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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-28] British Columbia. Supreme Court Jun 28, 1990

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 29126  Submissions by Mr. Goldie        1  Vancouver B.C.  2 June 28, 1990.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia,  7 Thursday the 28th day of June, 1990.  Delgamuukw  8 versus Her Majesty the Queen at bar, my lord.  9 THE COURT:  Mr. Goldie.  10 MR. GOLDIE:  Miss Sigurdson has a housekeeping matter to attend  11 to, my lord.  12 THE COURT:  Thank you, Miss Sigurdson.  13 MS. SIGURDSON:  My lord, I am passing up the final diskettes for  14 the Province's argument and if I could just explain  15 the paper that's attached.  The first item is an  16 updated index to our summary of argument.  17 THE COURT:  Yes.  18 MS. SIGURDSON:  And the addendum have been inserted at the  19 appropriate places, and there should now be a complete  2 0 index.  And on the right is the file name.  And these  21 will correspond to what you will find on the disks.  22 THE COURT:  The file name is Intro A, for example, that's file  2 3 name?  24 MS. SIGURDSON:  That's right.  2 5 THE COURT:  Yes.  26 MS. SIGURDSON:  The second in the plastic pouch are the irrata  27 sheets and these are hard copies that explain all the  28 changes that have been made from our original summary  29 of argument to the disk copy.  30 THE COURT:  I see.  31 MS. SIGURDSON:  And they set out the typographical errors and  32 the additional references that were provided in oral  33 argument.  There is an irrata for each section.  Your  34 lordship may find it convenient to file those in the  35 summary of argument.  36 THE COURT:  Yes.  So there is no -- there is no irrata for part  37 one?  38 MS. SIGURDSON:  That's correct.  39 THE COURT:  Yes.  All right.  Just a moment.  I've got part two,  40 section two.  41 MS. SIGURDSON:  Yes.  42 THE COURT:  Down to and including part three, section three.  43 Oh, I am sorry.  Well, I gather this next page which  44 wasn't clipped together has just come undipped, has  45 it?  46 MS. SIGURDSON:  No.  The part two, section two falls under the  47 separate tab from part two section three.  If I'm -- 29127  Submissions by Mr. Goldie        1  THE COURT:  Well, the documents  came paper-clipped together  2 ending part three, section three.  3 MS. SIGURDSON:  Oh.  The clip may have slipped.  4 THE COURT:  All right.  So the next item is part three, section  5 three, addendum.  That should all be one collection,  6 should it?  7 MS. SIGURDSON:  They will all be under part three, yes, that's  8 right.  9 THE COURT:  All right.  Yes.  Is everything in this plastic  10 folder a continuum of irrata from the start to finish?  11 Some of them are paper-clipped together and some are  12 not.  Is that so, that they can be inserted at the  13 beginnings of those parts?  14 MS. SIGURDSON:  That's correct.  15 THE COURT:  Yes.  All right.  I understand that.  Yes.  Yes.  16 All right.  Thank you.  How many disks does it  17 consume?  Let me just guess.  18 MS. SIGURDSON:  I can't recall.  I think 15, but my advisors say  19 there is ample room to work on the disks.  2 0 THE COURT:  All right.  Thank you.  Mr. Goldie?  21 MR. GOLDIE:  My lord, this is my reply to the text in Volume 1  22 of Canada's final counterclaim argument from page 21  23 to page 331.  Before I begin, it was brought to my  24 attention that I may have suggested yesterday that the  25 30 or so documents which were not in evidence and  26 which were part of Canada's Volume 1 final  27 counterclaim argument were not seen by me until Sunday  28 evening, June 24.  I want to correct that impression  29 thta I left.  The documents had been sent to me  30 sometime prior and I had agreed to Mr. Macaulay  31 referring to them, and upon the -- upon the condition  32 that I be at liberty to introduce two others and that  33 was the subject of some discussion before your  34 lordship.  My only purpose in commenting now is to  35 remove any impression that I had asserted yesterday  36 that I hadn't seen those documents.  37 THE COURT:  Mr. Goldie, what should I have before me to follow  38 your argument?  39 MR. GOLDIE:  The Volume 1, final counterclaim argument.  4 0 THE COURT:  Yes.  Volume 1, final counterclaim argument.  41 MR. GOLDIE:  Yes.  42 THE COURT:  This is it.  43 MR. GOLDIE:  And if your lordship would turn to I think it's  44 page 21.  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  Now, this -- what follows between here and page 331  47 was submitted by my friend, as I understand it, in 29128  Submissions by Mr. Goldie        1 support of the  Plaintiffs' claim against the Province.  2 I may have misunderstood the reference, but I find it  3 at transcript 365 page 28946.  4 THE COURT:  Volume 3 65?  5 MR. GOLDIE:  Yes, my lord.  That can't be right.  It must be  6 364.  7 THE COURT:  No.  I only have 331 until I get into the documents.  8 MR. GOLDIE:  Yes.  9 THE COURT:  Yes.  10 MR. GOLDIE:  It's the first couple of pages in the Volume 364  11 and the discussion was on the question of the timing  12 of this reply, and at line 16 my friend Mr. Rush has  13 completed an observation and my friend Mr. Macaulay  14 said at line 13:  "I don't think the plaintiffs have a  15 reply."  And your lordship said:  "That may be an  16 answer."  Mr. Macaulay said:  "We are on the same side  17 on the counter-claim."  Now, I took that to mean that  18 my friend's submission was in support of the  19 plaintiffs' position on the counterclaim.  20 THE COURT:  What's that page number again, please?  21 MR. GOLDIE:  28946.  And I note at 28959 that my friend, Mr.  22 Macaulay, had said that in his view the court lacked  23 jurisdiction to entertain the counterclaim.  He  24 subsequently said at page 289 -- 28959 line 15 to 26,  25 as I understand it, that he is responding to the  26 counterclaim because he would have addressed the  27 question of the Terms of Union in any event, so that  28 this is not merely in the alternative with respect to  29 if your lordship rejected the jurisdiction argument.  30 I understand my friend to be saying that what he has  31 said in this submission he would have been saying in  32 any event when he came to address the question of the  33 Terms of Union and subsequent events.  34 My lord, I have two very general submissions to  35 make about my friend's argument as a whole and if it  36 is accepted your lordship may wish to put Mr.  37 Macaulay's argument which ran from Monday in  38 transcript 364 from page 28960 to the whole of that  39 volume and from Tuesday, which is transcript 365 from  40 page 29039 to page 29059.  41 THE COURT:  2903 —  42 MR. GOLDIE:  29039 to page 29059 on Tuesday and the whole of  4 3 Monday.  44 THE COURT:  That's volume 364, is it?  45 MR. GOLDIE:  That's volume 364.  4 6 THE COURT:  All right.  47 MR. GOLDIE:  I say that if your lordship accepts these two 29129  Submissions by Mr. Goldie 1            general propositions  that the weight to be given to my  2 friend's submission is very considerably lessened.  3 Now, my two propositions are:  First, that the  4 argument purports to address a claim against Canada,  5 and I refer in that regard to page 21 of the text  6 where he says in paragraph numbered one line four:  7  8 "The following substantive argument responds to  9 the Counterclaim as against Canada and also to  10 the interpretation the Province seeks to place  11 on the Constitution Act, 1867,"  12  13 Etc.  The second general proposition is that it  14 addresses a claim of the plaintiffs that they  15 themselves have not made.  In other words, the claim  16 that Canada supports is a non-proprietary use and  17 occupancy claim.  And if your lordship would turn to  18 page 27, my friend sets out the nature of aboriginal  19 rights, and he says in paragraph one:  20  21 "They are usufructuary in the sense that they  22 are related to traditional uses of land."  23  24 And four lines from the bottom:  25  26 "They are rights characterized by temporary  27 possession of land belonging to another."  28  29 In this sense they are right forming a burden on the  30 Crown's proprietary estate, and he quotes Calder,  31 Smith, Guerin and Sparrow.  Paragraph two:  32  33 "They are sui generis in the sense that they  34 are not traditional common law property rights.  35 They are not proprietary in nature."  36  37 Now, my lord, I contrast that with what Mr. Jackson  38 said at transcript 327 at page 24985 line 42 and he  39 said at line 42, my lord:  40  41 "The seventh proposition, my lord, is that  42 because the plaintiffs' interest has the  43 essential hallmarks of ownership and not use  44 and occupancy, the plaintiffs' interest in  45 their territory, their aboriginal title is  46 legally characterized as ownership.  And that  47 is why, my lord, in the Statement of Claim it 29130  Submissions by Mr. Goldie        1 is a claim to  ownership and not a claim to use  2 and occupancy."  3  4 So your lordship will perceive that the whole of this  5 argument is directed in support of a claim which is  6 not made by the plaintiffs.  7 THE COURT:  Well, I must confess, Mr. Goldie, to some grave  8 misgivings about all this and I think it only right  9 that I put to you as I will put to Mr. Rush or a  10 member of his group when they reply, just what we are  11 dealing with here and just taking that statement of  12 Mr. Jackson's at face value he said the hallmarks of  13 ownership.  14 MR. GOLDIE:  Yes.  15 THE COURT:  And is it your submission - I ask that question  16 thinking I know the answer - that the claim that has  17 been advanced is really a proprietary claim?  18 MR. GOLDIE:  It is.  I have said that from the beginning, my  19 lord.  I say that distinguishes it from Calder.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  And nothing has happened to cause me any doubt in  22 that regard.  23 THE COURT:  All right.  Well, then —  24 MR. GOLDIE:  And if there was any question in my mind it was  25 dispelled not only by Mr. Jackson but by Mr. Grant's  26 final submissions.  27 THE COURT:  Well, in searching for a reconciliation, if I can  28 call it that, not of claims but of arguments, is it  29 open or tenable in your submission that the claim of  30 the plaintiffs can be for an aboriginal right that is  31 equivalent to ownership, that is not being proprietary  32 and the plaintiffs admit that there are incidents of  33 their ownership equivalence such as restriction on  34 alienation or do you say that it is still a black and  35 white or all or nothing proposition?  Is it not open  36 for the plaintiffs to say what we are claiming is the  37 equivalent of ownership but which comes to court as a  38 claim for an aboriginal right?  39 MR. GOLDIE:  Not in my submission, my lord.  The proposition  40 that they have put to your lordship is that there is a  41 pre-existing right.  By pre-existing I mean prior to  42 the establishment of the colony, the mainland colony  43 of British Columbia, which vested in them the soil and  44 the only effect which the assertion of British  45 sovereignty has had is to restrict their right of  46 alienation as they see fit.  They acknowledge only a  47 right of preemption, that is to say a right to treat 29131  Submissions by Mr. Goldie        1 with them and that  right is now vested of course in  2 the Crown in right of Canada.  The claims, the claims  3 they seek are declarations which would establish I  4 call it quasi sovereignty.  The exceptions to that are  5 those which they choose to acknowledge.  That was the  6 burden of the submission that was made to you by Mr.  7 Jackson.  This case would have taken a very different  8 course if a claim had been made by a band or bands for  9 use and occupancy of the nature of the -- of -- for  10 use and occupancy having the incidents which were  11 described in Calder, Baker Lake and ultimately back to  12 St. Catherine's Milling.  The right of  13 self-government, if I may put it that way, was debated  14 to some extent between your lordship and Mr. Grant  15 using the example of education.  And Mr. Grant's  16 position was that if a family considered that it was  17 appropriate to withdraw a child from the school system  18 and in accordance with Gitksan law that that law would  19 prevail.  And I have submitted to your lordship that  20 that is -- that proposition cannot stand in the face  21 of Sparrow.  But that doesn't change the nature of the  22 claim that has been made to you.  And I quite frankly  23 have never been able to reconcile the claims made in  24 this case with Calder.  And I am unable at the present  25 time.  Now, your lordship will find that when we go  26 through Canada's argument with respect to the  27 counterclaim, that they just jump right over and say  28 in effect the only interest which the plaintiffs can  29 claim is one that they haven't asked for.  It is as  30 they put it, they are not proprietary in nature.  31 Well, I cannot square that statement with the  32 assertion of Mr. Jackson and Mr. Grant and the  33 pleadings.  Now, your lordship has invited back in May  34 and June the --  35 THE COURT:  Which year?  36 MR. GOLDIE:  I was about to say 1989 but it's 1987 —  37 THE COURT:  Yes.  38 MR. GOLDIE:  That those submissions were made.  I am unable to  39 assist your lordship because I have -- I examined this  40 matter with some care at the beginning of this case  41 and because I didn't understand it and I voiced my  42 conclusions and they -- my friends have taken the  43 position that their common law rights were such that  44 in 1858 they were -- they were superior to the rights  45 which were granted to the Province by the Imperial  46 Parliament.  I don't -- I'm simply saying at this  47 point that the -- the version of the law which Canada 29132  Submissions by Mr. Goldie        1 is asserting is one  which stems directly from the I'll  2 call it the central Canadian concept which is stated  3 in St. Catherine's.  Now, my only submission at this  4 point is that when your lordship comes to Canada's  5 argument on the counterclaim, the weight to be given  6 to it must be coloured by that fact.  And I'm going  7 to -- because throughout this argument there are  8 statements that the law is and that's what they say  9 the law is.  Well, now, there is no law in our sense  10 of the word decided cases which supports the  11 assertions that are made, and I'll come to that when I  12 get into my reply a little further.  But I say the  13 position taken by Canada here is fundamental because  14 it leads to an assertion that British Columbia's  15 interests in its public lands were subject to the same  16 sort of burden as was expressed in St. Catherine's  17 Milling, an interest other than that of the Province  18 under section 109.  Now, of course the Province case  19 has not been directed to that point.  It has been  20 directed to the point that the pre -- that the  21 pre-existing interest claimed by the plaintiffs of  22 ownership and jurisdiction do not oust its  23 jurisdiction over its public lands.  Now, I say that  24 colours this distinction, colours the way in which  25 Canada approaches the construction of the basic  26 constitutional instruments.  I say that if one starts,  27 and I submit that Canada does start, with a  28 misunderstanding of the plaintiffs' claim and if one  29 substitutes for that claim the thinking which  30 permeated pre-Confederation Upper Canada, then one  31 comes to a very different way of looking at Term 13  32 and all that followed thereafter.  33 Now, my friend Mr. Macaulay has adopted the  34 Province's submission with respect to the Royal  35 Proclamation, but he here accepts, as I understand it,  36 that the interest of the Indians and traditional  37 lands - I use that as a kind of a neutral phrase for  38 claims to lands beyond reserves.  He accepts the idea  39 that the interest of the Indians in those lands is  40 that stated in the dictum of Mr. Justice Dickson, as  41 he then was, in Guerin.  And that invokes the Royal  42 Proclamation.  43 My lord, the introduction to my friend's argument  44 starting at page 21, his section dealing with the  45 Constitution Act starting at page 35 and his section  46 on the Terms of Union starting at page 47, set out, as  47 I understand it, his basic views and in the 29133  Submissions by Mr. Goldie        1 introduction at page 21  and paragraph two I take it he  2 has summarized these propositions.  He says beginning  3 at line four:  "The jurisprudence establishes -- "  4 THE COURT:  I am sorry.  You are where now?  5 MR. GOLDIE:  I am at page 21 of his text, my lord.  6 THE COURT:  21?  7 MR. GOLDIE:  Yes.  And I take it that this is a summary of what  8 is contained in or states the premises which are later  9 developed upon which is argument rests.  And beginning  10 he says at line four in paragraph two:  11  12 "The jurisprudence establishes that the  13 Plaintiffs' aboriginal rights are a burden on  14 the Crown's proprietary estate in the land.  15 The Plaintiffs' — "  16  17 THE COURT:  He added the word "provision" to his text before  18 "Crown" there.  19 MR. GOLDIE:  Yes.  That's correct.  20  21 "The plaintiffs' claims in Delgam Uukw to  22 ownership and jurisdiction are in respect of  23 Provincial Crown lands.  These Crown lands are  24 held by the Province pursuant to s. 109 of the  25 Constitution Act, 1867.  As a matter of law,  26 aboriginal rights, if any, in respect of  27 Provincial Crown lands, are an interest other  28 than that of the Province, and are a burden  29 upon Provincial Crown lands.  The Plaintiffs'  30 claims in Provincial Crown lands are a matter  31 for the Province."  32  33 Now, I will be submitting that the proposition that  34 this is posed as a matter of law is based upon a  35 misconception and I say there is no law which up  36 supports the proposition which is stated.  37 Now, this assumption, however, is repeated in a  38 number of places, and I give your lordship a couple of  39 examples.  At page 40 he says in the first full  40 paragraph:  41  42 "It is submitted that any attempt to  43 distinguish St. Catherine's on the basis of the  44 non-applicability of the Royal Proclamation in  45 this case, is without substance.  The nature of  46 aboriginal rights being a burden on the  47 Provincial Crown's proprietary estate in the 29134  Submissions by Mr. Goldie        1 land applies  whether the rights are based on  2 the Royal Proclamation of 1763 or on the common  3 law:  Guerin, Calder, Smith."  4  5 Now, the root question, then, with respect to the way  6 in which my friend has approached this is with respect  7 to section 109 of the Constitution Act.  