhabiting the Rupert's Land and the Northwest  38 Territories for the extinguishment of their title  39 before any settlement was to be made of those lands  40 just before -- and to the extent that they weren't  41 settled already.  42  43 And just before June, 1870, the June, 1870  44 negotiations with B.C., Canadian officials, and that  45 included Cartier, were concerned with the  46 establishment of the Province of Manitoba and the  47 provisions for Indians and the Metis in Manitoba. 28984  Submissions by Mr. Macaulay  1 We say also that Cartier's experience as a  2 negotiator of the agreement with the Hudson's Bay  3 Company leads to the inference that he would have had  4 in mind when negotiating the B.C. terms the essential  5 difference between the two.  Canada got the beneficial  6 interest in the Crown's proprietary estate in the one  7 case, Northwest territories.  And these terms were  8 negotiated by Cartier and another negotiator for  9 Canada.  And when Canada developed its Indian policy  10 for those territories, it did so as the beneficial  11 owner of the land.  12  13 And it was Canada's understanding that, in  14 Provinces other than Manitoba where Canada wasn't the  15 holder of the beneficial interest, Canada would have  16 no responsibility for the extinguishment of aboriginal  17 rights in Provincial Crown land.  A few days before  18 the B.C. delegates arrived, the Secretary of State for  19 the Provinces and the Superintendent General of Indian  20 Affairs, Sir Joseph Howe, wrote to the Lieutenant  21 Governor of Ontario as follows:  22  23 "I have the honour to bring under your notice  24 the circumstances heretofore apparently  25 overlooked that in the province of Ontario many  26 important tracts of country exists concerning  27 which so far as can be ascertained the Indian  28 title has not as yet been extinguished.  29 The tract in question as exhibited on the  30 accompanying traced map lies northward of the  31 lands surrendered on two separate occasions in  32 the year 1882". . .  33  34 And he goes on to give a description exactly where  35 they are.  And then at the bottom after he's described  36 where these lands are, he says:  37  38 "... the subject is accordingly brought under  39 your consideration"...  40  41 That is to Ontario's consideration.  42  43 "... with a view to its receiving due attention  44 of your early convenience and the eliciting  45 such proposals as may lead to a settlement of  46 the Indian claims."  47 28985  Submissions by Mr. Macaulay  1 Here Canada was saying to the owner of the land in  2 effect we, Canada, are not obligated to deal with this  3 matter.  It's up to you.  And that was -- that letter  4 was written only a few days before Canada got down to  5 cases with British Columbia.  6  7 Now, after the Hudson's Bay Company negotiations  8 were completed, the attention of Canada was turned to  9 British Columbia.  Governor Seymour died and there was  10 a new governor, Mr. Musgrave, and he was appointed in  11 1869.  Musgrave arrived in B.C. in August, 1869.  He  12 was given instructions on the union question in a  13 letter from Lord Granville.  14  15 Granville noted the colony wasn't unanimous, but  16 he thought anyhow that the prevailing opinion was in  17 favour of union.  He discussed the benefits of union  18 in his letter to Musgrave, the new governor, and goes  19 on as follows:  20  21 "The constitutional connection of Her Majesty's  22 Government with the Colony of British Columbia  23 is, as yet, closer than with any other part of  24 North America; and they are bound, on occasion  25 like the present, to give, for the  26 consideration of the community and the guidance  27 of Her Majesty's servants, a more unreserved  28 expression of their wishes and judgment than  29 might be elsewhere fitting."  30  31 And when Granville told Musgrave to publish the  32 despatch, this despatch, and take such steps as he  33 properly could for the promotion of union, he  34 concluded with the following important comments.  Much  35 was made of this by the Province.  36  37 "It will not escape you that in acquainting you  38 with the general views of the Government, I  39 have avoided all matters of detail on which the  40 wishes of the people and the Legislature will  41 of course be declared in due time.  I think it  42 necessary, however, to observe that the  43 constitution of British Columbia will oblige  44 the Governor to enter personally upon many  45 questions - as the condition of Indian tribes,  46 and the future position of Government servants,  47 with which, in the case of a negotiation 28986  Submissions by Mr. Macaulay  1 between two responsible governments he would  2 not be bound to concern himself."  3  4 Now, of course, there wasn't responsible  5 government in British Columbia at the time.  An  6 elected -- it was only just before the Terms of Union  7 were adopted that a majority of the members of the  8 assembly were elected.  They were -- the elected  9 members were in a minority at this time.  10  11 Now, the Province suggests that -- about this  12 despatch, that this withdrew from the purview -- and  13 I'm using their words -- withdrew from the purview of  14 the local legislature the two questions of Indians and  15 the future position of senior officials.  16  17 And the Province also argues that Governor  18 Musgrave was informed in this despatch that Her  19 Majesty's government was content to leave most of the  20 terms and conditions respecting the proposed union to  21 the "wishes of the people and the legislature" of the  22 Colony, but the subject of Indians was one of two  23 matters reserved to the Governor's personal attention.  24  25 Well, in fact, Musgrave was advised to enter  26 personally upon many questions, including the  27 condition of Indian tribes.  There was no suggestion  28 that the local legislature was to have no input, not  29 by -- the Imperial Government did not suggest that.  30 It was Musgrave who determined that a clause about  31 Indians should not be placed before the local  32 legislature.  It was Musgrave, not the Imperial  33 Government.  34  35 This despatch was published and Musgrave replied  36 to Granville's despatch, but he didn't mention  37 Indians.  And his commission, which finally arrived in  38 October after he himself had arrived, made no  39 reference to that matter.  40  41 Then there came as part of the historical  42 background a very important development, which in the  43 end shows that British Columbia had a significant part  44 to play in the development of the terms -- Term 13.  45 The Aborigines Protection Society wrote to the  4 6 Imperial Government complaining about the -- what they  47 considered the deporable situation of Indians on 28987  Submissions by Mr. Macaulay  1 Vancouver Island.  And the result was that Mr. Trutch  2 was asked to prepare his famous memorandum on Indian  3 policy, which Musgrave sent on to the Imperial  4 government in response to the concerns that had been  5 expressed by the society.  And Musgrave commented that  6 from other sources of information, he had every reason  7 to believe that Trutch's statement was correct.  8 The plaintiffs, of course, challenge the accuracy  9 of that.  10 THE COURT:  I'm sorry.  Who challenged it?  11 MR. MACAULAY:  Plaintiffs.  But — and they say it was Helmcken  12 he was relying on, and there's no evidence one way or  13 the other about that.  But the -- after this incident  14 and the production of the famous memorandum by Trutch,  15 the executive counsel started discussions on  16 confederation.  17 And here, my lord, is where I refer to the first  18 of the documents that are not exhibits.  It's at Tab 1  19 in the same binder, my lord.  It's at the back of that  20 same binder you're looking at.  It's the minutes of  21 the counsel meeting of January 28th, 1870.  I'm sorry.  22 And of February 9th, February 12th.  I don't -- I'm  23 not going to draw your lordship's attention to any  24 particular passage from that.  It's in support of what  25 I say.  26 MS. SIGURDSON:  Excuse me.  This is one of the additional  27 documents that -- and I understand there's an issue  28 between my friends, the plaintiffs, and the Province  29 on the additional documents.  Mr. Macaulay has  30 tendered 39 additional documents relating to a variety  31 of issues in their counterclaim.  And our concern is  32 most of these we're ready and prepared to admit.  33 There are two additional documents we would like to  34 add to supplement Mr. Macaulay's collection, and as I  35 understand Mr. Macaulay's position, he does not object  36 to that, but I understand Mr. Rush may.  37 THE COURT:  These documents are not exhibits at the trial now.  38 Are the documents you want to tender, Mr. Macaulay,  39 those that are tabbed at the back of this volume from  40 which you've been working?  41 MR. MACAULAY:  Yes, my lord.  42 THE COURT:  Are they all documents of like ilk?  43 MR. MACAULAY:  Well, some are statutes, of course, and I don't  44 need agreement of counsel for those, but they are all  45 archival documents.  They all concern -- some are  46 letters, others are drafts of agreements.  For  47 instance, Tab 20 is McKenna's draft of the agreement, 289?  Proceedings  1 which resulted in the Royal Commission of 19 -- 1516.  2 They're all historic documents of one kind or another.  3 THE COURT:  All right.  Well, I'm not going to stop you, Mr.  4 Macaulay.  5 MR. MACAULAY:  One of them is a fairly important — very  6 important document.  I believe it's -- it shows -- it  7 comes up much later in my submissions, but certainly  8 shows what the Premier of British Columbia understood  9 to be the situation in regard to what became accounts  10 of 1265.  11 THE COURT:  All right.  12 MR. RUSH:  My lord, I think the issue is not one of Canada's  13 documents, but of the Province's purported reply  14 documents, of which there are two.  And if you wish to  15 to hear me on that now, my point is pretty  16 straightforward.  As a proposition, I think it's  17 undesirable for there to be documents coming into the  18 record at a point so late in the argument.  I --  19 unfortunately, I think your lordship can review these  20 in a public record depositary, and I think that it's  21 for that reason that I take no position on Mr.  22 Macaulay's application to proceed on the basis of  23 arguing unexhibited documents.  But I think the  24 Province's documents fall into a different category.  25 This is an attempt to be responsive to Mr. Macaulay's  26 documents, and I say they have no basis for being  27 responsive.  If they wanted to argue that these  28 documents should form part of either their case, they  29 should exhibit it or leave that question aside, or  30 their argument.  They should have argued it.  They  31 didn't do either.  And I say that they -- they have no  32 right of reply to Mr. Macaulay's documents, and if  33 they had wanted to place these documents before your  34 lordship, they could have in the course of their  35 argument, and perhaps I would have had a different  36 view of that.  But I -- I say that you shouldn't be  37 looking at the Province's documents as a reply format  38 in order to deal with some other documents that's  39 dredged out of a public depositary.  I say that's  40 taking the step one step beyond fairness.  41 MS. SIGURDSON:  Well, here two points, my lord.  One is that the  42 Province, as I understand the rules of court, have a  43 right of reply to the counterclaim, responses to the  44 counterclaim.  The second is that the documents we  45 propose to tender with our response are public  46 documents.  One is an extract from the cessional  47 papers from the Department of Indian Affairs and the 28989  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  second is a treaty from the Canadian Magazine from  McKenna.  It would be more convenient for your  lordship to have those appended to our written  response to the counterclaim.  THE COURT:  Well, I'm in some difficulty here because we're  starting out on the basis that there's no objection to  putting Mr. Macaulay's documents into the record of  the trial.  And that being so, it is my first  reaction, not having seen these other documents and,  indeed, not having seen the ones being tendered by Mr.  Macaulay, to fall back on principle and apply the  connected rule.  And if the documents sought to be  tendered in response or application of the documents,  documents to which there is no objection, then -- and  if they are connected or explain the documents that  have been admitted by consent, then I would be  inclined to admit the documents that are in dispute,  particularly as there are only two of them.  