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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-19] British Columbia. Supreme Court Jun 19, 1990

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 28666  Submissions by Mr. Macaulay  1 JUNE 19, 1990  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 19th day of June, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  Mr. Macaulay.  8 MR. MACAULAY:  My lord, yesterday morning I had handed up notes  9 regarding the Gitksan and Wet'suwet'en wills.  I  10 notice that some amendments ought to be made there.  11 They don't affect the sense of the submission at all,  12 but may I hand up -- I have given Mr. Grant, who takes  13 particular interest in it, a copy of this.  I also  14 have copies -- may I hand up -- these are for  15 substitutes -- a substitute for those pages on wills.  16 If your lordship will discard the 10 pages on wills  17 and put in the amendment, which is dated at the top  18 left-hand corner.  19 THE COURT:  I'll do the latter but not the former.  I made notes  20 of the other one, so I'll keep notes of them both.  21 MR. MACAULAY:  Perhaps I can draw your lordship's attention to  22 the changes.  On page 2 I said yesterday that there  23 were 95 wills that provide for inheritance of houses  24 and reserve lands.  I now say 99.  And the list of  25 testators and the identity of the beneficiaries has  26 been amended accordingly.  Now, for instance, we have  27 the first of these testators is John Baptiste.  His  28 code is tabs 2 and 3.  That keys in to the --  29 THE COURT:  I'm sorry, what page is that on?  3 0 MR. MACAULAY:  Page 2.  31 THE COURT:  Oh, yes.  So instead of Peter Bazil being the  32 first --  33 MR. MACAULAY:  It's now John Baptiste, who leaves his — that  34 property to his son, his daughter and granddaughter.  35 On page 3 --  36 THE COURT:  What's his number?  37 MR. MACAULAY:  I beg your pardon?  38 THE COURT:  What is John Baptiste's number?  39 MR. MACAULAY:  Code is 2/3.  He is found at tabs 2 and 3.  40 Over the page -- oh, yes, down at the -- one of  41 them struck out on that page at tab 9, Benjamin Brown.  42 That's struck out.  43 Over the page we add Thomas H. Brown after Martha  44 Alice, and his number is number 19/20.  Martha Alice  45 is the 17 or big stroke 18, and now he is 19 or big  46 stroke 20.  We add James Green, who is number 38.  47 James Green left that property to his son. 28667  Submissions by Mr. Macaulay  1 THE COURT:  I have just made a note here, "see the amended list  2 in the amendments".  So I don't know that you have to  3 go over these, unless you wish to.  4 MR. MACAULAY:  Well, I have struck out one at the bottom of the  5 pages.  That might be more relevant.  6 THE COURT:  Yes.  7 MR. MACAULAY:  Alice Naya, N-A-Y-A, number 92.  8 THE COURT:  All right.  9 MR. MACAULAY:  Anyhow, the count now is 99, not 95.  And I  10 should explain that of the 133 wills there are then 34  11 not accounted for in that regard.  But some of them it  12 didn't leave that kind of property at all.  So we are  13 getting close to 99 percent of the wills in that  14 regard.  I don't know if that's still a matter of  15 contention, as a matter of fact, but it sounded a bit  16 like that when some witnesses gave evidence.  So I  17 thought I should include it.  That's the substance.  18 Now, your lordship asked Ms. Russell about one  19 aspect of her submission, and I'll ask her to just  20 cover that, and then Ms. Koenigsberg will be making  21 submissions on the law.  22 THE COURT:  Thank you.  23 MS. RUSSELL: My lord, yesterday at the end of my submissions on  24 the employment and income histories, you had asked me  25 about a reference to Loring on page 115.  2 6 THE COURT:  Just a moment now.  27 MS. RUSSELL:  Summary of our final argument.  28 THE COURT:  And you are at page 114?  29 MS. RUSSELL: The place you asked for a reference, my lord, was  30 at page 115.  31 THE COURT:  Okay.  32 MS. RUSSELL: The last paragraph on that page.  33 THE COURT:  Yes.  34 MS. RUSSELL:  And I have a reference for you, my lord, as you  35 noted yesterday.  There are many, but this is a  36 reference of a letter of Loring's which is dated March  37 31st of 1902.  It is Exhibit 1209-155.  And in it he  38 notes that the Gitksan are gravitating towards Kispiox  39 because the facilities of profitable employment being  40 a factor.  And he says too that the deductions are  41 that as by degrees those, and he is talking about  42 opportunities for employment, increased as expedience,  43 hunting and trapping and resources will wane  44 correspondingly.  45 THE COURT:  You said they are gravitating —  46 MS. RUSSELL: At this point he is talking about gravitating  47 towards Kispiox, but talks many points later in his 2866?  Submissions by Ms. Russell  1 letters about gravitating towards Hazelton.  I will  2 hand that up, my lord, if you would like a copy of  3 that.  4 THE COURT:  All right.  Thank you.  5 MS. RUSSELL:  As well you asked me about a reference on page 115  6 to the Tribal Council census.  7 THE COURT:  Yes.  8 MS. RUSSELL: And you advised me that this was part of the itchy  9 trousers problem.  10 THE COURT:  Yes.  11 MS. RUSSELL:  My lord, that reference is in volume 343 at page  12 27093.  13 THE COURT:  What is it again?  14 MS. RUSSELL:   Volume 343, page 27093.  And I have taken the  15 liberty of copying that and highlighting some parts of  16 that transcript.  17 THE COURT:  Yes.  18 MS. RUSSELL:  It's 27093 and 27094.  My lord, at the — at page  19 27094 Ms. Koenigsberg made a submission on the purpose  20 for which the Tribal Council census could be admitted.  21 At the end of her long paragraph there in the middle  22 of page 27094 she says:  23  24 "However, it is a compilation of information  25 which for limited purposes in my submission is  26 admissible as the evidence is there of how many  27 people were asked questions; in other words, a  28 sample size that they are all plaintiffs.  29 THE COURT:  Well you're saying that the analysis is not  30 admissible because it's untested, but the raw  31 data is admissible.  32 MS. KOENIGSBERG:  That's right.  So one could look at  33 this and say of the 1,000 people who are  34 plaintiffs who answer this questionnaire "x"  35 number did not attend feasts, and then it's for  36 legal argument what one can make from that.  37 Those are all my submissions."  38  39 And Mr. Grant has an answering submission to that,  40 which I don't entirely follow, but I think that it's  41 fair to say, my lord, that there has been no further  42 submission that the results of the Tribal Council  43 census are usable for raw data purposes, and all we do  44 in page 115 is simply say:  45  46 "In the Tribal Council's own census, less than  47 half of the respondents replied that they 28669  Submissions by Ms. Koenigsberg  1 partcipated in these traditional activities in  2 any way ..."  3  4 Which is not to do more than to present that raw  5 data and to use it as corroborative of tested evidence  6 which we presented by way of the employment history.  7 And we believe and we submit, my lord, that that is  8 within the limited purposes for which that document  9 was admitted.  10 THE COURT:  All right.  11 MR. JACKSON:  My lord, I don't wish to take Ms. Russell's  12 submissions in relation to what Mr. Grant said as a  13 waiver in any way of our reply.  We will be dealing  14 with that point --  15 THE COURT:  Yes, all right.  It does seem to me that the fact  16 that the respondents to the census are plaintiffs may  17 well distinguish this from the itchy trousers case  18 that I mentioned.  But I will look forward to hearing  19 from counsel, the plaintiffs in reply on that issue.  20 Ms. Koenigsberg.  21 MS. KOENIGSBERG:  My lord, I am going to attempt to deal with  22 the submissions on the law applicable to the issues in  23 this case, most particularly I'll call it generally  24 the definition of aboriginal rights, and then the  25 general law on extinguishment.  2 6 In the summary argument in the index you will see  27 the first four tabs deal with that general topic of  28 definition of aboriginal rights.  And I have some  29 replacement pages for the summary, and in particular  30 if I can hand those up now.  There is a new Part III,  31 "What is the nature of aboriginal rights?"  And it is  32 a replacement.  33 THE COURT:  All right.  34 MS. KOENIGSBERG:  And a new Part IV, "Use and Occupancy Rights",  35 and this is a replacement.  I will be making reference  36 to some cases regarding the law, and while likely the  37 cases that I will be putting the most emphasis on are  38 somewhere in the collections of those cases put  39 together by both the plaintiffs and the province, I  40 wish to place a great deal of reliance and really the  41 thrust of my submissions will be on the Canadian  42 jurisprudence with special reference to the most  43 recent cases.  44 And I have thus put together in a book those cases  45 being Smith, Guerin, Horseman, Sioui and Sparrow, and  46 then the additional tabs are two cases and a  47 definition which are nowhere in anyone else's 28670  Submissions by Ms. Koenigsberg  1 submission.  Although I won't be putting a lot of  2 emphasis on them, I will be referring to them.  3 THE COURT:  You said two cases.  You mean —  4 MS. KOENIGSBERG:  I mean an excerpt from Hogg and the Ontario  5 Public Service Employees Union case fairly recent, and  6 really a definition out of Blacks Law Dictionary,  7 which will come up.  8 I intend to focus this argument on the recent  9 Canadian jurisprudence as it impacts on the common law  10 in Canada.  11 I am not going to make reference, my lord, to the  12 first two tabs of our submission.  They are there.  I  13 don't resile from them, but I don't think it is  14 necessary to repeat it.  And I begin, then, at Tab 3.  15 "What is the nature of aboriginal rights?"  And  16 before I begin that, I would note that the topic dealt  17 with in Part III is where do the concepts of ownership  18 and jurisdiction fit into or in our submission not fit  19 into the Canadian jurisprudence?  And this topic has  20 been canvassed extensively by Mr. Goldie in the  21 province's submissions, and I adopt his submissions by  22 and large, and I am not going to spend a great deal of  23 time on this topic.  But I am going to go through it  24 very quickly, because there are minor differences, if  25 you will, and I would simply say this is really very  26 much in the nature of a supplement or something on top  27 of the province's argument.  28 In that nature we say that aboriginal rights in  29 law and in fact in the claim area did not and do not  30 embrace any concept of sovereignty, jurisdiction,  31 ownership or title analagous to the concept of  32 ownership in fee simple at common law.  33 The claim for ownership and jurisdiction in law is  34 based and essentially on -- by the plaintiffs on an  35 extensive review of jurisprudence and history from way  36 back when.  The province dealt with this argument in  37 their Volume 1 of their final argument in Part III,  38 and there is an extensive addenda that Mr. Goldie put  39 in, and that's where you will find, I believe, their  40 submissions on this topic.  41 The plaintiffs say that their aboriginal rights  42 consist of ownership of their traditional lands in a  43 manner approximating an estate in fee simple but not  44 derived from the Crown, and jurisdiction over those  45 lands and over the people who inhabit them.  The  46 plaintiffs assert pre-existing powers of  47 self-regulation or self-government.  In that 28671  Submissions by Ms. Koenigsberg  1 connection, they rely on Worcester and Georgia and on  2 their interpretation of the preamble to Part IV of the  3 Royal Proclamation.  4 And I don't mean to be too restrictive there.  5 They rely on other things.  I just say there is a lot  6 of emphasis on those two things.  7 On such questions as the origins of aboriginal  8 rights, their content and their extinguishment,  9 Canadian courts have adopted as authoritative and  10 persuasive relevant statements by U.S. jurists on  11 those topics, and to that extent the statements of  12 U.S. jurists have been part of Canadian law.  13 Other propositions that are found in U.S. decisions,  14 such as Worcester and Georgia, have never been cited  15 with approval or followed by Canadian courts.  In  16 Worcester, Chief Justice Marshall's pronouncements on  17 the Cherokees' right of self-government were made on  18 the basis of specific terms of U.S. treaties with the  19 Cherokees, which he found explicitly recognized their  20 right of self-government.  These pronouncements have  21 never been cited with approval by any Canadian court.  22 Chief Justice Marshall's definition of the Cherokees  23 as a domestic dependent nation in Cherokee Nation  24 versus Georgia finds no support in Canadian  25 jurisprudence.  26 The U.S. concept of a self-governing domestic  27 dependent nation is founded on statutes, treaties,  28 history and politics that are very different from  29 those relevant to the case at bar, albeit arising from  30 a remote common ancestor.  31 The plaintiffs claim that they are the absolute  32 proprietors of the lands claimed in this action rests  33 on the combined effect of a medley of U.S. judgments,  34 starting with the dissenting judgment of Johnson J. in  35 Fletcher and Peck and judgment of Baldwin J. in  36 Mitchel v. the United States.  The particular portion  37 of the latter judgment relied on by the plaintiffs is  38 that in which Baldwin J. purports to summarize English  39 common law prior to 1783.  That summary includes the  40 proposition that the Indian possessary interest in  41 land is perpetual and not subject to extinguishment  42 without the Indians' consent.  43 Baldwin J.'s summary referred to above and  44 Johnson's J. dissenting judgment have never been  45 adopted as correct statements of Canadian law.  46 Canadian jurisprudence on this point, including all  47 all relevant judgements of the Supreme Court of 28672  Submissions by Ms. Koenigsberg  1 Canada, is to the contrary.  2 I will be leading your lordship through that later  3 on.  4 MR. JACKSON:  Just for your clarification, my friend's  5 edification, we do not rely upon the dissenting  6 judgment of Mr. Justice Johnson in Fletcher and Peck,  7 and nowhere in our submission is that assertion made.  8 THE COURT:  Thank you.  9 MS. KOENIGSBERG:  I thank my friend for that.  I don't know at  10 this point whether that was interperative on our part  11 or a specific quote.  12 The plaintiffs' reliance on the Royal Proclamation  13 1763 is directed to jurisdiction or self-government in  14 our submission.  The plaintiffs concede that the Royal  15 Proclamation does not contain a set of specific  16 provisions relating to self-government.  It is  17 submitted on this point that the Royal Proclamation  18 does not apply to British Columbia or to its  19 aboriginal inhabitants.  20 As Mr. Macaulay has already indicated to the  21 Court, we will not be making separate submissions on  22 this point, but adopt those of the province.  23 The preamble to Part IV of the Royal Proclamation,  24 on which the Plaintiffs rely, provides:  25  26 "The several Nations or Tribes of Indians with  27 whom we are connected and who live under our  28 protection should not be molested or disturbed  29 in the possession of such parts of our  30 dominions and territories as, not having been  31 ceded to or purchased by us, are reserved to  32 them, as their hunting grounds."  33  34 Assuming that the possessions referred to in the  35 preamble includes British Columbia, which is denied,  36 the phrase, "should not be molested or disturbed"  37 refers to "possession" not "title" or "ownership" or  38 "jurisdiction".  39 And I will later be making submission about the  40 word "possession", and I will just pause here to say  41 that in our submission when it's used generally in  42 this way, is it relates to the concept of occupancy,  43 not ownership.  44 The limited "jurisdiction" that a tenant in fee  45 simple can exercise over his lands is beyond the scope  46 of the words chosen by the author of the Proclamation.  47 A fortiori the notion of self-government cannot be 28673  Submissions by Ms. Koenigsberg  1 said to arise by implication.  2 The limited scope of the preamble is underlined  3 and made plain by the descriptive words "hunting  4 grounds".  This is not synonymous with "lands and  5 premises" or "lands".  The scope of the preamble is  6 further limited by the choice of the verb.  The words  7 "are reserved", import a lesser estate than "are  8 granted".  9 The plaintiffs rely on the common law in support  10 of their contention that aboriginal rights in Canada  11 involved the right to self-government.  12 The decision of the Privy Council, of the Supreme  13 Court of Canada and of British Columbia and Ontario  14 courts, to which reference is made later, in which  15 aboriginal rights are defined in the varying contexts  16 of the particular issues that were before those courts  17 constitute the common law of Canada on that subject.  18 None of those decisions support, even by inference,  19 the plaintiffs' position on self-government.  On the  20 contrary, the definitions of aboriginal rights  21 pronounced by Canadian courts during the last hundred  22 years are entirely inconsistent with the notion that  23 self-government is an aspect of aboriginal rights in  24 Canada.  25 The constitutional validity of the Indian Act is  26 not challenged by the plaintiffs.  That Act makes  27 specific provision for the government of Indians on  28 Indian reserves and, under Section 8 of the Act, for  29 the application of provincial statutes to Indians,  30 about all of which we will be making submissions later  31 on.  The broad jurisdiction thus provided for leaves  32 no room for a separate and either equal or subordinate  33 Indian jurisdiction over the lands that are the  34 subject of aboriginal rights or over any of the  35 inhabitants of those lands.  36 I then move on to the issue of the factual claim  37 to ownership and jurisdiction.  The factual foundation  38 in support of the submission that ownership of land  39 jurisdiction over it were not rights exercised by the  40 plaintiffs as contained in Part X of the submission.  41 These rights as claimed by the plaintiffs were not  42 rights recognized by the aboriginal society  43 pre-contact in our submission.  44 It is submitted that the factual nature of the  45 organized society in part dictates the nature of the  46 use and occupancy rights held and vice-versa.  That  47 is, an understanding of the extent of organization in 28674  Submissions by Ms. Koenigsberg  1 the society is evidence relevant to the nature and  2 extent of the rights.  3 As Mahoney expressed in Baker Lake at page 559:  4  5 "It is apparent that the relative sophistication  6 of the organization of any society will be a  7 function of the needs of its members, the  8 demands they make of it.  While the existence  9 of an organized society is a prerequisite to  10 the existence of an aboriginal title, there  11 appears no valid reason to demand proof of the  12 existence of society more elaborately  13 structured than is necessary to demonstrate  14 that there existed among the aborigines a  15 recognition of the claimed rights, sufficiently  16 defined to permit their recognition by the  17 common law upon its advent in the territory.  18 The thrust of all the authorities is not that  19 the common law necessarily deprives aborigines  20 of their emjoyment of the land in any  21 particular, but, rather, that it can give  22 effect only to those incidents of that  23 enjoyment that were, themselves, given effect  24 by the regime that prevailed before."  25  26 And I'll be coming back to that particular quote  27 in a different context.  28 In support of this conclusion, Mahoney J. cites  29 the Tijani case.  30 This expression of the common law recognition of  31 aboriginal rights, it is submitted, describes the  32 enquiry into the nature and extent of the rights  33 recognizable at common law.  34 The question to be answered is what evidence is  35 there of recognition by the aborigines of the claimed  36 rights in this case, ownership and jurisdiction?  37 First in the inquiry would be what are the rights  38 claimed?  Second, what evidence is there that such  39 rights were recognized before contact by the  40 aboriginal society?  And third, if the rights claimed  41 were not apparent pre-contact, what rights were?  42 The plaintiffs claim that they had a system of  43 government, a society structure which supported  44 ownership to and jurisdiction over a large defined  45 territory.  The claim is to a form of sovereignty, the  46 incidents of which are ownership and jurisdiction.  47 The evidence of this form of sovereignty can be 28675  Submissions by Ms. Koenigsberg  1 found, it is claimed, in such pre-contact institutions  2 as the house form of government and the feast.  3 Shortly put, the Indians say that they had a system of  4 land ownership through the house which had a clear  5 political structure embodied in the institution of a  6 hereditary chief or chiefs.  The system, as alleged to  7 have existed, was and is made up of discreet extended  8 family units called houses.  The hereditary chief has  9 the authority to speak for the members of the house  10 and to allocate the resources of the house.  The  11 house, through its hereditary chief, holds the  12 ownership of and jurisdiction over a specific  13 territory with precise defined boundaries.  14 The hereditary chiefs, or heads of the house, have  15 seats in a feast hall.  The feast is the Parliament  16 and the Court of the Gitksan and Wet'suwet'en.  It is  17 where ownership and jurisdiction over the house  18 territories is recognized and confirmed.  It operated,  19 as put by one witness, as a Land Registry system.  20 This registry system operates by the repetition of  21 oral history containing assertions of boundaries to  22 described territories by hereditary chiefs.  The house  23 system of government reposes absolute power in the  24 House and its hierarchy through the imposition of laws  25 governing the behaviour of members of the house and  26 over the territory.  House territories are maintained  27 and defended by the house itself.  It is claimed that  28 the house territories are not only precisely bounded,  29 but also the right to use the territory is exclusive  30 to the members.  To utilize a house's territory, one  31 must be a member or have the permission of a  32 hereditary chief.  33 The social organization necessary to hold rights  34 of ownership and jurisdiction as alleged then are:  A  35 political unit of sufficient cohesion and power that  36 it can make known its territorial boundaries and  37 enforce the exclusive use of those claimed  38 territories.  In this instance the house with  39 hereditary chiefs.  