And that  8 question is whether lands outside the reserves created  9 by the colony were subject to a burden created by the  10 so-called Indian interest.  That my friend assumes --  11 an affirmative answer to that is assumed by my friend  12 to be the law.  Now, I have elsewhere dealt with  13 Guerin and Calder on this point and I'm not going to  14 repeat my argument, but Smith is -- however, I have  15 not dealt with it in this context and I want to do so.  16 The case itself, my lord, is found in the  17 plaintiffs' -- I'm sorry, the Province's authorities,  18 Volume 4 under the tab S4.  Now, my lord, the -- your  19 lordship will recall that section 109 of the  20 Constitution Act says that the lands in the Province's  21 and the Provinces are enumerated in the original act  22 as Canada, Nova Scotia and New Brunswick, and that  23 they belonged to those provinces subject to any  24 interest other than that of the Province in the same.  25 Now, Smith came out of New Brunswick.  With respect to  26 Canada, we now know that the burden in Upper Canada  27 was created by the Royal Proclamation.  That's St.  28 Catherine's Milling.  And I have never sought to  29 distinguish St. Catherine's Milling.  In my submission  30 it states the law.  But New Brunswick we now know  31 there were no treaties of surrender.  It was  32 comparable to British Columbia in that regard.  Now,  33 if Canada then is right, the result in New Brunswick  34 should be the same as it is in British Columbia and I  35 take it that's why my friend has relied upon it for  36 his propositions.  Now, in my submission Smith  37 supports the Province's contention that there was no  38 burden under section 109 other -- constituting an  39 interest other than that of the Province when the  40 public lands were confirmed as belonging to New  41 Brunswick in 1867.  The facts in Smith were these:  42 There was a pre-Confederation reserve created by the  43 colony.  In 1895, that is to say after Confederation,  44 a surrender of part of it was taken by Canada for a  45 particular purpose.  However, the purpose was never  46 carried out.  In 1952, the appellant Smith bought some  47 of these lands not from an Indian but from somebody in 29135  Submissions by Mr. Goldie 1            occupation of them and  he said his title was good  2 because of adverse possession under Provincial laws.  3 In other words, he -- his predecessor in title traced  4 his and his predecessor's occupation and possession  5 back for a length of time in excess of what the  6 Provincial law required to establish adverse  7 possession.  Now, your lordship will bear in mind  8 these were formerly band lands.  Canada commenced an  9 action for possession on behalf of the band saying  10 that the band continued to have an interest and if  11 they -- if Canada had succeeded Mr. Smith's title  12 would have been invalid.  Now, at trial Smith  13 succeeded.  That was reversed in the Court of Appeal  14 and it was -- and the appeal from the judgment of the  15 Court of Appeal was in turn reversed by the Supreme  16 Court of Canada and the reasons for that was first,  17 that the surrender in 1895 was held to be complete on  18 its face.  And with that, the Indian interest  19 evaporated.  Literally, in Mr. Justice Estey's words  20 "leaving nothing behind."  Now, the court referred to  21 section 109 of the Constitution Act at page 564.  22 Well, no, before I deal with that I want to refer to  23 page 579.  24 THE COURT:  579?  25 MR. GOLDIE: Yes, my lord. His lordship has been talking about  2 6 an agreement between the Province and the Dominion of  27 Canada in 1958 which was intended to convey lands to  2 8 Canada and was also intended to remove doubts about  29 the title which some people were asserting.  At the  30 top of page 579 his lordship says:  31  32 "Indeed the recitals"  33  34 That is to say the recitals in the 1958 agreement  35 between Canada and New Brunswick,  36  37 "refer to decisions of the Privy Council which  38 no doubt is a reference to the St. Catherine's  39 case which indicated that the title remained in  40 the Province and that the only effect of the  41 surrender was to remove from the title to those  42 lands the burden arising under s. 91(24) upon  43 the lands being set aside for Indian purposes."  44  45 Now, here we are in New Brunswick to which the Royal  46 Proclamation has never been replied and his lordship  47 is saying that the burden in respect of lands set 29136  Submissions by Mr. Goldie        1 aside for the Indians  as reserves is created by  2 section 91(24).  He says the burden arising under  3 section 91(24).  And I say that's the same thing in  4 British Columbia.  After Confederation there was a  5 burden imposed upon lands set aside for reserves by  6 virtue of Canada's exclusive authority under 91(24).  7 Now, at page five --  8 THE COURT:  But is this case not dealing solely with reserve  9 lands?  10 MR. GOLDIE:  Oh, yes.  But it's — it's — I'm going to come to  11 what he has to say about 109, because in my submission  12 he says it is only in respect of reserve lands that a  13 burden is created.  14 THE COURT:  So your point is that section 91(24) does create a  15 burden?  16 MR. GOLDIE:  In lands sets aside.  17 THE COURT:  Qua reserves.  18 MR. GOLDIE:  Yes.  19 THE COURT:  Yes.  I don't think there is any doubt about that.  20 MR. GOLDIE:  But of course, in my submission it's the only  21 burden.  There is no general burden extending to all  22 the lands in the Province.  Now, at page 580 his  23 lordship said this:  "In the result, therefore -- "  24 This is the first complete paragraph:  25  26 "In the result, therefore, the said lands were  27 a part of those lands in New Brunswick which  28 historically had been set aside for use by the  29 Indians prior to Confederation and which  30 continued to be  so dedicated after  31 Confederation.  Therefore, both before and  32 after 1895, the said lands were at law, both in  33 title and by beneficial interest, owned by the  34 Province of New Brunswick and held by that  35 Province as public lands as a result of s. 109  36 of the Constitution Act.  The legal and  37 beneficial interest of the Province in the said  38 lands was of course subject to the 'burden', to  39 use the expression of the Privy Council,  40 created by s. 91(24) of the Constitution Act."  41  42 Now, his lordship has earlier said that the burden of  43 91(24) extends to lands set aside for reserves.  And  44 here he is saying that the only burden that arises  45 under section 109 is that created by 91(24).  And then  46 he goes on to say:  47 29137  Submissions by Mr. Goldie        1 "By reason of  the surrender of these lands in  2 1895 the burden of s. 91(24) disappeared and  3 the legal and beneficial interest, unencumbered  4 thereby, continued in the Province of New  5 Brunswick.  The Federal Government thereafter  6 had no interest in the said lands legislatively  7 under the 2. 91(24), and of course the Crown in  8 the right of Canada at no time had a beneficial  9 interest in the ownership of the said lands,  10 nor did that government hold any right to  11 dispose of the said lands."  12  13 THE COURT:  But I don't see where you say that he's talking  14 there about section 109.  15 MR. GOLDIE:  Well, the section 109 arises in the words that I  16 earlier read.  Beginning at the sixth line in that  17 paragraph "therefore".  18 THE COURT:  Yes.  "Therefore both."  19 MR. GOLDIE:  20  21 ".. before and after 1895, the said lands were  22 at law, both in in title and by beneficial  23 interest, owned by the Province of New  24 Brunswick and held by that Province as public  25 lands as a result of s. 109."  26  27 THE COURT:  Oh, yes.  28 MR. GOLDIE:  Now, that -- and then he goes on to to describe the  29 nature of the burden created by 91(24).  Not by the  30 Royal Proclamation as was the case in Upper Canada,  31 but by virtue of 91(24) and it extended only to the  32 reserves.  33 THE COURT:  Of course the problem that a lowly trial judge has  34 is to deal with that in the face of what Mr. Justice  35 Dickson, as he then was, said in Guerin that these  36 rights preexisted Confederation.  37 MR. GOLDIE:  That is correct.  Well, he said that there were —  38 and I endeavored to demonstrate to your lordship the  39 reason why he came to that conclusion.  4 0 THE COURT:  Yes.  41 MR. GOLDIE:  And it was his reading of the Star Chrome case.  42 What I am saying is that this is a direct authority on  43 the question of section 109.  And it -- Mr. Justice  44 Estey notes at several places that the -- and I should  45 point out that the Royal Proclamation has had its  46 influence on the Indian Act and that is commented on  47 by Mr. Justice Estey at page 573 where his lordship in 2913E  second li  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Goldie        1 the first paragraph  ne says:  "Detailed  provisions -- " and he's there talking about the  Indian Act.  "Detailed provisions were made for the  procedure to be followed upon the release or  surrender of lands reserved for the use of  Indians, and any surrender of such lands to any  party other than the Crown was prohibited.  In  this, the Act is following the pattern of the  Royal Proclamation."  And then he makes a comparison between the two, but  it's -- the act simply adopts the procedure.  And then  he goes on -- goes on to say or he says elsewhere --  he makes the same observations elsewhere.  Now, there  is one aspect of this that I draw to your lordship's  attention at this time and it is at page 564.  Beginning in the long paragraph about six lines down  from the beginning the sentence:  "The lands  Indians."  reserved' for the benefit of the  It's between B and C of those marginal lettering.  THE COURT:  Yes.  MR. GOLDIE:  "The lands 'reserved' for the benefit of  Indians, on being released by the Indians for  whose benefit the lands had been set aside,  cease thereby in law to be within the  legislative reach of Parliament under the  Constitution.  The Federal Government never had  a proprietary interest in such lands as were  set aside for the use of Indians in the  circumstances of the said lands.  These  'reserves' were set up in the earliest days of  the colony of New Brunswick, and the title has  never been transferred to the Government of  Canada."  Well, of course in British Columbia they have been.  "The effect of a complete release, therefore,  would be the withdrawal of these lands from  Indian use within the contemplation of s. 29139  Constitution  Act  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Goldie        1 91(24) of the  As found in  St. Catherine's, the title of the Province  would be unencumbered by any operation of s.  91 (24) ."  Now, his lordship is there referring to the effect of  St. Catherine's which was to confirm the title of the  Province rather than to transfer the beneficial  interest of the Dominion when a surrender takes place.  Then he goes on:  "Here the effect of the release as a legal  instrument was complete, albeit that it was  accompanied by a request by the releasing  Indian band for a financial credit equal to the  proceeds of sale of the released interest,  which of course was not, in law, saleable by  the Government of Canada."  In other words, when the surrender was effected by the  Indians, it was complete in its face but  nevertheless -- there was an expression of a desire in  the part of the band.  "The released interest was but the right of the  Indians in question to enjoy the use of the  land under federal legislative regulation.  This might give rise to differences as between  the parties to the release, but does not go  either to the validity of the release as a  conveyancing instrument or the state of the  provincial title.  If and when such related,  but here extraneous, issues arise, the courts  then concerned may find of interest the comment  of Street J. in the judgment of the Divisional  Court of Ontario in Ontario Mining Co. v.  Seybold."  And then he quotes that and he says -- and these are  the words of Mr. Justice Street:  "The surrender was undoubtedly burdened by the  obligation imposed by the treaty to select and  lay aside special portions of the tract covered  by it for the special use and benefit of the  Indians." 29140  Submissions by Mr. Goldie        1 Your lordship may  recall that in Seybold the Dominion,  2 then under the impression that it would succeed to the  3 entire beneficial interest of the lands, took a  4 surrender of the Indians upon the condition that they  5 would set aside reserves.  6  7 "The Provincial Government could not without  8 plain disregard of justice take advantage of  9 the surrender and refuse to perform the  10 condition attached to it; but it is equally  11 plain that its ownership of the tract of land  12 covered by the treaty was so complete as to  13 exclude the Government of the Dominion from  14 exercising any power or authority over it.  The  15 act of the Dominion officers, therefore, in  16 purporting to select and set aside out of it  17 certain parts as special reserves for Indians  18 entitled under the treaty, and the act of the  19 Dominion Government afterwards in founding a  20 right to sell these so-called reserves upon the  21 previous acts of their officers, both appear to  22 stand upon no legal foundation whatever.  The  23 Dominion Government, in fact, in selling the  24 land in question, was not selling 'lands  25 reserved for Indians', but was selling lands  26 belonging to the province of Ontario."  27  28 Now, my lord, I will be submitting at a later point  29 that the only obligation laid upon British Columbia  30 was to set aside lands for reserves as required.  31 So -- and it fulfilled that condition.  And the only  32 burden that was created by the -- by Confederation  33 under section 109 was that created by the existence of  34 the exclusive legislative authority of the Dominion  35 under section 91 head 24 and that was removed of  36 course when -- I shouldn't say it was removed.  It  37 continued and was confirmed when British Columbia  38 transferred the title of the reserves to the Dominion.  39 THE COURT:  Well, what you're saying is that in effect that  40 Confederation abolished all the aboriginal rights  41 except to reserves.  42 MR. GOLDIE:  I will put it this way, my lord, that what Mr.  43 Justice Estey is saying in my submission is that the  44 only aboriginal interest is confined to reserves.  And  45 in law, and I emphasize the words in law, that the  46 only burden under section 109 of the act was that  47 created by the Dominion's exclusive authority under 29141  Submissions by Mr. Goldie        1 91(24).  2 Now, I've -- I am sorry to have got into this at  3 some length, but I wanted to point out that in the  4 only example of the authorities relied upon by my  5 friend as stating the law which has any analogy to  6 British Columbia, namely the Province of New  7 Brunswick, we have in my submission a clear statement  8 that what my friend proposes, namely that there is a  9 burden on all the lands in the Province, it is quite  10 wrong.  11 THE COURT:  Why didn't the Royal Proclamation apply in New  12 Brunswick?  It's east of the Appalachians?  I suppose  13 it is.  14 MR. GOLDIE:  I forget what it was, my lord, but it, like  15 Newfoundland and old Quebec, pre 1774 Quebec, never --  16 the Royal Proclamation never appeared to apply there.  17 THE COURT:  The argument wouldn't matter anyway, because the  18 lands weren't set aside even within the reach of the  19 proclamation, weren't set aside for Indians.  20 MR. GOLDIE:  Except to this extent, that the Royal Proclamation  21 had an area burden and that was recognized in the  22 treaties in Upper Canada.  The hunting reserve was an  23 area burden.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  The effect in New Brunswick and British Columbia  26 was that the burden was created by 91(24) and not the  27 Royal Proclamation.  So the area was confined to lands  28 set aside for reserves.  29 THE COURT:  Well, what is your answer to the suggestion that I  30 make by way of rhetorical inquiry that Mr. Justice  31 Estey in Smith was dealing with reserve lands that had  32 been surrendered and he wasn't dealing with anything  33 else and we shouldn't extend his meaning beyond what  34 he was actually dealing with.  35 MR. GOLDIE:  Well, he had to deal with the proposition that  36 there was a residual interest of the Indians.  That  37 was what Canada was asserting.  Canada said yes, the  38 surrender was taken but the lands have never been  39 alienated.  Therefore on behalf of the Indians we are  40 asserting a residual interest in those lands.  So he  41 had to deal with the situation as it was presented.  42 THE COURT:  Except a surrender could apply to both the reserve  43 lands and to non-reserve lands and here there was only  44 a surrender of reserve lands.  45 MR. GOLDIE:  Yes.  That's correct.  But he was — Canada was  46 asserting an interest in the surrendered lands.  Now,  47 how could it do so in the face of that surrender and 29142  Submissions by Mr. Goldie        1 say there was a  residual interest notwithstanding the  2 surrender.  3 THE COURT:  All right.  I am just casting about for a  4 combination and I am wondering if the whole thing  5 turns on the fact that these were surrendered lands  6 and that surrender covers everything.  Couldn't be --  7 MR. GOLDIE:  Well —  8 THE COURT:  There couldn't be a residual aboriginal interest in  9 surrendered lands.  10 MR. GOLDIE:  That was the -- the aboriginal interest -- he put  11 it this way:  That the burden was that which was  12 created by 91 (24) .  13 THE COURT:  Well, that's because he was dealing with reserved  14 lands.  15 MR. GOLDIE:  That's correct.  16 THE COURT:  That is clearly so.  17 MR. GOLDIE:  That's unquestionably the case.  18 THE COURT:  Does the judgment disclose the nature of the  19 interest that Canada sought to enforce?  What did he  20 say?  21 MR. GOLDIE:  A possessory interest.  It was seeking to --  22 THE COURT:  Assert an aboriginal right?  23 MR. GOLDIE:  No, no, no.  No, no.  It was seeking -- the land in  24 question, my lord, had been occupied by squatters, if  25 you want to put it that way --  2 6 THE COURT:  Yes.  Yes.  27 MR. GOLDIE:  -- for a long period of time, and Smith wanted to  28 perfect his title, and he was going to seek a title  29 which was not just dependent upon that of his  30 predecessors.  