But I think counsel should know that's more or less  the way I'm thinking at the moment.  They might want  to consider that further, and I will give them that  opportunity now or when the Province seeks to tender  them, as counsel wish.  MR. RUSH:  I just add for your lordship's consideration that Ms.  Sigurdson has now indicated that the Province is going  to file a written reply.  COURT:  Well, that was stated some time ago that that was  the case.  RUSH:  Yes.  The difficulty with documents going in in that  situation is that on the principle that your lordship  has indicated, I don't have any reply to documents  that they feel is part of their reply, and that's  where I draw the line.  That's why I draw the line  there, because now I --  THE COURT:  I think the question of documents should not be left  just to be attached to their reply.  That will have to  be dealt with before we adjourn.  All right.  Mr. Macaulay, do you want to continue  or do you want to --  MACAULAY:  This may be a convenient time.  RUSH: My lord, before we do, I'd just like to introduce Mr.  Michael Fleming from our office. And Mr. Fleming will  be attending this afternoon.  COURT:  Oh, all right.  Thank you, Mr. Fleming.  Mr. Plant?  PLANT:  Well, on that, my lord, I should say I have had a  chance to look at the material about -- in relation to  this issue about the additional pages in the Section  THE  MR.  MR.  MR.  THE  MR. 28990  Proceedings  1 35 argument, and if Mr. Rush isn't going to be here  2 this afternoon -- I should tell you that when Ms.  3 Mandell made that argument before your lordship, she  4 was speaking from a text.  She handed up a text to  5 your lordship and she handed up a text -- she handed a  6 text to us.  The -- your lordship obviously had the  7 same text that Ms. Mandell did and that I did.  And a  8 perfectly good -- or a good illustration of that is  9 transcript Volume 336 page 26297 when your lordship is  10 referring to points A and B on page 38.  We were all  11 following that argument at that point.  What happens  12 next in time is that we get the disk, and the disk on  13 this section of the argument has 10 pages or so that  14 are quite different.  15 Now, my friend this morning, Mr. Rush, provided me  16 with what he says is his copy from the disk of the  17 argument that should be there as well as the final  18 argument binder copy on this point.  They're both  19 similar to what we got from our disk.  In other words,  20 they're not the same as the argument that Ms. Mandell  21 made before your lordship and handed up to your  22 lordship.  So that the problem remains out there.  As  23 far as we're concerned, the argument that survives is  24 the argument that Ms. Mandell made, which would be  25 both the hard copy handed up to your lordship and  26 supplemented by her oral submissions.  And what  27 appears on the disk is obviously not -- well, it  28 creates a problem for us.  This is the only instance  29 where we brought to your lordship's attention the  30 disparity -- pardon me -- because it's the most  31 serious one we've uncovered to date.  But the problem  32 hasn't quite gone away as a result of the material  33 that I've seen this morning.  I wanted to bring that  34 to your lordship's attention.  35 MR. RUSH:  Well, there is a remedy to this, my lord, one that  36 I've asked my friends for for some time.  And that is  37 whatever hard copy they have, they should give to me,  38 because if it's the case that Ms. Mandell handed up  39 the separate hard copy to your lordship, then there is  40 a miscommunication between what she has and what's on  41 our system, and that has to be determined.  I want to  42 know that.  I can only know that if my friends give me  43 a hard copy, as I gave them this morning.  So maybe  44 they'll do that.  45 MR. PLANT:  Is my friend asking for a photocopy of his  4 6 eight-volume argument?  47    THE COURT:  No, no.  I don't think so. 28991  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  MR. PLANT  MR. RUSH  THE  MR.  MR.  THE  MR.  THE  MR. RUSH:  I don't think so.  MR. PLANT:  Because I'm not prepared to undertake to have my  forces sit at a computer terminal for the time  required and underdo the comparison.  We're only interested in the pages that are  involved.  I think it's much simpler than that.  My friend  asserts the proposition that the copy of the hard copy  that was handed to your lordship was different than  what he has and the same one was given to him, so he  must have it.  Oh, if it's only the 10 pages, I can give my friend  that.  I don't know what it is, but whatever that is, it  would be nice to have.  COURT:  Whatever pages may be in dispute.  PLANT:  I'm happy to give my friends copies of those pages.  RUSH:  That would be helpful.  COURT:  Two things.  Is it two M's, Mr. Fleming, or one M?  FLEMING:  One M.  COURT:  Secondly, with regret, I have to attend a funeral on  Wednesday at one o'clock, which means I will be half  an hour late getting back, and I will be happy if  counsel could decide -- I don't know who will be  arguing Wednesday morning, but I would be happy to  either start at 9:30 or continue until 4:30 to make up  the extra half hour, but I will have to be gone from  here from 12:30 2:30 on Wednesday.  THE REGISTRAR:  Order in court.  Court stands adjourned until  two o'clock.  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings transcribed to the best  of my skill and ability.  Kathie Tanaka, Official Reporter  UNITED REPORTING SERVICE LTD. 28992  Submissions by Mr. Macaulay  1 (Proceedings resumed at 2:00 o'clock p.m.)  2  3 THE COURT:  Mr. Macaulay?  4 MR. MACAULAY:  My lord we were at page 62 of the argument at the  5 adjournment.  And we were at the point where the  6 Executive Council of British Columbia started its  7 discussions, the second half of page 62, and  8 Confederation.  There are only minutes of a few of  9 those many meetings, they show that Governor Musgrave  10 and Joseph Trutch, Helmcken and Carrall were present,  11 the last two were appointed un-official members of the  12 Executive Council for strategic or political reasons.  13 They were influential elected members of the  14 Legislative Council and their support for union was  15 not at all clear.  Helmcken was thought to be anti-  16 union.  17 The terms that were finally worked out were sent by  18 Musgrave to the governor general, and it appears  19 that -- and there was no reference in those terms to  20 Indians at all.  Governor Musgrave didn't want the  21 question of the condition of Indian tribes to be  22 decided by the legislature for two reasons, we say,  23 because of Lord Granville's instructions of August  24 14th, 1869, which we have seen -- those instructions  25 merely being to the effect that Governor Musgrave must  26 become active on that and the pension question and the  27 correspondence that I had referred to just before the  28 adjournment following on the Aborigines Protection  29 Society complaint and their response in the form of  30 Trutch's famous memorandum on Indian policy.  31 Musgrave's letter enclosing the terms that had been  32 agreed upon by the Executive Council are accompanied  33 by a letter in which he has this to say:  34  35 "In Lord Granville's Despatch No. 84..."  36  37 That's the Despatch of August 14th,  38  39 "...which was communicated to your Excellancy he  40 mentioned the condition of the Indian tribes as  41 among some questions upon which the  42 Constitution of British Columbia will oblige  43 the governor to enter personally.  I have  44 purposely omitted any reference to this subject  45 in the terms proposed to the Legislative  46 Council.  Any arrangements which may be  47 regarded as proper by Her Majesty's Government 28993  Submissions by Mr. Macaulay  1 can I think best be settled by the Secretary of  2 State or by me under his direction with the  3 Government of Canada.  But 'Indians and lands  4 reserved for Indians' form the twenty-fourth of  5 the classes of subjects named in the 91 Section  6 of the union which are expressly reserved to  7 the legislative authority of the parliament of  8 the Dominion."  9  10 Really what Musgrave is saying here is that the  11 United Kingdom can do it, that is deal with the  12 question of the Indians, or I, Musgrave, can do it,  13 but it's already provided for under the British North  14 America Act, Section 91(24).  The Legislative Council  15 did address the union question in February, 1870, and  16 the debate -- I am turning to page 65 now -- on the  17 terms of union started in March.  The debates of  18 the -- are recorded and are exhibited, and the  19 question of the Indians did come up and Mr. Holbrook,  20 a member appointed by the government, because he was  21 the justice of the peace for the Lower Fraser River  22 area, supported Confederation but thought that the  23 terms failed to deal with certain issues, including  24 Indian matters.  And he advised the Legislative  25 Council that he would make a motion regarding that.  26 The governor, who heard of -- I am sorry, Trutch, who  27 was unable to attend, wrote to the Attorney-General,  28 Henry Crease, to that effect, and at the top of page  29 66:  30  31 "Don't let them pass any resolution about the  32 Indians - or Indian policy - that is a matter  33 between the Imperial Government and the  34 Dominion with which should not interfere - and  35 any discussion of the question on the subject  36 here might lead to false impressions on the  37 subject being conveyed to the Indians as-when  38 Sir James Douglas left the government."  39  40 That, by the way, is one of the documents, it's  41 tab 3 of the new documents I refer to.  42 But notwithstanding that, there was a discussion,  43 Holbrook did make a motion, so there was a discussion  44 by the Legislative Council of that -- of the terms.  45 Helmcken, who took part in that debate, had this to  46 say, and it's at page 67:  47 28994  Submissions by Mr. Macaulay  1 "The honourable member for Caribou..."  2  3 That's Carrall,  4  5 "seems to find it difficult to understand my  6 position.  I think it right to endeavour to get  7 the best terms we can and to point out  8 difficulties.  It is the duty of every man to  9 do so.  I am perfectly willing to sit here and  10 make the best terms possible.  When they come  11 back from Canada there will be time enough for  12 me to decide whether or not I shall support  13 Confederation.  I am now anti-Confederate, but  14 may become Confederate if the terms are good.  15 I say if the Indians are to be stuck on  16 Reservations there will be a disturbance.  I  17 think, sir, that it will be well that there  18 should be some opposition."  19  20 What Carrall is saying, or what Helmcken is saying  21 there is that he preferred the British Columbia policy  22 regarding Indians to the Canadian policy, which he  23 understood involved, as he put it, "sticking Indians  24 on reserves" or confining them to reserves, which is a  25 position that apparently Mr. Carrall had seemed to  26 find attractive.  The Legislative Council approved the  27 terms proposed by the Executive Council and  28 recommended some amendments.  There was no clause  29 regarding Indians, still no clause regarding Indians,  30 although the matter had been debated.  31 Now, at the -- I am going to the middle of page 68,  32 at the same time as the terms of union debate,  33 Musgrave's Despatch of January 29th, 1870 and the  34 enclosed Trutch memorandum, were receiving  35 consideration in London.  This -- we are back now to  36 the question of the Aborigines Protection Society  37 matter.  Several members of the Colonial Office staff  38 reviewed the letter and memorandum and made comments  39 on it.  Granville agreed with the view expressed by  40 his staff that Trutch's report answered the complaints  41 set out in the letter from the Aborigines Protection  42 Society, and on March 18th, the Colonial Office of the  43 Imperial Government wrote to the Aborigines Protection  44 Society enclosing Musgraves letter and Trutch's  45 memorandum, with the request -- it says trust in the  46 text but it should be request -- that the Aborigines  47 Protection Society would give the same publicity to 28995  Submissions by Mr. Macaulay  1 Mr. Trutch's memorandum that was given to the letter  2 of complaint, the original letter of complaint which  3 had been written by Mr. Green.  