40 Second, it requires a political unit recognized by  41 those outside the house where exclusive rights are  42 made known to those outside the house and recognized  43 and confirmed that institution is alleged to be the  44 feast.  45 The Gitksan and Wet'suwet'en claim is that the  46 house and feast constitute the organized structure  47 holding the rights claimed; that is, ownership and 28676  Submissions by Ms. Koenigsberg  1 jurisdiction.  Use and occupancy rights, or 'the  2 bundle of use and occupancy rights relating to  3 resource use', it is alleged, flow from or are  4 included in the ownership and jurisdiction rights.  5 This defendant acknowledges there is evidence that  6 before the assertion of sovereignty, that is by 1822  7 at least, the Gitksan and Wet'suwet'en had a society  8 organized to exploit certain resources in parts of the  9 area now claimed.  The references are there from  10 Brown.  There is cogent evidence of hereditary chiefs  11 with claims to specific hunting and trapping grounds.  12 There is evidence of occupied village sites organized  13 to exploit fishing in the immediate area of the  14 villages and winter camps.  There is cogent evidence  15 of warfare between competing tribal units sometimes  16 related to exploitation of resources.  There is  17 further evidence of large groups of people living in  18 plank houses presided over by chiefs, with claims to  19 specific hunting and trapping grounds.  20 We say, however, that the evidence does not  21 disclose a long standing social, political structure  22 of houses presided over by hereditary chiefs holding  23 title to defined territories.  It is submitted that,  24 on the balance of probabilities, although they likely  25 existed, houses were not the operative political  26 structure at or before contact.  And I refer to in  27 general our Part X, Part 1 in which we describe such  28 units as production units, such -- and from the basis  29 of the evidence in Brown and the earlier explorers,  30 what you can glean from that and what our submissions  31 are.  I would also here make reference, my lord, to  32 the extensive argument made by the province in their  33 final argument at Volume 1, Part IV or Part II, where  34 they deal with the issue of houses.  35 THE COURT:  I'm sorry, this reference is to whose argument?  36 MS. KOENIGSBERG: The province's.  Part X, Part 1 is our  37 argument.  3 8    THE COURT:  Yes.  39 MS. KOENIGSBERG: Then the province also deals in — dealt in  40 some detail with these topics, and they dealt with the  41 issue of houses and their existence and their  42 structure in volume 1 of their final argument, Part  43 IV, Part II.  That might be a Section 2.  And they  44 dealt with the topic of villages and the centrality of  45 the villages to the holders as the way in which rights  46 were exercised which we adopt as likewise in Section  47 IV, Part II, page 19.  I don't propose to go back over 28677  Submissions by Ms. Koenigsberg  1 that evidence.  2 There were no political structures in our  3 submission capable of much supporting the kind of  4 system required to define and maintain precise  5 defensible boundaries.  6 The plaintiffs allege a Land Title Registry system  7 kept in the feast.  The vehicle for maintaining the  8 registry system was the oral history recited by each  9 hereditary chief who thereby confirmed his territorial  10 holdings and established his authority.  However, the  11 evidence of such a system is in our submission not  12 convincing.  For example, numerous hereditary chiefs  13 today do not know the boundaries of their house  14 territories.  There is no doubt that numerous  15 hereditary chiefs do know geographical landmarks  16 associate with territories claimed by their houses or  17 clans, and we refer to those in our submission on the  18 admissibility of evidence in Part XI of this  19 submission.  Particularly see paragraph 31.  Knowledge  20 of landmarks rather than boundaries in our submission  21 is much more consistent with an exploitation of  22 certain resources in particular areas than with  23 defined boundaries.  24 It is the position of this defendant that the  25 evidence adduced in support of the claim that the  26 Gitksan and Wet'suwet'en exercised ownership and  27 jurisdiction over the claimed territory through the  28 political institutions as alleged falls short of the  29 required standard of proof.  30 However, if the court does not accept the  31 submission that the plaintiffs have not proven their  32 general claim to ownership and jurisdiction over the  33 claim area, it is submitted that the plaintiffs have  34 not proven in many cases either the alleged ownership  35 or boundaries of the approximately 140 claimed house  36 territories.  The plaintiffs have led a great deal of  37 evidence at trial to prove the individual house  38 ownership of territories and the precise defined  39 boundaries of those territories.  It is further  40 submitted that much of this evidence is inadmissible,  41 and we deal with that point also in Part XI of this  42 argument.  43 Further, it is submitted that the evidence  44 presented by the plaintiffs with respect to ownership  45 and boundaries is often inconsistent and  46 contradictory.  For instance, there are conflicting  47 statements in evidence as to which house or clan owns 2867?  Submissions by Ms. Koenigsberg  1 a particular geographical feature, or where the  2 boundary between two territories is located.  Those  3 are just two examples.  4 This defendant relies on the analysis of the  5 plaintiffs' evidence presented by the province in the  6 province's final argument, volume 1, and I set out all  7 of the sections where they have analyzed the evidence  8 relating to ownership, jurisdiction and boundaries.  9 Leading into the next part, my lord, in the  10 analysis of what must be proved, that is what are the  11 rights claimed, and then have they proved the rights  12 claimed, and if not, what are the rights that we say  13 do exist, we come to the thrust of the Attorney  14 General of Canada's argument, which is use and  15 occupancy rights.  We say what was the nature of the  16 plaintiffs' aboriginal rights in the claim area at  17 1846?  We say that -- we pick that date as the date of  18 the operative assertion of sovereignty.  19 It is submitted that aboriginal rights in concept  20 are a bundle of separate and distinct rights, each of  21 which must be individually established, and each of  22 which may have different territorial limits.  These  23 rights are not analagous to common law title to  24 ownership of land, and it is potentially misleading to  25 use the terms Indian or aboriginal title.  In fact,  26 the aboriginal rights of the plaintiffs, at law, it is  27 submitted, were and are, usufructuary only sui generis  28 in their legal nature and held 'at the pleasure of the  2 9 Crown'.  30 And I will try and deal with those concepts.  31 First pre-existing rights.  And I would note that  32 your -- Mr. Goldie likewise made a submission on this  33 topic, and I embrace most of what he said, but we  34 start from a different point.  35 I say Canadian common law today defines aboriginal  36 rights as pre-existing, and it is useful, it is  37 submitted, to understand in what sense that is meant.  38 At page 379 of the Guerin decision Mr. Justice Dickson  39 stated:  40  41 "their interest in their lands is a pre-existing  42 legal right not created by Royal Proclamation,  43 by S. 18(1) of the Indian Act, or by any other  44 executive order or legislative provision."  45  46 As discussed in Guerin at pages 377 and 379, and  47 this is my deduction from that, aboriginal rights are 28679  Submissions by Ms. Koenigsberg  1 based on the fact that aboriginal people were  2 occupying any given territory before British  3 sovereignty was imposed.  4 Second, aboriginal rights are defined by the uses  5 made of land by the aboriginal people before British  6 sovereignty.  7 Third, aboriginal rights both pre-dated and  8 survived the claims to sovereignty on the theory that  9 a change in sovereignty over a particular territory  10 does not in general affect the presumptive title of  11 the inhabitants.  12 And, my lord, with that quote I will take you to  13 the authorities and to the definition at Tab 8 from  14 Black's Law Dictionary of the word "presumptive".  And  15 it's Tab 8.  It's on the right-hand side, about the  16 middle of the page.  "Presumptive title".  Do you have  17 that my lord?  18 THE COURT:  Yes.  19 MS. KOENIGSBERG:  20  21 "A barely presumptive title which is of the very  22 lowest order arise out of the mere occupation  23 or simply possession of property without any  24 apparent right or any pretense of right to hold  25 and continue such possession."  26  27 THE COURT:  I suppose in that sense, then, the word "title" or  28 the use of the word "title" in that description is  29 itself misleading?  30 MS. KOENIGSBERG:  In my submission, yes, my lord.  If we forget  31 that it is not analagous in any way to the common law,  32 English common law concept of title.  33 THE COURT:  All right.  34 MS. KOENIGSBERG: In my submission when -- and that quote, as  35 your lordship probably recalls, comes from the Tijani  36 case, and was specifically quoted in the Guerin  37 decision at those pages that I have referred you to,  38 and with that definition plugged into that quote it  39 bears a remarkable resemblance to the pronouncements  40 of the definitions -- the fundamental definitions of  41 aboriginal title as it still is today in the Sparrow  42 decision, and I will finally get there.  43 There is no doubt in Canadian law that what  44 survived British sovereignty were not all the rights  45 which existed before British sovereignty.  46 Just there, my lord.  When we talk about  47 pre-existing, it sounds as though it has some meaning 28680  Submissions by Ms. Koenigsberg  1 or it might be suggested that it has some meaning as  2 to what it is that is recognized in Canadian law.  3 There is no doubt that the rights which are recognized  4 are pre-existing.  As expressed by the Supreme Court  5 of Canada in Sparrow at pages 19 and 20 of that  6 decision:  7  8 "It is worth recalling that while British policy  9 towards the native population was based on  10 respect for their right to occupy their  11 traditional lands, a proposition to which the  12 Royal Proclamation of 1763 bears witness, there  13 was from the outset never any doubt that  14 sovereignty and legislative power, and indeed  15 the underlying title, to such lands vested in  16 the Crown."  17  18 In my submission if we take that concept and we  19 apply it to pre-existing rights, it follows like --  20 that what pre-existed British sovereignty, what  21 pre-existed European discovery was some form of native  22 sovereignty to the extent, and it would vary, I am  23 certain, from group to group, some form of legislative  24 power, that is the power to make laws and govern  25 themselves, and while it may not have looked like  26 title to land, the right to make whatever use of the  27 land they chose to make was the natives.  But upon  28 British sovereignty those rights do not continue.  And  29 they are the broadest and most inclusive of rights.  30 And in my submission what does continue is the  31 recognition of that right to occupy their traditional  32 lands subject to the goodwill of the sovereignty.  33 And I say on page 3, then, in paragraph 7, thus,  34 it is submitted, that what is recognized and protected  35 by the common law is the "respect for their right to  36 occupy their traditional lands".  Coupled with that  37 "respect for", and as its been described in the  38 Sparrow decision is a "trust-like" relationship toward  39 aboriginal people based on the Crown's undertaking of  40 its historic powers and responsibilities towards  41 aboriginal people.  42 And I will deal with that topic in the next  43 section.  44 The next concept which, in my submission, requires  45 some explication, is what in the jurisprudence is  46 embraced by their sui generous nature.  I say  47 beginning with St. Catherine's Milling in 1888 and 28681  Submissions by Ms. Koenigsberg  1 continuing today, May, 1990, certain -- that's when I  2 wrote it, my lord -- certain fundamental  3 characteristics of recognized aboriginal rights have  4 developed in Canadian law.  I just stop there to say  5 May 30th, 1990 was the Sparrow decision, so I am  6 embracing there all of what I am aware of was the most  7 recent jurisprudence relating to this topic.  Such  8 rights are essentially a right of occupancy defined as  9 personal and usufructuary.  The Canadian  10 jurisprudence, it is submitted, was summarized and  11 interpreted by Mr. Justice Dickson in Guerin at pages  12 379 through 382, and I think it might be helpful -- I  13 am not going to read it all, if we had a look at it,  14 because in my submission he has neatly summarized on  15 those pages the Canadian jurisprudence on the  16 definition of aboriginal rights up to 1984.  17 It begins, in my submission about -- leaving aside  18 his mention of the Royal Proclamation as not being the  19 source -- the sole source, begins with in Johnson and  20 Mcintosh.  And this is going back to my very original  21 remarks -- early remarks on what law from American  22 jurists has been adopted.  Some parts of Johnson and  23 Mcintosh have become, in my submission, part of the  24 Canadian law.  They have been so often referred to.  25 What they mean, however, in my submission, is what the  26 Supreme Court of Canada judges say it means at any  2 7 given time.  28 In Johnson and Mcintosh Marshall C.J. although --  29 THE COURT:  You are on page 379?  30 MS. KOENIGSBERG:  Sorry, my lord.  I should be on "The Nature of  31 Indian Title".  I am going to come back to 377 where I  32 was.   "The Nature of Indian Title".  33 THE COURT:  I'm sorry?  34 MS. KOENIGSBERG:  On page 379.  35 THE COURT:  Thank you.  36 MS. KOENIGSBERG:  Under "The Nature of Indian Title".  I started  37 off, I'm afraid, on page 377.  38  39 "In the St. Catherine's Milling case the Privy  40 Council held that the Indians had a 'personal  41 and usufructuary right' in the lands which they  42 had traditionally occupied.  Lord Watson said  43 that 'there has been all along vested in the  44 Crown a substantial and paramount estate,  45 underlying the Indian title, which became a  4 6 plenum dominium whenever the title was  47 surrendered or otherwise extinguished'.  He 28682  Submissions by Ms. Koenigsberg  1 reiterated this idea, stating that the Crown  2 'has all along had a present proprietary estate  3 in the land, upon which the Indian title was a  4 mere burden'.  This view of aboriginal title  5 was affirmed by the Privy Council in the Star  6 Chrome case.  In Amodu Tijani, Viscount  7 Haldane, adverting to the St. Catherine's  8 Milling and Star Chrome decisions, explained  9 the concept of a usufructuary right as 'a mere  10 qualification of or burden on the radical or  11 final title of the Sovereign...'  He described  12 the title of the Sovereign as a pure legal  13 estate, but one which could be qualified by a  14 right of beneficial user that did not  15 necessarily take the form of an estate in land.  16 Indian title in Canada was said to be one  17 illustration 'of the necessity for getting rid  18 of the assumption that the ownership of land  19 naturally breaks itself up into estates,  20 conceived as creatures of inherent legal  21 principle.'  Chief Justice Marshall took a  22 similar view in Johnson v. Mcintosh, saying  23 'All our institutions recognize the absolute  24 title of the crown, subject only to the Indian  25 right of occupancy ...'  26 It should be noted that the Privy Council's  27 emphasis on the personal nature of aboriginal  28 title stemmed in part from constitutional  29 arrangements peculiar to Canada.  The Indian  30 territory at issue in St. Catherine's Milling  31 was land which in 1867 had been vested in the  32 Crown subject to the interest of the Indians  33 the Indians' interest was 'an interest other  34 than that of the Province', within the meaning  35 of S. 109 of the Constitution Act, 1867."  36  37 And then quotes Section 109.  38  39 "When the land in question in St. Catherine's  40 Milling was subsequently disencumbered of the  41 native title upon its surrender to the federal  42 government by the Indian occupants in 1873, the  43 entire beneficial interest in the land was held  44 to have passed, because of the personal and  45 usufructuary nature of the Indians' right, to  46 the Province of Ontario under s. 109 rather  47 than to Canada.  The same constitutional issue 28683  Submissions by Ms. Koenigsberg  1 arose recently in this Court in Smith v. The  2 Queen, in which the court held that the Indian  3 right in a reserve, being personal, could not  4 be transferred to a grantee, whether an  5 individual or the Crown.  Upon the surrender  6 the right disappeared  'in the process of  7 release'."  8  9 And I'll be coming back to that.  10  11 "No such constitutional problem arises in the  12 present case since in 1938 title to all Indian  13 reserves in British Columbia was transferred by  14 the provincial government to the Crown in right  15 of Canada."  16  17 He is here obviously referring to the issues as  18 they arise in relation to reserves.  19  20 "It is true that in contexts other than  21 constitutional the characterization of Indian  22 title as 'a personal and usufructuary right'  23 has sometimes been questioned.  In Calder, for  24 example, Judson J. intimated at p. 328 that  25 this characterization was not helpful in  26 determining the nature of Indian title.  In  27 Attorney-General for Canada v. Giroux (1916),  28 Duff J., speaking for himself and Anglin J.,  29 distinguished St. Catherine's Milling on the  30 ground that the statutory provisions in  31 accordance with which the reserve in question  32 in Giroux had been created conferred beneficial  33 ownership on the Indian Band which occupied the  34 reserve.  In Cardinal v. Attorney General of  35 Alberta, Laskin J., dissenting on another  36 point, accepted the possibility that Indians  37 may have a beneficial interest in a reserve.  38 The Alberta Court of Appeal in Western  39 International Contractors Ltd. v. Sarcee  40 Developments Ltd., accepted the proposition  41 that an Indian Band does indeed have a  42 beneficial interest in its reserve.  In the  43 present case this was the view as well of Le  44 Dain J. in the Federal Court of Appeal.  See  45 also the judgment of Kellock J. in Miller v.  46 The King, 168, in which he seems implicitly to  47 adopt a similar position.  None of these 28684  Submissions by Ms. Koenigsberg  1 judgments mentioned the Star Chrome case,  2 however, in which the Indian interest in land  3 specifically set aside as a reserve was held to  4 be the same as the 'personal and usufructuary  5 right' which was discussed in St. Catherine's  6 Milling."  7  8 I am not going to read all of this, my lord.  Its  9 been read many times.  Just dropping down then to this  10 second full paragraph.  11  12 "Indians have a legal right to occupy and  13 possess certain lands, the ultimate title to  14 which is in the Crown.  While their interest  15 does not, strictly speaking, amount to  16 beneficial ownership, neither is its nature  17 completely exhausted by the concept of a  18 personal right.  It is true that the sui  19 generis interest which the Indians have in the  20 land is personal in the sense that it cannot be  21 transferred to a grantee, but it is also true,  22 as will presently appear, that the interest  23 gives rise upon surrender to a distinctive  24 fiduciary obligation on the part of the Crown  25 to deal with the land for the benefit of the  26 surrendering Indians.  These two aspects of  27 Indian title go together, since the Crown's  28 original purpose in declaring the Indians'  29 interest to be inalienable otherwise than to  30 the Crown was to facilitate the Crown's ability  31 to represent the Indians in dealing with third  32 parties.  The nature of the Indians' interest  33 is therefore best characterized by its general  34 inalienability, coupled with the fact that the  35 Crown is under an obligation to deal with the  36 land on the Indains' behalf when the interest  37 is surrendered.  Any description of Indian  38 title which goes beyond these two features is  39 both unnecessary and potentially misleading."  40  41 It's worthwhile in my submission, my lord, to look  42 at what the word "usufructuary" -- how its been used  43 in the Canadian jurisprudence.  Usufructuary in the  44 sense used to describe aboriginal rights is defined in  45 Smith and The Queen at pages 568 and 9.  This is the  46 decision of Mr. Justice Estey.  47 28685  Submissions by Ms. Koenigsberg  1 "The right of the Indians to the lands in  2 question was described by Lord Watson in St.  3 Catherines at page 54 as 'a personal and  4 usufructuary right'.  The latter term is  5 defined as follows:  6 Usufruct  7 1.  Law.  The right of temporary possession,  8 use, or enjoyment of the advantages of property  9 belong to another, so far as may be had without  10 causing damage or prejudice to it.  11 2.  Use, enjoyment, or profitable possession  12 (of something).  13 Usufructuary  14 1.  Law.  One who enjoys the usufruct of a  15 property."  16  17 And then -- that's the end of the definition.  And  18 in that decision he goes on to talk about the nature  19 of the right in relation to a surrender and release,  20 which I think helps to illuminate its nature.  21  22 "The release, however, is of a personal right  23 which by law must disappear upon surrender by  24 the person holding it; such an ephemeral right  25 cannot be transferred to a grantee, be it the  26 Crown or an individual.  The right disappears  27 in the process of release, and a release  28 couched in terms inferring a transfer cannot  29 operate effectively in law on the personal  30 right any more than an express transfer could.  31 In either process the right disappears.  This  32 is a surrender of rights in the broad sense of  33 the common law.  Whatever 'surrender' may mean  34 in the Indian Act, a surrender in law has the  35 immediate result of extinguishing the personal  36 right of the Indians to which federal  37 jurisdiction attaches under s. 91(24) ."  38  39 In our submission the right of occupancy is not a  40 property right.  It has no legal proprietary  41 characteristics.  42 In Guerin at page 386, Mr. Justice Dickson  43 described the absence of a property aspect to  44 aboriginal rights this way.  He was here talking about  45 the fiduciary relationship and the concept of trust as  46 it applies or didn't apply in his opinion.  47 28686  Submissions by Ms. Koenigsberg  1  2  3  4  5  6  7  8  9  THE  10  11  MS.  12  THE  13  MS.  14  THE  15  MS.  16  17  18  19  20  21  22  23  24  THE  25  26  27  28  29  MS.  30  THE  31  MS.  32  33  34  THE  35  36  MS.  37  38  39  40  41  42  43  44  THE  45  MS.  46  47  "I agree with Le Dain J. that before surrender  the Crown does not hold the land in land in  trust for the Indians.  