But your lordship will see in the  31 headnote:  32  33 "Respondent, in the right of Canada and on  34 behalf of the Red Bank Band of Indians, brought  35 an action for possession of an appellant's  36 parcel of land allegedly located within the  37 Indian reserve.  Lands forming part of the  38 reserve, including the disputed lands, were  39 surrendered by the Indians to the Crown in 1895  40 to be sold with the proceeds therefrom going to  41 the Indian Band.  The Crown, however, never  42 disposed of the lands.  Appellant, who  43 purchased the land in 1952, supported the  44 validity of his title on the basis of adverse  45 possession."  46  4 7 THE COURT:  Yes. 29143  Submissions by Mr. Goldie 1  MR. GOLDIE:  Now, I fully agree  that there was no reference to  2 aboriginal rights there as indeed there was no  3 reference to aboriginal rights in the Guerin case in  4 the sense that the Province was not involved.  5 THE COURT:  That's the nature of obiter dicta.  6 MR. GOLDIE:  Yes.  Now, my lord, I want to move on and I say  7 that the fact that Canada's policy - and my friend  8 refers to Canada's policy in a number of places -  9 respecting aboriginal rights in British Columbia has  10 since 1871 undergone a number of extreme shifts and  11 changes.  Some of these are due to what the courts  12 have done.  But we have described these changes in our  13 submission.  They include the 1874 disallowance  14 because of the Royal Proclamation followed by the 1875  15 Act being allowed to operate.  All of these things  16 have been referred to.  From and after the date of  17 Union I say the Province was entitled to rely with  18 some certainty upon the arrangements that are  19 reflected in Term 13 and the Constitution Act of 1867,  20 the basic constitutional instruments.  21 Now, I note that in addition to Term 13 requiring  22 British Columbia to convey to Canada land reserves for  23 their use and benefit, and that I say was the only  24 obligation imposed upon the Province.  Term 13 had a  25 second aspect.  And it starts with -- it starts with  26 these words:  27  28 "The charge of the Indians shall be assumed by  2 9 the Dominion Government."  30  31 And I say the phrase "charge of the Indians shall be  32 assumed by the Dominion Government" means something  33 more than section 91(24).  It implies a duty, burden  34 or responsibility.  Now, what were the incidents of  35 the charge assumed by Canada are not specified in Term  36 13 but they -- they include the responsibility for the  37 Indians at every respect except for the provision of  38 reserves.  And that specific obligation fell upon  39 British Columbia.  40 Now, my lord, my friend Mr. Macaulay has suggested  41 that the Term 13 is clear on its face and I say it is  42 clear on its face with respect to British Columbia's  43 obligations.  It is not specific when it comes to  44 Canada's obligations, encompassed in the words of the  45 charge of the Indians.  I refer to page 23 of my  46 friend's argument in this regard.  4 7  THE COURT:  23? 29144  Submissions by Mr. Goldie        1  MR. GOLDIE:  Yes, my lord.  In  the second paragraph my friend  2 says:  3  4 "It is submitted that evidence of subsequent  5 opinions, discussions, policies and events is  6 not helpful in determining the constitutional  7 effect of the Terms of Union and the  8 Constitution Act, 1867 which are clear and  9 plain in this manner."  10  11 And at page 22 and paragraph three my friend says:  12  13 "Under Term 13, Canada assumes certain  14 specifically worded and defined duties."  15  16 And I think my friend used the word --  17 THE COURT:  Imposed.  18 MR. GOLDIE:  — imposed.  19 THE COURT:  Yes.  20 MR. GOLDIE:  Now, in my submission it's quite the opposite.  It  21 is British Columbia which had clear and specific  22 duties and it is Canada which assumed responsibilities  23 which were left to be developed.  And I say that flows  24 from the use of the words "the charge of the Indians."  25 I say Canada by those words assumed the open-ended  26 obligation, whereas British Columbia accepted the  27 specific obligation of the -- of the -- of the  28 Provincial reserves.  The only other specific  29 provision in Term 13 was that in the event of a  30 dispute over the acreage of the reserves or the amount  31 of the reserves the matter was to be referred to the  32 Secretary of State.  33 THE COURT:  I gather that has never happened?  34 MR. GOLDIE:  No.  The Dominion in — Lord Dufferin suggested  35 that it be done once, but in fact the Order-in-Council  36 didn't seek that.  So that the question of the  37 subsequent developments is very relevant in the  38 interpretation of the Terms of Union.  And I refer, my  39 lord, to the Labrador -- Labrador Boundaries Reference  40 case, and I don't have the -- where that is.  I will  41 get that.  But it's 1927 2DLR. 401 at page 422.  And  42 there the judicial committee said, and I quote:  43  44 "There is no doubt that where a document is  45 ambiguous evidence of a course of conduct which  46 is sufficiently early and continuous may be  47 taken into account as bearing upon the 29145  Submissions by Mr. Goldie        1 construction of  the document."  2  3 Now, I say that is particularly apt when one comes to  4 consider not only Term 13 but also the construction of  5 P.C. 1265.  And I submit that my friend's proposition  6 that Term 13 may be construed without reference to its  7 subsequent history is incorrect.  8 THE COURT:  That was 401 at what page?  9 MR. GOLDIE:  422.  10 THE COURT:  Thank you.  11 MR. GOLDIE:  I am told that that case is found at tab 11 of  12 Canada's authorities on the counterclaim.  13 THE COURT:  Thank you.  14 MR. GOLDIE:  Now, I do not suggest in this court -- and this is  15 a theme that runs through my friend's submission.  I  16 do not suggest in this court that there is anything in  17 the Terms of Union or Constitution Act, 1867 which  18 imposes upon Canada an obligation to negotiate  19 treaties or otherwise to extinguish aboriginal rights.  20 I say that's not for this court.  And I have never  21 suggested that that is anything which your lordship  22 has to find.  I do, however, and I should say I also  23 take issue with the proposition on page 22 at the  24 bottom of that page, my lord, of this text, that the  25 Province has a continuing obligation under Term 13,  26 although he says that the Province's Term 13  27 obligation to Canada is not at issue in this lawsuit.  28 I take issue with that word "continuing" because if  29 there is anything that is clear and plain in P.C. 1265  30 it is that British Columbia has fulfilled its  31 obligations under Term 13.  32 THE COURT:  Where is this word "continuing"?  33 MR. GOLDIE:  At the bottom of page 22, my lord, the last line.  34 THE COURT:  Oh, yes.  35 MR. MACAULAY:  My lord, even if you delete that word the  36 sentence still bears the meaning that I wished to  37 convey.  38 MR. GOLDIE:  Well, I'll delete it, then, and I'll look at the  39 sentence with it taken out.  Well, I take issue, of  40 course, with the sentence as it is with the word taken  41 out.  There is no confusion, my lord.  Your lordship  42 will find that in our submission there is a very clear  43 tracking of the title question and of the acreage  44 question.  The two come together at P.C. 751.  And  45 they come together in 1265 in this sense, that the  46 condition that was imposed upon British Columbia in  47 respect of the Indians was expressly confined to the 29146  Submissions by Mr. Goldie        1 Province of reserves.  2 Now, my friend suggested in his oral argument that  3 if the court adopts the Province's argument respecting  4 P.C. 1265 it will be tantamount to a finding of  5 liability on the part of Canada.  That's at transcript  6 364 page 28949.  I say that the Province by -- in my  7 submission by adopting P.C. 1265 Canada expressly  8 acknowledged that the whole of British Columbia's  9 obligation respecting Indians was encompassed in Term  10 13.  But that -- it doesn't follow from that that  11 there is an obligation on Canada.  That remains for  12 some other proceeding and in some other court, I  13 assume.  Now, my lord, at page 25 in the last  14 paragraph my friend says, and I quote:  15  16 "Finally, the Province's argument that the 1927  17 Report of the Joint Committee and subsequent  18 related events operated 'to discharge the  19 Province from any liability...' is without  20 merit.  The 1927 Report, and Parliamentary  21 resolutions adopting it, do not change the  22 law;"  23  24 Now, that's his view of the law.  25  26 "the subsequent events are matters of  27 government policy that do not affect the duties  28 and liabilities of the Crown, federal or  29 provincial.  They can not be said to operate as  30 a 'release' or a 'discharge' of the Province."  31  32 Now, what I want to say in reply to that is this:  The  33 joint report and the payments that have been made in  34 lieu of annuities, known as the B.C. Special, operate  35 directly towards the Indian peoples, including the  36 plaintiffs.  And that makes the difference between a  37 discharge of the Province which operates against the  38 plaintiffs and an agreement to indemnify which may be  39 a matter between the Province and the Dominion only.  40 Now, that doesn't change whatever the law is.  The  41 discharge of the Province is regardless of that law.  42 I say the law may change but the effect of the  43 constitutional instruments does not.  My friend says  44 that the -- there is nothing in the appropriation acts  45 which provide for the annual appropriation of the B.C.  46 Special that would enable a party to bring an action  47 to compel payments.  Well, that's completely 29147  Submissions by Mr. Goldie        1 irrelevant.  That's  never suggested that that would be  2 the case.  3 At page 29 my friend makes reference to a  4 principle which he says is widespread and which he  5 makes reference to in a number of places.  Paragraph  6 two he says:  7  8 "As a matter of policy, the Crown could  9 extinguish all aboriginal rights to an entire  10 area by treating with the natives (as was the  11 policy of Canada on the Prairies) or by  12 purchasing their rights to the lands.  There  13 was no obligation to do so, but where this  14 policy was pursued, the cost of the treaty or  15 purchase was discharged, as a matter of policy,  16 by the holder of the beneficial interest in the  17 Crown's proprietary estate in that land."  18  19 Now, that with great respect is in my submission far  20 too sweeping a statement.  Smith itself furnishes an  21 indication of the error of that statement.  The  22 Province of Ontario did not bear any part of the cost  23 of Treaty No. 3 which was the subject matter of St.  24 Catherine's Milling in subsequent cases and most  25 importantly the Province of British Columbia was not  26 asked and did not volunteer to bear any part of the  27 cost of Treaty 8 and both Provinces were at the  28 relevant times the beneficial owners of the lands in  29 question as was New Brunswick in the Smith case.  In  30 the case of Ontario and Treaty 9 it bore a part of the  31 cost of that treaty because it agreed to do so.  This  32 reference is made again at page 31 and in my  33 submission this amounts to an attempt to relitigate  34 the cases that I referred to in my opening in Smithers  35 and which is answered in entirely by the Annuities  36 case.  The Hudson's Bay Company example which is  37 referred to at page 31 is of no assistance to my  38 friend.  The Hudson's Bay Company sought to recover  39 from the government in the case of Vancouver Island  40 the cost of extinguishing treaties and that was  41 refused by the government.  In the case of Rupert's  42 Land, the Hudson's Bay Company got 300,000 pounds and  43 an indemnity plus some other things.  So I don't think  44 that is of assistance to my friend.  Now, at page 35  45 my friend has -- makes reference again to the  46 proposition that if the Plaintiffs have existing  47 aboriginal rights, they are of interest other than 29148  Submissions by Mr. Goldie        1 that of the Province  within the meaning of the section  2 109 of the Constitution Act.  And I have dealt with  3 that.  That burden is one that is confined to the land  4 set aside or reserved for the Indians and the burden  5 is created by 91(24) .  6 Now, your lordship a few minutes ago asked me what  7 about the observations of Mr. Justice Dickson about  8 pre-existing rights, that is pre-existing 1867.  And  9 your lordship may recall that I traced through  10 colonial law and the observations of the select  11 committee, the observations of Mr. Merivale and people  12 in the Colonial Office that as a matter of policy the  13 village sites would be recognized and respected and  14 that if they were required for settlement undoubtedly  15 compensation would be paid.  That was the way Mr.  16 Merivale put it.  Now, that's the only pre-existing  17 interest that I have been able to discover that is --  18 and even that was not one that was legally thought to  19 exist but one that was regarded as good policy.  20 THE COURT:  I think it was Mr. Jackson who suggested that that  21 policy had matured into a rule of common law.  22 MR. GOLDIE:  Yes, he did indeed.  And it was my submission that  23 there could be found nothing which supported that  24 proposition.  And I made a submission that in which I  25 endeavored to ascertain what the state of the colonial  26 law was and the best I could find was that there was  27 no law which compelled a payment but it was good  28 policy.  That was the references to the Louisianna  29 case, and indeed I relied upon Johnson and Mcintosh  30 for that.  31 My lord, I of course point out in relationship to  32 the submission of Canada, that there is a continuing  33 burden created by aboriginal interests within the  34 meaning of section 109 that the Dominion held the  35 Railway Belt from 18 -- well, the late nineteenth  36 century.  1880 something to 1930.  It created reserves  37 within that belt.  It alienated lands within that  38 belt.  It leased gravel pits and took rentals from  39 them in that Railway Belt all without feeling the need  40 to acknowledge an aboriginal right.  41 THE COURT:  Is it convenient to take the morning adjournment?  42 MR. GOLDIE:  Yes, my lord.  4 3 THE COURT:  Thank you.  44  45 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING RECESS)  46  47 29149  1  Submi  .ssions  by  Mr.  Goldie  ereby certify  the  foregoing  to  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Laara Yardley  Official Reporter,  UNITED REPORTING SERVICE LTD. 29150  Submissions by Mr. Goldie        1 (PROCEEDINGS RECONVENED  AT 11:30 A.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, I was talking about the proposition that  6 Canada refers to at pages 29 to 31, which is the "He  7 who gets the benefit, pays."  And I mentioned the  8 Dominion -- the Dominion's benefits that it achieved  9 from the railway belt and, in effect, it is said with  10 respect to the railway belt, "We got the benefits.  We  11 are going to hand it back to you with the burden,"  12 because they did get benefits from the railway belt  13 and, of course, they got the benefit under Term 13 of  14 an obligation to allot provincial public lands.  15 I did want to make a reference to the Ontario --  16 the 1912 Quebec and Ontario Boundary Extension Acts  17 which are referred to by my friend as exemplifying  18 this principle, if I follow along correctly.  That's  19 at page 33 of this text.  20 Now, I say that in both of those situations, both  21 the Quebec and the Ontario Acts, there was an  22 agreement and a quid pro quo:  namely, the extension  23 of boundaries.  It would be, my lord, as if Canada  24 extended British Columbia's boundaries to include the  25 Yukon Territory on the condition that B.C. negotiated  26 treaties.  And the analogy is a fairly good one  27 because until fairly recently there were no treaties  28 in the Yukon Territory.  And the -- obviously, that  29 quid pro quo was an attractive one.  30 I have one other reference at page 56 that I wish  31 to refer to here.  Paragraph 2 starts out with these  32 words:  33  34 It was Canada's understanding that in provinces  35 other than Manitoba where Canada was not the  36 holder of the beneficial interest in the  37 Crown's title, Canada would not be responsible  38 for the extinguishment of aboriginal rights on  39 Provincial Crown land.  40  41 Now, that is not supported by anything other than  42 the letter of the Secretary of State for the provinces  43 to the Lieutenant-Governor of Ontario in 1870, I think  44 it was.  And that, I submit, is -- they have taken  45 from that letter something which was not there.  At  46 that time the Lieutenant-Governor was the central  47 government's representative, its nominee.  And as your 29151  Submissions by Mr. Goldie        1 lordship may recall, in  1870, the Lieutenant-Governor  2 of the newly created Province of Manitoba and of the  3 Northwest Territories was carrying out the Dominion's  4 policy with respect to Indians.  In Ontario, it would  5 be a Dominion treaty.  There are no treaties after  6 1867 -- and this letter was written after 1867 --  7 between the province and Indians.  8 So the Lieutenant-Governor as the Dominion's  9 representative in Ontario and the person through whom  10 all communications between the province and the  11 Dominion went, was asked for his consideration with a  12 view to receiving due attention and eliciting such  13 proposals as may lead to a settlement of the Indian  14 claims.  Now, the settlement of those claims would be  15 a Dominion settlement.  16 My lord, in my friend's oral argument at  17 transcript 365, page 29046, my friend intimated that  18 the Province of British Columbia had frustrated or  19 sought to prevent attempts by Canada to resolve the  20 question of unextinguished aboriginal title or  21 aboriginal rights, and he suggests that that was  22 because British Columbia owned the land.  I'm  23 referring to line 24 where my friend said, "Because  24 British Columbia wouldn't have it."  And that was the  25 policy that Canada had on the prairies.  And he said,  26 "No, there's another answer to that.  Canada was the  27 land owner on the prairies, it owned the land.  It  28 could go to the tribes and say," et cetera.  29 Now, I say that in response to that, since 1871,  30 Canada has at all times been fully empowered and at  31 liberty to enter into treaties with Indians in British  32 Columbia.  It had the assurance that the reserves  33 would be allotted under Term 13.  It could deal with  34 them with that knowledge and it did so deal with them  35 in the case of Treaty 8.  