Chesson, the secretary  4 of the Aborigines Protection Society, replied  5 acknowledging receipt of the memorandum and he said he  6 would give the Trutch report the publicity that the  7 Colonial Office requested.  And the Musgrave letter  8 and Trutch's memorandum were indeed published in the  9 Aborigines Protection Society publication.  10 And at the same time Granville forwarded to  11 Governor Musgrave the correspondence between the  12 Colonial Office and the society, without comment, but  13 with the indication of approval of what Trutch had  14 explained about British Columbia's Indian policy.  And  15 the -- this Despatch from Granville was received in  16 British Columbia two weeks before the B. C. delegation  17 left for Ottawa to negotiate the terms.  And on the  18 same day, the local Colonial secretary, on Musgrave's  19 direction, wrote to Trutch approving Trutch's  20 suggestion that the boundaries of land reserved for  21 Indians from Harrison River to Cache Creek be  22 "determined by local Magistrates, and surveyed under  23 instructions' from Trutch's Department.  24 British Columbia, the British Columbia delegation  25 prepared to leave for Ottawa in early May and included  26 Trutch, Carrall and Helmcken.  Governor Musgrave  27 wasn't able to go because of an injury and an  28 impending marriage and he chose Trutch as his  2 9 emissary.  30 THE COURT:  You mean pending marriage I think there.  31 MR. MACAULAY:  Pending marriage.  32 THE COURT:  I don't know what an impending marriage is but it  33 doesn't sound too promising.  34 MR. MACAULAY:  Musgrave wrote to Trutch enclosing a draft of a  35 Minute which Musgrave proposed to give to Trutch to  36 take with him.  And the letter concluded:  37  38 "I think it states pretty clearly the view which  39 I take of the matter but pray offer some  40 suggestions which occur to you.  You could show  41 it to Sir John Macdonald as given to you for  42 your guidance and what I have said will form a  43 text upon which you can discuss more fully at  44 length."  45  46 The enclosed draft hasn't been found but the final  47 minute is in evidence, that is the minute that 28996  Submissions by Mr. Macaulay  1 Trutch -- we don't know what was in the draft and what  2 amendments Trutch may have proposed to it, but the  3 minute dated May 9th was brought with Trutch to  4 Ottawa.  And most of the minute discussed the question  5 of pensions or future employment for the colonial  6 officers.  In this regard Musgrave advised that local  7 magistrates who administered laws relating to Indians  8 should be Dominion officers, not subject to the  9 control or caprice of local party government.  And  10 Musgrave concluded his memorandum, this is the  11 memorandum he gave to Trutch with instructions to  12 Trutch to take it to Ottawa as a guide for discussions  13 with Ottawa, and with the suggestion that he show the  14 memorandum to Sir John A. Macdonald, the prime  15 minister.  And the memorandum includes the following:  16  17 "The administration of Indian affairs is a  18 matter to which my attention has been called by  19 Lord Granville as requiring special care in  20 respect to the special arrangements for union  21 but under the provisions of the British North  22 America Act it is one of a class of subjects  23 especially confided to the government of the  24 Dominion.  It will be necessary, however, that  25 I should be acquainted for the information of  26 the Secretary of State, with the mode in which  27 the Government of Canada propose to deal with  28 this subject.  You..."  29  30 that's Trutch,  31  32 "...will be able to point out to them the policy  33 which has been hitherto pursued with  34 considerable success, but it will be necessary  35 to explaint that the tribes are far more  36 numerous and are less civilized, than those of  37 any part of the Dominion, and that the  38 circumstances in which they are placed are  39 different.  As present they loyal, and amenable  40 to the control of the government because they  41 have confidence in the protection afforded  42 them.  But indiscreet change of policy or  43 injustice on the part of any local  44 administration might lead to very serious  45 results.  It is for this reason, among others,  46 that I think it is so highly expedient that the  47 Magistrates who are in fact Government 28997  Submissions by Mr. Macaulay  1 superintendents in the outer districts, and  2 have to administer so many laws in which the  3 Indians are interested, should be officers of  4 the Dominion and not of the local government  5 and should be able to conduct this department  6 of affairs directly under the authority of the  7 Lieutenant Governor himself who will be  8 responsible to the Government at Ottawa."  9  10 In those days, my lord, the Lieutenant Governor  11 occupied a somewhat different position than he does  12 today.  He was very much the prime minister's man on  13 the spot.  14 This Minute shows the evolution of Musgrave's  15 opinion on the appropriate mode of drafting of an  16 Indian clause.  The August 14th instructions to become  17 personally involved, and the receipt of the letter of  18 complaint from the Aborigines Protection Society,  19 convinced him to avoid to have the local legislature  20 vote on any Indian clause.  21 In February of 1870 he told the Canadian Governor  22 General that any arrangements could "best be settled",  23 as he put it, "by the Secretary of State or by me,  24 under his direction, with the Government of Canada."  25 That was Musgrave's proposal, not the Imperial  26 proposal.  And then he referred to Section 91(24) .  27 But by May, in the Minute he gave to Trutch to bring  28 to Ottawa, Musgrave assumed that under Section 91(24)  2 9 the Government of Canada would determine the way of  30 dealing with this subject.  Trutch was allowed to show  31 the Minute to Sir John A. Macdonald, and as the latter  32 was sick he gave a copy of the letter to Cartier when  33 he arrived in Ottawa.  However, the official  34 communication on this subject is Musgrave's letter to  35 the colonial secretary -- I am sorry, Musgrave's  36 letter of February 20th, 1870, in which the Colonial  37 Secretary or Musgrave under his direction, should  38 settle Indian terms with the Government of Canada.  39 Trutch was especially charged to represent Musgrave  40 and what we say probably did so in the negotiation on  41 the Indian clause.  Trutch was directed that it was  42 necessary to point out the success of local, that is  43 colonial, policy.  And Musgrave seemed to express a  44 preference for that policy.  That was the policy as  45 outlined in Trutch's famous memorandum.  46 On May 7th, Musgrave wrote formally to the  47 Governor General introducing Trutch, Helmcken and 2899?  Submissions by Mr. Macaulay  1 Carrall who, as he put it, "I have nominated as a  2 delegation to discuss with your ministry the terms  3 upon which the Legislature of this colony would be  4 willing to join the Dominion of Canada.  These  5 gentlemen possess my confidence and I think the  6 confidence of the community in general.  And they will  7 be fully competent to inform you of the views of local  8 government and those popularly entertained upon the  9 several questions which may arise in conference upon  10 the proposals which have been made."  11 Of course they didn't include the Indian people,  12 any proposal regarding the Indians.  The following day  13 Musgrave wrote informally to the Governor General.  He  14 told the Governor General the railway clause would be  15 the main difficulty.  He advised that a delegation of  16 three would soon leave for Ottawa and said:  "I have  17 particular confidence in Mr. Trutch."  18 And on May 10th he wrote a letter to Sir John A.  19 Macdonald, who he knew, discussing the B. C.  20 delegates, he talked about Carrall, who he describes  21 as a good fellow, but Musgrave scarcely thought he  22 understood the details of the difficulties on the  23 question of union, and then he went on to Helmcken, he  24 said:  25  26 "Dr. Helmcken is scarcely a Confederate at all,  27 but he knows that I can best him on the  28 principles if the terms are good and  29 practically he admits that the question will be  30 one of terms.  I have had much difficulty in  31 persuading him to go but I regarded it as  32 important to get him to do so if I could.  He  33 is very influential with an important class  34 here, which is not the noisiest or most  35 talkative, but will have a great deal to say in  36 settlement of the question.  You must convert  37 him entirely.  I have broken the ground for  38 your further operations."  39  40 It must be remembered that Dr. Helmcken was one  41 who favoured the colonial policy, Indian policy, as it  42 then existed.  43 THE COURT:  What do you say that was?  44 MR. MACAULAY:  Well, the policy described in Trutch's memorandum  45 in reply to the Aborigines Protection Society, which  46 was really a restatement of the Douglas policy adopted  47 in 1858 for the colony.  And the policy -- I referred 28999  Submissions by Mr. Macaulay  1 to that.  2 THE COURT:  I just thought that the way you said that that maybe  3 you were suggesting that he was not a confederate but  4 that he preferred the policy different from the  5 British Columbia policy, you're not saying that?  6 MR. MACAULAY:  No, no.  A few pages back, the only reason we  7 have extracts from the debate in the Legislative  8 Council, at page 67 Helmcken is saying, after saying  9 "I may become confederate if the terms are good, I say  10 if the Indians are to be stuck on reservations..."  11 that was a reference to the Canadian policy, "...they  12 will be a disturbance."  He appears, and Musgrave  13 seemed to be of the same opinion, to have favoured the  14 policy outlined in Trutch's memorandum articulated in  15 the first case by Sir James Douglas, the colony was  16 founded and he went to address the Indians at Cayoosh  17 and elsewhere.  18 But Helmcken was a very important delegate because  19 of his influence as described by the governor.  20 Musgrave described Trutch as able and cautious and  21 he looked at Trutch to do the chief part of the work  22 of the delegation.  He says, "I have especially  23 charged Trutch as more particularly the government  24 officer with a minute of my views upon the question of  25 provisions for present incumbents of public officers  26 and respecting the arrangements of Indian affairs."  27 So Musgrave is saying, I have given my views or  28 instructions, if you want to call them that, to Trutch  29 and he is our chief man in that delegation.  30 THE COURT:  Musgrave succeeded Seymour?  31 MR. MACAULAY:  Yes, Seymour died.  Musgrave had been governor of  32 Newfoundland, Sir John A. Macdonald supported his  33 appointment as the new governor of British Columbia.  34 There had been a similar attempt at that time to get  35 Newfoundland to join the Confederation, but  36 Newfoundland, although Musgrave tried to promote union  37 between Newfoundland and Canada, Musgrave didn't  38 succeed in that case.  He had better luck, better  39 success, in British Columbia.  40 Now, the negotiations in Ottawa, they went across  41 apparently from San Francisco to Chicago and hence to  42 Ottawa somehow, they took place in 1870, in June,  43 1870, and the only record of those discussions are in  44 Dr. Helmcken's diary, and his later reminiscences.  45 The diaries show that the negotiations went quite  46 smoothly on the first few days, and there is an  47 account of Helmcken's diary and reminiscences at pages 29000  Submissions by Mr. Macaulay  1 74, 75 and 76.  2 It's common ground that Cartier was the main  3 federal negotiator, but Trutch clearly was the main  4 British Columbia negotiator.  And this is what  5 Helmcken wrote about it, that is to Helmcken.  I am at  6 page 76 now, my lord:  7  8 "To me was entrusted the financial terms and  9 knowledge of Vancouver Island.  Carrall had the  10 mainland -- he was a friend of the main but not  11 of Victoria.  To Trutch was entrusted railway  12 and public works -- in fact what's to be the  13 front and general of the whole affair.  No one  14 indeed so capable -- he being a head and  15 shoulders above us in intellect -- and  16 pertinacity -- and introduced by the Governor  17 as such, so from the word go we were not on an  18 equal footing and soon discovered this at  19 Ottawa.  Trutch was everything and everybody."  20  21 And he adds:  22 "It mattered little in reality as we all had to  23 stick to the Terms."  24  25 The only reference in Helmcken's diary to the  26 discussion of the -- what's now Term 13, is quoted on  27 page 77 of my argument.  