I also agree that the  Crown's obligation does not somehow crystallize  into a trust, express or implied, at the time  of surrender.  The law of trusts is a highly  developed ..."  COURT:  I'm sorry, do you understand "surrender" there to  mean that upon the creation of a reserve?  KOENIGSBERG: The creation of a reserve?  COURT:  Yes.  KOENIGSBERG:  No, my lord.  COURT:  Refer them to a treaty, wasn't it?  KOENIGSBERG:  I think he is talking about a reserve, and he  is talking about -- in the context of the Guerin  decision.  He is talking about when the interest  created by the Indian Act, being an Indian reserve,  surrendered unconditionally -- he deals with it both  unconditionally and conditionally.  And he is dealing  with -- he is really saying that the fiduciary  relationship which he later finds to apply doesn't  apply until the surrender is complete.  COURT:  What do you think he's — this is Mr. Justice  Dickson as he then was.  What do you think he means by  this word "surrender" in the fourth line of that quote  on the top of page 5?  What does he mean by  "surrender" there?  The lease?  KOENIGSBERG:  Yes.  COURT:  Do you?  KOENIGSBERG:  Yes, I do.  In fact, I can't from the context  or from his words see any other meaning to it -- for  it.  COURT:  Now, I find it an odd word to use in connection with  the grant -- granting release.  KOENIGSBERG:  It is within the context of the Indian Act in  relation to any interests which may be given up or  agreed to be given up by the Indians.  Surrender is  the word which is used, and then there is a  discussion, for instance, in Smith, and I can't recall  if it's in Guerin as well, of the difference -- what  happens between a conditional and an unconditional  surrender.  COURT:  All right.  KOENIGSBERG:  "The law of trusts is a highly developed, 28687  Submissions by Ms. Koenigsberg  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  specialized branch of the law.  An express  trust requires a settler, a beneficiary, a  trust corpus, words of settlement, certainty of  object and certainty of obligation.  Not all of  these elements are present here.  Indeed, there  is not even a trust corpus.  As the Smith  decision, makes clear, upon unconditional  surrender the Indians' right in the land  disappears.  No property interest is  transferred which could constitute the trust  res, so that even if the other indicia of an  express or implied trust could be made out, the  basic requirement of a settlement of property  has not been met.  Accordingly, although the  nature of Indiian title coupled with the  discretion vested in the Crown are sufficient  to give rise to a fiduciary obligation, neither  an express nor an implied trust arises upon  surrender."  The non-proprietary nature of the rights was  confirmed in Sparrow and The Queen, where the Supreme  Court of Canada has dealt further with the nature of  aboriginal rights and sought to explicate their sui  generis nature as described in Guerin.  This should  say at page 27 of the unreported judgment.  I'm sorry?  MS. KOENIGSBERG:  This is a quote from page 27 of Sparrow.  "The inquiry with respect to interference begins  with a reference to the characteristics or  incidents of the right at stake.  Our earlier  observation regarding the scope of the  aboriginal right to fish are relevant here.  Fishing rights are not traditional property  rights.  They are rights held by a collective  and are in keeping with the culture and  existence of that group.  Courts must be  careful, then, to avoid the application of  traditional common law concepts of property as  they develop their understanding of what the  reasons for judgment in Guerin, above at page  382, referred to as the 'sui generis' nature of  aboriginal rights."  Then at pages 23 and 24 of the Sparrow judgment  the fiduciary obligation as it pertains to aboriginal 286?  Submissions by Ms. Koenigsberg  1 rights following from Section 35 (1) of the charter is  2 discussed.  3 And I would just take you to page 24, a particular  4 section of that -- that's at tab 5, page 24.  5 THE COURT:  Yes.  6 MS. KOENIGSBERG:  Middle of the page, my lord.  7  8 "In Guerin, the Musqueam Band surrendered  9 reserve lands to the Crown for lease to a golf  10 club.  The terms obtained by the Crown were  11 much less favourable than those approved by the  12 Band at the surrender meeting.  This Court  13 found that the Crown owed a fiduciary  14 obligation to the Indians with respect to the  15 lands.  The sui generis nature of Indian title,  16 and the historic powers and responsibility  17 assumed by the Crown constituted the source of  18 such fiduciary obligation.  In our opinion,  19 Guerin, together with R. V. Taylor and  20 Williams, ground a general guiding principle  21 for s. 35(1).  That is, the Government has the  22 responsibility to act in a fiduciary capacity  23 with respect to aboriginal peoples.  The  24 relationship between the Government and the  25 aboriginals is trust-like, rather than  26 adversarial, and contemporary recognition and  27 affirmation of aboriginal rights must be  28 defined in light of this historic  29 relationship."  30  31 Coming back to those words again, my lord.  But  32 here I say we are looking at the parts of the sui  33 generis nature as they are being delineated in the  34 cases, and in my submission we have, leaving aside  35 reserves created under the Indian Act, which are a  36 special topic.  37 THE COURT:  Do you think there is any conflict between what is  38 said here and what Mr. Justice Dickson said in Sparrow  39 about fiduciary obligations?  40 MS. KOENIGSBERG: Conflict where?  41 THE COURT:  Well, in Sparrow Mr. Justice Dickson said that the  42 Crown's obligation does not somehow crystallize into a  43 trust expressed or implied, and --  44 MS. KOENIGSBERG:  Oh, upon — until surrender.  45 THE COURT:  I would have thought that -- you would say trust is  46 not to be equated to fiduciary?  Fiduciary duty  47 without a trust? 28689  Submissions by Ms. Koenigsberg  1 MS. KOENIGSBERG:  Fiduciary connotes a trust-like.  It had some  2 elements of trust.  3 THE COURT:  Yes.  4 MS. KOENIGSBERG:  In my submission — I think he is talking  5 about a similar thing and in two different contexts.  6 On the one hand in Guerin he is talking about what  7 flows, I mean where does the relationship crystallize  8 such that we can look at the behaviour of the two  9 parties and determine what flows, what obligation  10 flows from that?  And he says when you are dealing  11 with a specific thing like the surrender of a lease,  12 and you look at the obligation under the Indian Act,  13 which I believe he sees as informed, if I can use that  14 word, by the historic relationship between Indians and  15 the Crown, which is a dependent one --  16 THE COURT:  I am not sure what your position is as to the --  17 MS. KOENIGSBERG:  I don't think there is a conflict between  18 those two.  19 THE COURT:  Then what is the differential between them?  20 MS. KOENIGSBERG:  I am trying to explain it.  I think that the  21 difference between the two is the difference of when  22 you are looking at it, and for what reason you are  23 looking at it.  He is looking in Guerin to determine  24 at what point in time he can determine what the  25 obligation of the parties are.  26 THE COURT:  He is saying that upon surrender, this kind of  27 limited surrender, that no trust arises.  28 MS. KOENIGSBERG:  That's right.  But that there is —  29 THE COURT:  There has been all along a fiduciary duty.  30 MS. KOENIGSBERG:  That's right.  And that that fiduciary  31 relationship has to be applied to what the Crown does  32 in Guerin pursuant to its duties under the Indian Act.  33 And Sparrow there, in my submission, making very  34 broad statements about the ways in which the courts  35 should look at all relationships, whether between the  36 Crown and the aboriginal peoples, whether it arises in  37 relation to a treaty, in relation to activities under  38 the Indian Act pursuant to 91(24), or in relation to  39 any other aspect of a government policy.  40 THE COURT:  Why do you suppose he was so anxious to eliminate  41 the possibility of the trust?  42 MS. KOENIGSBERG:  Well, he differs somewhat with Madam Justice  43 Wilson on that point.  I think that he -- I can only  44 take him at his word.  He does not see it as a trust,  45 because he -- I think he may be concerned that we will  46 get into the same difficulty of definition, and what  47 flows from what if we say it's a trust, and so now we 28690  Submissions by Ms. Koenigsberg  1 look to trust law.  But it's an unique relationship.  2 It's not trust.  And it's similar to the difficulties  3 that we have in talking about property rights when  4 we -- when we are using the word "title".  5 THE COURT:  Unique relationship pre-surrender?  6 MS. KOENIGSBERG: There is an overriding relationship, my lord,  7 which I think is perhaps not as clearly delineated in  8 Guerin as it's later developed in Sparrow, but they go  9 back from Sparrow into Guerin for the support for the  10 propositions of the fiduciary relationship.  11 THE COURT:  Yes.  I am having difficulty, obviously, with the  12 concept that you can have a fiduciary duty that  13 doesn't amount to a trust.  14 MS. KOENIGSBERG:  Well, my lord, actually I suppose I never  15 really thought about it in that way, but it seems to  16 me that we do put all kinds of fiduciary relationships  17 in place in the law where there is no trust.  The  18 relationship between a solicitor and a client is  19 fiduciary in some respects, and it usually has nothing  20 to do with the trust.  21 THE COURT:  Well, I know, but then we are talking about an  22 inter-relationship with different interests in land.  23 It may be that he was answering some specific  2 4 argument.  25 MS. KOENIGSBERG:  He certainly was.  It was certainly raised and  26 argued as a trust, and I think that he must have run  27 into the difficulties of analysis by the fact, for  28 instance, that there is no basis -- he isn't the first  29 to discuss the non-proprietary nature of aboriginal  30 rights, whatever they are, and it is rather difficult  31 to apply trust law when there is nothing to attach it  32 to.  33 THE COURT:  I suppose you may be saying that in a trust  34 situation does have at least a perceptual proprietary  35 interest in the corporation of the trust --  36 MS. KOENIGSBERG:  Yes, I would think so.  37 THE COURT:  So what happens, what he is doing is eliminating the  38 proprietary interest.  He is saying it is not a trust.  39 MS. KOENIGSBERG:  I think he has eliminated the proprietary  40 interest, and I -- maybe I was saying the same thing  41 coming at it from a slightly different way from your  42 lordship, I am not certain, but that's what I was  43 trying to get at by saying --  44 THE COURT:  He's already done that.  He's eliminated proprietary  45 interest again, or he is stating it.  All right.  46 Thank you.  You are onto page 6?  47 MS. KOENIGSBERG:  Paragraph 13 it is submitted that aboriginal 28691  Submissions by Ms. Koenigsberg  1 rights then are a right of occupancy, based on  2 traditional uses, which right is a burden on the  3 Crown's title and is held subject to the goodwill of  4 the Sovereign.  5 THE COURT:  Well, you could add there, couldn't you, it was  6 held --  7 MS. KOENIGSBERG:  I am going to go on and talk about fiduciary.  8 THE COURT:  Under a fiduciary duty as a burden on the Crown's  9 title.  10 MS. KOENIGSBERG:  It probably would have been a good idea if  11 paragraph 14 weren't paragraph 14 but part of 13, but  12 it flows directly.  13 The Crown's dealing with aboriginal rights is  14 constrained by its fiduciary relationship.  The  15 Sparrow decision characterized that fiduciary  16 relationship as having its source in the historic  17 powers and responsibilities assumed by the Crown in  18 relation to aboriginal people.  And that quote, I  19 think, is really found -- I am taking that from that  20 same paragraph on page 24.  21 In relation to reserves --  22 THE COURT: In Sparrow?  23 MS. KOENIGSBERG:  Yes.  2 4 THE COURT:  Thank you.  25 MS. KOENIGSBERG:  In relation to reserves, in Guerin the  26 fiduciary relationship was described as arising upon  27 the surrender of reserve lands.  Its source was the  28 personal nature of the right - its general  29 inalienability except to the Crown.  30 And this is going back trying ultimately to put  31 some notion of what might be meant by historic  32 responsibilities in relationship.  33 In relation to the interpretation of treaties the  34 Court in Sparrow quoted with approval the following  35 from Agawa.  This is again at page 24, and it's at the  36 top of the page on page 24 in Sparrow.  37  38 "He also cautioned against determining Indian  39 rights 'in a vacuum'.  The honour of the Crown  40 is involved in the interpretation of Indian  41 treaties and as a consequence, fairness to the  42 Indians is a governing consideration."  43  44 In summary, it is this defendants submission that  45 the following are the bases for determining the  46 historic powers and responsibilities assumed by the  4 7 Crown. 28692  Submissions by Ms. Koenigsberg  1 First, aboriginal rights are held subject to the  2 goodwill of the Sovereign.  3 Second, aboriginal interests can only be alienated  4 by surrender to the Crown.  5 Third, 91(24) provides for the governing  6 responsibility towards Indians and Indian reserves.  7 Specifically through the Indian Act, Section 18(1), by  8 conferring discretion on the Crown to determine the  9 best interests of the Indians.  10 THE COURT:  I have trouble with the interaction of your 1 and 2.  11 If the Indian interest is subject to the goodwill of  12 the sovereign, how can you say that it can only be  13 alienated by surrender?  14 MS. KOENIGSBERG:  One is broader than the other, I suppose.  I  15 would put two comes under one.  It is one of the ways,  16 and perhaps the major way in which Indian peoples are  17 dependent on the Crown.  And it is the source by which  18 the Crown must determine the best interests of the  19 Indians.  20 THE COURT:  Well, are you saying under 1 that the Crown taking a  21 simplistic case, that the Crown has the right to --  22 and pre-charter, that the Crown had a right to  23 extinguish an aboriginal title whenever it wanted to?  24 MS. KOENIGSBERG:  I will be coming to that in some detail.  25 THE COURT:  How does that stand beside your number 2?  26 MS. KOENIGSBERG:  When the — if the Indian people wished to  27 alienate their recognized interests, they can only do  28 so by surrender to the Crown.  29 THE COURT:  You're saying the aboriginal interest can only be --  30 when aborigines wished to alienate their interest,  31 they can only do it to the Crown.  32 MS. KOENIGSBERG:  Or through the Crown.  Yes.  33 THE COURT:  Voluntary?  34 MS. KOENIGSBERG: Yes.  I mean that as it arises, and it has only  35 arisen in relation to those which are -- those  36 recognized rights, such as created reserves.  37 *THE COURT:  I have rewritten your number 2 to say voluntary  38 alienation by alienation can only be done by surrender  39 to the Crown?  40 MS. KOENIGSBERG:  Right through into Crown policy in British  41 Columbia.  But if I could go back to what is the point  42 of attempting to delineate this in any way.  Really I  43 have looked at more than Guerin, and I quote Guerin  44 here.  There is a general discussion at different  45 times and in slightly different contexts about the  46 relationship between the Crown and Indian people.  47 When the courts talk about the relationship vis-a-vis 28693  Submissions by Ms. Koenigsberg  1 reserves or specific interests or sales in early  2 times, very early times of the Indian interest, they  3 make rules about you can only do it to the Crown.  And  4 in my submission that is a major factor in creating a  5 legal dependency.  6 THE COURT:  What do you say about the dichotomy between the  7 right of the sovereign to extinguish the charter at  8 will and the existence of a fiduciary obligation?  9 MS. KOENIGSBERG:  I don't think they meet.  10 THE COURT:  Well, then, pushing your proposition to its limit,  11 you would say that if pre-charter the aboriginals were  12 living in their traditional village site, and let's  13 take Moricetown and assume for the purposes of the  14 argument that all they had to do was fish in the  15 canyon for all the food they needed, and there was no  16 overland available, everything else around their  17 village had been alienated already to others, that the  18 Crown could still have cancelled their reserve and  19 said you are on your own.  20 MS. KOENIGSBERG:  They could.  21 THE COURT:  They would breach their fiduciary duties.  22 MS. KOENIGSBERG:  Well, I think that what is very difficult is  23 to -- and I think this is the difficulty that Mr.  24 Justice Dickson had in Guerin.  You have to attach  25 that fiduciary relationship to something at some point  26 in time, and it depends on a lot of factors whether  27 anything would flow from the overriding fiduciary  28 relationship.  29 THE COURT:  I suppose you would be pressed to go so far as to  30 say well, if that scenario should develop there would  31 be at least a fiduciary obligation of compensation.  32 MS. KOENIGSBERG:  I think the issue of compensation is one that  33 must be addressed very specifically, and in particular  34 though we don't address it, because I don't think it  35 arises directly in this case, but in fact there -- the  36 whole issue of whether compensation is payable is  37 dependent to a certain extent on the nature of what is  38 being taken and its analagous to expropriation.  You  39 have to have proprietary interest to trigger the law  40 of the expropriation, but we don't have proprietary  41 interest.  So is there some notion of compensation  42 which flows from this fiduciary relationship, and I  43 think that's what is very difficult, and I think that  44 its difficulty is its sui generis nature or the ever  45 changing and evolving nature of that relationship.  46 Because it is not a true -- well, I shouldn't say it  47 is not a true fiduciary.  It can be a true fiduciary 28694  Submissions by Ms. Koenigsberg  1 if the Supreme Court of Canada pronounces it to be a  2 true fiduciary, but in a sense it metamorphically  3 flows -- sort of wanders over history and politics.  4 THE COURT:  All right.  Thank you.  5 MS. KOENIGSBERG: It is submitted that in considering the extent  6 and scope of aboriginal rights the Canadian  7 jurisprudence requires the Crown to uphold its honour.  8 Its trust-like relationship to aboriginal people  9 requires that in any dealings with those rights all  10 ambiguities must be resolved in favour of the Indian  11 interest.  These principles must be applied by the  12 courts in interpreting aboriginal rights whether they  13 arise from treaties, Crown policy or legislation  14 affecting those rights.  15 And here is a specific instance, my lord, in which  16 I would say the trust-like relationship has something  17 to do with what we would talk about in terms of  18 extinguishment.  And I think Sparrow goes on to talk  19 about the test, and I would say that the test as it is  20 now claimed, and I will be getting into that later on,  21 the test now is clear and plain.  And I later on go on  22 to say the difference between the Judson test and the  23 Hall test, if you will, is that in the Judson test  24 it's arguable that "necessarily inconsistent" has  25 ambiguities in it, and they don't have to be resolved  26 in favour of the Indian interest.  They may not be  27 resolved in favour of the Indian interest.  "Clear and  28 plain" in my submission in the context of the Sparrow  29 decision means all ambiguities have to be resolved in  30 favour of the Indian trust.  31 THE COURT:  Take the morning adjournment now.  32 MS. KOENIGSBERG:  Yes.  33 THE REGISTRAR: Order in court.  Court stands adjourned for a  34 short recess.  35  36 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS AT 11:15  37 A.M.)  38  39  40  41  42  43  44  45  46  47 28695  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. 28696  Submissions by Ms. Koenigsberg  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  MS.  THE  (PROCEEDINGS RESUMED AT 11:30 a.m.)  THE REGISTRAR:  Order in court.  THE COURT:  Ms. Koenigsberg, whenever you're ready.  MS. KOENIGSBERG:  Yes, my lord.  I'd like to clarify a couple of  things that have arisen as a result of your lordship's  questions.  The first one being your concern about  what Mr. Justice Dickson meant by the word "surrender"  in the quote, and I think that maybe it will be  helpful to look at, beginning with page 348 of the  Guerin decision.  I think I am almost persuaded that you are right on  that point.  KOENIGSBERG:  Well, maybe this will nail it down.  COURT:  Seems to me to be an unusual word to use in this  context.  MS. KOENIGSBERG:  It is, and Mr. Justice Estey in his judgment  discusses that unusualness which might be helpful but,  before that, if you make a note that on page 348 the  section itself is set out in the judgment of Madam  Justice Wilson.  And then on page 385, Mr. Justice  Dickson, in dealing with that section at the bottom of  the page --  THE COURT:  385.  MS. KOENIGSBERG:  385, this is Mr. Justice Dickson's decision.  THE COURT:  Yes.  MS. KOENIGSBERG:  He talks about:  "Section 18(1) of the Indian Act confers upon  the Crown a broad discretion in dealing with  the surrendered land.  At the present case, the  document of surrender, set out in part earlier  in these reasons, by which the Musqueam Band  surrendered the land at issue, confirms this  discretion in the clause conveying the land to  the Crown 'in trust to lease...upon such terms  as the Government of Canada may deemed most  conducive to our Welfare and that of our  people'.  When, as here, an Indian Band  surrenders its interest to the Crown, a  fiduciary obligation takes hold to regulate the  manner in which the Crown exercises its  discretion in dealing with the land on the  Indians' behalf."  And then I think at page 393 -- no, sorry, it is page  392, Mr. Justice Estey's decision at the bottom of the 28697  Submissions by Ms. Koenigsberg  1 page, he says, perhaps wondering as you did:  2  3 "Unfortunately, the statute employs the word  4 'surrender' in another connotation.  In order  5 to deal with what has been found to be the  6 personal interest of the Indian population in  7 Indian lands, the Act requires the Band to  8 'surrender', the land to the Crown in the right  9 of Canada in order to effect the proposed  10 alternate use of the land for the benefit of  11 the Indians.  The Act, in short, does not  12 require the Indian to limit his interest in  13 Indian lands to present and continuous  14 occupation.  The band may vicariously occupy  15 the lands, or part of such lands, through the  16 medium of a lease or licence..."  17  18 And so on.  19 THE COURT:  Yes.  