It -- British Columbia could  36 not and did not object when Canada included the  37 northeastern corner of the province within Treaty 8.  38 When I say "could not", I mean constitutionally.  39 British Columbia could not and did not object in 1923  40 when Canada chose to enter into negotiations with a  41 view to concluding a treaty or treaties with the  42 Indians of British Columbia.  The only reason why  43 Canada did not sign a treaty then was what was --  44 because it viewed the demands of the Indians as  45 extravagant.  46 British Columbia did not object in 1927 when the  47 Senate and House of Commons decided to consider the 29152  Submissions by Mr. Goldie        1 allied tribes'  petitions by means of a Special Joint  2 Committee.  It did not -- and in my submission could  3 not -- object to the Committee's recommendation  4 respecting the $100,000 grant in lieu of annuities.  5 Nor has it objected, nor could it, to the continuing  6 payments of the so-called B.C. Special; the  7 continuation of those grants in lieu of annuities.  8 Canada did not require British Columbia's consent  9 to negotiate a treaty.  It did not have and recognized  10 that it did not need that when it negotiated Treaty 8.  11 And of course, my lord, I -- in my opening, I  12 referred -- not my opening -- in the introduction, to  13 volume 1 of the Summary of Argument.  I have noted the  14 fact that as late as 1919, the Dominion threatened to  15 disallow the B.C. Settlement Act because it contained  16 the word "negotiate" with the Indians.  17 Now, my lord, I continue with the reference to  18 page 215.  The first paragraph on that page says that:  19  20 The province argues that Canada should have  21 brought the question of aboriginal rights in  22 Provincial Crown lands before the courts by  23 commencing an action.  24  25 I don't think we ever made such a submission.  We  2 6 have submitted that Canada could have brought the  27 question of aboriginal rights before the courts and it  28 has submitted that that course was open to Canada and  29 that after the 1911 amendment, which is Section 37A of  30 the Indian Act, there were no longer any grounds for  31 asserting that there was no method by which British  32 Columbia could be taken to court against its will.  33 The question of "against its will" is a red herring,  34 my lord.  The Dominion has -- or Canada has referred  35 matters to the Supreme Court under its reference  36 powers without the consent of provinces.  I have  37 suggested to your lordship that it wanted the consent  38 of the province because it wanted to ensure that the  39 province would not regard the result as merely an  40 advisory opinion.  Section 37A was put in to provide  41 for the very point that it would be against the -- a  42 person in possession of lands, therefore Crown  43 immunity would not apply, nor would the question of  44 the -- nor would any aspect of B.C.'s consent apply.  45 At page 276 of my friend's argument.  4 6  THE COURT:  Two?  47  MR. GOLDIE:  276.  Midway down the page -- half-way down the 29153  Submissions by Mr. Goldie        1 page my friend says,  and I quote:  2  3 P.C. 751 represented the only means by which  4 Canada thought it would obtain a court  5 decision.  As discussed above, without B.C.'s  6 concurrence, a court reference was impossible.  7  8 That, with great respect, my lord, is just simply  9 not so.  The amendment to the Indian Act was the very  10 means that the Deputy Minister of Justice of the day  11 thought would be the best way of dealing with the  12 question of title without British Columbia's consent.  13 P.C. 751 went far beyond that.  14 Now my lord, I want to make reference to the --  15 some of the documents that my friend introduced --  16 more accurately, the use to which he makes of them.  17 In volume 364 at page 29017.  18 THE COURT:  Sorry, volume 364?  19 MR. GOLDIE:  364, 29017, my friend referred to three of the un-  20 exhibited documents attached to his document, tabs 32  21 to 34, as ones upon which he wished to place some  22 emphasis.  And he repeated that at page 28988 -- or I  23 should say he had earlier stated at page 28988,  24 because he regarded one of them as being important.  25 Now, my lord, those three documents consist of Mr.  26 O'Meara's letter to Premier Oliver of February 8th,  27 1919, that's tab 32; Mr. O'Meara's letter to Mr.  28 Oliver's secretary of the 19th of February, 1919; and  29 Mr. Oliver's letter to Mr. O'Meara of the 20th of  30 February, 1919, in which the premier said that the  31 1919 B.C. Settlement Act would not conflict in any way  32 with the hearing, weighing and deciding according to  33 their merit, the matters in the documents submitted.  34 Now those documents submitted are presumably the five  35 documents which O'Meara sent to the Premier on  36 February the 8th, 1919   Now the difficulty, my lord,  37 is this:  that only one of those documents is  38 available and that is the letter from Fitzroy to the  39 agents of the Nishga, and that is in evidence.  The  40 other documents are not only not in evidence --  41 THE COURT:  Sorry, is that number five?  42 MR. GOLDIE:  That, my lord, is — yes, that's number five.  4 3 THE COURT:  Yes.  44 MR. GOLDIE:  But the preceding four are neither in evidence nor  45 do we have them.  They are not even in the collection  46 of any of the parties as far as we can make out,  47 though they may or may not refer to title.  And I say 29154  Submissions by Mr. Goldie        1 that so far as these  letters suggesting that premier  2 Oliver had a different view of P.C. 1265, I say that  3 cannot be relied upon for that proposition.  4 THE COURT:  Well, Mr. Macaulay said that the issue in item five  5 was Indian title, and I think he said --  6 MR. GOLDIE:  I thought he suggested that all of them related to  7 title.  8 THE COURT:  Well, he may have.  I have an arrow going to number  9 five —  10 MR. MACAULAY:  I didn't suggest anything, my lord, about the  11 other four.  12 THE COURT:  All right.  13 MR. MACAULAY:  Because I didn't have them.  14 MR. GOLDIE:  Well that's precisely my point.  15 THE COURT:  My arrow points to number five.  1203-8 is the  16 bundle of documents from which these have been  17 extracted?  18 MR. GOLDIE:  1203-8 is the counterclaim documents.  19 THE COURT:  Yes, all right.  20 MR. GOLDIE:  My point is how can we accept the broad proposition  21 that this may -- that based upon those documents P.C.  22 1265 or the 1919 B.C. Settlement Act would not  23 conflict in any way with the hearing, weighing and  24 deciding according to their merit, the matters in the  25 documents submitted.  Now my friend says we know about  26 one, but the other four?  The Premier refers to all  27 five of them.  And what I say is that if we do not  28 have those other four, it is -- it is very dubious to  29 draw a conclusion from the one that we do have that  30 applies to the whole of the letter.  31 THE COURT:  Well, I think number five was read to me.  32 MR. GOLDIE:  Oh yes.  It's -- I read that document to your  33 lordship.  34 THE COURT:  Well, it deals with Indian title, does it not?  35 MR. GOLDIE:  Well, no.  My recollection is that it said, "We are  36 not going to deal with it at the level to which you've  37 addressed it, that petition".  38 THE COURT:  Yes.  Suggested they go to the local courts, didn't  39 it?  40 MR. GOLDIE:  Yes, yes.  41 MR. MACAULAY:  It was —  42 MR. GOLDIE:  Now, for all I know —  43 MR. MACAULAY:  It was the Nishga petition, my lord, which we all  44 know --  45 MR. GOLDIE:  That's what I say.  46 THE COURT:  It was in response to the Nishga petition?  47 MR. MACAULAY:  It was in response, yes. 29155  Submissions by Mr. Goldie        1  MR. GOLDIE:  Yes.  And the Nishga  petition was lodged in London  2 and they said, you know, "You want to go somewhere  3 else."  4 But my point is this, my lord:  for all I know,  5 the Premier was talking about seven -- P.C. 751 when  6 he said there is no impediment to the hearing of  7 your -- of these claims.  And that is so.  Long after  8 P.C. 1265, it was open to the Indians to test the  9 issue of Indian title by complying with P.C. 751, and  10 the dates of these other -- the dates of the other  11 material is 1916, 17, 18, 18, are all after 1914 when  12 P.C. 751 had been enacted.  13 THE COURT:  P.C. 751 was 1914?  14 MR. GOLDIE:  1914, yes.  15 THE COURT:  All right.  16 MR. GOLDIE:  But there is a more serious problem in terms of  17 documents in connection with a statement made at page  18 165.  And starting at page 165, with respect -- and  19 this, my lord, is with respect to the disallowance of  20 B.C.'s 1874 Crown Lands Act and the subsequent  21 decision to allow the 1876 Act to operate despite the  22 fact that it did not deal with Bernard's conclusion  23 that the Royal Proclamation applied and that in law,  24 British Columbia was required to extinguish Indian  25 title.  Canada refers to that and quotes extensively  26 from Bernard's opinion at page 152 through to 153.  27 And if your lordship would turn to page 153, there is  28 the emphasized paragraph beginning with the words,  29 "That which has been ordinarily spoken of as the  30 'Indian Title'".  So he has gone through the whole  31 business of the Royal Proclamation, Section 109, and  32 he says in the next paragraph:  33  34 The undersigned, therefore, feels it incumbent  35 on him to recommend that this Act should be  36 disallowed.  37  38 Now, your lordship will recall that the province  39 made a submission with respect to the implication  40 of -- the subsequent operation or failure to disallow  41 the British Columbia Land Act which made no greater  42 provision for title than its predecessor.  43 Now, the proposition that is made by Canada based,  44 as I say, on a failure to consider the connecting  45 documents, is in response to the Province's submission  46 that the 1875 Act was regarded by the province as  47 meeting both the objection with respect to title, and 29156  Submissions by Mr. Goldie        1 the objection with  respect to the reserve size.  And I  2 refer your lordship to page 167, and my friend is here  3 referring to our submission:  4  5 The Province then refers to P.C. 436 1/2 dated  6 May 6, 1876, by which the question of  7 disallowance of the 1875 Land Act was again  8 considered.  9  10 The province maintained that the -- and this is  11 quoting our submission:  12  13 The Province maintained that the Dominion's  14 objections to its 1875 Crown Lands Act had been  15 "removed by the agreement for a settlement of  16 the Indian land question by Commissioners", and  17 on May 6, 1876, the Dominion decided against  18 disallowing the 1875 Act.  19  2 0 And then here comes the reply to that:  21  22 The suggestion of a correlation between the  23 "Province's" position and Canada's decision not  24 to disallow the Provincial statute is  25 incorrect.  The only evidence of the  26 "Province's" position is the reference to  27 Trutch's views.  28  29 And they emphasize that it's the views of the  30 Lieutenant-Governor alone.  31 Now that, my lord, can only be cleared up by --  32 and that is repeated at page 171, the last page -- the  33 last paragraph:  34  35 The view that the Indian reserve and Indian  36 title question were separate questions was not  37 just Mills' but everyone else's except,  38 apparently, Trutch's  (although again no  39 reference is given for the Province's  40 position).  41  42 And I am going to ask your lordship to look at  43 the connecting Orders in Council and communications,  44 and I'm handing up a yellow book which contains the  45 documents in question.  46 Now, I first want to refer to the Order in  47 Council 436 1/ -- I think that Order in Council, which 29157  and  which  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Goldie        1 is the starting point  is not in question,  has -- I'll get it from the main documents, my lord.  Now that Order in Council, which is dated May the 6th,  1876, stated:  The Committee of Council have had under  consideration a report dated 28th of April,  1876, from the Minister with reference to two  Acts of the Province of British Columbia,  assented to on the 22nd of April, 1875, and  intituled an Act to amend and consolidate the  laws respecting Crown lands in British  Columbia.  Now that's the 1875 Crown Lands Act which was  passed to meet the objections to the 1874 Act.  Now, the report of the Minister of Justice, which  is attached, reads as follows, and I'm referring here,  my lord, to that part which refers to the -- to the  Crown Lands Act.  He says:  By minute in council of the 10th November,  1875, the report of the undersigned upon the  act intitule, an act to amend and consolidate  the laws respecting Crown Lands Act in British  Columbia is approved.  The same steps were  subsequently taken upon this subject as those  detailed with reference to the subject treated  upon the first paragraph.  Now that was the first Act and that he stated as  this :  The views of the Government of British Columbia  not having been communicated to His Excellency,  the Secretary of State recently asked for a  telegraphic communication upon the subject.  By  telegraph dated April 27th from the Lieutenant-  Governor to the Secretary of State he is  informed that the Government of British  Columbia concurs in the disallowance of this  act.  Now, I'm just referring to that as the step that  was taken.  Referring back to what was done with the  Crown lands, he says this:  The Lieutenant-Governor's communication upon 29158  Submissions by Mr. Goldie        1 this Act states  that the objections taken by  2 Council to it are considered to be removed by  3 the agreement for the settlement of the Indian  4 land question by Commissioners.  5  6 Now, it is that which is alleged to be the  7 personal communication of Trutch.  It is necessary, my  8 lord, for us to see what that communication is, and  9 the communication is found printed under tab 2 -- I'm  10 sorry, it's found quoted under tab 2 in the print:  11  12 "That this Government concurs in the  13 disallowance of the Act for the better  14 Administration of Justice; that the general  15 question involved therein is under  16 consideration."  17  18 Et cetera.  19  20 "That the objections to the Act amending the  21 Crown Lands Act are considered to be removed by  22 the agreement for the settlement of the Indian  23 land question."  24  25 And then if your lordship would go up to the top  26 of that page under tab 2, your lordship would see the  27 covering letter:  28  29 I have the honor to enclose herewith a Minute  30 of my Executive Council together with a  31 transcript of a telegraphic despatch which, in  32 accordance therewith, I have this day addressed  33 to you in reply to your telegram to me of the  34 13th April, and stating the views of this  35 Government as to the several Acts of the last  36 Session of the Legislature of this Province.  37  38 So your lordship will see that Mr. Trutch was not  39 transmitting his personal views, he was transmitting  4 0 the views of his government.  41 The telegram that was sent to him is under tab 1,  42 and it's the third item on that page, my lord,  43 telegram from Mr. Secretary Scott to the  44 Lieutenant-Governor of British Columbia:  45  4 6 Dominion Government desires to be informed  47 by telegraph whether it is proposed to take 29159  Submissions by Mr. Goldie        1 any, and, if so,  what action, in respect to the  2 Act for the Administration of Justice, the Act  3 amending Crown Lands Act, and the Act making  4 powers of Attorney valid, as year expires  5 shortly.  6  7 Now, that's the year within which disallowance  8 must be affected, and the telegram starts at the  9 bottom of that page:  10  11 My Ministers request me to state, in reply  12 to your telegram, this government concurs on  13 disallowance...; [and] objections to Act  14 amending Crown Lands Act are considered removed  15 by agreement.  16  17 That's quoted and is the subject of the argument  18 made by my friend.  But as I've shown to your  19 lordship, Mr. Trutch states that that was the view of  20 his government and, my lord, that is confirmed by the  21 minute of the British Columbia Council which is under  22 tab 3:  23  24 Report from Committee of Council reference to  25 disallowance of the Act for the better  26 Administration of Justice objections to other  27 Acts.  28  29 And at the top of the page:  30  31 Referring to the telegram from the Secretary of  32 State for Canada of the 13th instant submitted  33 by your Excellency for consideration in  34 Executive Council the Committee of Council  35 respectfully request that you will be pleased  36 to reply thereto by telegraph to the following  37 effect:  38  39 And then it's set out the precise text of what Mr.  40 Trutch sent by telegram, and then it continues:  41  42 The objections to the Act amending the  43 Crown Lands Act are considered to be removed by  44 the agreement for the settlement of the Indian  45 land question by Commissioners.  46  47 So that was the view of the government of British 29160  Submissions by Mr. Goldie        1 Columbia not that of  Mr. Trutch.  2 Now, my lord, the -- the attempt to saddle Mr.  3 Trutch with responsibility is continued at page 128  4 where it is suggested that he was in charge of the  5 Indian policy to British Columbia.  The statement is  6 made in the last three lines of the first complete  7 paragraph.  8 THE COURT:  Sorry, what page again?  9 MR. GOLDIE:  128, my lord.  It is stated:  10  11 Trutch it appears was still directing the  12 British Columbia Government's Indian policy  13 (August 27th, 1873) .  14  15 My lord, I have -- and I say this is a connected  16 document.  I have placed under tab 3 a despatch from  17 Mr. Trutch in his capacity as Lieutenant-Governor to  18 Ottawa to the Federal Government -- oh, it's tab 4,  19 I'm sorry, my lord.  A despatch of the 19th of March,  20 1872.  And Mr. Trutch says:  21  22 I have the honour to enclose, herewith, copies  23 of certain Addresses presented to me from the  24 Legislative Assembly of this Province as noted  25 in the margin, which I forward for such  26 consideration as His Excellency the  27 Governor-General may deem fitting.  28  2 9 And then the attached document is a request from  30 the Legislative Assembly, requesting the Lieutenant-  31 Governor:  32  33 to take steps to move the Dominion Government  34 to the immediate adoption of an Indian Policy  35 for this Province and a proper adjustment of  36 Indian Reserves.  