The diary notation for June  28 27th starts with "the whole of the resolutions were  29 gone over again."  Various clause clauses were  30 discussed and finally the first and last discussion of  31 the Indian clause.  And it's only this:  32 "The clause about Indians was very fully  33 discussed."  34  35 So it it was there by this time.  36  37 "The ministers thought our system better than  38 theirs in some respects, but what system would  39 be adopted remains for the future to determine.  40 I asked about Indian wars and Sir George  41 Cartier said it would depend on the severity,  42 as a rule the expense would have to be borne by  43 the Dominion Government."  44  45 Now, my lord, the -- what Helmcken is referring to  46 there is no doubt Clause 13.  Canada was bound to  47 adopt a policy regarding reserves at least as liberal 29001  Submissions by Mr. Macaulay  1 as the colonial policy.  It was not confined to that  2 and the Jack case shows that, when the question came  3 up in Jack, whether or not Canada could depart from  4 the policy of the colony regarding fisheries.  And the  5 policy of the colony had been to leave fisheries  6 entirely unregulated.  The court held that Term 13 did  7 not bind Canada to that policy on fisheries.  The only  8 obligation was regarding reserves, it had to be at  9 least as liberal, and Helmcken understood it that way  10 and that's why he says, "but what system would be  11 adopted remains for the future to determine."  Now it  12 seems certain that the clause that he is referring to  13 is Clause 13.  14 Four days later, the terms were embodied in an  15 order of the Privy Council, and it's not disputed that  16 Canada was at liberty to adopt any Indian policy in  17 British Columbia as long as it was at least as liberal  18 as that hitherto pursued by the British Columbia  19 government.  But I say again, Canada is only under a  20 duty to follow the Indian land reservation policy of  21 the colony of British Columbia.  22 Now, we say that Trutch probably drafted or at  23 least assisted in drafting Term 13.  Someone would  24 have had to explain the B. C. policy and in fact  25 Helmcken's diary shows that it was discussed, B. C. 's  26 policy, that's the policy that Canada would be  27 obligated to at least to continue.  Term 13 reflects  28 the British Columbia Indian policy which Trutch  29 promoted.  Trutch's department was in charge of the  30 survey of Indian reserves.  And two weeks before  31 leaving for Ottawa, the colony had received the  32 Colonial Office's tacit approval of Trutch's  33 memorandum on the subject of the colonial Indian  34 policy.  And Trutch had been "specially charged" with  35 Musgrave's minute on the arrangements respecting  36 Indians.  He was given the opportunity of commenting  37 on the draft and he had a say in the final wording of  38 that memorandum, which was shown to the chief  39 negotiator, Sir George Etienne Cartier.  40 The province argues that, and I am at page 79 now,  41 my lord, the province argues that it's clear that the  42 responsibility for Term 13, the substance of it, is  43 that of the Imperial government.  And they say "The  44 one novel feature is the provision for the  45 intervention of the Secretary of State for the  46 colonies.  This means of avoiding an impasse could  47 only have come from London."  That was their argument. 29002  Submissions by Mr. Macaulay  1 And then they go on to say "it is implicit in the  2 wording of Term 13 that the Imperial government was  3 also consulted."  And they say in their paragraph  4 number 47 of their argument on this subject, "the  5 Dominion Government had the sole constitutional  6 responsibility for Indians and lands reserved for  7 Indians.  This alone makes it more than probable that  8 the Dominion fully considered Indian title, and that  9 it drafted Term 13, containing as it did the  10 interesting 'quick solution' in time of impasse -- a  11 reference to the Secretary of State for the Colonies."  12 My lord, the conclusion that London was responsible  13 for Term 13 is not supported by the facts.  The  14 negotiations were carried on in Ottawa between  15 Canadian and British Columbia negotiators, no Imperial  16 representative was present.  And that's in contrast to  17 the negotiations over Rupert's Land and the Northwest  18 Territories, in which the colonial secretary was very  19 much directly involved.  Now, this lack of Imperial  20 involvement is confirmed in the Colonial Secretary's  21 letter to the Governor General.  The Governor General  22 sent him a report on the negotiations and a copy of  23 the terms that had been endorsed by the Canadian Privy  24 Council, and the Colonial Secretary, in  25 acknowledgement, has this to say:  26  27 "I have to answer the receipt of your despatch  28 No. 144, stating that the negotiations between  29 the ministers of the Dominion of Canada and the  30 delegates from British Columbia respecting the  31 union of that colony with the Dominion, had  32 terminated satisfactorily, and enclosing a  33 minute of the Privy Council which embodies the  34 terms of the agreement.  35 I am much gratified to learn that the  36 negotiations have made so much progress."  37  38 There is no suggestion that the Colonial Office's  39 involvement was anything more than a passive one.  The  40 province argues, and that's in the alternative, that  41 in his letter of July 20th, 1870, Musgrave -- this is  42 a letter from Musgrave to Trutch -- referred to a  43 number of matters:  The railway, the tariff, et  44 cetera, and that there was no mention, and they point  45 to the fact that there is no mention to the Indian  46 clause, and they say the conclusion must be that this  47 was settled on direct instructions from Musgrave.  And 29003  Submissions by Mr. Macaulay  1 then they refer to Helmcken's diary for evidence that  2 there was a direct telegraphic communication between  3 the B. C. delegation and the governor, who was then in  4 San Francisco.  That conclusion isn't supported by the  5 facts.  Helmcken's diary refers to a specific telegram  6 from Musgrave and not general telegraphic  7 communications between the Governor and the  8 negotiators.  Musgrave's letter of July 28th, 1870  9 refers to one telegram only and notes its contents,  10 which were of a general nature, and the letter I  11 quote, since it seems to be important to the  12 province's case, and I want to put paid to that  13 suggestion.  And this is what Musgrave has to say:  14  15 "I did not write to you from San Francisco as I  16 really had nothing..."  17  18 This is the letter from Musgrave to Trutch,  19  20 "...really had nothing to add to what I  21 expressed in the telegram, that is to say, that  22 I was much pleased at the progress you were  23 making in the negotiations as reported in your  24 letter of the 9th of June and as I was then  25 other otherwise personally occupied..."  26  27 He was getting married,  28  29 "...I waited until I should receive further  30 particulars from you on my return here.  I duly  31 received your second letter of the 26th of June  32 and was quite satisfied with its contents, but  33 I was not able to write by the return mail and  34 indeed preferred to postpone my letter until I  35 had seen Helmcken then expected, and got the  36 final intelligence from him.  Two days ago I  37 got your last letter and by the same  38 opportunity received the report of the Privy  39 Council formally from Sir John in the despatch  40 in which he conveys the assurance of his  41 Ministers that matters shall be arranged to my  42 satisfaction as records pensions.  43 I must now say to you that I am more than  44 pleased at the manner in which you have  45 performed your mission. Helmcken gives you all  4 6 the credit and I have no doubt that you deserve  47 it.  The terms are far better than I expected 29004  Submissions by Mr. Macaulay  1 to get - better indeed in some respects than  2 what we proposed; and the man must indeed be  3 unreasonable who does not admit that Union on  4 such terms must be greatly to our advantage..."  5  6 Now, if there was a lot of telegraphic  7 communication and instructions, no such letter would  8 have been written by Musgrave to Trutch.  It's clear  9 that he also took a passive position, sitting in San  10 Francisco or nearby, presumably on his honeymoon,  11 waiting for mail to come in, not writing or even  12 acknowledging the reports he was getting from time to  13 time by letter.  There was no difficulty in sending  14 letters back and forth because the train was running  15 back and forth between Ottawa and San Francisco.  16 Now, when it came to approval of these terms,  17 including clause 13, of course, the steps were as  18 follows:  The Governor General wrote to Lord Granville  19 noting the successful conclusion of negotiations,  20 advising that Trutch would be going to England and  21 would be available to explain the terms.  Now that  22 doesn't sound like a -- the secretary, colonial  23 secretary, who was dictating terms.  And the Governor  24 General also sent a despatch introducing Trutch to  25 Lord Granville, with a very high recommendation.  It  26 doesn't seem there was any serious difficulty in  27 obtaining Imperial support.  28 And after the agreement, the only issue between  29 governments remained this question of the colonial  30 officers, their pensions or re-employment or whatever.  31 Musgrave wrote to the Governor General discussing who  32 could be pensioned and who could be employed and  33 Musgrave again referred to Trutch as a valuable  34 acquisition to any administration.  He refers to other  35 colonial officers and then to the stipendiary  36 magistrates, who he says "are not only Justices of the  37 Peace but County Court Judges, Indian Agents,  38 assistant Commissioners of lands and Works, Collectors  39 of Revenue" et cetera.  And he continued:  40  41 "As the supreme government of the colony as well  42 as the administration of all affairs relating  43 to Indian tribes will rest with the Dominion, I  44 regard it as of the greatest importance to  45 tranquility of the province and the success of  46 the union that these officers should be  47 officers of the Dominion and not be transferred 29005  Submissions by Mr. Macaulay  1 to the control or caprice of local party  2 government, who, through mistaken motives of  3 economy, by the substitution of unpaid  4 irresponsible magistrates, or some such policy,  5 might entail upon the government at Ottawa an  6 amount of trouble and expense not easily to be  7 computed.  I propose, therefore, that these  8 officers should be officers of the Dominion as  9 they naturally would be in their character of  10 County Court judges and Indian agents."  11  12 Musgrave is now making representations to the  13 Governor General regarding how the Dominion policy  14 ought to be carried out and that's a theme that he had  15 embarked upon at an earlier time.  16 The final terms, and I am at page 83 of my  17 submission, my lord, were put to the Legislative  18 Council, this was a new Legislative Council, now it  19 had nine elected members and six non-elected members,  20 whereas before the majority were non-elected and so in  21 that sense it was now a representative institution.  22 And the constitution of that new government is the  23 subject of tabs four to five, a couple of new  24 documents just showing that this was now the new  25 constitution of the Legislative Council.  26 There is no transcript of the debate, there is a  27 text of Sir Joseph -- of Joseph Trutch's speech and  28 council minutes, so we know that Trutch moved, with  29 Helmcken seconding, the resolution that the council go  30 into committee to prepare an address on the terms of  31 union.  And that information, such as it is, is set  32 out at tab 6 of the new documents.  33 Helmcken was unkind enough to describe in his  34 reminiscences the debate as a poor affair, no  35 amendments were allowed, as he put it, the terms were  36 a treaty, and the Canadian government also, the  37 parliament, had debated the terms in March and April  38 of 1871, and the debates rarely refer to Indians  39 except in connection with the calculation of the basis  40 upon which certain financial arrangements were to be  41 made, Sir George Cartier described Clause 13 as  42 follows:  43  44 "A certain portion of the public lands had been  45 reserved for the Indians and the only guarantee  46 that was necessary for the future good  47 treatment of the aborigines was the manner in 29006  Submissions by Mr. Macaulay  1 which they had been treated in the past."  2  3 That's what Sir George Cartier had to say, and  4 obviously he got that, his understanding of it, from  5 Trutch and from Helmcken.  