It seems that the surrender arises from the  20 form specified by the Act.  21 MS. KOENIGSBERG:  That's correct.  And then if I could just be  22 sure that we have been addressing the same fact  23 situation, when your lordship put a situation to me  24 and asked me if in my submissions the Crown could take  25 away certain Indian rights and what had that to do  26 with the fiduciary relationship, your lordship used  27 the example of Moricetown and I took it from your  28 lordship's question that you were assuming that  29 Moricetown was not a reserve in your question, but if  30 your lord --  31 THE COURT:  Yes, I was.  32 MS. KOENIGSBERG:  But if you were suggesting it was reserve, my  33 answer would be quite different.  34 THE COURT:  I was not assuming a reserve which of course it is.  35 MS. KOENIGSBERG:  Yes.  36 THE COURT:  I am still having a great deal of difficulty in  37 reconciling the pre-existing right with the fiduciary  38 duty arising out of the surrender.  Those two to me  39 don't seem to be able to walk together.  40 MS. KOENIGSBERG:  I can't say to your lordship that I always  41 find it easy to walk together with them myself.  And  42 the only resolution that I can come to, if it is -- I  43 am sure it won't be of great assistance to you, is  44 that it tends to be something that cannot be worked  45 out and made logical except in relation to something  46 specific, a specific question, and then one is faced  47 with the very problem and problems that we have in 2869?  Submissions by Ms. Koenigsberg  1 this case in trying to reconcile what appear to be a  2 lot of conflicting concepts.  3 THE COURT:  Well, I suppose it's as easy as this, that one can  4 say, well, they are different types of obligations.  5 MS. KOENIGSBERG:  Yes.  6 THE COURT:  Or a different type of the same obligation.  7 MS. KOENIGSBERG:  And the obligation will — in my submission  8 the obligation will or different things will flow as  9 part of that obligation depending upon the situation.  10 THE COURT:  All right.  Thank you.  11 MS. KOENIGSBERG:  Okay.  I think I am on page 8.  What must be  12 proved?  The Attorney General of Canada adopts the  13 test described in the Baker Lake case:  14 The elements which the Plaintiffs must prove to  15 establish an aboriginal title cognizable at common  16 law are:  17 1.  That they and their ancestors were members of  18 an organized society.  19 2.  That the organized society occupied the  20 specific territory over which they assert the  21 aboriginal title.  22 3.  That the occupation was to the exclusion of  23 other organized societies.  24 4.  And that the occupation was an established  25 fact at the time sovereignty was asserted by  2 6 England.  27 And I say there is something more as well.  At page  28 559, Mr. Justice Mahoney said this, and we have seen  29 this quote before:  30  31 "The common law...can give effect only to those  32 incidents of that enjoyment (of the land) that  33 were, themselves, given effect by the regime  34 that prevailed before."  35  36 I submit that, taken together with the above  37 quote, the Baker Lake test, so we take the four parts  38 of the Baker Lake test that are in paragraph 19 and we  39 marry them up with that quote about only being able to  40 give the effect to those incidents which were given  41 effect to before, and that as a test is completely  42 consistent with the brief description of aboriginal  43 rights in Sparrow as discussed by the Supreme Court of  44 Canada, in the unreported judgment at pages 12, 13,  45 and 17.  And here I am addressing the issue, and we'll  46 go to that judgment, but I am addressing the issue of  47 whether exclusivity is a necessary element.  We are 28699  Submissions by Ms. Koenigsberg  1 dealing here in my submission with a rather anomalous  2 situation in which the Plaintiffs, as I have  3 understood it, have not in fact pleaded these kinds of  4 rights; that is use and occupancy rights.  5 Nevertheless, on behalf of the Attorney General of  6 Canada, we say that that is the nature of the rights,  7 if any, which the Plaintiffs have.  And we say that on  8 the basis of the pleadings with relation to ownership  9 and jurisdiction and on the nature of the evidence as  10 it has been put forward by the Plaintiffs in support  11 that they have maintained that exclusivity is a  12 hallmark of their rights and that's the hallmark of  13 the rights they claim, that's different, in my  14 submission, from Sparrow.  And if we look where that  15 was not a right claimed and it was not a right which  16 was in fact consistent with the facts in Sparrow, and  17 if you look at page 12 --  18 THE COURT:  Look at page 12.  19 MS. KOENIGSBERG:  — of the Sparrow decision, it is the  20 beginning of the discussion of the aboriginal rights  21 in Sparrow, and at the beginning of the second full  22 paragraph:  23  24 "The evidence reveals that the Musqueam have  25 lived in the area as an organized society long  26 before the coming of European settlers, and  27 that the taking of salmon was an integral part  28 of their lives and remains so to this day.  29 Much of the evidence of an aboriginal right to  30 fish was given by Dr. Suttles, an  31 anthropologist, supported by that of Mr. Grant,  32 the Band administrator.  The Court of Appeal  33 thus summarized Dr. Suttles' evidence at pages  34 307 - 308:  35  36 Dr. Suttles was qualified as having particular  37 qualifications in respect of the ethnography of  38 the Coast Salish Indian people of which the  39 Musqueams were one of several tribes.  He  40 thought that the Musqueam had lived in their  41 historic territory, which includes the Fraser  42 River estuary, for at least 1,500 years.  That  43 historic territory extended from the north  44 shore of Burrard Inlet to the south shore of  45 the main channel of the Fraser River including  46 the waters of the three channels by which that  47 river reaches the ocean.  As part of the Salish 28700  Submissions by Ms. Koenigsberg  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  people, the Musqueam were part of a regional  social network covering a much larger area but,  as a tribe, were themselves an organized social  group with their own name, territory and  resources.  Between the tribes there was a flow  of people, wealth and food.  No tribe was  wholly self-sufficient or occupied its  territory to the complete exclusion of others."  THE COURT:  I wonder what he meant by the three channels.  MS. KOENIGSBERG:  That's not a question I am prepared to answer  at this time, my lord.  THE COURT:  And I am not able to answer.  MS. KOENIGSBERG:  Over on to page 13.  They deal again with what  seem to be a fall within the Baker Lake test.  In the  first full paragraph about the fourth line:  "...that Mr. Sparrow was fishing in ancient  tribal territory where his ancestors had fished  from time immemorial in that part of the mouth  of the Fraser River for salmon."  And then at page 17, dealing with the scope of the  right --  THE COURT:  Yes.  MS. KOENIGSBERG:  — page 17 at the top, first full paragraph:  "The scope of the existing Musqueam right to  fish must now be delineated.  The  anthropological evidence relied on to establish  the existence of the right suggests that, for  the Musqueam, the salmon fishery has always  constituted an integral part of their  distinctive culture.  Its significant role  involved not only consumption for subsistence  purposes, but also consumption of salmon on  ceremonial and social occasions.  The Musqueam  have always fished for reasons connected to  their cultural and physical survival.  As we  stated earlier, the right to do so may be  exercised in a contemporary manner."  We will be coming back to that quote later on, my  lord, but not that much later on.  But, in my  submission, the Sparrow decision in relying and  looking at -- for the definition of the aboriginal  right is embracing all of the aspects of the Baker 28701  Submissions by Ms. Koenigsberg  1 Lake test, save and except the one of exclusion where  2 in fact exclusion of other peoples is not part of the  3 right being claimed in the Sparrow case by the  4 Musqueam people.  I go on to say then on page --  5 THE COURT:  Well, it couldn't be claimed in Sparrow because the  6 only issue was whether Mr. Sparrow personally breached  7 the fishing regulations.  8 MS. KOENIGSBERG:  That's true but of course it broadened out in  9 the inquiry to the -- to looking at the nature of the  10 rights and I am simply saying that you can't look --  11 THE COURT:  Judges shouldn't do that, should they?  12 MS. KOENIGSBERG:  One wonders if it wouldn't be helpful if they  13 didn't.  14 THE COURT:  Yes.  15 MS. KOENIGSBERG:  I think we are going to have to take  16 cognizance of the fact that the Supreme Court of  17 Canada is going to do that and has done it.  18 In my submission, you can't take the Sparrow  19 decision as authority for the proposition that to  20 prove aboriginal rights you don't have to prove  21 exclusive use.  It's simply a variation on the theme.  22 It was not a right claimed there, and in it I am sure  23 on the basis of the evidence that the Musqueam would  24 not bring an action for a declaration that they had  25 exclusive aboriginal rights to the Fraser River  26 estuary as against all other peoples.  27 THE COURT:  Is that right?  If exclusivity is a hallmark or a  28 badge of aboriginal rights, then Mr. Sparrow would not  29 have enjoyed that right if his people didn't have  30 exclusivity.  31 MS. KOENIGSBERG:  Well, in my submission, it may or may not be a  32 badge of aboriginal rights.  It is within the purview  33 of the jurisprudence on aboriginal rights that you  34 have to look at the right claimed, and if the right  35 claimed is one which the court -- and the court has to  36 be able to enforce that right and the court is not  37 going to enforce a right which aboriginal people did  38 not have before sovereignty.  39 THE COURT:  The court said that his right was a collective  40 right.  41 MS. KOENIGSBERG:  Yes, all aboriginal rights are collective  42 rights.  43 THE COURT:  Then Mr. Sparrow's right couldn't be established  44 without establishing the collective right, not just  45 the personal --  46 MS. KOENIGSBERG:  Yes, but in the sense that there are other  47 aboriginal peoples who historically shared that 28702  Submissions by Ms. Koenigsberg  1 resource and he is not asking the court to say and, in  2 my submission, couldn't ask the court to say he holds  3 that right as against any other aboriginal people who  4 historically use that area.  5 THE COURT:  All right.  6 MS. KOENIGSBERG:  Thus, in my submission, if the rights sought  7 are exclusive in nature as in this case, then such  8 exclusivity must be proven to prove the right.  9 It is submitted that an analysis of the evidence  10 supports the following claims in this case to use and  11 occupancy rights.  12 There is evidence of the occupation of several  13 villages sites on a seasonal basis in permanent lodge  14 houses, and I set those out there.  15 As well, there is evidence of semi-permanent  16 winter and summer camps now no longer occupied.  17 Fishing was a major source of food.  Fishing took  18 place along the Skeena and Bulkley River systems.  19 Hunting game (bears, caribou, goats and marmots)  20 was a source of food and clothing and was carried out  21 in forays in the vicinity of winter camps or trapping  22 areas.  And I refer you to Part X, Part 1, page 2, but  23 in addition the Province canvassed the particular  24 topic of hunting and trapping in their Volume 1, Part  25 IV, section 3b and section 3c, and the analysis of the  26 evidence there we would agree with.  27 Berry picking was a source of food.  One could  28 call that foraging.  Berry picking no doubt took place  29 in geographically appropriate places fairly close to  30 village sites.  And I rely on that for -- we make  31 reference to that in Part X, page 4, but that's mostly  32 a question of deducing from the evidence the times of  33 year when berry picking tends to take place and where  34 the people were located.  35 It is submitted that the preponderance of evidence  36 supports the following general propositions:  37 (a)  Gitksan and Wet'suwet'en people, socially and  38 politically organized as described in Part X, and  39 there we say that houses were not the operative  40 political unit, but rather villages, lived in villages  41 along the Skeena and Bulkley River systems within the  42 claim area from time immemorial or before contact.  43 Defence --  44 THE COURT:  Well, I am sorry, do you make any distinction  45 between "time immemorial" and "before contact"?  4 6    MS. KOENIGSBERG:  No.  I am explaining time immemorial in this  47 context. 28703  Submissions by Ms. Koenigsberg  1 THE COURT:  Is before contact enough?  2 MS. KOENIGSBERG:  In my submission it is, although I don't in my  3 submission say that you look at April 1, 1822; I say  4 that you have to have some evidence of rootedness of  5 the right and I really discuss that topic back in tab  6 2, the origin of aboriginal rights in the claim area,  7 when we talk about trapping in relation to the fur  8 trade, and there we don't say that trapping is not an  9 aboriginal right because trapping in delineated  10 specific trapline boundaries wasn't done before  11 proto-historic times but rather that that throws grave  12 doubt on how far trapping would have been engaged in.  13 But that kind of evidence brings up the issue of the  14 aboriginalness of a right, and that is that it must  15 have been an activity which was taken on for some  16 period of time, and I don't think one can be too much  17 more precise than that.  It has to have a sense of  18 rootedness and I think that the American  19 jurisprudence, which is referred to there in common  20 sense, accords with that, tells you that a claimed  21 right which popped into existence after sovereignty is  22 not likely the kind of right that is referred to by  23 aboriginal rights.  And I talk about the concept of  24 frozen rights later on and in a more oblique way  25 explore that concept.  26 We say then that Gitksan and Wet'suwet'en people  27 lived in villages along the Skeena and Bulkley River  28 systems within the claim area from time immemorial or  29 before contact.  Defence against competing aboriginal  30 peoples was often undertaken by the whole village, or  31 by members of a clan.  And I make reference there to  32 Part X, Part 1, and the pages where that sort of thing  33 is discussed, and also it was discussed at great  34 length by the Province in their argument in -- I  35 believe it is in the same Part IV of Volume 1.  And in  36 my submission, my lord, in trying to conceptualize  37 what difference it makes who you say holds the rights,  38 it's here that I would say the court has to be able to  39 determine who holds enforcable rights, that is rights  40 recognized by the Crown in relation to third parties.  41 And, in my submission, it isn't a sole criteria but  42 one of the things that one would look at is against  43 whom is a right enforced by an aboriginal society and,  44 in my submission, when it's generally done the defence  45 of the territory is done by the village or the clan,  46 then one tends to think that the holder of the right  47 to exclusive use of that territory would be the 28704  Submissions by Ms. Koenigsberg  1 village or the clan and, in this case, the  2 preponderance of evidence in our submission focuses on  3 the village as the holder of those rights and the  4 bands today are the successors to the villages.  That  5 topic was canvassed by the Province as well and we  6 adopt their submissions but have simply made this  7 further submission.  8 MR. JACKSON:  My lord, I wonder if my friend, in the course of  9 her submissions, could reconcile that proposition with  10 her further proposition that some villages have  11 disappeared and hence their rights have disappeared  12 along with them.  I am having difficulty seeing how  13 those propositions can live together.  14 MS. KOENIGSBERG:  I am afraid I don't follow my friend.  I mean,  15 I am not quite sure what his difficulty is.  It seems  16 to me that if the --  17 THE COURT:  Well, let me give you an example because I am not  18 sure and perhaps it will help me to understand.  Let's  19 take Ksan which Mr. Macaulay mentioned, you haven't  20 listed it --  21 MS. KOENIGSBERG:  No.  22 THE COURT:  — on page 9, yet Mr. Macaulay said that was the  23 principal fishing centre for the Gitksan people.  24 MS. KOENIGSBERG:  That's right.  It falls into the category of  25 paragraph 25, semi-permanent winter or summer camps, I  26 believe that the evidence about Ksan is that it was a  27 fishing camp.  It was a place where some people did  28 live permanently, but it was for -- expressly for the  29 purpose of fishing only and peoples from other  30 villages had their fishing places there.  31 MR. JACKSON:  No.  My point, my lord, was to the extent there is  32 a village which my friend says --  33 THE COURT:  There was a village.  34 MR. JACKSON:  There was which was the repository of the  35 aboriginal rights.  If the people move, is she saying  36 that by definition the village no longer existing  37 those aboriginal rights cease to exist along with the  38 village?  39 MS. KOENIGSBERG:  No.  In my submission, aboriginal rights don't  40 attach to a piece of land.  Aboriginal rights are held  41 by a group of people and if that group of people move  42 from one village to another, and it's after contact,  43 and they have never used the village site where they  44 moved to, then they probably could not have aboriginal  45 rights to that village site; but conversely, if they  46 occupied a village site at contact, as was the case  47 here, it is anomalous because all the village sites 28705  Submissions by Ms. Koenigsberg  1 which we have mentioned and which we know about have  2 been made into reserves, so they are preserved and  3 there they are.  They are subject to Indian rights and  4 they can't be taken away.  5 THE COURT:  Your point really is that there has been an  6 abandonment of whatever aboriginal rights existed in  7 the time of contact to fish at Ksan.  8 MS. KOENIGSBERG:  That's correct.  9 THE COURT:  Well, your friend understands your position.  10 MR. JACKSON:  Yes.  11 MS. KOENIGSBERG:  It is more complicated with that — with Ksan  12 but nevertheless, yes, that's the concept.  13 THE COURT:  Yes.  14 MS. KOENIGSBERG:  The Gitksan and Wet'suwet'en people were  15 organized in production units within villages (more  16 structured in our submission for the Gitksan than the  17 Wet'suwet'en).  In these production units they  18 exploited the following resources on a seasonal basis:  19 fishing, hunting/trapping and berry harvesting.  20 Warfare with other tribes (including the Sekani,  21 Stikine, Nahanni, Waccan, Nishga) was frequent and  22 there was fierce competition for resources along the  23 alleged boundaries of the claim area.  There is  24 evidence of such conflicts well into the "historical  25 period".  This evidence is part of the factual  26 underpinning to today's overlapping comprehensive  27 claims.  28 Next, the impact of the fur trade was felt in the  29 claim area by the early to middle 1800s.  Until the  30 fur trade there is little or no evidence to suggest a  31 reason for the Plaintiffs to have carved the claim  32 area into a seamless web of well-defined traplines.  33 There is no evidence of extensive use of furs in  34 pre-contact times.  And there I would add to the site  35 of the Province's analysis of the evidence with regard  36 to this matter that they also dealt with it in Volume  37 4, 3b and 3c.  38 In the claim area wherever there is an overlapping  39 comprehensive claim, in our submission there is strong  40 evidence of non-exclusive use.  In addition, to the  41 extent that the Plaintiffs must rely on reputation as  42 to boundaries to establish continuous exclusive use,  43 the competing claims dispel that "reputation".  And  44 that topic has also been dealt with extensively by the  45 Province.  46 Therefore, in our submission, utilizing the Baker  47 Lake test of continuous and exclusive use and 28706  Submissions by Ms. Koenigsberg  1 occupation of a defined geographical area by an  2 organized aboriginal society from time immemorial, the  3 Gitksan-Wet'suwet'en established that they had at the  4 time of the contact aboriginal rights to village  5 sites, food fishing, trapping/hunting, and berry  6 picking, in the areas previously discussed.  7 Conceptually, the attribution of aboriginal  8 "ownership" to property is misleading as we have  9 already discussed.  Aboriginal peoples can, of course,  10 like other people, other citizens, acquire ownership  11 to property in British Columbia, but it is not theirs  12 by virtue of their aboriginal interest.  As pointed  13 out in the Tijani case at page 401:  14  15 "There is a tendency operating at times  16 unconsciously to render that title conceptually  17 in terms which are appropriate only to systems  18 which have grown up under the English law.  But  19 this tendency has to be held in check closely  20  21 To ascertain how far this latter development of  22 right (i.e. in the aboriginal community) has  23 progressed involves the study of the history of  24 the particular community and its usages in each  25 case.  Abstract principles fashioned a priori  26 are of but little assistance, and are as often  27 as not misleading."  28  29 It is alleged by the Plaintiffs throughout their  30 Written Argument that the nature of their rights to  31 land are possessory in the "title" sense of that word.  32 It is submitted that a claim to "posssessory  33 title" is too broad and not supported by the decided  34 cases.  Aboriginal rights, even taken in the  35 aggregate, relate to harvesting activities and a way  36 of life, not to title to land (possessory or  37 otherwise) in the common law sense.  While reference  38 is made in some of the cases to "aboriginal title",  39 the nomenclature, it is submitted, is misleading.  40 Those unfamiliar with the concept may be tempted to  41 drop the qualifying word "aboriginal" and treat the  42 word "title" as carrying its usual meaning in the  43 Canadian land law.  But to do so is not necessarily a  44 benefit to aboriginal people.  The more broadly one  45 defines an aboriginal right, the more likely it is to  46 be found clearly to have been extinguished.  Lord  47 Sumner made this point in In Re Southern Rhodesia.  He 28707  Submissions by Ms. Koenigsberg  1 said:  2  3 "According to the argument the natives before  4 1893 were owners of the whole of these vast  5 regions in such a sense that, without their  6 permission or that of their King and trustee,  7 no traveller, still less a settler, could so  8 much as enter without committing a trespass.  