37  38 Mr. Trutch was not responsible in his official  39 capacity for the Indian policy in British Columbia.  40 When asked in his private capacity he responded to the  41 Prime Minister who had nominated him for the job as  42 Lieutenant-Governor.  43 At page 173, my lord, my friend is dealing with  44 the submission of the Province as to the matters with  45 which the Indian title question could be regarded as  46 having been settled.  And in the second complete  47 paragraph, my friend says:  "It is not clear what 29161  Submissions by Mr. Goldie        1 'agreement' the  Province is referring to."  2 Your lordship may wish to make a note that the  3 references in the Province's submission are found at  4 paragraphs 98 to 100 at pages 145 to 147 of part X and  5 section III of its Volume 3 of its summary of  6 argument.  7 At page 180 in the last paragraph, reference was  8 made to a letter which -- from the Federal Minister of  9 Finance which was sent to the Secretary of State for  10 the colonies, and "referred to the cost of  11 extinguishing the Indian title in Dominion lands."  12 And the emphasis is made -- or is -- is made with  13 respect to the last five or six lines on page 181 of  14 that letter to the difficult -- and I quote:  15  16 ...to the difficulties which the Local  17 Government of British Columbia may find in  18 making good their title to the land which they  19 are bound to convey to the Government of the  2 0 Dominion.  21  22 Now that was the railway belt.  That difficulty,  23 in fact, didn't prevent the Dominion from either  24 refusing the transfer or doing anything when it got it  25 with respect to title, aboriginal interests, other  26 than setting aside reserves of its own volition within  27 the railway belt.  28 Page 242, the second paragraph, my lord:  29  30 It is Canada's position in Delgam Uukw that  31 Provincial grants were valid and, where  32 necessarily inconsistent with the aboriginal  33 right, would extinguish that right to the  34 granted land.  It is submitted therefore, that  35 despite the "hope" of the Canadian Government  36 to have a determination of the Indian land  37 title question, an action based on section 37A  38 of the Indian Act would not have been  39 successful.  40  41 My lord, I find that an extraordinary submission.  42 This could not have been Canada's view at the time  43 that amendment was made in 1911.  Otherwise, the  44 amendment would have been a fruitless exercise.  45 The action for ejectment which was conceived of  46 under that provision would be against anyone on the  47 land under any form of tenure, not just under a grant 29162  it wide open as a  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Goldie        1 in fee simple.  It left  means of  testing the aboriginal title.  Now, my lord, I have in the same context referred  to page -- or if I haven't, I refer to it now, page  309.  In the paragraph on that page which follows the  quotation from Mr. Scott -- or Dr. Scott, the last  sentence reads, and I quote:  "As long as the Province  claimed Crown immunity, no action by the Indians could  succeed."  Well, my lord, that's poppycock.  That's exactly  what Section 37A was designed to overcome and did  overcome.  And at page 313 my friend says, and I quote, in  the first three lines of the text on that page:  Newcombe's comments respecting the likelihood  of success of a court action express the  reality known by Canada since Laurier's time:  as long as British Columbia claimed Crown  immunity, no action by the Indians against  British Columbia could be successful.  With great respect, that is not what Mr. Newcombe  says.  There is no reference to Crown immunity.  His  view on the likelihood of success was entirely  concerned with the merits.  Now, my friend goes on to say Newcombe's opinion:  Given prior to the adoption of P.C. 1265,  Newcombe's opinion cannot be seen as suggesting  that P.C. 1265 determined the rights of British  Columbia Indians.  In fact, Mr. Newcombe makes explicit reference to  P.C. 1265.  If your lordship would go up to the  excerpt from Dr. Scott's memorandum, about the 9th --  8th or 9th line down, he says -- he is commenting on  an interview and he says, and I quote:  Mr. Newcombe informed the Indians that the  passage of the Order in Council confirming the  findings of the Royal Commission would dispose  of the matter, and would be a final adjustment  of all differences between the Dominion and  the Province on Indian Affairs in British  Columbia. 29163  Submissions by Mr. Goldie        1 That's P.C. 1265.  2 I'm going to go back to page 266, my lord.  At the  3 top of that page, my friend says:  4  5 In P.C. 751 Canada considered British Columbia  6 would not negotiate with Indians regarding  7 their demands and that British Columbia,  8 because of its Crown immunity, could not be  9 forced to negotiate.  10  11 I dispute that interpretation of P.C. 751.  As I  12 pointed out in my argument, my lord, there is -- the  13 Minister of Justice said, "We have a policy choice to  14 make.  Either we go via Section 37A of the Indian Act  15 or we do something else."  And this was the something  16 else.  Crown immunity didn't form any aspect of P.C.  17 751.  British Columbia could not negotiate, it didn't  18 have the constitutional position.  And in 1919, as I  19 have said, that the Dominion threatened to disallow an  20 Act of the British Columbia Legislature on the grounds  21 that it had exceeded its powers by providing for  22 negotiations with Indians.  23 Now, my friend goes on to state in his text:  24 "It is incongruous for the Province to attempt to rely  25 on these actions by Canada."  Now, I am not quite sure  26 what that seems to refer to, but the position of  27 Canada seems to be that those who receive the benefit  28 must pay, and I say that's contrary to St.  29 Catherine's.  The constitutional position has to be  30 kept in sight.  31 B.C. could not negotiate.  P.C. 751 foundered on  32 the Indians' refusal to be reasonable.  Reasonable as  33 seen by the standards of the day, as my friend put it,  34 at God knows what cost.  How reasonable is it to  35 suggest that B.C. ought to negotiate it in the same  36 atmosphere, ignoring the Dominion's prohibition?  37 Page 276, there is a suggestion --  38 THE COURT:  276?  39 MR. GOLDIE:  276, yes, my lord.  There is a suggestion midway  40 down the page, P.C. 751 represented the only means by  41 which Canada thought it could obtain a court decision,  42 as discussed above.  Without B.C.'s concurrence a  43 court reference was impossible.  44 THE COURT:  You've dealt with this before.  45 MR. GOLDIE:  I've dealt with that.  I just bring it in to  46 indicate the continued repetition at this point.  47 I note at page 287 -- and I should have brought 29164  Submissions by Mr. Goldie 1            this to your lordship's  attention before, the  2 reference to the letters O'Meara to Oliver, et cetera.  3 And it is here where my friend says, "The matters in  4 the documents submitted where the Indian title claims  5 and the Nishga and the other petitions," well, I say  6 the other documents may very well deal with -- raise,  7 for instance, P.C. 751.  8 At page 296, I think, my lord, there is a  9 quotation from our argument there.  I think I deleted  10 that second line.  That is to say, "The Dominion  11 considered the question of Indian title would have  12 been resolved by this Order in Council as well."  13 All I intended to say was -- and that I think I  14 did say, was that P.C. 1265 not only related to the  15 fulfilment of the agreement of the 24th of September,  16 1912, which did make no reference to Term 13, but also  17 to Term 13 itself.  It explicitly stated that Term 13  18 of the Terms of Union had been fulfilled, and that is  19 the emphasis -- it is on that that I place emphasis.  20 Page 301, second paragraph, last sentence:  21  22 These documents basically set out the opinion  23 of Duncan Scott, Deputy Superintendent General  24 of Indian Affairs.  25  26 And I add to that under Mr. Newcombe, Deputy  27 Minister of Justice and of the Cabinet of Canada which  28 approved P.C. 1265.  29 Page 304, the paragraph in the text of my  30 friend's submission between the two quotations in  31 which he suggests that "the Province is making a claim  32 'for better or additional terms'," and the answer to  33 that is, of course, no.  The counterclaim seeks  34 recognition of Term 13 as the extent of the Province's  35 obligation in light of the Dominion assuming the  36 charge of the Indians.  37 Page 311, there is an excerpt from the transcript  38 of the proceedings before the Joint Committee in 1927.  39 And at the bottom of the page there is a -- set out  40 Mr. Bennett's question to Mr. Scott:  41  42 And then, when British Columbia  43 entered Confederation, the Dominion  44 Government's duty consisted only in looking  45 after the interests of the Indians, under  46 section 13, of the Terms of the Union?  47 Doctor Scott:  Their obligation went far beyond 29165  Submissions by Mr. Goldie        1 that.  2  3 And I emphasize, my lord, that the -- that  4 obligation is in fact comprised in the words "the  5 charge of the Indians".  6 Page 320 -- well, I think I've referred to that,  7 my lord.  It's another part of the basic  8 misconception.  My friend refers to the Province's  9 counterclaim against Canada.  There is no counterclaim  10 against Canada.  11 At page 326, there is set out in that page an  12 amendment to the Indian Act which restrains soliciting  13 of funds and that is referred to in the preceding page  14 as "the contemporaneous amendment to the Indian Act".  15 Now, if he means by that that it was  16 contemporaneous with the Joint Report of the House of  17 Commons, it should be stated that the amendment to the  18 Indian Act was made before the report not after it.  19 It does not reflect the -- any recommendation of the  20 Joint Committee.  21 328.  My friend says, "Prior to 1932 there was no  22 reference to the $100,000 appropriation."  And he  23 makes reference to the Appropriation Act of 1926-27  24 assented to April 14th, 1927.  That was before the  25 Joint Committee's report.  So it could not, of course,  26 have reflected the recommendation with respect to  27 payments in lieu of annuities.  28 Now, at the top of page 330, my friend says:  29  30 In the alternative it is submitted that if the  31 Appropriation Acts and their implementation and  32 acceptance affected an extinguishment of  33 aboriginal rights as contended by the Province,  34 that is the end of the matter."  35  36 It is not so contended by the Province.  I  37 indicated at the beginning of my submission this  38 morning what the Province's position was.  39 My lord, may I conclude by making reference to  4 0 the remaining documents in the yellow binder.  The  41 first three tabs -- first tabs, one and two -- I'm  42 sorry, the first three tabs relate to the question of  43 the allegation made in my friend's argument that Mr.  44 Trutch's personal views were to the effect that the  45 title question was resolved by the appointment of  46 commissioners, and I've dealt with that.  47 The number four was -- dealt with the question of 29166  Submissions by Mr. Goldie        1 Mr. Trutch being in  charge of B.C. Indian Policy.  2 Number five is an article by Mr. McKenna of 1920  3 and it is one of the two documents, my lord, that I  4 ask be included if my friend was to be -- if my friend  5 had my agreement that he could refer to his some 30  6 odd documents.  My purpose of putting it in was  7 because of its extended references to Mr. McKenna.  8 This is from an article that Mr. McKenna wrote in  9 1920, and it is, in my submission, one that your  10 lordship can properly have before you as indicating  11 the position and views of that gentleman after his  12 work on the Royal Commission had been completed.  And  13 he says some things that are in my favour, he says  14 some things that are against me, but he winds up with  15 the conclusion that, stated on page 474:  16  17 In the end all such matters have to be  18 disposed of on grounds of policy.  When British  19 Columbia satisfactorily meets the land  20 requirements of the Indians, she cannot,  21 altogether apart from the terms of Union,  22 fairly in the face of the arrangement with  23 Ontario as to the North-West Angle Treaty, be  24 asked to do more.  It is for the Dominion to  25 extinguish Indian title in British Columbia,  26 and in doing so to assume the other obligations  27 which established policy and practice imply.  28  29 Under tab 6 is the second in the documents, and  30 that arises out of the reference to treaties.  At page  31 148 of my friend's text, the last paragraph -- and  32 this is in answer to an assertion made in my  33 submission, that none of the pre-Confederation land  34 cession treaties contains a formula for reserve size.  35 And my friend states:  36  37 The Manitoulin Island Treaty signed in 1862 by  38 the Superintendent General of Indian Affairs  39 and his Deputy on behalf of the Province --  40  41 That would be the old Province of Canada.  42  43 -- provided the Indians residing thereon with a  44 grant of 100 acres for each head of family.  45  46 I agree with that.  My friend is quite correct.  47 However, in the next sentence he says: 29167  Submissions by Mr. Goldie 1                   Moreover, there  is some basis for concluding  2 that 100 acres was used as the basis for the  3 1850 Robinson Treaties.  4  5 I have gone to that exhibit which is the -- Mr.  6 Morris' book and I can find no such basis.  7 But my lord -- and I wish to put to your  8 lordship -- put before your lordship the annual report  9 of the Department of Indian Affairs for the year ended  10 March 31st, 1922, in which there is a report of the  11 Deputy Superintendent General dated August 15th of  12 that year, in which he states:  13  14 This year, as an appropriate sequence --  15  16 This is the beginning of his covering letter,  17 paragraph 2 of it:  18  19 -- we submit the following brief historical  20 account of the treaty relations of the British  21 and Canadian Governments with the Indians, from  22 the earlier times down to the present date.  23 This subject is considered timely as the past  24 year has seen the completion of probably the  25 last treaty that will be entered into with  26 Canadian Indians.  Treaty No. 11 covering the  27 MacKenzie River District and surrounding parts.  28  29 And then he proceeds to talk about the treaties  30 in -- well, there are no treaties in Quebec.  He  31 mentions no treaties in the Maritimes, but when we  32 come to Ontario --  33 THE COURT:  When you say "no treaties in the Maritimes", what  34 about the treaty -- was it Simon?  35 MR. GOLDIE:  That's peace and friendship.  We are talking about  36 land surrender.  37 THE COURT:  I see.  Land cession treaties.  38 MR. GOLDIE:  Land cession treaties, that's right.  But when he  39 comes to Ontario -- and this, of course, simply  40 confirms the submissions that I had made and which I  41 took my friend -- I take it my friend is replying to,  42 but when we come to treaty -- land cession treaties,  43 we are really dealing with Upper Canada.  And Mr.  44 Scott lists -- makes some general observations  45 about -- and then he lists the pre-Confederation  46 treaties and that goes on for several pages before he  47 comes to the numbered treaties. 29168  Submissions by Mr. Goldie        1 So it -- I am glad  to acknowledge that my friend  2 is right in saying that one of those pre-Confederation  3 treaties in Upper Canada had the basis for an acreage  4 basis.  There is no suggestion that any of the others  5 did and, in fact, the first two numbered treaties  6 after confederation contain no acreage basis.  7 My lord, that concludes my submission.  8 THE COURT:  All right.  Well, there is one problem that's  9 troubling me just as a result of your submission this  10 morning, mainly with regard to the Smith case and some  11 of your other submission, Mr. Goldie.  And I don't  12 know if this is convenient to answer it, but it seems  13 to me -- and I hope this isn't being overly  14 simplistic -- that your submission really comes --  15 today, really comes down to this:  That apart from  16 everything else -- well, I'm sorry, excluding for the  17 moment the application of the Royal Proclamation of  18 British Columbia, that the terms of union alone are  19 all you need in order to extinguish aboriginal rights  20 in British Columbia.  Isn't that what it comes to?  21 MR. GOLDIE:  No, I don't — I don't say that, my lord.  22 THE COURT:  Well, I thought I was being perhaps overly  23 simplistic.  24 MR. GOLDIE:  The — what I'm saying, it is that Smith proceeds  25 on the basis that the -- that if there is aboriginal  26 title as a burden on the public lands, that that goes,  27 if I may put it that way, or that that is confined to  28 the reserves.  2 9 THE COURT:  Yes, all right.  30 MR. GOLDIE:  And that there is no other burden on the public  31 lands.  And that, I say, is consistent with law if we  32 assume, as is the case in British Columbia, that the  33 reserves encompass the village sites and the fields  34 immediately adjacent thereto.  35 THE COURT:  You say that's in our policy not law?  36 MR. GOLDIE:  Well —  37 THE COURT:  Or you say -- you are assuming that reserves  38 subsumed the villages?  39 MR. GOLDIE:  In British Columbia they did.  On the prairies they  40 didn't necessarily.  But when I say "law", I am giving  41 the benefit of the doubt of that word to what was  42 stated as policy by the Colonial Office and the Select  43 Committee on the affairs of New Zealand.  44 THE COURT:  But the burden — well, are you saying that the  45 burden on public lands is confined to reserves because  46 the reserves subsumed all the areas that were subject  47 to any aboriginal rights? 29169  Submissions by Mr. Goldie        1  MR. GOLDIE:  The use of which by  the sovereign would require  2 compensation.  That's what I say is implicit -- not  3 implicit, is expressed by the Colonial Office through  4 Merivale's minutes, and that's in 1869.  5 THE COURT:  I hesitate to prolong this, but I want to make sure  6 that I have got the essence of your submission.  I  7 take it that what you are saying then, is that when  8 union occurred and prior thereto, the only aboriginal  9 title or rights that existed in the province were  10 village sites?  11 MR. GOLDIE:  That's correct.  12 THE COURT:  When the village sites were all included within  13 reserves?  14 MR. GOLDIE:  That was — that was Douglas' policy.  