The terms were approved in  6 Ottawa and Trutch went out to London and he gets the  7 final approval, which was given.  8 Now, my lord, the conclusions, from this  9 examination of the historical background to Term 13  10 and the wording of it.  11 The knowledge and opinions of the negotiators,  12 particularly Trutch and Cartier, and also Helmcken and  13 Carrall, of the differences on Indian policy, and in  14 Cartier's case the obligation of Canada in respect of  15 the Hudson's Bay Company territories, indicate that --  16 the choice of wording was specific and should be given  17 full meaning, that is, the plain and ordinary meaning  18 that the words will bear.  The Provincial argument  19 that Trutch had no part in drafting Term 13 is, we  20 submit, without substance.  On the contrary, he likely  21 drafted it or assisted Cartier in drafting it.  In any  22 event, the Canadian negotiators knew that whatever  23 terms were agreed on would have to be approved by a  24 newly-elected Legislative Council representing the  25 population of British Columbia.  They also knew it was  26 essential to get the support of Trutch and Helmcken,  27 both of whom strongly favoured the British Columbia  28 Indian policy.  Helmcken made it clear that he would  29 wait and see what the final terms were, including the  30 Indian clause, as we have seen from an account of his  31 remarks in the debate, before he decided to support or  32 reject Confederation.  And it would seem likely that  33 it was at the request of British Columbia that British  34 Columbia -- the British Columbia delegation, that  35 Canada agreed to Term 13 in the form that it did take.  36 It's unreasonable to imply a substantial obligation to  37 be assumed by the federal Crown to pay for the  38 extinguishment of any aboriginal rights to provincial  39 Crown lands.  If the terms of union were intended as a  40 departure from a general rule that the owner of the  41 land assumed the burdens upon it, such a departure  42 would not have been left to implication.  43 THE COURT:  Mr. Macaulay, do you understand that Mr. Goldie or  44 his colleagues argued that Canada was under an  45 obligation to extinguish Indian title in British  46 Columbia?  I didn't understand them to be saying that.  4 7    MR. MACAULAY:  Well, it's not clear. 29007  Submissions by Mr. Macaulay  1 THE COURT:  I think what he was saying was that from the date of  2 Confederation, British Columbia was then powerless to  3 enter into agreements with the Indians and if anyone  4 was going to do it, it had to be the federal power but  5 I didn't understand him to argue that there was any  6 obligation to do it.  Do you think they did?  7 MR. MACAULAY:  Yes.  8 THE COURT:  All right.  Well, I will have to look at that again  9 then.  10 MR. MACAULAY:  The province argues that so far as British  11 Columbia was concerned, there was no Indian title to  12 its public lands and certainly that was its position.  13 It would be illogical, in view of that, to come to the  14 conclusion that B. C. intended that Term 13 would  15 obligate Canada to deal with Indian title.  I may be  16 arguing a point that the province now concedes, but as  17 I understood it, their general argument is that Canada  18 has that as -- one of the obligations imposed upon it  19 by a combination of Term 13 and section 91(24).  2 0    THE COURT:  I thought what Mr. Goldie was saying that in  21 response to various communications and requests and  22 urgings, including the Governor General, that what Mr.  23 Goldie said was that it was out of the power of  24 British Columbia to extinguish title by treaty at that  25 time and that he was saying there were no rights  26 anyway, and that if they were to be extinguished and  27 if Ottawa wanted them extinguished they could go ahead  28 and do it, but British Columbia did not think there  29 were any such rights, did not propose to extinguish  30 them and did not think that anybody else needed to do  31 so.  32 MR. MACAULAY:  That's right, my lord, and we agree with all  33 that.  British Columbia didn't think that such rights  34 existed and therefore it followed that they didn't  35 need extinguishing.  Canada did have the power to  36 extinguish and it was exercising that power next door  37 in Rupert's Land and in the western -- in the  38 territories.  39 THE COURT:  All right.  At the time it had the obligation, it  40 had the power but not the obligation.  41 Now, really, if British Columbia was wrong in its  42 opinion or its conviction, that there was no Indian  43 title or, as we would call it today, aboriginal title  44 to its public lands, that's British Columbia's concern  45 as holder of those lands.  Canada was obliged to  46 continue British Columbia's land reservation policy,  47 which it did.  There is no suggestion by the province 2900?  Submissions by Mr. Macaulay  1 that Canada hasn't done that.  And Term 13 doesn't  2 advance, if I have to deal with this, you know, Term  3 13 doesn't advance their position at all.  They rely  4 on Term 1, that's the next matter starting at page 87,  5 they say, "If on the day of union the lands of British  6 Columbia were burdened by unextinguished Indian title,  7 which was not then and has not now admitted by the  8 Province of British Columbia, that burden was a  9 liability assumed by Canada under Term 1 of the Terms  10 of Union, which simply said:  Canada shall be liable  11 for the debts and liabilities of British Columbia  12 existing at the time of the union."  13 That's another of their many, many arguments.  14 THE COURT:  I didn't understand Mr. Goldie to have argued this,  15 Mr. Macaulay.  16 MR. MACAULAY:  I am reading from his argument.  17 THE COURT:  I think that's in writing, but I don't think he  18 pressed that in his oral argument as well.  19 MR. MACAULAY:  My lord, I can't tell which is their — I am  20 assuming if they present it, they handed to your  21 lordship their written argument, that that's part of  22 their case.  23 THE COURT:  He said with respect to this that if it went that  24 far he would be seeking that remedy in the Federal  25 Court.  26 MR. MACAULAY:  He would be arguing that position in the Federal  27 Court  28 THE COURT:  But he wasn't asking me to make that determination  29 here.  30 MR. MACAULAY:  I don't recall him resiling from it, saying "this  31 is not part of our argument any more."  32 THE COURT:  Well, I am not sure that he used those words but I  33 have certainly put it out of my mind that this is a  34 problem that I am going to have to deal with.  He  35 certainly made it very clear that he would be seeking  36 this remedy in the Federal Court and wasn't asking me  37 to make any such declaration.  38 MR. MACAULAY:  Well, in case I have to meet it, my submission is  39 there from pages 87 to 100.  I won't bother dealing  40 with that.  41 THE COURT:  All right.  Well, he certainly didn't deal with it  42 in any detailed way and he certainly didn't make any  43 submission as to whether this was a -- this would be a  44 liability.  I remember asking him particularly whether  45 it was a liability and he said, well, I think it could  46 be so described, but -- well, I wish that he were  47 here.  But my recollection is that he certainly wasn't 29009  Submissions by Mr. Macaulay  1 asking me to determine that it was a liability that  2 could be enforced by this court.  3 MR. MACAULAY:  Could I leave it at this, my lord, that if  4 they -- and Mr. Goldie can, I suppose, in his reply  5 will deal with whatever -- his written reply --  6 considers he ought to deal with.  If your lordship has  7 to address that issue there is our submission.  There  8 is your answer.  9 THE COURT:  I don't think I am going to be dealing with it as  10 presently advised.  11 MR. MACAULAY:  And Term 11 was another —  12 THE COURT:  He certainly referred to Term 11 and the relevant  13 question but as evidence of the state of mind of the  14 federal government regarding the existence of Indian  15 title in British Columbia.  16 MR. MACAULAY:  Well, that's an interesting observation.  I don't  17 know how a government can have a state of mind.  A  18 government can have a policy, a government can make a  19 pronouncement but that doesn't change the law.  None  20 of that changes the law.  21 And we come now, I have a brief submission on Term  22 11 and it's just this: any release, he is talking  23 about facts that constitute a release, which is not an  24 issue that I say ought to be before this court, any  25 release in 1873 of British Columbia by Canada from the  26 prohibition from sale or alienation under Clause 11 of  27 the terms of union, related solely to British  28 Columbia's obligations under Term 11.  There was no  29 issue of aboriginal interest in provincial Crown lands  30 at that time.  It didn't come up until the next --  31 following year, 1874.  And British Columbia alienated  32 and otherwise dealt with provincial land as owner of  33 the Crown's proprietary estate in the land and it was  34 its business and not the federal government's business  35 how it conducted itself in that regard.  Having in  36 mind the character on the nature of aboriginal rights  37 and its liability, the liability of aboriginal rights  38 to be extinguished by that kind of alienation.  It may  39 not have been a policy that the federal government  4 0 approved.  41 I am turning now to post-union events, a lot of  42 which were dealt with.  Perhaps this might be the  43 appropriate time to break, my lord.  44 THE COURT:  Certainly.  Thank you.  45  4 6 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  47 29010  Submissions by Mr. Macaulay  1  2  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein to the best of my  8 skill and ability.  9  10  11  12  13 Wilf Roy  14 Official Reporter  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 29011  Submissions by Mr. Macaulay  1 (PROCEEDINGS RECOMMENCED AT 3:15 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  My lord, I am at page 103 now of my submission.  6 The tab is introduction to post-union events, G(l).  7 The province argues that the Terms of Union and  8 the Constitutional Act of 1867 construed in their  9 historical context, wholly negative any suggestion  10 that the lands of British Columbia were, after  11 Confederation, burdened by anything which might be  12 described as an Indian interest.  That submission is  13 to be found in the introduction to their  14 counter-claim.  This historical context includes a  15 review of materials from 1872 until after 1927, and  16 it's referred to in the province's summary  17 counter-claim argument.  18 Here I am still assuming that their written word  19 is their argument.  20 The province argues that B.C. had never wavered  21 from its position that the sole obligation left to it  22 in respect of Indians in British Columbia is that  23 found in the Terms of Union.  It is submitted that  24 such evidence of subsequent discussions and events is  25 not helpful, we say, in determining the constitutional  26 effect of the Terms of Union and Constitution Act,  27 particularly opinions of officials elected,  28 politicians.  29 It is submitted that the force and effect of the  30 Constitution Act and the Terms of Union is clear and  31 plain.  Had reference to post-union events is  32 unnecessary.  In any event, it is submitted that the  33 province confuses policy and intention and opinion  34 with fact, and confuses obligations that it owed to  35 Canada under the Terms of Union with the interest of  36 the Indians as a burden on Provincial Crown lands.  37 And we say it's the latter that's the issue before  38 your lordship, not the former.  Moreover, each event  39 upon which the province relies is consistent with  40 there being no duty on Canada to extinguish the  41 plaintiffs' aboriginal rights to British Columbia  42 Crown lands, to pay any compensation for any  43 extinguishment which may be affected by the province,  44 or to otherwise deal with the demands that the  45 plaintiffs are making in this case in respect of  46 Provincial Crown lands.  The plaintiffs' claims are a  47 matter for the province as holder of the beneficial 29012  Submissions by Mr. Macaulay  1 interest in the Crown's proprietary estate.  2 If I could turn, my lord, to the seventh -- we  3 have divided the submissions according to the  4 province's organization of their argument, but if I  5 could turn -- the first 1871 to '73, nothing happened,  6 1874 to '78 in which there was a lot of talk.  '78 to  7 '95, then Treaty 8 to the post-1907, the Land Acts in  8 post-1907.  And I'll deal with some of the post-1907  9 events that -- particularly exercised the province.  10 That's not to say, my lord, that if I don't read  11 every line that our submission isn't made.  I have a  12 choice of reading every line or making oral argument  13 on some of the ones a lot, but your lordship will not  14 come to the conclusion from that that we have --  15 THE COURT: I won't do that.  Now that you told me not to.  16 MR. MACAULAY:  Now, I'll deal with my first with the  17 introduction to post-1907 portion of the province's  18 counter-claim argument.  This is the province in Part  19 8 of its counter-claim, and divided its counter-claim  20 into thirteen parts.  In Part VIII it says:  21  22 "In 1914, by Order in Council P.C. 751, the  23 Dominion Government acknowledged explicitly  24 what had been implicit from the beginning:  25 That British Columbia's entire obligation  26 towards Indians was encompassed in Term 13 of  27 the Terms of Union, and that, if Indian title  28 existed in British Columbia, the Dominion alone  29 was responsible for and had the power to  30 extinguish it."  31  32 You see, my lord, they are saying that we were  33 responsible for.  They keep saying that, that we had  34 an obligation in that regard.  35 THE COURT:  I don't think, with respect, the -- well, I suppose  36 that says they are responsible for it.  That certainly  37 wasn't the version of Mr. Goldie's arguments, but --  38 MR. MACAULAY:  Well, that's his words.  39 THE COURT:  I thought what he was saying was that if it was  40 going to be extinguished, it could only be done by the  41 federal government.  And what I thought that he was  42 really saying was from time to time not consistent,  43 but from time to time the federal government has been  44 pointing fingers at the province saying you ought to  45 do something.  4 6    MR. MACAULAY:  Yes.  47    THE COURT:  And Governor General said British Columbia is 29013  Submissions by Mr. Macaulay  1 behaving badly, I think you said, and I think what Mr.  2 Goldie was pointing out was that from the time of  3 union, if the federal government thought that there  4 was -- there was a title that should be extinguished,  5 that it should have extinguished it, but I did not  6 understand to argue, although you are right that this  7 first paragraph is capable of that construction, I do  8 not understand him to argue that there was indeed a  9 legal obligation to extinguish an aboriginal title.  10 He was certainly putting no higher than if you want it  11 extinguished you have the power to do it.  12 MR. MACAULAY:  And use your own money.  13 THE COURT:  I think so, yes, because British Columbia is saying  14 there is no such thing, so stop pointing fingers at  15 us.  If you think there is something, well then go  16 ahead and do it I think is what he was saying.  17 MR. MACAULAY:  Well, that may be what was meant by the word  18 "responsible".  19 At any rate, he goes on to say that:  20  21 "In 1924, the Dominion adopted the Royal  22 Commission's report (as reviewed),  23 acknowledging that once the reserves specified  24 therein were conveyed to Canada, British  25 Columbia would be released from any further  26 obligation respecting Indian lands ...  27 In the result, it was determined that  28 British Columbia was obliged to provide land  29 reserves for Indians who lived inside its  30 boundaries, and that if anything further were  31 required, the Dominion alone had the  32 responsibilities and the power.  33 This result is exactly what was provided  34 for in Term 13 of the Terms of Union ..."  35  36 And that's why I have been arguing all along in  37 this last hour, hour and-a-half, that Term 13 makes no  38 such -- has no such effect.  39 The force and effect of Term 13 and the  40 Constitution Act and Section 109 is clear.  Reference  41 to the post-1907 events isn't necessary.  No argument  42 is made in this case that Canada and British Columbia  43 amended this constitutional arrangement.  Clearly, the  44 provincial and federal governments cannot amend or  45 waive their constitutional duties and responsibilities  46 provided for in the constitution, including the Terms  47 of Union. 29014  Submissions by Mr. Macaulay  1 In any event, the result of the post-1907 events  2 was that in general by Order in Council 1265 and its  3 B.C. counterpart, Order in Council 911, the province  4 and Canada dealt with differences between the  5 governments in respect -- not vis-a-vis the Indians,  6 but between the governments in respect to the  7 provinces continuing obligation under Term 13 to  8 convey reserve lands.  The province's claim of a  9 reversionary interest in reserve lands, the province's  10 concern over the extent of reserve lands already  11 allotted for Indians, and the province's refusal to  12 set aside additional reserves, which they did refuse,  13 were dealt with in this process, the McKenna-McBride  14 and its -- as with the 1975-76 Joint Commission  15 Agreement, the agreement represented by the Orders in  16 Council did not deal with the question of aboriginal  17 rights, burdening Provincial Crown lands shall and did  18 not impose on Canada the obligation, or as he put it,  19 the responsibility, that's the term he uses, Mr.  20 Goldie uses, to extinguish such rights or otherwise  21 provide for the claims the plaintiffs are making here.  22 This interpretation supported by a review of the  23 historical background to the 1912 McKenna-McBride  24 agreement, the terms of the agreement itself and its  25 approval, the resulting Royal Commission and its  26 report, the Orders in Council noted above and the  27 enabling statutes, the Indian Affairs Settlement Acts,  28 pursuant to which Orders in Council were passed.  29 The province argues that Canada should have brought  30 the question of aboriginal rights in Provincial Crown  31 lands before the courts by starting an action against  32 a provincial grantee under Section 37A of the Indian  33 Act.  Dominion officials expressed concern that such a  34 proceeding would not be successful.  As matter of  35 policy, there was a reluctance to put in question  36 title to all alienated provincial lands.  37 And we say that the alienation -- the granting our  38 case is that when the province makes a grant in fee  39 simple, that extinguish up to 1982 at least, that  40 extinguished aboriginal title.  It had that effect.  41 It's Canada's position here that provincial grants  42 where valid and clearly and plainly inconsistent with  43 the exercise of any aboriginal rights, would  44 extinguish those rights to the granted land.  And we  45 submit that despite hope of the Canadian government to  46 have a determination of the Indian land title  47 question, an action based on Section 37A of the Indian 29015  Submissions by Mr. Macaulay  1 Act would not have been successful.  It is submitted  2 also that this is a position taken in the province's  3 argument in this case.  For instance, Part IV.  4 It's the province that refused to consent to a  5 joint reference.  The answer that was supposedly as  6 clear in 1924 as it had been in the summer 1870 when  7 the Terms of Union negotiated, was never clear enough  8 for the province to agree to a joint reference to the  9 courts.  10 The province also relies on Canada's attempt to  11 settle the issue of aboriginal rights in provincial  12 lands pursuant to Order in Council 751 of 1914.  If,  13 as we argue, Canada had no duty to deal with  14 aboriginal claims to rights in Provincial Crown lands,  15 the fact that Canada attempted to resolve as a matter  16 of policy this "vexatious question", that the province  17 refused to deal with, does not change the effect of  18 the constitution or the law.  19 THE COURT:  Whose quotation is that?  2 0 MR. MACAULAY:  The vexatious?  21 THE COURT:  Yes.  22 MR. MACAULAY:  I believe it's to be found in the Order in  23 Council itself.  24 THE COURT:  I see.  They mean vexing, don't they?  2 5 MR. MACAULAY:  I beg your pardon?  2 6 THE COURT:  They mean vexing, don't they?  2 7 MR. MACAULAY:  I guess they do.  28 THE COURT:  I don't know if you're quoting Mr. Goldie or the  29 Order in Council.  3 0 MR. MACAULAY:  I am not quoting Mr. Goldie there.  31 THE COURT:  All right.  I think they mean vexing.  32 MR. MACAULAY:  The Order in Council specifically limited the  33 liability of Canada, that Canada was willing to  34 assume, provided the province and the Indians agreed.  35 The offer was subject to certain conditions which were  36 never agreed to.  37 Finally, the province's argument that the 1927  38 report of the joint committee and related events  39 operated to discharge the province from any liability  40 respecting the extinguishment of aboriginal title to  41 lands in the province.  We say that that's -- well,  42 not even relevant.  The 1927 report and the  43 parlimentary resolutions that adopted it doesn't  44 change the law.  The subsequent events are matters of  45 government policy and do not effect the duties and  46 liabilities of the Crown, either federal or  47 provincial.  They cannot be said to operate as a 29016  Submissions by Mr. Macaulay  1 release or a discharge of the province.  And of course  2 I say again that is not an issue before this court,  3 that ought to be before this court.  4 My lord, you remember -- and I am going to go  5 forward now -- you will remember that in the  6 negotiations leading to the McKenna-McBride agreement,  7 McKenna finally wrote to McBride saying, amongst other  8 things, "Well, you won't discuss the question of  9 aboriginal rights, so let's get on with the other  10 things."  And that's what they did.  And there was the  11 Royal Commission on Indian Affairs was set up, they  12 went all around the province, including the claim  13 area, and your lordship has heard evidence about what  14 happened there.  They made very extensive  15 recommendations for additions to reserves, for new  16 reserves, for some cut-offs, and ultimately that was  17 acted on by way of two statutes, the Indian Affairs  18 Settlement Act followed by Orders in Council by both  19 governments.  20 If I could turn to page 285 of my argument, my  21 lord.  I want to deal now with the Indian Affairs  22 Settlement Act, which these are -- were mentioned in  23 the province's argument in Part IX of their  24 counter-claim.  25 The province argues that Canada's 1924 adoption of  26 the Amended Royal Commission report in Order in  27 Council 1265 acknowledged that once the reserves  28 specified therein were conveyed to Canada, British  29 Columbia would be released from any further  30 obligations.  And we say that's not so.  31 The approval of the Royal Commission report was  32 made pursuant to the Indian Affairs Settlement Act and  33 in fulfillment of the McKenna-McBride agreement.  The  34 McKenna-McBride agreement only considered matters of  35 dispute between the governments and did not deal with  36 the issue of aboriginal title in Provincial Crown  37 lands, because the province wouldn't agree to talk  38 about it.  39 THE COURT:  P.C. 1265 wasn't in the 1924 document, was it?  4 0    MR. MACAULAY:  Yes, it was, my lord.  41 THE COURT:  1924?  42 MR. MACAULAY:  Yes.  The provincial Order in Council, the  43 counter-part was 1923, and -- yes, that was 1924, my  44 lord.  45 Your lordship may be thinking of a final  46 conveyance by the province.  47 THE COURT:  I think there is something in 1938. 29017  Submissions by Mr. Macaulay  1 MR. MACAULAY:  Well, that's after the surveys were done and —  2 THE COURT:  Oh, yes.  3 MR. MACAULAY:  But the province relies very heavily on these  4 Acts and on the -- this Order in Council, very  5 heavily, and a great deal of time was spent in oral  6 argument, and of course a lot was written about it too  7 in our written submissions.  8 Order in Council 1265 and its B.C. counterpart in  9 911 were adopted pursuant to these two Acts, as I  10 mentioned.  11 The B.C. Statute was assented to in 1919, and the  12 long title of the Act was an Act to provide for the  13 settlement of differences between the governments of  14 the Dominion and the province respecting Indian lands  15 and Indian affairs in the province.  16 And I have set out the preamble and the section of  17 the Act.  The section provided, and I have underlined  18 the one -- part of it that I consider important.  