9 If so, the maintenance of their rights was  10 fatally inconsistent with white settlement of  11 the country, and yet white settlement was the  12 object of the whole forward movement, pioneered  13 by the Company and controlled by the Crown, and  14 that object was successfully acomplished, with  15 the result that the aboriginal system gave  16 place to another prescribed by the Order in  17 Council."  18  19 In Baker Lake at page 577, Mr. Justice Mahoney was  20 able to hold that aboriginal rights had not been  21 extinguished because he concluded that aboriginal  22 rights are not property rights (possessory or  23 otherwise).  24 As noted above, aboriginal people are as free as  25 any other persons in modern Canadian society to  26 acquire rights and assets according to the ordinary  27 legal rules applicable to everyone regardless of  28 racial origin.  Insofar as special rights are claimed  29 by virtue of aboriginality, however, it is submitted  30 that such rights are restricted to the traditional  31 uses made of resources in the land claim area in the  32 aboriginal economy.  33 The Royal Proclamation of 1763 itself, much relied  34 upon by the Plaintiffs, reserves the land "for their  35 hunting grounds".  In R. v. Tennisco, Mr. Justice  36 Griffiths held that "a broad and liberal  37 interpretation" of the Royal Proclamation of 1763  38 would interpret "hunting grounds" as including the  39 right to fish.  He states at page 102:  40  41 "Counsel for the Crown stressed that the  42 Proclamation referred only to 'hunting grounds'  43 and did not confer upon the Indians the fishing  44 rights that are claimed here.  In my view, the  45 Proclamation in that respect should be given a  46 broad and liberal interpretation and it is  47 clear that it was intended to confer on the 2870?  Submissions by Ms. Koenigsberg  1 Indians the rights to obtain both game and fish  2 on the lands in question."  3  4 "Aboriginal rights" are, by judicial definition,  5 rights traditionally practiced in the aboriginal  6 economy by the ancestors of the present claimants.  As  7 such, in our submission, they are limited  8 (i)    to the resources historically exploited in the  9 geographic area under consideration,  10 (ii)   by the ancestors of the people claiming the  11 "aboriginal" right to continue doing so,  12 (iii)  and to a level or degree reasonably  13 corresponding to the level of historical  14 exploitation.  15 This limitation is consistent with the comment of  16 Mr. Justice Dickson in R. v. Kruger and Manuel where  17 at page 109 he says:  18  19 "Claims to aboriginal title are woven with  20 history, legend, politics and moral  21 obligations.  If the claim of any Band in  22 respect of any particular land is to be decided  23 as a justiciable issue and not a political  24 issue, it should be so considered on the facts  25 pertinent to that Band and to that land, and  26 not on any global basis."  27  28 Such an interpretation would also conform to the  29 sense of "aboriginal rights" reflected in Judson's  30 definition in Calder much quoted, the right "to  31 continue to live on their lands as their forefathers  32 had lived..."  33 To the same effect is the observation of Mr.  34 Justice Mahoney, and I have already read that several  35 times.  36 At paragraph 40.  The B.C. policy towards Indians  37 as stated and implemented by Douglas in the 1860s and  38 in the claim area by O'Reilly and, I should say,  39 Vowell (ph.) is a further reflection that actual (at  40 contact) use and occupation forms the basis for  41 defining the scope of aboriginal rights.  And it is  42 not there but it should say where it says O'Reilly,  43 that would be in the 1890s.  44 As stated by Douglas at Cayoosh in 1860, and  45 that's Exhibit 1056-9, it is also several other  46 exhibits.  And I would take you just over to the  47 second paragraph: 28709  Submissions by Ms. Koenigsberg  1  2 "I also explained to them..."  3  4 being the Indians:  5  6 "... that the magistrates ..."  7  8 THE COURT:  Where is that?  9 MS. KOENIGSBERG:  The second paragraph.  10 THE COURT:  Yes, you're right.  11 MS. KOENIGSBERG:  12  13 "...magistrates had instructions to stake out,  14 and reserve for their use and benefit, all  15 their occupied village sites and cultivated  16 fields and as much land in the vicinity of each  17 as they could till, or was required for their  18 support; and that they might freely exercise  19 and enjoy the rights of fishing the lakes and  20 rivers, and of hunting over all unoccupied  21 Crown lands in the colony; and that on their  22 becoming registered free miners they might dig  23 and search for gold, and hold mining claims on  24 the same terms precisely as other miners:  in  25 short, I strove to make them conscious that  26 they were recognized members of the  27 commonwealth, and that by good conduct they  28 would acquire a certain status, and become  29 respectable members of society.  They were  30 delighted with the idea..."  31  32 et cetera.  33 Just pause there to note that the conjunction of  34 the "traditional activities" that Douglas is  35 discussing and that other access to other rights that  36 have to do with land and exploitation are available to  37 Indians on the same basis as they are other citizens.  38 O'Reilly at Kitwanga, October 1, 1891, this is  39 from one of the minutes of meetings for the allotment  40 of reserve.  41  42 "... I am commissioned by the two governments  43 to allot lands that may be neccessary such as  44 gardens, timber, lands, village sites or  45 fisheries, and I want your spokesman to point  46 out these places.  It is not necessary to  47 define every little fishery, a law applies to 28710  Submissions by Ms. Koenigsberg  1 preventing whites from fishing with nets in the  2 river.  The fact of making reserves does not  3 interfere with the rights you have always  4 enjoyed to hunt or gather berries on the  5 mountains.  Until the reserves are laid out the  6 government has refused to grant preemptions to  7 white men.  After the reserves..."  8  9 I think that is:  10  11 "...are made the lands outside will be thrown  12 open to settlers.  If anyone should trespass on  13 your land you should go to the agent who will  14 right you.  I now wish you to tell me where  15 your gardens, timber and houses are."  16  17 Again, a reference to traditional pursuits are being  18 dealt with in one way.  And the lands are going to be  19 thrown open to settlement.  20 Paragraph 41.  All of this indicates, in our  21 submission, a consistent view adopted by both the  22 Courts and the Imperial Parliament since at least 1763  23 that the aboriginal rights in Canada relate to  24 aboriginal uses and not to other uses to which the  25 renewable and non-renewable resources of the area  26 could be put.  27 This does not mean, of course, that the practices  28 or methods used by aboriginal people in resource  29 exploitation are forever frozen at 1820, or any other  30 date either in the context of treaty rights or  31 aboriginal rights.  In Simon v. The Queen, Mr. Justice  32 Dickson or Chief Justice Dickson said of the MicMac  33 Treaty of 1752 there under consideration:  34  35 "First of all, I do not read the phrase 'as  36 usual' as referring to the types of weapons to  37 be used by the MicMac and limiting them to  38 those used in 1752.  Any such construction  39 would place upon the ability of the MicMac to  40 hunt an unnecessary and artificial constraint  41 out of keeping with the principle that Indian  42 treaties should be liberally construed.  43 Indeed, the inclusion of the phrase 'as usual'  44 appears to reflect a concern that the right to  45 hunt be interpreted in a flexible way that is  46 sensitive to the evolution of changes in normal  47 hunting practices.  The phrase thereby ensures 28711  Submissions by Ms. Koenigsberg  1 that the Treaty will be an effective source of  2 protection of hunting rights."  3  4 In my submission, this does not transform hunting  5 rights into logging rights.  6 The Robinson-Huron Treaty of 1850, provided that  7 the Indians are to have:  8  9 "...the full and free privilege to hunt over the  10 territory now ceded by them, and to fish in the  11 waters thereof as they have heretofore been in  12 the habit of doing."  13  14 This provision was given a "liberal  15 interpretation" by the Federal Court in Pawis v. The  16 Queen.  At page 27:  17  18 "...the expression, as I understand it, does not  19 refer to the methods used but to the purpose  20 for which the activity was carried on.  It  21 refers to the extent of the hunting and  22 fishing.  The right is defined by reference to  23 what the tribes had theretofore been in the  24 habit of doing.  What that may have been may be  25 lost in obscurity, but it is nevertheless the  26 extent of the right.  The words have nothing to  27 do with the manner of fishing.  Such  28 interpretation, it seems to me, is the most  29 reasonable once since any other would have the  30 effect of limiting the Indians, in the exercise  31 of their privilege, to the means of fishing and  32 hunting that were theirs in 1850."  33  34 This definition, it is submitted, conforms to the  35 purposive test recommended in Sparrow.  In analyzing  36 the scope of the Musqueam right to fish, the Court  37 said this at page 17 of the judgment:  38  39 "The scope of the existing Musqueam right to  40 fish must now be delineated.  The  41 anthropological evidence relied on to establish  42 the existence of the right suggests that, for  43 the Musqueam, the salmon fishery has always  44 constituted an integral part of their  45 distinctive culture.  Its significant role  46 involved not only consumption for subsistence  47 purposes, but also consumption of salmon on 28712  Submissions by Ms. Koenigsberg  1 ceremonial and social occasions.  The Musqueam  2 have always fished for reasons connected to  3 their cultural and physical survival.  As we  4 stated earlier, the right to do so may be  5 exercised in a contemporary manner."  6  7 In my submission, what the court is there  8 discussing is that there is an evolution of the right  9 itself so that it can be exercised in a contemporary  10 manner, but it does not transform the right into a  11 non -- with no relationship to the traditional uses.  12 When that court talks about not accepting the frozen  13 rights theory as discussed by Professor Slattery, in  14 my submission they are very clearly talking about  15 something different than the definition of the right.  16 They are talking about in relation to Section 35, in  17 April of 1982, what is the nature of the right that is  18 entrenched or is affected by Section 35, and in that  19 sense they said you don't freeze it in relation to all  20 of the regulations or the Government impact on that  21 right.  At that time to do so is to end up with a very  22 odd patch-work of rights -- of aboriginal rights with  23 different regulations attached to them arbitrarily in  24 1982.  25 We then go on at paragraph 46.  While the Prairie  26 Natural Resource Transfer Agreements, taken into the  27 Constitution Act of 1930 referred to, expressly limit  28 Indians rights to the purpose of obtaining food, the  29 courts in the interpretation of these provisions have  30 struck a balance, in our submission, between the  31 purpose of exploitation and the method of exploitation  32 that, it is submitted, can apply by analogy to the  33 exercise of aboriginal rights.  34 The majority in Horseman said at page 15 of that  35 unreported judgment:  36  37 "This effect of para. 12 of the Agreement was  38 also recognized by Dickson J., as he then was,  39 in Myran v. The Queen."  40  41 And he quotes from that case:  42  43 "I think it is clear from Prince and Myran that  44 an Indian of the Province is free to hunt or  45 trap game in such numbers, at such times of the  46 year, by such means or methods and with such  47 contrivances, as he may wish, provided he is 28713  Submissions by Ms. Koenigsberg  1 doing so in order to obtain food for his own  2 use and on unoccupied Crown lands or other  3 lands to which he may have a right of access."  4  5 A similar restriction to historical levels of  6 exploitation is also evident in Simon v. the Queen,  7 and we have discussed that earlier.  8 Such an interpretation would also be consistent  9 with the United States jurisprudence.  Cohen in the  10 Handbook of Federal Indian Law states:  11  12 "The scope of reserved Indian hunting, fishing,  13 trapping and gathering rights that have been  14 recognized by the courts is very broad,  15 virtually as broad as the exercise of those  16 rights by the Indians prior to their settlement  17 on reservations.  18 A purpose of preserving Indian hunting,  19 fishing, and gathering rights and treaties,  20 statutes and executive orders was to enable the  21 Indians to continue utilizing game, fish, and  22 plant resources in the lands and waters covered  23 by the documents, as a means of assuring them  24 self-sufficiency.  Accordingly, courts  25 interpret such rights expansively, following  26 judicial cannons of construction applicable to  27 Indian law cases.  28 ... where Indians had a history of adopting new  29 methods of pursuing and capturing fish, they  30 will not now be limited to methods used at the  31 time the treaty was signed, just as non-Indians  32 are not so limited.  Indians may employ modern  33 boats, nets, and other techniques in the  34 exercise of treaty-reserved rights."  35  36 The same result, in our submission, would follow  37 whether the Gitksan and Wet'suwet'en may pursue  38 hunting, fishing and other traditional activities as a  39 matter of treaty rights, or aboriginal rights arising  40 at common law.  41 And I just stop there to address the argument  42 which was raised by the Plaintiffs in response to what  43 they perceived as the frozen rights theory being  44 advanced by the Crown which I have indeed advanced in  45 the form of which you see it or have heard it.  And I  46 say that the answer to my friend's question, that to  47 put limits on aboriginal rights that are recognized is 28714  Submissions by Ms. Koenigsberg  1 to confine the Indians to some traditional way of life  2 and, in my submission, the full answer to that is that  3 Indians, along with all other citizens of this  4 country, have the right to acquire property in any  5 form and they have special rights, and those are the  6 rights that I have delineated.  Those rights, in my  7 submission, may be used as a base from which to  8 acquire other rights or they may be used --  9 THE COURT:  How would you see that?  10 MS. KOENIGSBERG:  Leasing a reserve, part of a reserve to  11 generate income, earning money to -- in the exercise  12 of, if there was a trapping right, and buying a  13 tractor and buying some land and doing whatever you  14 want with it.  15 In my submission, the special rights do form a  16 base, and I think in my submission it's perhaps  17 important historically to look back at what Douglas  18 was invisaging and attempting to provide for in  19 1860 -- in 1859 and 1860, when he spoke at Cayoosh,  20 but the object of the exercise of the Crown policy has  21 brought in, was that reserves of those occupied sites  22 would form a base from which Indian peoples would be  23 able to participate in the white or European economy  24 as it was coming, and that increasingly their reliance  25 on subsistence activities of hunting, trapping, and  26 fishing would decrease and their need for the use of  27 large tracts of land would decrease as employment  28 opportunities became available and, in my submission,  29 that is exactly what happened in the claim area, and  30 all of the evidence that you have heard, my lord, and  31 have been interpreted if you will brought together and  32 in particular in the last few days of evidence poses  33 that picture of a people who, in the early part of  34 this century, were highly adaptable and were  35 successful in that transformation of taking advantage  36 of alternative economic activities from their base and  37 decreasing their reliance on subsistence activities --  38 traditional subsistence activities.  And we don't say  39 therefore that they have abandoned their aboriginal  4 0 rights even though in fact they may have abandoned  41 their aboriginal rights, but in fact it is no  42 coincidence that Douglas' vision as it was brought  43 about through Crown policy and implemented in this  44 province conforms in great part to the Canadian  45 accepted jurisprudence of aboriginal -- of recognized  46 aboriginal rights and those which a court can enforce.  47 I am going to move on now to a completely 28715  Submissions by Ms. Koenigsberg  1 different topic and I wonder if it would be  2 appropriate to break at this time for lunch.  3 THE COURT:  Yes, all right.  Two o'clock please.  How long do  4 you want to go this afternoon?  5 MS. KOENIGSBERG:  No later than four.  6 THE COURT:  No later than four.  All right, that's very  7 acceptable.  8 THE REGISTRAR:  Order in court.  Court stands adjourned until  9 two o'clock.  10  11 (PROCEEDINGS ADJOURNED AT 12:25 p.m.)  12  13 I hereby certify the foregoing to  14 be a true and accurate transcript  15 of the proceedings transcribed to  16 the best of my skill and ability.  17  18  19  20  21  22 Tannis DeFoe,  23 Official Reporter,  24 UNITED REPORTING SERVICE LTD.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28716  Submission by Ms. Koenigsberg  1 (PROCEEDINGS RECONVENED AT 2:00 P.M. )  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Koenigsberg.  5 MS. KOENIGSBERG:  Yes, my lord, the next topic is in Part V  6 dealing with the general law on extinguishment.  7 THE COURT:  Is this a replacement?  8 MS. KOENIGSBERG:  Yes, my lord.  And I should say, my lord, that  9 I'm going about twice as fast as I anticipated.  10 THE COURT:  Oh.  11 MS. KOENIGSBERG:  Beginning on this argument of extinguishment,  12 I thought I'd be doing this tomorrow morning.  13 THE COURT:  Well, if you're that far ahead, let me go back to  14 this morning.  15 MS. KOENIGSBERG:  Be happy to.  16 THE COURT:  Do you have a suggestion of what the order of the  17 court should be on the aboriginal rights that you say  18 should be directed assuming that -- and I'm not sure  19 what you're going to be saying on extinguishment.  I  20 think I know what you're going to say, but let's  21 assume that the plaintiff is successful in all its  22 arguments related to usufructuary rights.  Not  23 ownership or jurisdiction, but that it has these kinds  24 of rights continuing.  25 MS. KOENIGSBERG:  Yes.  2 6 THE COURT:  What do you say they comprise?  27 MS. KOENIGSBERG:  Well, let me speak to that this way.  I would  28 like to have the opportunity, perhaps overnight, to  29 come up with a form of order, but dealing with it  30 generally --  31 THE COURT:  Yes.  32 MS. KOENIGSBERG:  — it would seem to me that ultimately we are  33 looking at a form of order that a Gitksan in -- by  34 band, let's say, as the successor to the village  35 grouping are the holders of certain kinds of  36 aboriginal rights as still there that are  37 unextinguished, and if they are diminished in some  38 way, in their diminished form, and that it's -- the  39 hard part of the order, my lord, is over exactly what  40 territory.  Now, it's obviously within the claim area.  41 Where in the claim area, it seems to me, is the  42 subject of two distinct --  43 THE COURT:  I'm not worried about the territorial aspect of it  44 because I know that's a separate mind boggling  45 problem, but let's assume that we can identify the X  46 square miles or whatever it is to which these rights  47 apply or X thousands or tens of thousands of square 28717  Submission by Ms. Koenigsberg  1 miles.  2 MS. KOENIGSBERG:  I think it's a declaration that they have  3 certain enumerated rights within certain -- with  4 certain characteristics, and it's of that form.  5 THE COURT:  Surely they have to be specified.  6 MS. KOENIGSBERG:  I think your lordship will have to specify  7 them.  I think we will be asking you to specify them.  8 But really the extinguishment, abandonment, and  9 diminution argument form, in a sense, the basis of the  10 form of those kinds of declarations because that will  11 form where or at least how one determines where the  12 right may -- the rights that are outstanding may be  13 exercised.  14 THE COURT:  And going backwards a bit from what I said a moment  15 ago, that assuming the plaintiffs succeed in all  16 issues except territoriality, do you say that those  17 rights accrue to all the members of the band  18 regardless of their particular ancestry?  19 MS. KOENIGSBERG:  Yes.  20 THE COURT:  The band holds those rights for all its present  21 members regardless of where their grandparents -- when  22 their grandparents came to the territory?  23 MS. KOENIGSBERG:  Yes, my lord.  The bands are successors to —  24 I mean, I think it both historically and as a matter  25 of the way the Indian Act has happened to be applied  26 that the bands form as close as we can get to a true  27 historic -- a reflection of historical reality that  28 the ancestors of the present band members -- and by  29 band I don't know that we need to confine it, and  30 we'll think about that, but I don't know if you need  31 to confine it to the band member list as defined by  32 the Indian Act, but rather the bands tend to be a  33 reflection of those persons who, in fact, are the  34 descendants of the people who occupied those villages.  35 THE COURT:  But if an aboriginal person decided in 1910 to move  36 from Prince George to Gitanmaax and remained there the  37 rest of his life and married a Gitksan woman, let's  38 say, and had children, or let's say married a Nishga  39 woman and had children, you say those -- the bands  40 would hold those aboriginal rights for those  41 descendants of those recent arrivees?  42 MS. KOENIGSBERG:  I wouldn't like to be held to an answer to  43 that question at the moment.  4 4 THE COURT:  Yes.  45 MS. KOENIGSBERG:  I would like an opportunity to think about  46 that.  47 THE COURT:  All right. 2871?  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  If we want to get down to how precisely we  2 would say you need to define it, frankly, when -- the  3 only other case I'm aware of that's dealt with this  4 problem is the Baker Lake case.  5 THE COURT:  Yes.  6 MS. KOENIGSBERG:  And it's simply — it was not an issue.  There  7 were the people who lived in Baker Lake exclusively  8 because the Inuit people did not live out on the land  9 except as an experiment.  10 THE COURT:  Baker Lake was the only town in sight.  11 MS. KOENIGSBERG:  It was the only anything in sight.  12 THE COURT:  Yes.  13 MS. KOENIGSBERG:  And it never dealt with the problem of, well,  14 suppose that somebody comes who has some, for want of  15 a better word, hereditary connection --  16 THE COURT:  Yes.  17 MS. KOENIGSBERG:  — to the Inuit of Baker Lake and deal with  18 whether they can exercise the rights.  