15 THE COURT:  Yes.  16 MR. GOLDIE:  So the issue of compensation never arose.  17 THE COURT:  And there were no aboriginal rights on any other  18 lands?  19 MR. GOLDIE:  No.  2 0 THE COURT:  And so you — I did put it wrongly then.  You are  21 not saying that the Terms of Union extinguished  22 aboriginal rights, you are saying that the only  23 aboriginal rights which existed were -- were made --  24 the lands which were the subject -- or the lands which  25 were burdened were made -- or included into the  26 reserves?  27 MR. GOLDIE:  The obligation which British Columbia assumed was  28 to allot reserves, and the continuation of its policy  29 was to allot reserves which would protect village  30 sites.  Now by village -- village sites is a phrase  31 which is a shorthand for --  32 THE COURT:  The cultivated fields and surrounding hunting lands?  33 MR. GOLDIE:  Yes.  Well, the hunting, my lord, was separate and  34 apart.  That was hunting and fishing over unoccupied  35 Crown lands.  It was village sites and fields  36 immediately adjacent, necessary for their subsistence.  37 THE COURT:  But those hunting grounds, if they are separate,  38 were not subsumed into reserves?  39 MR. GOLDIE:  No, they weren't, because it was non-exclusive.  40 The policy that was declared by Douglas was  41 necessarily a non -- the protection of the villages is  42 exclusive.  The right to hunt and fish over unoccupied  43 Crown lands would fluctuate.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  As they were occupied and were enjoyed in common.  4 6 THE COURT:  Yes.  47 MR. GOLDIE:  With all other residents. 29170  Submissions by Mr. Goldie        1  THE COURT:  I am not sure that  there is an awful lot of  2 difference between what you are saying and what Ms.  3 Koenigsberg said.  She didn't confine herself to the  4 village sites, of course.  5 MR. GOLDIE:  The argument of the plaintiff which I take out  6 of -- not so much what Ms. Koenigsberg said, but from  7 the submission that was made in reply to the  8 counterclaim, was that there was a burden extending  9 over the whole of the province.  10 THE COURT:  Yes.  11 MR. GOLDIE:  Comparable to the burden imposed by the hunting  12 reserve created by the Royal Proclamation.  13 THE COURT:  Well, we don't need to go the whole of the province.  14 The whole of the territory within the external  15 boundaries.  16 MR. GOLDIE:  Of the province?  17 THE COURT:  Well, external —  18 MR. GOLDIE:  Oh, in this case?  19 THE COURT:  Yes.  20 MR. GOLDIE:  Yes, that's correct.  21 THE COURT:  Yes, all right.  22 MR. GOLDIE:  Now she says, and that is -- and her submission is  23 confirmed in here, that the grant of a fee simple by  24 the province results in extinguishment, full stop.  2 5 THE COURT:  Yes.  26 MR. GOLDIE:  But short of that she says that burden is still  27 there.  28 THE COURT:  Well, it fluctuates with use.  29 MR. GOLDIE:  It fluctuates with use of a particular kind, yes.  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  That is a most unwieldy proposition, and --  32 THE COURT:  Well, she didn't worry about that, she just laid it  33 on me.  34 MR. GOLDIE:  That's right.  The — it was apres moi le deluge.  35 THE COURT:  All right.  Thank you, Mr. Goldie.  Are you ready to  36 proceed at two o'clock, Ms. Mandell?  37 MS. MANDELL:  Oh yes.  38 THE COURT:  Yes.  Thank you.  39 THE REGISTRAR:  Order in court.  Courts stands adjourned until  40 2:00 p.m.  41  42  43  44  45  46  47 29171  Submissions by Mr. Goldie        1 (PROCEEDINGS ADJOURNED  AT 12:40 P.M.)  2  3  4  5  6  7 I hereby certify the foregoing to  8 be a true and accurate transcript  9 of the proceedings transcribed to  10 the best of my skill and ability.  11  12  13  14  15  16 Toni Kerekes,  17 Official Reporter,  18 UNITED REPORTING SERVICE LTD.  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 29172  Submissions by Ms. Mandell        1 (PROCEEDINGS  RESUMED AT 2:00)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Miss Mandell.  5 MS. MANDELL:  Thank you, my lord.  I've handed up to you a copy  6 of an argument which is found at tab 1, and it's the  7 section of the reply which will be analyzing the  8 Sparrow, Sioui, Horseman and Mitchell cases.  Behind  9 the argument is the Sparrow case, and behind we've got  10 some pages of some other cases which we may refer you  11 to in the course of the argument.  12 My lord, I think out of convenience and owing to  13 the fact that I'm going to be referring to the Sparrow  14 case extensively, it would probably be most convenient  15 if you took your argument off the top and had the  16 Sparrow case available for your lordship to read it  17 alongside of the argument.  18 THE COURT:  Is Sparrow here?  19 MS. MANDELL:  Yes, it's tab 2, and the argument is tab 1.  2 0 THE COURT:  Yes, all right.  21 MS. MANDELL:  This section will analyze the decisions of the  22 four recent Supreme Court of Canada cases.  It's our  23 submission that Horseman, Sioui and Mitchell are all  24 cases which do not directly apply to the issues before  25 your lordship, although there are certain parts of the  26 decision which have application to the interpretation  27 of some sections of interpetive principles, and I'll  28 be referring those to your lordship in due course.  29 But we say that the Sparrow case is the important  30 decision, as it bears upon the issues of  31 unextinguished aboriginal title in British Columbia,  32 and it's to that case that I will be directing  33 primarily the submission to your lordship today.  34 The Sparrow case decided a number of issues which  35 had been previously left outstanding.  As your  36 lordship is aware, it's the first case that  37 interpreted the meaning of Section 35 of the  38 Constitution, and what I propose to do is to take you  39 through the case and to point your lordship to the  40 places where there's been now decisions made by the  41 Supreme Court of Canada respecting the various issues  42 which are before your lordship.  43 The first issue which was pronounced upon is the  44 proper rules of construction in interpreting Section  45 35(1).  And if -- I'm now at page 4 -- or paragraph 4  46 of the argument, and I'm going to not take you to the  47 case in dealing with this but simply to stay with the 29173  Submissions by Ms. Mandell 1            reproduction of the  case parts in the argument.  In  2 construing the meaning and effect of Section 35, the  3 court in Sparrow ruled that Section 35 must be  4 construed in a broad purposive way and in keeping with  5 the honour of the Crown.  6 The court made it clear that Section 35(1) should  7 not be interpreted to merely maintain the existing  8 status quo, but its significance extends beyond these  9 fundamental effects.  And at page 22, the court said:  10  11 "In our opinion, the significance of S. 35(1)  12 extends beyond these fundamental effects.  13 Professor Lyon in "An Essay on Constitutional  14 Interpretation" says the following about S.  15 35 (1) at page 100:  16 'The context of 1982 is surely enough to  17 tell us that this is not just a  18 codification of the case law on aboriginal  19 rights that had accumulated by 1982. '  20 Section 35 calls for a just settlement for  21 aboriginal peoples.  It renounces the old  22 rules of the game under which the Crown  23 established courts of law and denied those  24 courts the authority to question sovereign  25 claims made by the Crown."  26  27 And at page 28, the court said Section 35 should be  28 construed in a purposive way:  29  30 "The nature of s. 35(1) itself suggests that it  31 be construed in a purposive way.  When the  32 purposes of the affirmation of aboriginal  33 rights are considered, it is clear that a  34 generous liberal interpretation of the words in  35 the constitutional provision is demanded."  36  37 And finally, the court adopts the honour of the Crown  38 principles which were established in Nowegijick and  39 Agawa.  The Nowegijick principle:  40  41 "...treaties and statutes relating to Indians  42 thus should be liberally construed and doubtful  43 expressions resolved in favour of the Indians."  44  45 And the principle of Agawa:  46  47 "The honour of the Crown is involved in the 29174  of Indian  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 interpretation  treaties and, as a  consequence, fairness to Indians is a governing  consideration."  THE COURT:  What am I supposed to do with that?  This is a claim  for rights.  MS. MANDELL:  The — what Sparrow does with that, my lord, is  they, and I will get to it, is in dealing with the  question of Section 35 says aboriginal rights are  hereby recognized and affirmed, and in dealing with  the interpretation of the words "recognized and  affirmed", the court read a fiduciary obligation into  those words, which are binding on the Federal Crown,  and they proposed a justification process through  which legislation must pass.  And I will be getting to  it in due course, but the one aspect of the  justification process is that in weighing the  application of legislation which affects aboriginal  rights, the courts have said that the honour of the  Crown must be considered as one of the three parts of  the analysis.  THE COURT:  But what I'm troubled by is what are you saying I  should do in -- how are you saying I should apply the  concept of fairness in relation to the determination  of the territorial reach of the aboriginal rights, or  in the -- or in the -- or with respect to the question  of extinguishment, or in what sense?  MS. MANDELL:  Well, in Sparrow, and I will also come to this in  due course, the court applied the interpretation of  the scope of the rights in keeping with the purpose of  analysis and in keeping with the honour of the Crown.  And the court also approached the issue of  extinguishment, which I will be getting to, also in  mind -- having in mind the honour of the Crown and an  analysis which is in keeping with it.  And so I would  say to your lordship that what you're facing is that  for the issues which impact on a proper interpretation  of a Section 35 right, which is the nature of the  right, and whether those rights have been  extinguished, Sparrow is directing that you interpret  that in keeping with the purposive analysis and  which -- one which has in mind the honour of the  Crown.  You see, Sparrow doesn't deal with all Section  35 rights, it only deals with, in this case, the  unextinguished aboriginal right to fish.  Your  lordship is being faced with a broader range of rights  than was before the court in Sparrow, but the approach 29175  Submissions by Ms. Mandell        1 that the court took in  Sparrow is, in our submission,  2 the blueprint for how the other rights which are being  3 pled and asserted as part of the aboriginal rights are  4 to be interpreted.  5 THE COURT:  But you're not surely suggesting that I'm supposed  6 to apply my own subjective sense of fairness, or are  7 you?  8 MS. MANDELL:  I don't think so.  I think what you have to do is  9 weigh out the arguments, and at the place that the  10 arguments intersect with an honour of the Crown  11 problem, and we'll address you on that, that you  12 should have in mind the honour of the Crown too in  13 weighing up the various sides that you're going to  14 have to weigh up with the nature of the rights and  15 whether there's extinguishment.  16 THE COURT:  And what is the yardstick for the honour of the  17 Crown?  18 MS. MANDELL:  Well, I —  19 THE COURT:  It's all very well to say it has a general  20 proposition, but how do you apply it on the ground in  21 the end of this case?  That's what I find the most  22 difficult part of this whole case, is to try and come  23 to grips with those concepts that their lordships have  24 thrown around in cases that don't bear any resemblance  25 with what I am struggling with.  26 MS. MANDELL:  Sparrow does bear a resemblance.  27 THE COURT:  Sparrow is a question of whether you use a 35-foot  28 net or a 50-foot net.  29 MS. MANDELL:  In part.  But it also is what is the nature of the  30 fishing right, whether that right has been  31 extinguished, whether or not there's any test which  32 has to be considered by the court in viewing the right  33 as against legislation, which has, as I say, a part of  34 it being the honour of the Crown, whether Provincial  35 laws apply, there's a broad range of issues which I'll  36 address you on.  37 THE COURT:  But if I decide that a right exists, and let me  38 say -- let's say that I say "Well, I think there is a  39 right" -- we're not talking about ownership and  40 jurisdiction.  Say there's been usage from time  41 immemorial of the land on the left side of Shedin  42 Creek for trapping but not on the right side.  Now,  43 does honour or fairness have anything do with that  44 consideration?  45 MS. MANDELL:  Well, I think that it's probably much more — the  46 purposive analysis has a lot to do with that  47 consideration. 29176  Submissions by Ms. Mandell        1  THE COURT:  But do I apply  fairness and honour in deciding  2 whether or not the aboriginal right extends to the  3 side of the creek that wasn't used for aboriginal  4 purposes?  5 MS. MANDELL:  I think that the honour of the Crown has a lot  6 more to do with the extinguishment issue, because  7 the -- and I think the purposive analysis has a lot  8 more to do with the nature of the rights, because in  9 the purposive analysis the court asks "What is the  10 purpose for which these rights have been exercised and  11 are presently important to the Indian people today".  12 For the honour of the Crown, the court asks the  13 question does that interpretation which I'm applying  14 now as to whether or not these rights have been taken  15 away, does that interpretation uphold or offend the  16 honour of the Crown.  And I think that that's properly  17 where the two issues break down.  You see --  18 THE COURT:  Then you'll forgive me, but I'm now at the stage  19 which I just have to have some very specific answers.  20 You are saying that you think this fairness and honour  21 approach or aspect applies more to extinguishment than  22 it does what?  23 MS. MANDELL:  To the nature and scope of the rights.  24 THE COURT:  Yes, all right.  Now, that's something a — you're  25 not suggesting then that fairness or honour would  26 extend the aboriginal rights across the creek, if one  27 accepts, for the purposes of the discussion, that the  28 other side of the creek was not used for aboriginal  29 purposes?  30 MS. MANDELL:  Well, in general terms, I agree with the way that  31 we've come to it, but I would also add that the  32 inquiry into the nature of the rights is one where  33 it's important for this court to appreciate not only  34 how the rights have been understood and used from the  35 Indian people's point of view, which is clearly  36 spelled out in Sparrow, but also how the Crown and the  37 Indian people have interacted with respect to the  38 nature of the right.  Now, as with respect to the  39 Federal Government's argument, and I will be getting  40 to that in more detail, you're backed into analyzing  41 the nature of the right from the point of view of how  42 it's been intruded upon.  I say that the honour of the  43 Crown may very well at that stage have to be  44 considered in how you choose to define the right, and  45 it's with that qualification that I say that in every  46 other respect the honour of the Crown is a much more  47 applicable principle than dealing with extinguishment. 29177  Submissions by Ms. Mandell        1  THE COURT:  All right.  Let me  say also that at sometime in your  2 submission or in someone's submission in reply, I  3 would like to have some assistance with the question  4 of whether or not the Sparrow approach to Section 35  5 involves or does not involve a reconsideration of  6 executed governmental action.  7 MS. MANDELL:  Do you mean like —  8 THE COURT:  Post — sorry pre-1982.  9 MS. MANDELL:  When you say "executed", do you mean —  10 THE COURT:  Carried out.  Let's say a Crown grant of a piece of  11 land.  12 MS. MANDELL:  Yes.  13 THE COURT:  Does Section 35 have a retrospect of that?  14 MS. MANDELL:  Well, I would say about that, at this stage of the  15 argument, that Section 35 does not resurrect rights  16 which have been extinguished.  The case is clear that  17 existing aboriginal rights means rights which are  18 unextinguished.  However, if the land in question was  19 Crown granted by the Province before 1982, we would  20 argue with respect to that Crown grant that it was a  21 grant which was beyond the legislative authority of  22 the Province to grant in such a manner that it would  23 extinguish aboriginal title, and this is a division of  24 Power's argument on paramountcy, which we related  25 before and we will state now.  26 THE COURT:  You're not relying on Section 35 for that?  27 MS. MANDELL:  We can't rely on 35 to resurrect rights which have  28 been properly extinguished, but it's our argument that  29 there has been no extinguishment of any of the rights  30 from the time of first contact to Section 35.  So with  31 respect to the Crown grant, we say that certain  32 provincial legislation has -- has impacted upon or  33 affected Indians in the possession of their land  34 before 1982 which it had no authority to do, and so  35 it -- the Indian people's rights would continue,  36 notwithstanding the 1867 to the 1982 period.  Certain  37 other rights which the Indian people have been  38 lawfully affected by Provincial legislation before  39 1982, either by virtue of Section 88 or because  40 they're laws of general application, and the laws will  41 apply because they don't really affect Indians as  42 Indians.  In those cases, we would say that the  43 justicability test which is set out in Sparrow would  44 apply to assess whether or not now after 1982 those  45 certain Provincial laws would apply.  An example might  4 6 be the Education Act that everybody has thrown up  47 since that question was asked of Mr. Grant, where 29178  Submissions by Ms. Mandell        1 before Sparrow we  would say that the Provincial  2 Education Act would have applied through Section 88 to  3 potentially affect the rights of Indian people, but  4 after Sparrow we say that it, like other legislation,  5 would have to pass the test.  First the Indian people  6 would assert their -- the nature of the right and the  7 nature of the impact, and the Province, with respect  8 to that kind of legislation, would justify it, and the  9 honour of the Crown would be taken into account and it  10 may it or it may not survive as an existing -- a  11 proper impact on existing aboriginal rights applying  12 the Sparrow analysis.  