19 Section 2 provided:  20  21 "To the full extent to which the  22 Lieutenant-Governor in Council may consider it  23 reasonable and expedient, the  24 Lieutenant-Governor in Council may do, execute  25 ..."  26  27 So on.  28  29 "... for giving effects to the said commission  30 either in whole or in part, and for the full  31 and final adjustment and settlement of  32 differences between the said governments ..."  33  34 So they were settling differences between the  35 governments respecting Indian lands and Indian affairs  36 in the province.  37 As with the McKenna-McBride agreement, the statute  38 only considered the settlement of differences between  39 the governments.  The British Columbia Premier -- and  40 here we are coming to more of the new documents.  And  41 I want to place some emphasis on this one.  British  42 Columbia Premier at the time, John Oliver, wrote to  43 Mr. O'Meara.  Mr. O'Meara was the counsel then.  He  44 had a dual capacity.  He was a missionary, he was also  45 a barrister, and he was counsel for the Indians then  46 and later before the Joint Committee of the Senate and  47 House of Commons.  And Mr. O'Meara was already busy in 2901?  Submissions by Mr. Macaulay  1 these affairs, and he -- the Premier wrote as follows:  2  3 "Replying to your letter addressed to my  4 secretary, dated February 19th, having  5 reference to Bill No. 17, and further reference  6 to certain documents you sent me a week or more  7 ago:  8 With reference to this matter I may advise  9 you that Bill No. 17 proposes no legislation  10 which would conflict in any way with the  11 hearing, weighing and deciding according to  12 their merit, the matters in the documents  13 submitted.  14 I regard these papers as highly important  15 and may assure you that when the executive  16 deals with the matter of the report of the  17 Indian Commission, the statements and opinions  18 expressed in the same will have the most  19 careful consideration.  20 There really is no need for you to see me  21 further in this connection at the present  22 time."  23  24 Now, Bill 17, my lord, was the provincial Indian  25 Affairs Settlement Act, but it was in Bill form at the  26 time.  So that was the Act enabling the province to  27 carry out the terms of the Royal Commission report,  2 8 adopted.  And the matters in the documents submitted  29 were Indian title claims in the Nishga and other  30 petitions:  O'Meara to Oliver of February 8th, 1919,  31 and O'Meara to Oliver of February 19th, 1919.  And  32 Fitzroy to Smith, Fox and Sedgwick dated December 12,  33 1918, which are an exhibit.  34 But I can turn to the tabs, my lord, that's Tab  35 32, 33 and 34, to see what they were talking about.  36 That's at the back of the book, unfortunately.  I  37 shouldn't have put them all in the same book as my  38 submission.  We are just turning from page 287 now to  39 Tabs 32, 33, 34.  O'Meara is writing to the Honourable  40 John Oliver, and he closes the matters set out there.  41 33 is on the same subject.  42 THE COURT:  This is the letter that Mr. Oliver referred to, is  43 it?  44 MR. MACAULAY:  Yes, my lord.  Mr. Bear was the secretary.  And  45 34 is the reply by the Premier to the Reverend Mr.  46 O'Meara.  We turn back to 32, my lord.  You will see  47 that the last letter -- item that had been enclosed 29019  Submissions by Mr. Macaulay  1 the day before is sent to the Premier the day before,  2 was the letter addressed to the Imperial Privy Council  3 by the Imperial Privy Council to the Nishga tribe,  4 which was the response, of course, to the Nishga  5 petition.  At any rate, the issue was Indian title is  6 what I am saying, and the Premier says about that,  7 with reference to this matter:  8  9 "May I advise you that Bill 17 proposes no  10 legislation which could conflict in any way  11 with the hearing, weighing and deciding  12 according to their merit the matters in the  13 documents submitted."  14  15 Tab 31, by the way, is Bill 17 itself.  If your  16 lordship will compare that with the Act, you will see  17 that that's the same thing.  The Act and the Bill are  18 the same.  19 The Dominion Act at page 288 of my argument now,  20 the Dominion Act was assented to on July 1st, 1920.  21 Its preamble and Section 2 are identical to the  22 Provincial Act with the necessary changes to  23 references to the Canadian Governor in Council.  The  24 long title is slightly modified to read -- it's an Act  25 to provide for the settlement of differences between  2 6 the governments of the Dominion of Canada and the  27 province of British Columbia respecting Indian lands  28 and certain other affairs in the said province.  So  29 it's Indian lands and certain other affairs, which is  30 a more accurate way of putting what was being done.  31 The parliamentarians who considered the enactment  32 of the statute also considered the Canadian  33 legislation to be limited to matters of dispute  34 between the governments, and did not deal with the  35 issue of Indian claims to aboriginal title to  36 Provincial Crown lands.  The interior, the Minister of  37 the Interior, Mr. Arthur Meighen, moved for the second  38 reading of the Bill on March 26th, 1920, and he  39 advised the Committee of the Whole on the Bill as  40 follows:  41  42 "There will be no need of that, for the reason  43 that if the Indian contention is right, or if  44 they should be encouraged to go to the Privy  45 Council or anywhere else on the question of the  46 extinction of the original Indian title, they  47 will be in just as good a position after this 29020  Submissions by Mr. Macaulay  1 measure goes through as they are now."  2  3 So he was saying the same thing, in effect more  4 plainly and clearly as the Premier Oliver.  And he  5 goes on at the top of page 289:  6  7 "I do not think their request has anything to do  8 with the question of the wisdom of passing this  9 legislation."  10  11 And then Meighen advised the House in April 1920:  12  13 "The agreement provided for the final settlement  14 of differences that had arisen during a period  15 of two or three decades, having to do primarily  16 with the claim of the province of British  17 Columbia to a reversionary interest in all  18 Indian lands in that province, and to a  19 definition of what reversionary interest, if  20 any such exist, should be, and having to do as  21 well with the areas of Indian reserves in the  22 province, their sufficiency for the purpose of  23 the various tribes or their superabundance in  24 area for the purposes of the tribes."  25  26 So that was a very clear description of what was  27 being dealt with.  And he goes on:  28  29 "The report, as I have pointed out, looks to a  30 settlement of the reversionary interest claim  31 along the lines indicated, and looks to a  32 re-adjustment of the areas of the various  33 reserves by means of cut-offs and additions,  34 the amounts being specifically set out in the  35 report.  I can give the committee the details  36 as to the amount to be cut-off in any special  37 reserve or as to the amount to be added; the  38 cut-offs exceeded the additions.  The principle  39 difficulty involved is in connection with this  40 Kitsilano reserve in British Columbia."  41  42 And Sir James Lougheed in the Senate dealt with  43 the matter as is set out at page 290, and he says:  44  45 "I might say further, honourable gentlemen, that  46 we do not propose to exclude the claims of the  47 Indians ..." 29021  Submissions by Mr. Macaulay  1  2 And then he says:  3  4 "But whatever differences exist between this  5 government and the government of British  6 Columbia, it is very desirable that they  7 should be settled and that both governments  8 should unite in a mutual and cooperative plan  9 for the purpose of doing what is in the best  10 interests of the Indians in the province."  11  12 That was the statute.  13 Now, could I turn now, my lord, to page 296 where  14 we deal with the Order in Council.  The Statutes were  15 designed for those purposes, and their terms and their  16 preambles shows that clearly.  The famous P.C. 1265 on  17 which the province hopes so heavily was made, passed  18 pursuant to the Federal Indian Affairs Settlement Act,  19 and the province argues in several places or its 10,  20 12 and 13 of its counter-claim:  21  22 "It was shown in Part VIII of this summary that  23 P.C. 1265 operated to discharge British  24 Columbia from any further obligations  25 respecting Indians in British Columbia.  26 The Dominion considered the question of  27 Indian title to have been resolved by this  28 Order in Council, as well."  29  30 That's what the province says.  We say that isn't  31 so.  32 The Order in Council dealt only with the  33 differences between the governments and not with the  34 issue of the rights of British Columbia Indians in  35 Provincial Crown lands.  It's clear from the  36 McKenna-McBride agreement and from the Royal  37 Commission report and from the Indian Affairs  38 Settlement Acts, both of them, the federal provincial  39 one and the Order in Council, both Orders in Council,  40 that the province's interpretation is wrong.  41 Now, my lord, I have set out at pages 297 and 298  42 the provincial Order in Council.  The important part  43 of it I refer to at the bottom of page 299.  44 As with the McKenna-McBride agreement and the  45 Indian Affairs Settlement Acts, Order in Council 911,  46 that's the provincial, is expressly directed to the  47 settlement of differences between the governments 29022  Submissions by Mr. Macaulay  1 arising out of the implementation of Term 13.  2 Moreover, the words "in respect thereto" in the last  3 paragraph, Order in Council 911, emphasize that the  4 differences settled were the longstanding disputes  5 between Canada and the province over the reversionary  6 interest that was alleged by the province, the extent  7 of reserves and the additions to reserves.  8 Even if the McKenna-McBride agreement could be  9 read as dealing with matters other than those  10 subjects, the Order in Council 911 and Order in  11 Council 1265 approved a settlement of only those  12 differences.  And the two Acts authorizing the  13 Lieutenant-Governor in the one case and the  14 Governor-General in the other necessary for the final  15 settlement of the differences between the governments  16 "to the full extent to which the Lieutenant-Governor  17 and Council may consider it reasonable and expedient."  18 I have read that before.  And the Order in Council 911  19 and 1265 provide, and I have quoted at the bottom of  20 299, the top of page 300:  21  22 "That the report of the Royal Commission ...  23 with the amendments thereto as may be ...  24 Ditchburn ... and ... Clark ... insofar as it  25 covers the adjustments, readjustments or  26 confirmation of the reductions, cut-offs and  27 additions in respect of Indian Reserves  28 proposed in the said report of the Royal  29 Commission, as set out in the annexed  30 schedules, be approved and confirmed as  31 constituting full and final adjustment and  32 settlement of all differences in respect  33 thereto -- in respect thereto.  What does that  34 mean, in respect of the adjustments,  35 readjustments, confirmations, reductions,  36 cut-offs, additions in respect of Indian  37 Reserves proposed  ..."  38  39 In the report.  And that's what the province has  40 tried to build up as a release.  The words "in respect  41 thereto" refer back to the 1916 report to the  42 adjustments, et cetera, in respect of Indian Reserves,  43 the annexed schedules, none of which deal with or even  44 refer to the Indian title question.  The words of the  45 preamble to the 1912 agreement, the words "final  46 adjustment of all matters relating to Indian Affairs  47 in the Province of British Columbia", which might be 29023  Submissions by Mr. Macaulay  1 misread, replaced with the words "settlement of all  2 differences in respect thereto".  3 THE COURT:  Where was that other language?  4 MR. MACAULAY:  That was in the agreement, the original  5 agreement, the McKenna-McBride agreement.  6 THE COURT:  All right.  7 MR. MACAULAY:  Do you remember, my lord, there was a letter from  8 McKenna-McBride saying well, you won't discuss it, so  9 we consider the matter dropped.  10 THE COURT:  Yes.  11 MR. MACAULAY:  And McKenna-McBride used the words, "final  12 adjustment of all matters relating to Indian Affairs  13 in the province of British Columbia".  That's not what  14 either the Statute or the Orders in Council said.  15 The Federal Order in Council 1265 is dated July 19th,  16 1924.  That's Exhibit 1203-8.  It's referred to in  17 Part XI, paragraph 14 of the province's counter-claim  18 argument.  