Frankly, it  19 just wouldn't be an issue that I can imagine anybody  20 being particularly concerned with.  21 THE COURT:  And a married -- a non-Indian woman who married a  22 band member, if she becomes a member of the band, she  23 would have these aboriginal rights?  24 MS. KOENIGSBERG:  Well, if she could become a member of the  25 band.  2 6 THE COURT:  Yes.  27 MS. KOENIGSBERG:  We will be glad to address that issue.  2 8 THE COURT:  All right.  And do you say that the bands would have  29 to be added to the plaintiffs?  30 MS. KOENIGSBERG:  I don't know why they would have to be.  31 THE COURT:  How can I make a declaration in their favour if  32 they're not parties?  33 MS. KOENIGSBERG:  Well, this is one of the very big problems  34 posed by the pleadings.  It seems to me that all of  35 the parties are before your lordship.  Their form is  36 not before your lordship.  It's not pleaded in the way  37 in which we are suggesting the evidence drives you.  38 THE COURT:  Well, I'm sorry, do you think the bands are before  39 me?  40 MS. KOENIGSBERG:  The bands as an entity are not before you, but  41 the members are.  The persons who make up this group  42 are before you.  4 3 THE COURT:  Yes.  44 MS. KOENIGSBERG:  Their form as an entity, as holder of the  45 rights, have not been put before you as parties in  46 that sense.  4 7 THE COURT:  Yes. 28719  Submission by Ms. Koenigsberg  1 MS. KOENIGSBERG:  And again I think we could try and address you  2 on that issue.  3 THE COURT:  All right.  I will be grateful for any assistance  4 that I can obtain in that direction, and perhaps the  5 plaintiffs might like to consider whether they might  6 give some thought to those questions as well --  7 MS. KOENIGSBERG:  Yes.  8 THE COURT:  -- sometime during the course of their brief reply.  9 All right.  Thank you.  10 MS. KOENIGSBERG:  Okay.  And I was just mentioning that we've  11 moved along quite quickly this morning through the  12 material, and I'm dealing with the general law on  13 extinguishment.  There are really two parts to this  14 argument, and I would propose that I will take however  15 long it takes me to get to page 8 and we would then  16 stop and I will complete this argument tomorrow  17 morning.  We could take all afternoon just getting to  18 page 8, but I'm not able --  19 THE COURT:  Yes.  20 MS. KOENIGSBERG:  — in the least to predict it at this point I  21 was so badly off.  22 Beginning on page -- or Part V, page 1, paragraph  23 1, the plaintiffs argue that "extinguishment of  24 aboriginal title could only be effected by purchase of  25 the Plaintiffs' territory with their consent.  26 Alternatively, extinguishment might be effected by  27 express federal legislation demonstrating a clear and  28 plain intention to extinguish the Plaintiffs' title to  29 their lands."  And I give you the cite for that  30 position by the plaintiffs.  31 This defendant says that neither alternative means  32 of extinguishment suggested by the plaintiffs  33 represents the law of Canada, including the most  34 recent pronouncements of the Supreme Court of Canada  35 in Horseman, Sioui or Sparrow.  36 It is submitted that the extinguishment of  37 aboriginal rights could be effected by any means by  38 which the "sovereign intent" was authoritatively  39 manifested.  In United States and Santa Fe, which was  40 cited with approval by Mr. Justice Hall in Calder as  41 "the leading modern judgment on the question of  42 aboriginal rights," the United States Supreme Court  43 held that extinguishment occurred "by the exercise of  44 complete dominion adverse to the right of occupancy."  45 And that quote, of course, has been translated into a  46 number of different phrases having a variety of  47 meanings. 28720  Submission by Ms. Koenigsberg  1 Mr. Justice Hall in Calder also relied on the  2 Lipan and United States case.  At page 492 of that  3 decision, as quoted in Calder:  4  5 "Extinguishment can take several forms; it can  6 be effected 'by treaty, by the sword, by  7 purchase, by the exercise of complete dominion  8 adverse to the right of occupancy, or  9 otherwise...  10  11 ...While the selection of a means is a  12 governmental prerogative, the actual act (or  13 acts) of extinguishment must be plain and  14 unambiguous."  15  16 Just stopping there for a moment, my lord, it is  17 important, in our submission, that these are the two  18 decisions or these are two of the decisions relied on  19 by Mr. Justice Hall.  They lead one to part of how it  20 is, in our submission, you interpret the test as it's  21 been now propounded by the Supreme Court of Canada in  22 Sparrow as the Hall test of "clear and plain."  23 The recent decisions of the Supreme Court of  24 Canada in Horseman and Sparrow support this  25 proposition.  Horseman dealt with a modification to a  26 treaty, which modification unilaterally and without  27 consultation with the Indians, extinguished the treaty  28 right to hunt for commercial purposes.  And we might  29 go to that decision, which is in tab 3 of the  30 authorities, and beginning at page 15 of the decision  31 of Mr. Justice Cory.  32 THE COURT:  15?  33 MS. KOENIGSBERG:  15.  34 THE COURT:  Yes.  Okay.  35 MS. KOENIGSBERG:  He's discussed the effect of the transfer  36 agreement on the treaty right, and he says this in  37 about the middle of the page:  38  39 "It is thus apparent that although the  40 Transfer Agreement modified the Treaty rights  41 as to hunting, there was a very real quid pro  42 quo which extended the Native rights to hunt  43 for food.  In addition, although it might well  44 be politically and morally unacceptable in  45 today's climate to take such a step as that set  46 out in the 1930 Agreement without consultation  47 with and concurrence of the Native peoples 28721  Submission by Ms. Koenigsberg  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  affected, nonetheless the power of the Federal  Government to unilaterally make such a  modification is unquestioned and has not been  challenged in this case."  And going on over --  THE COURT:  I'm sorry, I don't find that on page 15.  MS. KOENIGSBERG:  15?  THE COURT:  Yes.  MS. KOENIGSBERG:  I'm sorry, are you looking at the judgment of  Mr. Justice Cory?  There are two judgments.  THE COURT:  Oh, I'm sorry.  Well, I'm looking at page 15.  Is  there more than one page 15?  MS. KOENIGSBERG:  Unfortunately, there are two pages 15.  It's  the first page 15, assuming that it got put into  your --  THE COURT:  Yes.  All right.  Where did you start?  MS. KOENIGSBERG:  "It is thus apparent..."  THE COURT:  Oh, yes.  MS. KOENIGSBERG:  About the middle of the page.  THE COURT:  Where did you read down to?  MS. KOENIGSBERG:  Oh, it bears reading again, my lord.  THE COURT:  All right.  Thank you.  MS. KOENIGSBERG:  "It is thus apparent that although the  Transfer Agreement modified the Treaty rights  as to hunting, there was a very real quid pro  quo which extended the Native rights to hunt  for food.  In addition, although it might well  be politically and morally unacceptable in  today's climate to take such a step as that set  out in the 1930 Agreement without consultation  with and concurrence of the Native peoples  affected, nonetheless the power of the Federal  Government to unilaterally make such a  modification is unquestioned and has not been  challenged in this case."  THE COURT:  That surely isn't within the framework of the  aboriginal rights that you talked about this morning?  MS. KOENIGSBERG:  Well, my lord, it clearly is.  THE COURT:  He's saying that forget about all the authorities,  that the federal government has the right to tinker  with the rights.  MS. KOENIGSBERG:  That's correct in this context.  THE COURT:  I don't intend to use the word "tinkering" in a 28722  Submission by Ms. Koenigsberg  1 pejorative sense, but it seems to me that if he's  2 saying that as long as the quid pro quo or if the  3 consideration is reasonable, it can -- it's within the  4 power of the federal government to do it.  5 MS. KOENIGSBERG:  Yes, he is saying it is within the power of  6 the federal government to do it, and there is nothing,  7 including in Sparrow, that says that the federal  8 government can't do it.  9 THE COURT:  He's speaking for the majority?  10 MS. KOENIGSBERG:  Yes, he is.  And he says it again over on page  11 17.  12  13 "In summary, the hunting rights granted by  14 the,"  15  16 this is the first full paragraph,  17  18 "by the 1899 Treaty were not unlimited.  Rather  19 they were subject to governmental regulation.  20 The 1930 Agreement widened the hunting  21 territory and the means by which the Indians  22 could hunt for food thus providing a real quid  23 pro quo for the reduction in the right to hunt  24 for purposes of commerce granted by the Treaty  25 of 1899.  The right of the Federal Government  26 to act unilaterally in that manner is  27 unquestioned.  I therefore conclude that the  28 1930 Transfer Agreement did alter the nature of  29 the hunting rights originally guaranteed by  30 Treaty 8."  31  32 THE COURT:  I suppose to be legalistic and look for an  33 explanation we'd have to go to the Treaty of 1899 to  34 say that that's what extinguished or made possible the  35 tinkering with these rights?  36 MS. KOENIGSBERG:  Yes, my lord, I do think so.  I think that  37 there are two ways of looking at it.  One is what I  38 would call a purely legal argument of enforceable  39 rights and obligations, and it is clear on the  40 authority of Horseman, which is, of course, a  41 pronouncement of last month of the Supreme Court of  42 Canada, that the federal government, acting  43 constitutionally properly, may unilaterally effect by  44 diminishing or extinguishing aboriginal rights, in  45 this case treaty rights.  Now, there's a lot of -- you  46 look at the treaty, and the treaty has lots of  47 limitations on the treaty rights within -- it's in the 28723  Submission by Ms. Koenigsberg  1 nature of the treaty rights.  2 THE COURT:  It also included a surrender of aboriginal rights,  3 did it not?  4 MS. KOENIGSBERG:  Yes.  They could have been so characterized,  5 yes.  6 THE COURT:  All right.  7 MS. KOENIGSBERG:  And what this is authority for, in my  8 submission, is that there can be unilateral without --  9 extinguishment without consent.  10 MR. JACKSON:  My friend may be dealing with this, but perhaps in  11 the course of her argument she could address the  12 statement by the Supreme Court in Sioui which is  13 completely to the contrary of that proposition.  14 MS. KOENIGSBERG:  Well, I'm sure my friend will have a great  15 opportunity to reply to all of this, and I am dealing  16 with Sioui in some difficulty -- in some detail.  And,  17 in my submission, it's hard to make -- to be entirely  18 consistent in Sioui.  One finds a directly contrary  19 comment and support for the position in Horseman, and  20 we'll get to that.  21 Horseman, as we said -- oh, I've already done  22 that.  Next page.  In Calder Mr. Justice Hall for  23 himself, Laskin and Spence at page 391 said that the  24 sovereign intention to extinguish must be made "clear  25 and plain."  The judgment of Judson J. for himself,  26 Martland and Ritchie at page 337 required  27 "inconsistency" between the claimed Indian rights and  28 the expression of sovereign intent but without the  29 adjectival insistence upon "clear and plain" language.  30 Judson J. said at page 337, for instance:  31  32 "...the establishment of the railway belt under  33 the Terms of Union is inconsistent with the  34 recognition and continued existence of Indian  35 title."  36  37 Neither Judson J. nor Mr. Justice Hall, however,  38 required the extinguishing language contained in the  39 sovereign act to contain an express reference to  40 Indian rights.  This was affirmed in the context of  41 legislative extinguishment as it was accomplished in  42 the Hamlet of Baker Lake case.  43  44 "I cannot accept the plaintiffs' argument that  45 Parliament's intention to extinguish an  46 aboriginal title must be set forth explicitly  47 in the pertinent legislation.  I do not agree 28724  Submission by Ms. Koenigsberg  1 that Mr. Justice Hall went that far.  Once a  2 statute has been validly enacted, it must be  3 given effect.  If its necessary effect is to  4 abridge or entirely abrogate a common law  5 right, then that is the effect that the Courts  6 must give it.  That is as true of an aboriginal  7 title as of any other common law right."  8  9 In Sparrow the Supreme Court of Canada discussed  10 the test for extinguishment in relation to non-treaty  11 rights at pages 14 through 16 of the unreported  12 judgment, and I think it would be helpful if we went  13 to that judgment and to those pages to get the full  14 flavour of what they're talking about.  Beginning on  15 page 14 -- and I'll just recall to your lordship what  16 I'm sure you're quite aware of.  The claimed  17 extinguishing acts of the sovereign were a set of  18 regulations, the fisheries regulations, which, in  19 fact, provided for the food fishery, the maintenance  20 under certain regulations of the food fishery.  21 Dealing down at the bottom of -- beginning at the  22 bottom of page 14, the court said this:  23  24 "It is this progressive restriction and  25 detailed regulation of the fisheries which,  26 respondent's counsel maintained, have had the  27 effect of extinguishing any aboriginal right to  28 fish.  The extinguishment need not be express,  29 he argued, but may take place where the  30 sovereign authority is exercised in a manner  31 'necessarily inconsistent' with the continued  32 enjoyment of aboriginal rights.  For this  33 proposition, he particularly relied on St.  34 Catherine's Milling ...Calder... Baker  35 Lake...and...Bear Island...The consent to its  36 extinguishment before the Constitution Act,  37 1982 was not required; the intent of the  38 sovereign could be effected not only by statute  39 but by valid regulations.  Here, in his view,  40 the regulations had entirely displaced any  41 aboriginal right.  There is, he submitted, a  42 fundamental inconsistency between the communal  43 right to fish embodied in the aboriginal right,  44 and fishing under a special licence or permit  45 issued to individual Indians (as was the case  46 until 1977) in the discretion of the Minister  47 and subject to terms and conditions which, if 28725  Submission by Ms. Koenigsberg  1 breached, may result in cancellation of the  2 licence.  The Fisheries Act and its regulations  3 were, he argued, intended to constitute a  4 complete Code inconsistent with the continued  5 existence of an aboriginal right.  6  7 At bottom, the respondent's argument  8 confuses regulation with extinguishment.  That  9 the right is controlled in great detail by the  10 regulations does not mean that the right is  11 thereby extinguished.  The distinction to be  12 drawn was carefully explained, in the context  13 of federalism, in the first Fisheries case,  14 Attorney-General for Canada v. Attorney-General  15 for Ontario [1898]...There, the Privy Council  16 had to deal with the interrelationship between,  17 on the one hand, provincial property, which by  18 s. 109 of the Constitution Act...is vested in  19 the provinces (and so falls to be regulated  20 qua property exclusively by the provinces) and,  21 on the other hand, the federal power to  22 legislate respecting the fisheries thereon  23 under s. 91(12) of that Act.  The Privy Council  24 said the following in relation to the federal  25 regulation...  26  27 ...the power to legislate in relation to  28 fisheries does necessarily to a certain  29 extent enable the Legislature so empowered  30 to affect proprietary rights.  An  31 enactment, for example, prescribing the  32 times of the year during which fishing is  33 to be allowed, or the instruments which may  34 be employed for the purpose (which it was  35 admitted the Dominion Legislature was  36 empowered to pass) might very seriously  37 touch the exercise of proprietary rights,  38 and the extent, character, and scope of  39 such legislation is left entirely to the  40 Dominion Legislature.  The suggestion that  41 the power might be abused so as to amount  42 to a practical confiscation of property  43 does not warrant the imposition by the  44 Courts of any limit upon the absolute power  45 of legislation conferred.  The supreme  46 legislative power in relation to any  47 subject-matter is always capable of abuse, 28726  Submission by Ms. Koenigsberg  1 but it is not to be assumed that it will be  2 improperly used; if it is, the only remedy  3 is an appeal to those by whom the  4 Legislature is elected.  5  6 In the context of aboriginal rights, it  7 could be argued that, before 1982, an  8 aboriginal right was automatically extinguished  9 to the extent that it was inconsistent with a  10 statute.  As Mahoney J. stated in Baker Lake...  11  12 Once a statute has been validly enacted, it  13 must be given effect.  If its necessary  14 effect is to abridge or entirely abrogate a  15 common law right, then that is the effect  16 that the courts must give it.  That is as  17 true of an aboriginal title as of any other  18 common law right."  19  20 And he also refers to the Bear Island case.  21  22 "That in Judson J.'s view was what had occurred  23 in Calder...where, as he saw it, a series of  24 statutes evinced a unity of intention to  25 exercise a sovereignty inconsistent with any  26 conflicting interest, including aboriginal  27 title.  But Hall J. in that case stated...that  28 'the onus of proving that the Sovereign  29 intended to extinguish the Indian title lies on  30 the respondent and that intention must be  31 "clear and plain"'...The test of extinguishment  32 to be adopted, in our opinion, is that the  33 Sovereign's intention must be clear and plain  34 if it is to extinguish an aboriginal right."  35  36 And then I think it's important to go to the next  37 paragraph, where he deals with the effect of that on  38 the Fisheries Act.  39  40 "There is nothing in the Fisheries Act or  41 its detailed regulations that demonstrates a  42 clear and plain intention to extinguish the  43 Indian aboriginal right to fish.  The fact that  44 express provision permitting the Indians to  45 fish for food may have applied to all Indians  46 and that for an extended period permits were  47 discretionary and issued on an individual 28727  Submission by Ms. Koenigsberg  1 rather than a communal basis in no way shows a  2 clear intention to extinguish.  These permits  3 were simply a manner of controlling the  4 fisheries, not defining underlying rights."  5  6 In our submission, by stating that the test for  7 extinguishment to be that "the Sovereign's intention  8 must be clear and plain" to accomplish extinguishment,  9 the court is placing a heavier onus on the party  10 alleging extinguishment than was apparent under the  11 test as it was expressed by Mr. Justice Judson in  12 Calder.  Where the test of "necessarily inconsistent,"  13 as applied by Mr. Justice Judson in Calder, left room  14 for ambiguity to be resolved against the interests of  15 the Indians, and I'm now at page 4, paragraph 8 --  16 THE COURT:  I'm sorry.  Just a minute.  Yes.  Thank you.  You're  17 at paragraph 8?  18 MS. KOENIGSBERG:  I'm at paragraph 8.  19 THE COURT:  Yes  20 MS. KOENIGSBERG:  Yes.  And I'm saying now what our submission  21 is what that test means.  And what it means, the  22 difference between "necessarily inconsistent" and  23 "clear and plain" in the context of the Sparrow  24 decision, the parts of it that I've just read to you,  25 is that where the test of "necessarily inconsistent"  26 left room for ambiguity to be resolved against the  27 interests of the Indians, "clear and plain" requires  28 any ambiguity to be resolved in favour of the Indian  29 interest.  30 It is submitted that the standard to be applied to  31 determine if there has been extinguishment of treaty  32 rights is higher than for unrecognized or common law  33 aboriginal rights.  It follows that where the Crown  34 has declared rights to exist and agreed to their  35 protection evidence of extinguishment of those rights  36 must be express and admitting of no doubt as to the  37 intent of the Crown.  An example of such "a clear and  38 plain" act in regard to treaty rights is found as  39 discussed in Horseman.  For a similar analysis see  4 0 Sioui.  And I'm going to come to Sioui in a moment and  41 suggest to your lordship that the test there in  42 relation to a treaty right and to determine whether it  43 still can be exercised is a test which lends itself  44 very nicely to the clear and plain -- to determine the  45 clear and plain intention of the Crown in relation to  46 the extinguishment of an aboriginal right.  47 It is equally clear that the extinguishment or, I 2872?  Submission by Ms. Koenigsberg  1 should say, diminution of unrecognized aboriginal  2 rights does not require express reference to  3 aboriginal rights in legislation although any intent  4 to extinguish by the sovereign must be similarly clear  5 and plain.  6 It is significant that the treaty rights  7 considered and interpreted in the Sioui case were of a  8 particularly undefined nature.  It was necessary for  9 the court to search the historical context in order to  10 define those rights.  Not only was the definition of  11 such rights determined with reference to the honour of  12 the Crown, but the very nature of a treaty as a  13 deliberate promise or contract involving the Crown  14 sets a very high standard to be met before a  15 diminution or extinguishment of any such rights can be  16 inferred.  17 And if we look at the Sioui case, and I think it's  18 page 50, your lordship may recall that the Sioui case  19 was dealing with a very, very non-specific document,  20 which was interpreted to be a treaty, and it was  21 interpreted to be a treaty because although it looked  22 a lot like a safe-conduct pass, it contained words to  23 the effect that the rites and customs of the Hurons  24 could be practised, and it had no territorial aspect  25 to it at all.  And, in fact, it was understood that  26 the Hurons had not historically occupied this part of  27 Quebec.  28 Now, the court in the Sioui case looked at the  29 treaty or the document and said, well, we have to  30 determine what the terms of this treaty are by looking  31 at the historical context, and there's quite a lengthy  32 discussion about extrinsic evidence and the use of  33 extrinsic evidence to determine that, and they looked  34 at the historical context, and on page 49, actually --  35 THE COURT:  Is there only one judgment?  36 MS. KOENIGSBERG:  Yes, I think so.  It's Mr. Justice Lamer on  37 behalf of the court.  Yes.  And they are the free  38 right -- the right to a free exercise of their  39 religious rites and customs.  And actually it's  40 summarized nicely at the top of page 47 of that  41 judgment.  42  43 "The treaty gives the Hurons the freedom to  44 carry on their customs and their religion.  No  45 mention is made in the treaty itself of the  46 territory over which these rights may be  47 exercised.  