13 THE COURT:  I don't want to put you on the spot, because I  14 didn't intend you to answer the question, I really  15 wanted to raise it as a matter of notice so that it  16 could be dealt with at some time during the course of  17 your reply.  I'm happy with your response, if that's  18 the considered response you want to leave with me.  19 But I am troubled by your statement that no aboriginal  20 rights have been extinguished since -- you would say  21 that a grant of a homestead pre-emption, they're all  22 invalid?  23 MS. MANDELL:  Well, our argument is this, my lord:  If -- we say  24 that the legislation which purports to extinguish  25 aboriginal rights has to be clear and plain, and this  26 follows from, we said, first Calder, and now we say it  27 follows from Sparrow, and we say that there was no  28 clear and plain legislation which extinguished  29 aboriginal title in the Colonial period.  And so we  30 say the rights survived to Confederation.  We say  31 they're a burden on the title of the Province under  32 109 and by virtue of the division of power between  33 9124 and 109, the Province is constitutionally  34 incapable of, after confederation, extinguishing  35 aboriginal title.  The Federal -- the Province says so  36 in their own argument, that they're incapable of  37 extinguishing aboriginal title.  We say if you apply  38 the test of Sparrow you need clear and plain language  39 to extinguish aboriginal title.  40 THE COURT:  You don't think a Crown grant is clearly and plainly  41 stated?  42 MS. MANDELL:  If the Province had been constitutionally  43 competent to issue a Crown grant so as to extinguish  44 aboriginal title after confederation, perhaps that  45 argument would sustain itself, but we say that they  46 don't have the capability, the constitutional  47 capability.  They didn't before 1982 and we say they 29179  Submissions by Ms. Mandell        1 don't now.  You see  2 THE COURT:  Yes, I understand what you're saying.  I'm just  3 trying to assess the reach of your submission.  4 MS. MANDELL:  If the Federal Government, after 1967 or 19 —  5 1867 or 1871, had extinguished aboriginal title,  6 either through clear and plain language in the  7 legislation, which is what we say they have to do, or  8 even if you extend it to its implied form, which we  9 say you can't, to the form of an actual grant, then we  10 say that there would be an argument that aboriginal  11 title may have been extinguished with respect to those  12 areas which were granted.  But the Province can't do  13 that, and they didn't.  14 THE COURT:  Well, then, what has fairness and honour got to do  15 with it if they can't do it anyways?  16 MS. MANDELL:  Well, because you're being asked to blow life into  17 the doctrine of implied extinguishment, because if  18 there is such a thing as implied extinguishment still  19 left after Sparrow, you're going to be asked to blow  20 some life into it and find extinguishment through  21 various indirect means, which no piece of legislation  22 accomplished, and we say that in viewing those  23 arguments that the -- the honour of the Crown has to  24 be fully considered.  25 THE COURT:  Well, then, I take it what you're really saying  26 then, Miss Mandell, is there's an alternative  27 position.  First, you can't do it, no extinguishment  28 is legislatively competent.  29 MS. MANDELL:  By the Province.  30 THE COURT:  By the Province.  31 MS. MANDELL:  Yes.  32 THE COURT:  And there hardly seems to be any, at the moment, or  33 concern by Canada, but that if there can be implied  34 extinguishment, as is expressly suggested in Sparrow,  35 then you have to measure -- I take what you're saying  36 is you measure whether that extinguishment was fair  37 and honourable, and if it wasn't, it has not been  38 extinguished.  39 MS. MANDELL:  Mm-hmm.  40 THE COURT:  And then you say that if that extinguishment has,  41 however, been fair and honourable, and I'm not sure  42 how I can -- I'm not sure what context that can  43 function in, because anytime you take something away  44 from somebody it's doubtful fairness, unless there's  45 compensation, and there hasn't been.  So where do I  46 work all these concepts into it?  How can there be --  47 how can taking something away from somebody be fair 29180  Submissions by Ms. Mandell        1 and honourable?  2 MS. MANDELL:  Well, we've submitted to your lordship that in our  3 submission the only fair and honourable way to do it  4 is by treaty, and that we say is by consent, which  5 we've argued as being part of the common law since the  6 time of first contact.  The alternative argument is  7 one which was argued for and decided by the court in  8 Sparrow and is in keeping with some of the other  9 arguments which have succeeded in the court, about how  10 fundamental rights may be abrogated, and that's the  11 legislation be clear and plain, or the intention of  12 the Crown, as was said in Sparrow, be clear and plain,  13 but anything short of that we say is an argument which  14 you really have to weigh up the honour of the Crown in  15 respect of it.  And our view is that the honour of the  16 Crown has been considered.  For example, in the Sioui  17 case, where the court said that treaties were made by  18 consent and not to be extinguished by consent, and  19 also in Sparrow, in facing what we say is the  20 alternative argument, which at the very least the  21 intention of the Crown has to be clear and plain.  22 THE COURT:  Does your argument recognize that aboriginal rights  23 are at the pleasure of the Crown?  Obviously no, for  24 the reasons given by Mr. Jackson.  25 MS. MANDELL:  And we -- and as your lordship will hear as I  26 proceed with Sparrow, we say that Sparrow dealt a  27 death blow to that, because -- to that concept, that  28 it may have been argued before Sparrow that aboriginal  29 rights exist at the pleasure of the Crown.  We say  30 that Guerin settled it, if not earlier, but in any  31 event, what Sparrow said is that the Federal  32 Government, this is a -- the government who has the  33 legislative power to extinguish aboriginal title, not  34 even the Federal Government through its regime of  35 passing fisheries regulations, which were inconsistent  36 with the existence of the aboriginal rights claimed in  37 Sparrow, have the full legislative power to do what  38 they please in respect of the fishing rights, that the  39 fishing rights are in a sense protected and are not  40 there at the pleasure of the Crown.  If the Crown  41 wants to interfere with those rights, they have to do  42 so through a fairly carefully detailed justification  43 process.  The Crown isn't any more at liberty to say  44 that it has complete pleasure to do with aboriginal  45 rights the way it please, and we say Sparrow has  46 changed things, that there is no longer an argument  47 that aboriginal title exists at the good will of the 29181  Submissions by Ms. Mandell        1 Crown.  2 THE COURT:  But why didn't they just allow the appeal then in  3 Sparrow, why send it back for a new trial?  4 MS. MANDELL:  Well, what the court did is set up a series of  5 questions:  Was the right affected, did the -- can the  6 Crown justify having affected the right having in mind  7 purposes greater than merely the public purpose and  8 also having in mind the honour of the Crown.  And with  9 those questions in mind, the court said go back and  10 find -- create your evidence and see which way things  11 stack up, and that's what happened in Sparrow, but the  12 principle that the Federal Government could not simply  13 hold up its regulation anymore and say "We said it,  14 therefore your rights go", that principle has been  15 changed, it's no longer possible to assert that in  16 light of Sparrow.  And we say it wasn't in light of  17 Guerin, where the Federal Government at that time came  18 forward and dressed up their political trust argument  19 and said "We can do anything we want once we have a  20 surrender, we have full power under 9124", and the  21 court said no.  22 THE COURT:  All right.  Well, that — you see, that's what I'm  23 having trouble with, because if that's the reason for  24 sending Sparrow back for a new trial with the relation  25 of continuing ongoing industry or activity, how do you  26 apply that justification process to a Crown grant that  27 is made in 1901?  28 MS. MANDELL:  Well, the first question —  29 THE COURT:  And which was executed, title is transferred, and  30 it's gone through several hands in the meantime.  31 MS. MANDELL:  Right.  32 THE COURT:  How do you apply that justification and justicatory  33 process to that plainly executed act of state, I  34 suppose?  35 MS. MANDELL:  Yes.  My lord, I think that's really a remedies  36 problem, it's not a jurisdictional problem.  I say  37 that the jurisdictional problem that your lordship has  38 to grapple with is does the Provincial Government  39 after 1867, 1871, does the Provincial Government have  40 the constitutional capability of extinguishing  41 aboriginal title, either directly by passing laws  42 which could say aboriginal title is hereby  43 extinguished, or indirectly by issuing a Crown grant  44 and having a settler do through the back door what the  45 Province conceivably couldn't do through the front.  46 But in either case, your question, your first  47 question, is what is the ambit of the Provincial 29182  Submissions by Ms. Mandell        1 Government's  legislative jurisdiction to  2 extinguishment and aboriginal title after  3 confederation and after they joined the Union, and we  4 say on that question the answer is that the Province  5 does not have the power, and didn't, to extinguish  6 aboriginal title, either directly or indirectly.  7 Sparrow says the language has to be clear and plain.  8 We know that if the Province passed a law which  9 clearly and plainly --  10 THE COURT:  But did Sparrow say that?  11 MS. MANDELL:  Yes.  12 THE COURT:  That the intention —  13 MS. MANDELL:  Sorry, Sparrow said that the intention of the  14 sovereign has to be clear and plain.  We'll argue that  15 that means the language and the statute, but really  16 Sparrow does stop at saying the intention has --  17 THE COURT:  I'm still uncertain as to whether you're saying that  18 I have to apply the justicatory process to Sparrow for  19 past events?  2 0 MS. MANDELL:  No.  21 THE COURT:  You say no.  22 MS. MANDELL:  I say no.  I say that your question about past  23 events all will turn on what legislative power does  24 the Province of British Columbia have and did they  25 have to extinguish title after 1871.  I think that's  26 the pivotal question about the Crown grants in the  27 territory, because we know there were no Crown grants  28 in the territory before 1871.  29 THE COURT:  All right.  Well, that's some help, and far from  30 from the shore to which I'm swimming, but that's of  31 some help.  Thank you.  32 MS. MANDELL:  Thank you.  33 MR. GOLDIE:  My lord, there may not have been Crown grants, but  34 there were of course Crown grants of rights to use  35 land in the territory.  Crown grant in fee simple, I  36 agree.  37 THE COURT:  Yes.  38 MS. MANDELL:  I had understood that the first actual surveying  39 of lands was Hazelton in 1871, and if I'm wrong about  40 that, then perhaps I can be corrected, but the amount  41 of actual -- and that was just to survey the sites, it  42 wasn't to actually grant out the land.  43 THE COURT:  Yes, right.  You're talking of course in the claims  44 territory.  45 MS. MANDELL:  Claims territory.  46 THE COURT:  Mr. Goldie is talking about the mainland.  47 MS. MANDELL:  I'm talking about the claims area, yes. 29183  Submissions by Ms. Mandell        1  MR. GOLDIE:  What I had in mind,  my lord, was the right given to  2 the Overland Telegraph Company to use lands in the  3 claims area, and that was 1865.  4 THE COURT:  Yes, all right.  5 MR. GOLDIE:  And the actual usage of that land.  6 THE COURT:  Yes.  7 MS. MANDELL:  All right.  8 THE COURT:  All right, thank you.  9 MS. MANDELL:  Thank you.  My lord, I'm at page 3.  10 THE COURT:  Yes.  11 MS. MANDELL:  Paragraph 8.  The Plaintiffs have submitted as to  12 the overall purpose of Section 35, in summary it has  13 been submitted that the purpose overall for its  14 enactment was to restore and ensure the honour of the  15 Crown in Canada's dealings with Indian peoples and to  16 ensure to the Indian peoples a place within  17 Confederation based on their separate identity, and  18 grounded on their ancient connection to their  19 homelands.  20 And we note that Sparrow begins its interpretation  21 of Section 35 with these words at page 1:  22  23 "This appeal requires this court to explore for  24 the first time the scope of Section 35(1) of  25 the Constitution Act, and to indicate its  26 strength as a promise to the aboriginal peoples  27 of Canada."  28  29 The second issue which Sparrow addressed, and we  30 say decided, is the Doctrine of Recognition, and this  31 is the argument which has been imparted, in part  32 advanced by the Province, and we say that is a very  33 substantial part of their argument that rights have to  34 be recognized in order for there to be existing  35 aboriginal rights at the time when the Colony was  36 formed.  And the Sparrow case notes, and I set out in  37 the reasons at page 2, that the lower courts turned,  38 in Sparrow, on the question whether or not the B.C.  39 Court of Appeal decision in Calder bound them, and  40 that was as it related to whether or not a right had  41 to be recognized in order for it to be existing, and  42 the court -- and I'm at page 4, and I would ask you to  43 turn to the reasons, my lord at page 9.  The court  44 refused this analysis, and in its place they said that  45 the fishing rights were existing aboriginal rights  46 within Section 35 unless they were extinguished.  The  47 rights therefore were taken to be pre-existing, and 29184  Submissions by Ms. Mandell        1 were not defined  according to the regulatory scheme in  2 place.  And at page 9 the court said -- I'm reading  3 from under the heading "Existing":  4  5 "The word 'existing' makes it clear that the  6 rights to which Section 35(1) applies are those  7 that were in existence when the Constitution  8 Act, 1982 came into effect."  9  10 And if you could turn over to page 10:  11  12 "...as noted by Blair J.A., academic commentary  13 lends support to the conclusion that 'existing'  14 means 'unextinguished' rather than exercisable  15 at a certain time in history."  16  17 And at page 11:  18  19 '...far from being defined according to the  20 regulatory scheme in place in 1982, the phrase  21 'existing aboriginal rights' must be  22 interpreted flexibly so as to permit their  23 evolution over time."  24  25 And we say on this point that the court expressly  26 found that existing rights were rights which were not  27 extinguished, not rights which were dependent upon  28 recognition either by a regulatory scheme or any other  2 9 government act or executive order.  30 Now, my lord, I'm back at page 4 of my argument.  31 The second -- sorry, the third point that Sparrow  32 addressed and we say didn't decide conclusively in any  33 respect, but their comments here are quite helpful,  34 and that's on the question of the proof of aboriginal  35 rights.  36 The court in Sparrow found an existing aboriginal  37 right in the Musqueam Indian Band to fish.  The  38 evidence related to the Band's fishing activities in  39 the area of the Fraser River estuary known as Canoe  40 Passage in the south arm of the river some 16  41 kilometres from the reserve.  42 The evidence was not extensive in its description  43 of the Musqueam as an organized society at the time of  44 contact, reliant upon the fish resources.  Much of the  45 evidence was given by Dr. Suttles, an anthropologist,  46 supported by that of Mr. Grant, the Band  47 administrator.  Dr. Suttles' evidence was summarized 29185  Submissions by Ms. Mandell        1 at page 12 and 13 of  the Reasons and, upon the  2 evidence, the court found:  3  4 "The evidence reveals that the Musqueam have  5 lived in the areas as an organized society long  6 before the coming of European settlers, and  7 that the taking salmon" --  8  9 Should be "the taking of salmon":  10  11 "-- was and integral part of their lives and  12 remains so to this day."  13  14 And if I could turn you to page 13.  The court noted  15 that "the evidence was not extensive", and at page 13,  16 I'm reading from the second paragraph:  17  18 "It is true that for the period from 1867 to  19 1961" --  20  21 A very broad span:  22  23 "-- the evidence is scanty.  But the evidence  24 was not disputed or contradicted in the Courts  25 below and there is evidence of sufficient  26 continuity of the right to support the Court of  27 Appeal's findings and we would not disturb it."  28  29 And we say at page 5 of the argument, while it is true  30 that in Sparrow, the trial was for a violation of the  31 penal prohibition, the Court required considerably  32 less evidence than that presented to this Court by the  33 Plaintiffs to support a finding that the Musqueams had  34 lived in the area in an organized society before the  35 coming of the Europeans and that the taking of salmon  36 was an integral part of their lives and remain so to  37 this day.  38 Now, the court also addressed the nature of the  39 rights, and again, it is not, in our submission, a  40 conclusive and exhaustive statement as to how rights  41 are to be defined, or even how this right is to be  42 fully defined, but we say that in defining the nature  43 of the right the Court provided a series of comments  44 and conclusions which are, in our submission,  45 supportive of the argument which has been advanced to  46 you by the Plaintiffs.  I'm reading at the bottom of  47 page 5.  The court affirmed the sui generis nature of 29186  Submissions by Ms. Mandell        1 aboriginal rights to  be interpreted in a manner  2 consistent with how they are understood by the  3 Indians.  And I'm referring at the bottom of page 27,  4 and I won't take you to that quotation, it's  5 reproduced here:  6  7 "Fishing rights are not traditional property  8 rights."  9  10 And I might stop there and say he doesn't say fishing  11 rights are not property rights, he says "fishing  12 rights are not traditional property rights", which is  13 quite similar to what was said by Chief Justice Dixon  14 in Guerin, when he said that the aboriginal rights are  15 a unique interest in land, which is the way that it  16 was phrased in the Guerin case.  17  18 "They are rights held by a collective and are in  19 keeping with the culture and existence of that  20 group.  