It's worded essentially the same as Order  19 in Council 911, with a further exception respecting  20 railway belt reserves.  1265 provides for the  21 settlement of differences between the governments and  22 also uses the words "in respect thereto".  23 It's clear that the province, and Mr. Oliver knew  24 that, and the federal government were not dealing in  25 any way, even among themselves, as between themselves,  26 about what we now call aboriginal rights.  It was  27 often then called Indian title.  And Mr. Oliver said  28 to Mr. O'Meara not to worry, we are not dealing with  29 that, and assured the House, and Lougheed assured the  30 Senate that that was not the intention.  Obviously Mr.  31 O'Meara or his friends had gone to Ottawa as well to  32 make sure they weren't doing something that would  33 estop them, that would cut them off in prosecuting  34 their claims, and in fact it didn't, and we went onto  35 1927.  36 That brings me to the topic I hope to deal with  37 quickly, if that's possible.  Could I turn, my lord,  38 to page 319 of my submission.  The province says -- I  39 have set out their submission on 1927, and at the  40 bottom of the page the province says:  41  42 "although the conclusion that this resulted  43 ..."  44  45 This is the joint committee's report.  46  47 "... in extinguishment is not one for these 29024  Submissions by Mr. Macaulay  1 proceedings, the implementation by Parliament  2 of the Joint Committee's recommendation and the  3 Indians acceptance of funds so appropriated  4 operated - in a manner analagous to the payment  5 and acceptance of treaty monies - as an  6 extinguishment of aboriginal title, at least as  7 to the province, by the federal government and  8 as a consent thereto on the part of the Indians  9 of British Columbia in general, and the  10 plaintiffs in particular."  11  12 They are talking about the B.C. Special.  Now, we  13 say, if anything, the Joint Committee's report and its  14 implementation and acceptance concern Canada as not  15 the province's responsibilities to the Indians.  The  16 province took no part in the 1927 proceedings and made  17 no contribution to the B.C. Special.  The province  18 considered that there were never any aboriginal  19 rights.  There are no grounds for the province's  20 reliance on these matters as against Canada.  21 The Joint Committee, like P.C. 751 and the  22 subsequent discussions with Indians, represents an  23 attempt by Canada to deal with the grievance of  24 British Columbia Indians.  25 The Joint Report and its approval by resolution of  26 the Senate and House, did not and could not extinguish  27 aboriginal rights in the province of British Columbia.  28 This seems to be conceded by the province.  The report  29 is not a judicial precedent binding on the courts.  30 Resolution by one or both Houses of Parliament are not  31 statutes; they are not legally binding in the sense of  32 creating enforceable legal rights and obligations.  33 And I refer to the Kelso and The Queen and Stockdale  34 and Hansard in support of that proposition, my lord,  35 and they are in the -- they are in my book of  36 authorities.  Well-known cases at tabs 32 and 33.  37 The report concluded that the Indian petitioners  38 hadn't proved the existence of any aboriginal rights.  39 And it wouldn't be logical, we say, to conclude that  40 there was an intention to extinguish them.  41 The report actually said this:  42  43 "Having given full and careful consideration to  44 all that was an adduced before your committee,  45 it is the unanimous opinion of the members  46 thereof that the petitioners have not  47 established any claim to the lands of British 29025  Submissions by Mr. Macaulay  1 Columbia based on aboriginal or other title  2 ..."  3  4 The petition, actually, that -- at page 322 -- I  5 should explain this about these odd -- rather odd  6 proceedings before the Joint Committee at the House  7 and Senate.  The petition was as follows:  8  9 "That immediate steps be taken for facilitating  10 the independent proceedings of the Allied  11 Tribes and enabling them by securing reference  12 of the petition now in His Majesty's Privy  13 Council and such other independent judicial  14 action as shall be found necessary to secure  15 judgment of the judicial committee of His  16 Majesty's Privy Council deciding all issues  17 involved."  18  19 The petition, by the way, was the 1913 Nishga  20 petition.  And the House and Senate Joint Committee  21 were reported to inquire into the claims of the allied  22 Indian tribes, as set forth in their petition.  And  23 that's the one that I just read.  That makes  24 interesting reading.  25 Mr. O'Meara was their counsel.  And it recites --  26 well, it constitutes an interesting synopsis of what  27 had been going on.  It says:  28  29 "The committee note with regret the existence of  30 agitation, not only in British Columbia, but  31 with Indians in other parts of the Dominion,  32 which agitation may be called mischievious, by  33 which the Indians are deceived and led to  34 expect benefits from claims more or less  35 fictitious.  Such agitation, often carried on  36 by designing white men, is to be deplored, and  37 should be discountenanced, as the government of  38 the country is at all times ready to protect  39 the interests of the Indians and to redress  40 real grievance where such are shown to exist.  41 Counsel representing the Allied Indian  42 tribes continued to press the aboriginal title  43 claim upon the attention of successive  44 governments, and although the government was  45 willing to litigate the claim, counsel for the  46 Indians sought permission to take the matter  47 direct to the Imperial Privy Council, instead 29026  Submissions by Mr. Macaulay  1 of first submitting it to the judicial decision  2 to the courts of Canada.  This the government  3 very properly declined to do; but at the same  4 time it made a generous offer to the Indians,  5 the details of which are embodied in an Order  6 in Council passed on June 20th, 1914.  The full  7 text of this order is as follows:"  8  9 That was P.C. 571.  10  11 "Instead of accepting the offer thus made by the  12 government, it was rejected and counsel for the  13 Indians kept up a correspondence on irrelevant  14 issues with the then Minister of Justice until  15 the latter gentleman ended the controversy with  16 the following letter."  17  18 The report came to the conclusion, I am at page  19 324, that the petitioners have not established any  20 claim to the lands of British Columbia based on  21 aboriginal or other title.  It's not proven verdict,  22 that's all.  Nothing more.  And obviously they thought  23 that the Indians were in the hands of the Charletons,  24 and said so in terms that don't resemble judgment of a  25 court.  And of course it isn't the judgment of a  26 court.  27 Despite its narrow mandate, I say at page 324,  28 from Parliament, the Committee's report then reviewed  29 the claims made by the Allied Tribes in 1919 for  30 additional lands and compensation.  And the Report  31 concluded with a recommendation for cash compensation  32 for annuities similar to treaty annuities.  33 And that leads me to to the Appropriate Acts.  I  34 have another five minutes to go, my lord.  35 THE COURT:  Is that all right, Madam Reporter?  36 THE REPORTER:  That's fine, My Lord.  37 THE COURT:  You have five minutes, Mr. Macaulay.  38 MR. MACAULAY:  To deal with what I want to deal with, just five  39 minutes.  40 I say at page 326 there is no determination of  41 aboriginal rights of prohibition on maintaining  42 actions, as a result of all of that.  The legislation,  43 such as it was, prohibited solicitation of funds from  44 Indians without the consent of the Superintendent  45 General.  But the Acts which provided for the famous  46 B.C. Special are just the annual appropriation Acts.  47 The province made much of those, but the Appropriation 29027  Submissions by Mr. Macaulay  1 Act merely provides -- I am referring now 327 to an  2 example of an Appropriation Act.  3  4 "From and out of the Consolidated Revenue Fund  5 there may be paid and applied a sum not  6 exceeding in the whole one hundred and  7 forty-six million, seven hundred and seven  8 thousand, eight hundred and twenty-six dollars  9 and ninety-two cents towards defraying the  10 several charges and expenses of the public  11 service, from the first day of April, one  12 thousand nine hundred and thirty-two to the  13 thirty-first day of March, one thousand nine  14 hundred and thirty-three, not otherwise  15 provided for, and being one half of votes Nos.  16 35, 36, 45, 186, 207, 209, 210, 211 and 286,  17 and three-fourths of the amount of each of the  18 other items, less deductions."  19  20  21 And Schedule A of Section 201 is set out thereto.  22 It includes a grant of $100,000 approved by Parliament  23 in the session of 1926, 1927.  There is no rule of  24 statutory construction to support the province's  25 construction that the mere appropriation of funds  26 towards defraying several charges and expenses of the  27 public service of an intention to extinguish  28 aboriginal rights.  Appropriation Acts merely provide  29 funds to the executive to carry a policy.  The  30 province has not pointed to any statute which makes  31 mandatory the payment of B.C. Special.  32 This wording, by the way, my lord, was used for  33 only six years, from 1932 to 1937, and the citations  34 are given at page 328 of the argument.  35 Prior to 1932, there was no reference to the  36 $100,000 at all.  And I have given the references to  37 the appropriation Acts of those years.  38 In 1928, 1931, 1938 the wording is given.  In 1938  39 the wording was:  40  41 "Granted to provide for additional services to  42 Indians in British Columbia, $100,000".  43  44 And that word was used to 1966, when a new formula  45 was adopted, and there was no specific reference to  46 the $100,000 at all.  47 MR. MACAULAY:  I used up my five minutes, my lord. 29028  Submissions by Mr. Macaulay  COURT:  You are only a page in finishing, aren't you?  MACAULAY:  Well —  COURT:  Miss Oxley is very understanding.  MACAULAY:  There is the question of, you know, if I read  every one of these submissions, we would be here 'til  midnight and beyond.  COURT:  No, we are not staying that long.  MACAULAY:  Not staying that long.  COURT:  You are not finished, are you, Mr. Macaulay?  MACAULAY:  No, I am not.  COURT:  Oh, no.  You are coming back tomorrow?  MACAULAY:  I will be coming back tomorrow, I think.  COURT:  Maybe we should adjourn.  All right.  Will you be  all day tomorrow, or are you able to indicate?  MACAULAY:  No, I will not be all day.  Ms. Koenigsberg has a  submission to make on Section 35 of the Constitution  Act.  Your lordship will be glad to hear that there is  a new Supreme Court of Canada judgment handed down  last Thursday afternoon that has some bearing on the  matter, and we are trying to work out the meaning of  three sets of judgments --  COURT:  Yes, all right.  MACAULAY:  -- in that decision, and will be dealing with  that tommorrow as well.  COURT:  Will you take all day tomorrow?  MACAULAY:  We expect to take a part if not all of the day.  COURT:  Yes.  All right.  MACAULAY:  And we will be closing tomorrow.  COURT:  Very good.  All right.  MACAULAY:  We will not be making submissions on Wednesday,  and the plaintiffs would be in a position to start  their reply.  COURT:  Well, there is some doubt about whether they are  going to start 'til Thursday, but perhaps Mr. Fleming  can convey our complements, and if they can start on  Wednesday, so much the better.  MACAULAY:  Yes.  COURT:  All right.  Thank you.  We'll adjourn then at 10:00  o'clock tomorrow morning.  MACAULAY:  10:00 o'clock if it please your lordship.  COURT:  Thank you.  REGISTRAR: Order in court.  Court stands adjourned until  10:00 o'clock tomorrow.  1  THE  2  MR.  3  THE  4  MR.  5  6  7  THE  8  MR.  9  THE  10  MR.  11  THE  12  MR.  13  THE  14  15  MR.  16  17  18  19  20  21  22  THE  23  MR.  24  25  THE  26  MR.  27  THE  28  MR.  29  THE  30  MR.  31  32  33  THE  34  35  36  37  MR.  38  THE  39  40  MR.  41  THE  42  THE  43  44  45  46  47 29029  Submissions by Mr. Macaulay  1 I HEREBY CERTIFY THE FOREGOING TO BE  2 A TRUE AND ACCURATE TRANSCRIPT OF THE  3 PROCEEDINGS HEREIN TO THE BEST OF MY  4 SKILL AND ABILITY.  5  6  7 LORI OXLEY  8 OFFICIAL REPORTER  9 UNITED REPORTING SERVICE LTD.  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

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