There is also no indication that 28729  Submission by Ms. Koenigsberg  1 the territory of what is now Jacques-Cartier  2 park was contemplated.  However, for a freedom  3 to have real value and meaning, it must be  4 possible to exercise it somewhere.  That does  5 not mean, despite the importance of the rights  6 concerned, that the Indians can exercise it  7 anywhere.  Our analysis will be confined to  8 setting the limits of the promise made in the  9 treaty, since the respondents have at no time  10 based their argument on the existence of  11 aboriginal rights protecting the activities  12 with which they are charged.  13  14 The respondents suggest that the treaty  15 gives them the right to carry on their customs  16 and religion in the territory of the park  17 because it is part of the territory frequented  18 by the Hurons in 1760, namely the area between  19 the Saguenay and the St-Maurice.  In their  20 submission, customs as they existed at the time  21 of the treaty and as they might reasonably be  22 expected to develop subsequently are what the  23 British Crown undertook to preserve and foster.  24  25 The appellant argued in the Court of Appeal  26 that the free exercise of the customs mentioned  27 in the document of September 5, 1760,"  28  29 which is the document which constitutes the treaty,  30  31 "has to be limited to the Lorette territory, a  32 territory of 40 arpents by 40 arpents."  33  34 I don't think that's very big.  35 MR. JACKSON:  I don't know what an arpent is.  36 MS. KOENIGSBERG:  I don't know what an arpent is either.  37  38 "In this Court, he argues that even if the  39 treaty covers the activities with which the  40 respondents are charged, these rights must be  41 exercised in accordance with the legislation  42 designed to protect users of the park and to  43 preserve it.  He further argues that, except as  44 regards the cutting of trees, the legislation  45 only affects the way in which the right can be  46 exercised, not the substance of the right.  47 This should be a sufficient basis for requiring 28730  Submission by Ms. Koenigsberg  1 the Hurons to observe the legislation.  In his  2 intervention the Attorney General of Canada  3 argues that the respondents' claim is  4 essentially a territorial one and that in order  5 to establish their rights, the respondents must  6 show a connection between the rights claimed  7 and their exercise in a given territory.  He is  8 of the view that the document in the present  9 case does not connect the freedom of exercise  10 of religion, customs and trade with the English  11 to any territory.  12  13 In my view, the treaty essentially has to  14 be interpreted by determining the intention of  15 the parties on the territorial question at the  16 time it was concluded.  It is not sufficient to  17 note that the treaty is silent on this point.  18 We must also undertake the task of interpreting  19 the treaty on the territorial question with the  20 same generous approach toward the Indians that  21 applied in considering earlier questions.  Now  22 as then, we must do our utmost to act in the  23 spirit of Simon."  24  25 That is a liberal and generous interpretation and the  26 honour of the Crown being at stake in the  27 interpretation of treaties.  28  29 "The historical context, which has been used  30 to demonstrate the existence of the treaty, may  31 equally assist us in interpreting the extent of  32 the rights contained in it.  As MacKinnon J.A.  33 said in Taylor and Williams...  34  35 Cases on Indian or aboriginal rights  36 can never be determined in a vacuum.  It is  37 of importance to consider the history and  38 oral traditions of the tribes concerned,  39 and the surrounding circumstances at the  40 time of the treaty, relied on by both  41 parties, in determining the treaty's  42 effect.  43  44 Before I again turn to history, the  45 problems raised by the territorial question  46 should be briefly stated."  47 28731  Submission by Ms. Koenigsberg  1 And I think these are very -- this is a very important  2 part of this judgment as it might be applicable or  3 analogously applicable to aboriginal rights at large.  4  5 "There are two rights in opposition here:  the  6 provincial Crown's right of ownership over the  7 territory of the park and the Hurons' right to  8 exercise their religion and ancestral customs  9 on this land.  The ownership right suggests  10 that ordinarily the Crown can do whatever it  11 likes with its land.  On the other hand, a very  12 special importance seems to attach to  13 territories traditionally frequented by the  14 Hurons so that their traditional religious  15 rites and ancestral customs will have their  16 full meaning.  Further, the Hurons are trying  17 to protect the possibility of carrying on these  18 rites and customs near Lorette on territory  19 which they feel is suited to such purposes.  20  21 Bisson J.A., for the majority of the Court  22 of Appeal, adopted the respondents' position  23 that the territory which is the subject of the  24 treaty is that frequented by the Hurons in  25 1760.  In that case one can only note that if  26 the rights of the Hurons are defined without  27 introducing any limiting factor, a vast area  28 would be subject to the rights recognized by  29 the treaty of September 5, 1760.  This could  30 mean that persons who moved into the area  31 frequented by the Hurons after 1760 may have  32 limited the rights resulting from the treaty by  33 making their exercise more difficult.  This  34 proposition might even lead one to suppose, a  35 priori, that the Hurons could cut down trees  36 and make fires on private property that had  37 been part of the territory frequented by them  38 at that time.  With respect, I feel that  39 adopting such a position would go beyond what  40 General Murray intended.  Even a generous  41 interpretation of the document, such as Bisson  42 J.A.'s interpretation, must be realistic and  43 reflect the intention of both parties, not just  44 that of the Hurons.  The Court must choose from  45 among the various possible interpretations of  46 the common intention the one which best  47 reconciles the Hurons' interests and those of 28732  Submission by Ms. Koenigsberg  1 the conqueror.  2  3 On the other hand, to accept the argument  4 that the parties intended to limit the scope of  5 the treaty to the Lorette territory would mean  6 introducing a very severe restriction that is  7 not justified by the wording of the document  8 since Lorette is mentioned only as a  9 destination for safe-conduct purposes.  Given  10 the nature of Indian religious rites and  11 especially Indian customs at the time, any  12 significant exercise of such rights would  13 require territory extending beyond Lorette.  14  15 I consider that both the first and the  16 second positions are unsatisfactory.  In my  17 view, neither one succeeds in deducing the  18 common intention of the parties from the  19 historical context.  The interpretation which I  20 think is called for when we give the historical  21 context its full meaning is that Murray and the  22 Hurons contemplated that the rights guaranteed  23 by the treaty could be exercised over the  24 entire territory frequented by the Hurons at  25 the time, so long as the carrying on of the  26 customs and rites is not incompatible with the  27 particular use made by the Crown of this  28 territory."  29  30 THE COURT:  What do you understand that to mean, the particular  31 use made by the Crown at that time or since?  32 MS. KOENIGSBERG:  Since.  33 THE COURT:  Ever since.  34 MS. KOENIGSBERG:  And I go on to — and I'm coming to that.  I  35 go on to attempt to summarize what it is that I say  36 the court is doing here, and it has two parts.  The  37 first is that it analyses the treaty right and its  38 nature.  And this paragraph that I've just read you,  39 although there are other paragraphs, essentially gives  40 that character.  It is, for want of another word, an  41 inherently diminishing right.  It was understood, as  42 is explained at great length in this judgment, that in  43 the historical context General Murray intended that  44 settlement was going to take place, and he did not  45 intend to grant any rights which would interfere with  46 that settlement.  And that is said -- I'll find the  47 passage.  He says that specifically. 28733  Submission by Ms. Koenigsberg  1 THE COURT:  But, of course, that's in the context of an inter  2 vivos agreement?  3 MS. KOENIGSBERG:  Yes, it is.  And not only that, one in which  4 the terms of the treaty are not written on a piece of  5 paper.  They are deduced from the historical context.  6 And my point here, my lord, is that in the first place  7 the treaty right itself, I think, for want of a better  8 word, is amorphous and in its nature diminishes in  9 relation to settlement.  He then devises a test in  10 which you determine if at any given time and place  11 that right can be exercised at all.  12 THE COURT:  What do you say that test is?  13 MS. KOENIGSBERG:  And he sets that test out at pages 54 and 55.  14 And I don't know -- I'm jumping ahead here a little  15 bit out of context, but that test is, in my  16 submission, and I want to come back to this, but it is  17 contained in the quote which begins on page 54 and is  18 encapsulated in the words:  19  20 "For the exercise of rites and customs to be  21 incompatible with the occupancy of the park by  22 the Crown,"  23  24 and you have to read in there and thus not  25 exercisable,  26  27 "it must not only be contrary to the purpose  28 underlying that occupancy, it must prevent the  29 realization of that purpose."  30  31 He's looking at two rights in conflict, and he's  32 saying one is incompatible with the other when you  33 cannot exercise, if one were to reverse it, when one  34 cannot exercise a treaty right.  It simply can't be  35 done.  And that, in my submission, is very close to an  36 on-the-ground site-specific analysis of legislative  37 purpose in relation to aboriginal rights to be clear  38 and plain.  And I will come back to that and we'll go  39 through that, but before I do that it might be helpful  40 to go back a bit and just read a little bit more of  41 Sioui for the context, a little more context of that,  42 and it begins on page 52.  And, I'm sorry, I should go  43 back to 51 because here is the part where he says what  44 General Murray's views were.  At the bottom of the  45 page:  46  47 "However, the British Crown's desire to 28734  Submission by Ms. Koenigsberg  1 colonize the conquered land and use that land  2 for its benefit also cannot be doubted.  Murray  3 had been engaged for years in a war the purpose  4 of which was to expand the wealth, resources  5 and influence of Great Britain.  It is unlikely  6 he would have granted, without further details,  7 absolute rights which might paralyze the  8 Crown's use of the newly conquered territories.  9 Accordingly, I conclude that in view of the  10 absence of any express mention of the  11 territorial scope of the treaty, it has to be  12 assumed that the parties to the treaty of  13 September 5 intended to reconcile the Hurons'  14 need to protect the exercise of their customs  15 and the desire of the British conquerors to  16 expand.  Protecting the exercise of the customs  17 in all parts of the territory frequented when  18 it is not incompatible with its occupancy is in  19 my opinion the most reasonable way of  20 reconciling the competing interests.  This, in  21 my view, is the definition of the common intent  22 of the parties which best reflects the actual  23 intent of the Hurons and of Murray on September  24 5, 1760.  Defining the common intent of the  25 parties on the question of territory in this  26 way makes it possible to give full effect to  27 the spirit of conciliation, while respecting  28 the practical requirements of the British.  29 This gave the English the necessary flexibility  30 to be able to respond in due course to the  31 increasing need to use Canada's resources, in  32 the event that Canada remained under British  33 suzerainty.  The Hurons, for their part, were  34 protecting their customs wherever their  35 exercise would not be prejudicial to the use to  36 which the territory concern would be put.  The  37 Hurons could not reasonably expect that the use  38 would forever remain what it was in 1760.  39 Before the treaty was signed, they had carried  40 on their customs in accordance with  41 restrictions already imposed by an occupancy  42 incompatible with such exercise.  The Hurons  43 were only asking to be permitted to carry on  44 their customs on the lands frequented to the  45 extent that those customs did not interfere  46 with enjoyment of the lands by their occupier.  47 I readily accept that the Hurons were probably 28735  Submission by Ms. Koenigsberg  1 not aware of the legal consequences, and in  2 particular of the right to occupy to the  3 exclusion of others, which the main European  4 legal systems attached to the concept of  5 private ownership.  Nonetheless I cannot  6 believe that the Hurons ever believed that the  7 treaty gave them the right to cut down trees in  8 the garden of a house as part of their right to  9 carry on their customs.  10 Jacques-Cartier park falls into the  11 category of land occupied by the Crown, since  12 the province has set it aside for a specific  13 use.  What is important is not so much that the  14 province has legislated with respect to this  15 territory but that it is using it, is in fact  16 occupying the space.  As occupancy has been  17 established, the question is whether the type  18 of occupancy to which the park is subject is  19 incompatible with the exercise of the  20 activities with which the respondents were  21 charged, as these undoubtedly constitute  22 religious customs or rites.  Since, in view of  23 the situation in 1760, we must assume some  24 limitation on the exercise of rights protected  25 by the treaty, it is up to the Crown to prove  26 that its occupancy of the territory cannot be  27 accommodated to reasonable exercise of the  28 Hurons' rights."  29  30 They then go through the evidence of compatibility  31 or incompatibility, the Crown saying that it's  32 incompatible.  And then we get to this last part on  33 page 54.  I read you just one part of it, but here is  34 where he says:  35  36 "For the exercise of rites and customs to be  37 incompatible with the occupancy of the park by  38 the Crown, it must not only be contrary to the  39 purpose underlying that occupancy, it must  40 prevent the realization of that purpose.  41 First, we are dealing with Crown lands, lands  42 which are held for the benefit of the  43 community.  Exclusive use is not an essential  44 aspect of public ownership.  Second, I do not  45 think that the activities described seriously  4 6 compromise the Crown's objectives in occupying  47 the park.  Neither the representative nature of 28736  Submission by Ms. Koenigsberg  1 the natural region where the park is located  2 nor the exceptional nature of this natural site  3 are threatened by the collecting of a few  4 plants, the setting up of a tent using a few  5 branches picked up in the area or the making of  6 a fire according to the rules dictated by  7 caution to avoid fires."  8  9 I think he means spread of fires.  10  11 "These activities also present no obstacle to  12 cross-country recreation.  I therefore conclude  13 that it has not been established that occupancy  14 of the territory of Jacques-Cartier park is  15 incompatible with the exercise of Huron rites  16 and customs with which the respondents are  17 charged."  18  19 And, in my submission, he therefore comes to the  20 same conclusion in a different context, because we're  21 dealing with treaty rights here, that Mr. Justice  22 Mahoney did in Baker Lake dealing with otherwise  23 unrecognized aboriginal rights.  Look at the uses.  24 Can they live together?  If they can't live together,  25 then you have an extinguishment or a diminishment.  26 Here the court went to considerable lengths to find  27 that the provincial park use could live with the  28 exercise of the customs and rites, and religious  29 rites, and, therefore, there was no incompatibility,  30 and, therefore, they could still continue.  But the  31 exercise was one of determining by looking at the two  32 competing uses or rights, he earlier calls them two  33 conflicting rights, can they live together, and if  34 not, what follows.  35 Now, we say that the test, and I'm now on page 6,  36 paragraph 13, the test, it is submitted, albeit in  37 relation to a treaty right (and thus setting a higher  38 standard) is one which lends itself to testing whether  39 a hitherto unrecognized aboriginal right such as  40 "hunting over unoccupied Crown land" has been clearly  41 and plainly diminished or extinguished.  And I've just  42 read you that part in Sioui.  43 It is submitted that if a treaty right of an  44 amorphous nature can be characterized as one subject  45 to loss or diminution then it is even more likely that  46 aboriginal rights could be so characterized.  A right  47 to hunt and trap, and pick berries as heretofore 28737  Submission by Ms. Koenigsberg  1 mentioned, subject to the effects of settlement is  2 also, in our submission, an amorphous right.  And I'm  3 here harking back to the right to hunt, pick berries  4 on unoccupied Crown land with the clear understanding  5 that it's subject to settlement.  What the character  6 of that right is, it is submitted, is one which varies  7 with interfering settlement, as it did in Sioui.  8 Whether settlement has actually diminished or  9 extinguished it must be tested by determining if any  10 given competing use has prevented the actual exercise  11 of that right.  12 So here our submission is that aboriginal rights,  13 like the right to hunt on unoccupied Crown land or the  14 right to pick berries on unoccupied Crown land or  15 other, in their nature, amorphous type of rights, can  16 be characterized as inherently diminishing and then  17 the test is have they been diminished or extinguished  18 by the effects of settlement, and that's a very high  19 test.  It's the clear and plain test, legislated  20 purpose when you're on the ground, legislated purpose  21 against specific use.  If they can live together, then  22 the aboriginal right continues, and if they can't live  23 together, it's been diminished or extinguished.  24 THE COURT:  But that would mean in British Columbia, for  25 example, that the aboriginal right adds nothing to the  26 right of every citizen to use unoccupied Crown lands.  27 It wouldn't amount to anything.  Except I suppose  28 within your test it couldn't be prohibited as it could  29 be for others.  30 MS. KOENIGSBERG:  That's right.  I think when we get to  31 section -- when we get to the Charter, for instance,  32 and we get to section 35, and I'll address you later  33 on that subject, the ability to extinguish it has been  34 significantly altered.  35 THE COURT:  Well, I would think even before 35 Indians and non-  36 Indians equally could use unoccupied Crown land.  37 MS. KOENIGSBERG:  That's correct.  38 THE COURT:  I suppose there was no impediment to the Crown  39 regulating against the use of unoccupied Crown land by  40 non-Indians.  41 MS. KOENIGSBERG:  Yes.  42 THE COURT:  If your submission is correct that the Crown  43 couldn't have regulated the use of unoccupied Crown  44 land by Indians who enjoyed an aboriginal right with  45 respect to that land.  46 MS. KOENIGSBERG:  Well, if you're asking me am I saying that a  47 regulation of hunting by -- 2873?  Submission by Ms. Koenigsberg  1 THE COURT:  I'm really talking about prohibiting.  2 MS. KOENIGSBERG:  In my submission, on a slightly different  3 analysis that would be an extinguishment.  4 THE COURT:  No.  5 MS. KOENIGSBERG:  If it were done.  6 THE COURT:  If the Crown could prohibit -- do you agree the  7 Crown could have prohibited non-Indian use of  8 unoccupied Crown land?  9 MS. KOENIGSBERG:  Oh, yes.  10 THE COURT:  But you're saying that the Crown could not prohibit  11 those with aboriginal rights from using Crown land,  12 unoccupied Crown land, unless that use became  13 inconsistent with some other legitimate Crown purpose?  14 MS. KOENIGSBERG:  Yes, I think that's — I think when you get  15 down to the actual on-the-ground analysis that would  16 hold true.  17 THE COURT:  Yes.  So, for example, in the fire season the Crown  18 could say, "No campers in this area"?  That would be  19 valid legislation or valid regulation qua whites?  2 0 MS. KOENIGSBERG:  Yes.  21 THE COURT:  It would only — and the Crown wouldn't have to  22 justify itself presumably?  23 MS. KOENIGSBERG:  That's right.  24 THE COURT:  In the context with an aboriginal person you have to  25 show that that was a valid purpose that diminished the  26 aboriginal right, temporarily perhaps, but to that  27 extent?  28 MS. KOENIGSBERG:  In my submission, even after Sparrow, on those  29 facts, if there were an existing aboriginal right to  30 hunt and the Crown in right of the province had a  31 legislated purpose for public safety, it would -- it  32 could and would impact.  It would probably meet the  33 justificatory test or would have to meet it.  The  34 point is that regulation which impacts the exercise of  35 aboriginal rights, if it meets certain tests, is still  36 available if -- even after section 35, but it would  37 not, in my submission, especially after section --  38 after the Sparrow interpretation of section 35, it  39 could not be said to have extinguished the right.  40 THE COURT:  But how could an aboriginal person on the ground  41 know whether his aboriginal right was diminished or  42 extinguished in a particular situation at any given  4 3 time?  44 MS. KOENIGSBERG:  I think in — except that one is taken to know  45 the law, which is a bit of an odd statement to make  46 when the law is always evolving in these regards, it's  47 similar to saying how does the Crown know that the 28739  Submission by Ms. Koenigsberg  1 aboriginal is exercising his aboriginal right.  Until  2 they come into conflict you usually don't know.  3 THE COURT:  All right.  Do you want to carry on and finish or do  4 you want to take --  5 MS. KOENIGSBERG:  I'm not finished with this submission, so if  6 we want to have the break, I can come back and finish  7 this part of it.  8 THE COURT:  Yes.  All right.  Thank you.  9 THE REGISTRAR:  Order in court.  Court stands adjourned for a  10 short recess.  11  12 (PROCEEDINGS ADJOURNED AT 3:02 P.M.)  13  14 I hereby certify the foregoing to  15 be a true and accurate transcript  16 of the proceedings transcribed to  17 the best of my skill and ability.  18  19  20  21  22    23 Leanna Smith  24 Official Reporter  25 UNITED REPORTING SERVICE LTD.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28740  Submissions by Ms. Koenigsberg  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Ms. Koenigsberg.  3 MS. KOENIGSBERG:  My lord, upon a moments reflection I think I  4 spoke too soon to tell your lordship that we would try  5 to have a draft answer to your lordship's questions by  6 tomorrow, but we will before the end of our case.  7 THE COURT:  I am not surprised at all.  Thank you.  8 MR. MACAULAY: It's not Ms. Koenigsberg.  It's that I can't think  9 that fast.  10 MS. KOENIGSBERG: He doesn't want me to.  He is worried about the  11 product.  12 THE COURT:  Fast thinking is usually bad thinking.  13 MS. KOENIGSBERG:  I attempted to complete the submission of  14 seeing what I will call the amorphous aboriginal  15 rights.  And that's as opposed to much more specific  16 rights like to fisheries, which are quite different  17 and have been dealt with differently.  The amorphous  18 type of rights as being in that nature diminishing.  19 And I would then go onto what really is a form of  20 alternative argument, which is at page 15, and if you  21 want to make a note, this is really an --  22 THE COURT:  15?  23 MS. KOENIGSBERG: Page 7, sorry, paragraph 15.  2 4 THE COURT:  Yes.  25 MS. KOENIGSBERG:  We say:  As previously submitted  26 extinguishment or diminishment of an aboriginal right  27 can occur in a number of ways, "the selection of a  28 means is a governmental prerogative, the actual act or  29 acts must be plain and unambiguous".  This is another  30 way of saying that by their nature aboriginal rights  31 are held subject to the goodwill of the sovereign.  32 Thus, the execution of government policy is one clear  33 means of diminishment or extinguishment.  Applying  34 this principle to the claim area, the aboriginal  35 rights previously identify as hunting and trapping,  36 berry picking within the territory traditionally  37 occupied -- is a real long sentence -- traditionally  38 occupied exclusively by the Gitksan and Wet'suwet'en  39 ancestors of the plaintiffs have been impacted by the  40 government policy stated by Douglas, the  41 implementation of which was begun by O'Reilly and  42 Vowell in the claim area.  43 And here again I am looking at the policy as it  44 was stated by Douglas in 1860, for want of a better  45 place to look at it, it's his speech at Cayoosh as  46 that policy was begun to be implemented by the  47 allocation of reserves.  And I say begun by O'Reilly 28741  Submissions by Ms. Koenigsberg  1 and Vowell in the 1890's.  2 We then would say these rights have been  3 extinguished wherever the government's policy of  4 occupying Crown lands for settlements has occurred and  5 has had the effect of so interfering with the exercise  6 of the aboriginal right that such right cannot be  7 exercised.  8 Here I am distinguishing between a right which  9 would inherently diminish and one which does not  10 inherently diminish, but one says it exists until you  11 impose an extinguishing or a diminishing act on it.  12 And it is a two-pronged test, we say, at this point on  13 the jurisprudence; and that is that you have to have  14 the act that impacts and then you have to look at the  15 effect of that act on the aboriginal use and say can  16 they live together?  And essentially in my submission  17 if we go back to Sioui and look at the expression of  18 the incompatibility test in Sioui where he talks about  19 the inability to exercise the right, in my submission  20 that fits, whether it's a treaty or not.  In order to  21 be clear and plain as opposed to being just  22 inconsistent, in my submission you can't be able to  23 exercise the right, whatever the nature of that right  24 is.  25 And that will alter in my submission not  26 completely, but the analysis of what still exists in  27 the claim area as an aboriginal right, because what  28 before one could have looked at and said the intention  29 of this piece of legislation is to utilize land for a  30 mining site, let's say, under a mining permit, but you  31 could still trap, because a fence hasn't been built to  32 keep you out, then in my submission it's not clear and  33 plain.  34 THE COURT:  What if it's an open pit?  35 MS. KOENIGSBERG:  Well, my lord, this is going to be one of the  36 problems with this whole analysis, is the absence of  37 evidence either way.  3 8    THE COURT:  We have enough evidence.  39 MS. KOENIGSBERG:  My lord, when you get down to the very — this  40 kind of analysis, which in my submission, fortunately  41 or unfortunately, the jurisprudence is dictated at  42 this point it's difficult.  You have to make some real  43 assumptions.  We are attempting that.  We'll have for  44 your lordship site specificity upon the evidence, but  45 your lordship will be faced with large gaps because  46 there is not evidence of how in most places whether a  47 right has been exercised over it and how.  But in any 28742  Submissions by Ms. Koenigsberg  1 event if on the evidence you could not hunt or trap or  2 berry pick in a particular area because of a use being  3 made of it, an open pit probably is one, then it's  4 extinguished, that right in that spot.  But you have  5 not necessarily extinguished the right everywhere.  6 And that is the nature of the right has aspects to it.  7 It has a territorial aspect to it, and it has an  8 aspect of the right to exercise this right someplace.  9 Now, we deal with it in a slightly different way,  10 which in our submission it's, I think, illuminating to  11 look at these things from different points of view in  12 order to come to the best conclusion on the evidence.  13 But we look at it a little bit differently on pages 5  14 through 8 of Part VI.  15 I don't want to do all of Part VI, but you can see  16 where we have dealt with it on page 3 -- I  17 shouldn't -- on page 3 dealing with hunting.  It's  18 just over into the next part where we have taken the  19 position that the aboriginal right to hunt wherever or  20 by whatever means the plaintiffs chose has been  21 extinguished by provincial legislation.  This, we say,  22 is the effect of that government policy.  If the  23 nature of the right is an exclusive right to hunt.  24 The right to hunt over unoccupied Crown lands is a  25 right enjoyed by all members of the general public,  26 without special rights afforded to Indians.  Hunting  27 regulations have universal application.  28 We then refer to in Colonial times during the  29 reserve allocation process, the governor assured the  30 Indians that they could hunt over unoccupied Crown  31 lands.  And I refer there to Douglas, and one may need  32 only go to the implementation of that policy and the  33 statement made by O'Reilly and Vowell up in the claim  34 area when they were allocating reserves.  And I would  35 ask you to add some references right at the bottom of  36 that paragraph that begins, "In Colonial times ..."  37 THE COURT:  Yes.  38 MS. KOENIGSBERG:  "See also Part X, Part 3."  39 THE COURT:  Of this argument?  40 MS. KOENIGSBERG:  Yes.  Pages 134 to 143 we deal there with the  41 reserve allocation.  42 THE COURT:  134 to 143?  43 MS. KOENIGSBERG:  That's correct.  And also the province's  4 4 summary argument supplement Volume 4, Tab 3.  And  45 that's the compilation that the province did recently  46 of all of the minutes of the meetings with Vowell and  47 O'Reilly.  And just simply saying if you look at those 28743  Submissions by Ms. Koenigsberg  1 and what's being discussed there, bear that out.  2 We say thus hunting in the claim area is not a  3 classic aboriginal right recognized by the common law.  4 It lacks the necessary exclusivity.  And again I pause  5 to say as pleaded, as asserted.  According to the  6 evidence, as opposed to the pleadings, anyone,  7 including the plaintiffs could and did hunt anywhere  8 on unoccupied Crown lands.  Refer there to the  9 testimony of Walter Joseph, Exhibit 955-7, which I can  10 tell your lordship is an interview with the Tait's,  11 T-A-I-T, and the testimony of Steve Robinson.  12 In addition the granting of guide outfitter  13 certificates throughout the claim area is inconsistent  14 with such an exclusive aboriginal right to hunt.  And  15 I would say that if we just stop there and look at  16 that, if we are going to define the right as an  17 exclusive right to hunt, then in our submission the  18 granting of guide outfitter licenses is clearly and  19 plainly inconsistent.  20 THE COURT:  Surely guiding, hunting parties is not an aboriginal  21 right.  22 MS. KOENIGSBERG:  No, it's not, and I'm saying it's an  23 inconsistent use, but it's an inconsistent use which  24 if you take that use, the licensing of guide  25 outfitters to go into claimed territories for  26 commercial purposes to hunt cannot live together with  27 exclusive --  28 THE COURT:  A guide outfitters licence doesn't exclude anyone  29 else.  30 MS. KOENIGSBERG:  It excludes the Indians from exclusively  31 hunting.  Their claim is to an exclusive right, and I  32 am saying that's why it's very important to define the  33 incidents of the right.  It is possible to see the  34 right as a right to hunt on unoccupied Crown land  35 which is not exclusive.  It then lives with guide  36 outfitting.  If it's an exclusive right its been  37 extinguished in our submission.  38 THE COURT:  Or how about just diminished?  39 MS. KOENIGSBERG:  Or diminished.  You can just as easily  40 describe an aboriginal right as in part diminished.  41 But the part that is diminished is gone if the  42 purpose, the legislative purpose which is  43 inconsistent, is an ongoing one.  44 We say other legislative uses have affected  45 traditional hunting lands in ways largely or entirely  46 incompatible with hunting.  Examples of such  47 activities are grants of lands in fee simple; 28744  Submissions by Ms. Koenigsberg  1 dedication of land for public uses such as highways,  2 railways, public utilities, parks, townsites, game  3 reserves, and leases for certain forms of reserve  4 tenure such as tree farm licenses, grazing permits,  5 petroleum and natural gas permits, and mineral leases.  6 Again, my lord, and we'll go into this in some  7 detail later on, taking 'C there, leases for certain  8 forms of resource tenure.  If we define the aboriginal  9 right as an exclusive right to hunt, in my submission  10 it would be clear and plain that it could not live  11 with these, but if it is not, it could not be clear  12 and plain because the right to hunt could still be  13 carried on.  It could still be exercised in relation  14 to many of these tenures.  15 THE COURT:  Well, then, you would be saying that -- you would be  16 saying that the aboriginal right to hunt in the claim  17 area has therefore at least been diminished down to  18 where it's equivalent to the right of everyone else.  19 MS. KOENIGSBERG:  Yes, if it's inherent character isn't that it  20 diminishes, then it has been diminished by the  21 imposition of the government -- by the declaration of  22 the government policy, and everywhere where that  23 policy has been implemented the right has been  24 diminished, and it continues --  25 THE COURT:  Or alternatively the rights been extinguished and  26 the right to hunt equally with everyone else.  27 MS. KOENIGSBERG:  Is not an aboriginal right.  28 THE COURT:  Replace it, which is not an aboriginal right.  29 MS. KOENIGSBERG:  That's correct.  30 THE COURT:  All right.  31 MS. KOENIGSBERG:  Finally, then, on this part, on page 8,  32 paragraph 16, this really summarizes, I think, the  33 discussion we have just been having.  It is submitted  34 that on the ground or a site specific analysis of  35 whether extinguishment has taken place involves an  36 aboriginal use as it comes into conflict with the  37 legislated purpose.  If that aboriginal right cannot  38 be exercised because of the effect of the legislation  39 it is extinguished.  To meet the test as adopted by  40 the Supreme Court of Canada in Sparrow as set out on  41 page 16 of the unreported judgment, that the intention  42 of the sovereign must be clear and plain, is to  43 conclude from the analysis undertaken that the two  44 uses cannot live together.  45 Now, rather than go back -- go onto who can  46 extinguish, I would like to go back.  My friend raised  47 the issue of the Sioui case in relation to 28745  Submissions by Ms. Koenigsberg  1 extinguishment, and can the Sioui law on  2 extinguishment live with the Horseman law on  3 extinguishment, both decisions of the Supreme Court of  4 Canada in May of this year.  We have been through  5 Horseman.  If we go to page 39 of the Sioui case, here  6 His Lordship is dealing with the legal effects of the  7 treaty September 5th, 1760 on May 29th, 1982.  And he  8 is dealing with the arguments put forward by the  9 Crown.  10  11 "The appellant argues that, assuming the  12 document of September 5th is a treaty, it was  13 extinguished by the following documents or  14 events:  15 The act of capitulation of Montreal;  16 The Treaty of Paris;  17 The Royal Proclamation in 1763;  18 The legislative and administrative history of  19 the Hurons' lands; and  20 The effect of time and non-user of the treaty."  21  22 It then says :  23  24 "Neither the documents nor the legislative and  25 administrative history to which the appellant  26 referred the Court contain any express  27 statement that the treaty of September 5th,  28 1760 has been extinguished."  29  30 And he is referring to Exhibit no. 4 on the list  31 of arguments.  32  33 "Even assuming that a treaty can be extinguished  34 implicitly, a point on which I express no  35 opinion here, the appellant was not able in my  36 view to meet the criterion stated in Simon  37 regarding the quality of evidence that would be  38 required in any case to support a conclusion  39 that the treaty had been extinguished.  That  40 case clearly established that the onus is on  41 the party arguing that the treaty has  42 terminated to show the circumstances and events  43 indicating it has been extinguished.  This  44 burden can only be discharged by strict proof,  45 as the Chief Justice said at p. 405-6:  46 'Given the serious and far-reaching  47 consequences of a finding that a treaty right 28746  Submissions by Ms. Koenigsberg  1 has been extinguished, it seems appropriate to  2 demand strict proof of the fact of  3 extinguishment in each case where the issue  4 arises.'  5 The appellant did not submit any persuasive  6 evidence of extinguishment of the treaty.  He  7 argues, first, that the treaty had become  8 obsolete because the Act of capitulation of  9 Montreal replaced all other acts of  10 capitulation ..."  11  12 He is now dealing with the act of capitulation.  13 This argument is based on Article 50 of the act of  14 capitulation which reads as follows:  15  16 'The present capitulation shall be inviolably  17 executed in all its articles, and bona fide, on  18 both sides, notwithstanding any infraction, and  19 any other pretence, with regard to the  20 preceding capitulations, and without making use  21 of reprisals.'  22 As I have concluded that this is a peace  23 treaty and not a capitulation, art. 50 has no  24 application in this case, so far as  25 extinguishment of the treaty of September 5 is  26 concerned.  That article was designed to ensure  27 that the signatories would comply with the Act  28 of compitulation, in spite of the existence of  29 reasons for retaliation which the parties might  30 have had as the result of breaches of an  31 earlier act of capitulation.  Article 50 can  32 only apply to preceding acts signed on behalf  33 of France, such as the Act of Capitulation of  34 Quebec in late 1759.  I see nothing here to  35 support the conclusion that this article was  36 also intended to extinguish a treaty between an  37 Indian nation and the British."  38  39 He cites another act of capitulation in Montreal,  40 and I won't read that whole thing, but he says at the  41 bottom of that paragraph:  42  43 "Further, I think it is clear that the purpose  44 of art. 40 was to assure the Indians of certain  45 rights, not to extinguish existing rights."  46  47 Then he says : 28747  Submissions by Ms. Koenigsberg  1  2 "It would be contrary to the general principles  3 of law for an agreement concluded between the  4 English and the French to extinguish a treaty  5 concluded between the English and the Hurons.  6 It must be remembered that a treaty is a solemn  7 agreement between the Crown and the Indians, an  8 agreement the nature of which is sacred.  The  9 very definition of a treaty thus makes it  10 impossible to avoid the conclusion that a  11 treaty cannot be extinguished without the  12 consent of the Indians concerned.  Since the  13 Hurons had the capacity to enter into a treaty  14 with the British, therefore, they must be the  15 only ones who could give the necessary consent  16 to its extinguishment.  17  18 This is the statement I am sure my friend looks at  19 and says, "How can you argue that the Crown can  20 unilaterally extinguish a treaty right in the face of  21 this statement?"  And they are, in my submission, read  22 independently of the analysis that -- all of which I  23 have just read to you looked contradictory.  24 In Horseman you have a treaty right.  It is found  25 to be a treaty right which includes the right to  26 commercially hunt.  The transfer agreements which were  27 unilateral and without the consent of the Indians are  28 said to extinguish that right.  Another way of putting  29 it is to modify the right so that it doesn't exist any  30 more.  And Horseman says you can do that, unilaterally  31 and without consent.  That's the effect.  32 In my submission Sioui cannot be read to say that  33 you cannot extinguish a treaty right without the  34 consent of the Indians for the reason that when he  35 begins the discussion on page 39 of all of the  36 arguments, it is implicit that the legislative and  37 administrative history of the Huron's land referred to  38 in the first full paragraph could extinguish, but he  39 finds no express statement.  In my submission Horseman  40 is authority for the proposition, as is Sioui, that in  41 order to extinguish a treaty right you have to have  42 express language.  43 Mr. Justice Lamer does not even go so far as to  44 say that you couldn't implicitly do it, but as he  45 says, the quality of the evidence would have to be  46 high indeed.  47 I suppose it would be at the point where implicit 28748  Submissions by Ms. Koenigsberg  1 becomes explicit.  2 I think it's helpful to think of -- to recall the  3 circumstances of Horseman, and the fact that the  4 transfer agreement is at least express, in that it is  5 specifically directed at the treaty right.  It doesn't  6 expressly say or specifically say we are now going to  7 extinguish the treaty right, but it is expressly  8 directed at that treaty right, and its effect is to do  9 away with it.  And in my submission Mr. Justice Lemar  10 is not quarreling with that proposition.  It would be  11 hard to imagine quarreling with it, when he sat on the  12 same bench with Horseman and not three weeks before  13 the judgment came out.  14 Then what does it mean as to what he says on page  15 42?  I think that those are remarks which are  16 directed -- perhaps it's easier to understand that he  17 is saying there is nothing express in these treaties  18 of capitulation.  They have nothing to do.  No  19 reference at all to the treaty between the British and  20 Hurons.  21 And perhaps -- well, I won't speculate as to how  22 you marry up what if they had been -- what if the  23 Hurons had been a part of the treaty of capitulation,  24 could you say that somehow had some reference to it,  25 then you would imply their agreement.  26 But I say before we can conclude that Sioui  27 overrides Horseman, which is difficult to do, given  28 their proximity to one another, the same judge is  29 sitting, one has to take into account that Mr. Justice  30 Lemar does discuss extinguishment of treaties as being  31 able to be affected by express statements or of a  32 legislative or an administrative type.  33 THE COURT:  I'm sorry, he discusses extinguishment?  34 MS. KOENIGSBERG:  He discusses extinguishment in relation to the  35 legislative and administrative history of the Huron's  36 land.  The appellants argument was that that history  37 amounted to an extinguishment.  3 8    THE COURT:  Yes.  39 MS. KOENIGSBERG:  And in discussing that he doesn't say "But you  40 can't extinguish without their consent."  He says  41 "There is no express statement."  42 THE COURT:  Well, he does say that the only ones — the  43 necessary consent to extinguishment.  44 MS. KOENIGSBERG:  When he is talking about the treaty of  45 capitulation argument, but, my lord, I don't think you  46 can divorce that from the fact that he is discussing  47 five arguments, alternative arguments or acts of 28749  Submissions by Ms. Koenigsberg  1 extinguishment as argued by the appellant.  2 THE COURT:  Yes.  3 MS. KOENIGSBERG:  And he contemplates that legislative and  4 administrative history, those acts could have the  5 effect of extinguishment.  That would not be the  6 consent.  But he is saying it has to be express, and  7 it's not express.  8 THE COURT:  What about the previous sentence:  9  10 "The very definition of a treaty thus makes it  11 impossible to avoid the conclusion that a  12 treaty cannot be extinguished without the  13 consent of the Indians concerned."  14  15 MS. KOENIGSBERG: There is no doubt he says that, but he is  16 saying that in the context that the treaties that are  17 being discussed as extinguishing documents have no  18 reference whatsoever to the treaty that he is looking  19 at.  He seems to be most struck with the fact that the  20 Hurons were not a party to the other treaties.  He  21 certainly contemplates that it might be possible to  22 implicitly extinguish a treaty.  23 THE COURT:  He says that earlier.  24 MS. KOENIGSBERG:  Yes.  And it's just before that that he says  25 you could explicitly do so, but it has to be express.  26 And in my submission that's the statement that lives  27 with the Horseman decision, and that the other  28 statement has to be taken in a context that it's not  29 any broader than that the Treaty of Capitulation and  30 the Treaty of Paris, that he is referring to, have no  31 reference whatsoever to the treaty in issue and could  32 not be found to extinguish it.  33 In my submission it's essential that two decisions  34 of the Supreme Court of Canada in so close proximity  35 to one another have to be able to be reconciled, and  36 my submission to you is that is the clear way to  37 reconcile those two statements.  Those are all my  38 submissions for today.  39 THE COURT:  All right.  Thank you.  What time do you want to  4 0 resume tomorrow?  41 MS. KOENIGSBERG:  10:00 o'clock.  42 THE COURT:  All right.  Thank you.  43 THE REGISTRAR:  Order in court.  Court stands adjourned until  44 10:00 o'clock tomorrow.  45  4 6 (PROCEEDINGS ADJOURNED AT 3:50 P.M.)  47 28750  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.

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