Courts must be careful, then, to avoid  21 the application of traditional common law  22 concepts of property as they develop their  23 understanding of what the reasons for judgment  24 in Guerin at page 382, referred to as the 'sui  25 generis' nature of aboriginal rights."  26  27 In interpreting the meaning of "existing" rights,  28 the Court rejected a frozen rights thesis and held  29 that the rights must be interpreted in a contemporary  30 manner, and in a manner which permits their evolution  31 over time.  At page 11:  32  33 "Far from being defined according to the  34 regulatory scheme in place in 1982, the phrase  35 'existing aboriginal rights' must be  36 interpreted flexibly so as to permit their  37 evolution over time.  To use Professor  38 Slattery's expression in 'Understanding  39 Aboriginal Rights, the word 'existing' suggests  40 that those rights are 'affirmed in a  41 contemporary form rather than in their primeval  42 simplicity and vigour'.  Clearly, then, an  43 approach to the constitutional guarantee  44 embodied in s.35(l) which would incorporate  45 'frozen rights' must be rejected."  46  47 And then the Court applied this analysis to the scope 29187  Submissions by Ms. Mandell        1 of the fishing right  at page 17:  2  3 "The scope of the existing Musqueam right to  4 fish must now be delineated.  The  5 anthropological evidence relied on to establish  6 the existence of the right suggests that, for  7 the Musqueam, the salmon fishery has always  8 been constituted --  9  10 THE COURT:  "Has always" —  11 MS. MANDELL:  12  13 "has always constituted an integral part of  14 their distinctive culture.  Its significant  15 role involved not only consumption for  16 subsistence purposes, but also consumption of  17 salmon ceremonial and social occasions.  The  18 Musqueams have always fished for reasons  19 connected to their cultural and physical  20 survival.  As we stated earlier, the right to  21 do so may be exercised in a contemporary  22 manner.  23  24 THE COURT:  Is there any evidence here, apart from the first  25 fish ceremony, of any specific use of salmon made for  26 cultural purposes?  27 MS. MANDELL:  Well, I think that all the evidence that you had  28 about salmon being taken to the feast, for example,  29 and the evidence of the ways in which salmon is  30 taught, the method and the cutting and the hanging and  31 the sharing of salmon, all being part of the teaching  32 from generation to generation, the depiction of salmon  33 in the art, which is throughout the culture, and the  34 way that the salmon is -- the adaawk relating to the  35 salmon, you have the adaawk.  36 THE COURT:  I don't have any trouble with the importance of  37 salmon and culturally.  They seemed in Sparrow to have  38 treated ceremonial purposes as additional to  39 subsistence.  40 MS. MANDELL:  As additional to, yeah.  41 THE COURT:  Yeah.  I was trying to think of any evidence, and at  42 the moment, and I haven't thought of anything except  43 the first fish ceremony, which would only be one fish  44 in each location.  45 MS. MANDELL:  I should just advise your lordship that — my  46 recollection of the evidence of the ceremonial use in  47 Musqueam had entirely to do with the use of the salmon 29188  Submissions by Ms. Mandell        1 at the big house,  where the people have winter dances  2 similar to --  3 THE COURT:  I have no doubt that they ate it, I have no doubt  4 they used it for food.  5 MS. MANDELL:  And for these community gatherings which salmon  6 and -- salmon is still the mainstay of the food which  7 is served to the guests, and also traded among the  8 upper and the lower Coast Salish people.  9 THE COURT:  All right, thank you.  10 MS. MANDELL:  Similar in the evidence your lordship has heard  11 about the bringing of the salmon to the feasts and the  12 use that the people make of the salmon in their  13 communities.  14 In summary the Court interpreted the right as  15 understood by the Musqueam and in keeping with a  16 purposive analysis which recognized the deep history  17 of the Musqueam to their fishery and their right to  18 continue to survive into the future as distinct  19 peoples nurtured by the fish resource upon which their  20 ancestors relied, and they rely.  21 Now, I would like to address the issue of  22 extinguishment by asking your lordship to turn to page  23 16 of the judgment.  The court in Sparrow held that  24 the sovereign intention to extinguish an aboriginal  25 title must be "clear and plain".  And I would like to  26 read the paragraph that this comes home.  It's at this  27 first paragraph of page 16:  28  29 "In the context of aboriginal rights, it could  30 be argued that, before 1982, an aboriginal  31 right was automatically extinguished to the  32 extent that it was inconsistent with a statute.  33 As Mahoney J. stated in Baker Lake:  34 'Once a statute has been validly enacted,  35 it must be given effect.  If its necessary  36 effect is to abridge or entirely abrogate a  37 common law right, then that is the  38 effect that the courts must give it.  That  39 is as true of an aboriginal title as  40 of any other common law right."  41  42 And the court also sites Bear Island:  43  44 "That in Judson J.'s view was what had occurred  45 in Calder, where, as he saw it, a series of  46 statutes evinced a unity of intention to  47 exercise a soveriegnty inconsistent with any 29189  interest,  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 conflicting  including aboriginal  title.  But Hall, J. in that case stated (at p.  404) that 'the onus of proving that the  Sovereign intended to extinguishment the  aboriginal title lies on the respondent and  that intention must be clear and plain'.  The  test of extinguishment to be adopted, in our  opinion, is that the Sovereign's intention must  be clear and plain if it is to extinguish an  aboriginal right."  Now, in coming to this conclusion of "clear and  plain", the court in Sparrow expressly rejected two  arguments that extinguishment of aboriginal rights can  be affected by implication.  First, and it's in the passage that I just read to  your lordship, the Court rejected Mr. Justice Judson's  decision that aboriginal title could be and was  extinguished in the Colony of British Columbia by the  exercise of sovereign authority in a manner  inconsistent with the exercise of aboriginal title.  And your lordship is aware that Mr. Justice Judson  reviewed the Proclamation and Ordinances, and I have  put his conclusion from Calder at page 167:  "In my opinion, in the present case, the  sovereign authority elected to exercise  complete dominion over the lands in question,  adverse to any right of occupancy which the  Nishga Tribe might have had, when, by  legislation, it opened up such lands for  settlement, subject to reserves of land set  aside for Indian occupation."  And the passage I read you I won't repeat, and it's  where Mr. Justice Judson's decision is rejected in  favour of the statement made by Mr. Justice Hall, that  the intention must be "clear and plain".  A second argument that extinguishment could be  implied was raised by the respondent's counsel in  Sparrow.  The argument before the court was that the  sovereign intention can be manifested by acts of the  Crown which over a long period of time inhibited the  exercise of the aboriginal rights.  It was argued that  in such a case, the sovereign authority was exercised  in a manner necessarily inconsistent with the  continued enjoyment of aboriginal rights.  This 29190  Submissions by Ms. Mandell        1 argument was  summarized at pages 14 and 15.  And if I  2 could ask your lordship to turn back to page 14, this  3 is the argument which was -- an additional argument to  4 the implied extinguishment argument before the Court,  5 and it's at the bottom of the page:  6  7 "It is this progressive restriction and detailed  8 regulation of the fisheries, which,  9 respondent's counsel maintained, have had the  10 effect of extinguishing any aboriginal right to  11 fish.  The extinguishment need not be express,  12 he argued, but may take place where the  13 sovereign authority is exercised in a manner  14 'necessarily inconsistent' with the continued  15 enjoyment of aboriginal rights.  For this  16 proposition, he particularly relied on St.  17 Catherine's Milling, Calder, Baker Lake and the  18 Bear Island case.  The consent to its  19 extinguishment before the Constitution Act was  20 not required; the intent of the sovereign could  21 be effected not only by statute, but by valid  22 regulations."  23  24 THE COURT:  Do you understand that his lordship there is  25 pronouncing, or is he --  26 MS. MANDELL:  He's reciting the argument of the respondent.  If  27 I could -- just to -- if I could turn back, my lord,  28 to —  29 THE COURT:  I think you're right, because he goes on to say  30 "There is, he submitted".  31 MS. MANDELL:  He says:  32  33 "It is this progressive restriction and detailed  34 regulation of the fisheries, which,  35 respondent's counsel maintained, have had the  36 effect of extinguishing any aboriginal right to  37 fish."  38  39 He could have included the factum papers of the  40 argument that was advanced, but it was recited as well  41 by the Court here.  And the court goes on to say that  42 St. Catherine's Milling and Calder and Baker Lake and  43 Bear Island were all put before him as part of this  44 proposition that the sovereign could extinguish by  45 manifesting through acts its intention to do that.  46 And I was reading at the top of page 15:  47 29191  Submissions by Ms. Mandell        1 "There is, he  submitted, a fundamental  2 inconsistency between the communal right to  3 fish and embodied in the aboriginal right, and  4 fishing under a special licence or permit  5 issued to individual Indians (as was the case  6 until 1977) in discretion of the Minister and  7 subject to terms and conditions which, if  8 breached, may result in cancellation of the  9 licence.  The Fisheries Act and its regulations  10 were, he argued, intended to constitute a  11 complete Code inconsistent with the continued  12 existence of exercise of an aboriginal right."  13  14  15 So this analysis would infer sovereign intention  16 from actual acts taken by the Crown over time to  17 prevent the exercise of aboriginal right.  18 And the Court rejected that argument.  They moved  19 from that argument into the argument which I had  20 earlier read you, where they eventually concluded that  21 it's clear and plain, that is the test.  And we say,  22 my lord, and it's significant, and I'll return to it  23 it when you consider the Federal Government's  24 argument, that in Sparrow the Court rejected this  25 argument in a case where the Federal Government, who  26 clearly has constitutional power to extinguish, acted  27 over a long period of time in a manner inconsistent  28 with the continued enjoyment of aboriginal rights.  29 Finally, and the court rejected a third argument  30 about implied extinguishment, and this is, and I spell  31 it out at the bottom of page 9, the proposition that  32 extinguishment could take place by Government policy.  33 And this is another argument which we -- which was  34 addressed and which the Court contended with.  In  35 addressing whether or not the existing Musqueam right  36 to fish includes a commercial aspect, the Court  37 considered government regulations in place for 100  38 years which have governed the exercise of the Musqueam  39 right to fish for food only.  The Court held that  40 while the aboriginal right to fish in the case at bar  41 was only for food and the right to fish for social and  42 ceremonial purposes, the finding of the Court was  43 based on the fact that the case was not presented on  44 the footing of aboriginal right to fish for commercial  45 or livelihood purposes.  At page 18 the Court rejected  46 the analysis that government regulations or policies  47 reflected in the regulations can either define the 29192  Submissions by Ms. Mandell        1 right or extinguish  it.  And if I could ask your  2 lordship to turn to page 18, it's the passage which  3 begins "Government regulations", the second full  4 paragraph in the page:  5  6 "Government regulations governing the exercise  7 of Musqueam right to fish, as described above,  8 have only recognized the right to fish for food  9 for over a hundred years.  This may have  10 reflected the existing position.  However,  11 historical policy on the part of the Crown is  12 only incapable of extinguishing --  13  14 THE COURT:  "Not only".  15 MS. MANDELL:  Sorry, "is not only", I have to slow down:  16  17 "Historical policy on the part of the Crown is  18 not only incapable of extinguishing the  19 existing aboriginal right without clear  20 intention, but is also incapable of, in itself,  21 delineating that right.  The nature of  22 government regulations cannot be determinative  23 of the content and scope of an existing  24 aboriginal right.  Government policy can  25 however regulate the exercise of that right,  26 but such regulation must be in keeping with  27 s.35 (1) . "  28  29 It is the submission of the Plaintiffs that the  30 effect of the decision in Sparrow is that implied  31 extinguishment has been rejected in favour of the  32 principle of clear and plain language expressed in  33 legislation.  And I will argue this point that it  34 ought to be clear and plain language at another  35 section of this argument.  36 The Sioui and Mitchell cases bear on the  37 extinguishment issue.  38 MR. GOLDIE:  Well, before my friend goes on, does my friend say  39 that the words "without clear intention" have no  40 meaning?  41 MS. MANDELL:  No.  I say that the words "clear intention" mean  42 clear and plain language expressed in legislation.  43 And I will be arguing that at another point in the  4 4 argument.  45 MR. GOLDIE:  Well, then, she suggests -- I take it my friend  46 suggests that those words do not modify the word  47 "policy". 29193  Submissions by Ms. Mandell        1  MS. MANDELL:  Well, the  paragraph speaks for itself.  2 THE COURT:  I wish I could hear what it says.  3 MS. MANDELL:  Well —  4 MR. GOLDIE:  The concern that I have, my lord, is that — and I  5 don't get a chance to reply to this, is that my friend  6 is saying that government policy cannot define or  7 extinguish, and as I read this paragraph, unless  8 there's something I'm missing, unless there's  9 something else to come, historical policy cannot  10 extinguish without clear intention.  Now, my question  11 to my friend was does she say that those words have no  12 meaning, and the answer I got was that they had to be  13 expressed in legislation.  14 MS. MANDELL:  My lord, I'm going to be dealing with what I say  15 "clear intention" means at another point in the  16 argument.  My friend's made his point that he --  17 THE COURT:  Well, I've circled the words.  18 MS. MANDELL:  They're definitely there to be interpreted, and  19 I'm going to submit as to how I see them.  2 0 THE COURT:  Yes, all right.  21 MS. MANDELL:  I'm at page 10.  Sioui was a case which determined  22 whether a document made between the Hurons and the  23 Crown in 1860 constituted a treaty within the meaning  24 of Section 88 of the Indian Act, and the proper  25 interpretation to be given to its terms.  While in  26 general, the facts and issues of the case are not  27 analogous to the case at bar, the ruling of the Court  28 on the interpretation of rights and on the  29 extinguishment arguments are consistent with the  30 approach of the Court.  31 And at paragraph 31 I mention that the document  32 was -- the right in question was interpreted in a sui  33 generis way, having regard to the peoples ' history,  34 which is how we say the right in Sparrow was also  35 interpreted, as well the Court applied to the treaty  36 the principles of interpretation spelled out in  37 Nowegijick and Taylor and Williams and affirmed as  38 well the onus of proof of extinguishment resting with  39 the Crown.  And in Sioui they said the Crown did not  40 submit persuasive evidence on extinguishment.  41 And we say on this point, and it's another  42 rejection of the implied extinguishment argument that  43 the Supreme Court of Canada has done in these recent  44 cases, on this point, it is to be noted that the Court  45 rejected all arguments of implied extinguishment  46 advanced by the Crown.  Thus, the Court refused to  47 find extinguishment by either the Articles of 29194  Submissions by Ms. Mandell        1 Capitulation, the  Royal Proclamation of 1763, which  2 did not mention the treaty, or legislative acts  3 including an Act to Establish the Laurendides National  4 Park which, it was argued by the Crown, demonstrated  5 the Quebec Legislative intent to prohibit activities  6 inconsistent with the use of land for purposes other  7 than public parkland.  8 On the question of how treaties may be  9 extinguished, at paragraphs 34 and 35 I set out the  10 fact that Sioui goes further than Simon, and I do wish  11 to draw to your lordship's attention paragraph 35,  12 because this is another case where the Supreme Court  13 of Canada rejected all of the arguments of implied  14 extinguishment.  15 In Simon, the Crown argued that the Treaty of 1752  16 between the British Crown and the Micmac extinguished  17 native rights to lands outside of reserve lands.  The  18 argument was advanced by the Crown that absolute title  19 in the land covered by the treaty lies with the Crown  20 and therefore the Crown has the right to extinguish  21 any Indian rights in such lands.  Further, the Crown  22 through occupancy by the white man has in effect  23 extinguished native right.  Further, the appellant was  24 stopped on a highway.  25 These were all the arguments which were refused by  26 the Court, and there the court didn't come to a final  27 decision on how a treaty is to be extinguished but  28 only to say that it had to be -- it can't be lightly  29 implied.  And in Sioui the court went further and said  30 that the treaties -- in Simon there was no  31 extinguishment found, therefore the court did not have  32 to go further and say "How in law does extinguishment  33 occur for a treaty right".  34 In Sioui the court said that the treaties must be  35 extinguished by consent.  At page 41 and 42:  36  37 "It must be remembered that a treaty is a solemn  38 agreement between the Crown and the Indians, an  39 agreement the nature of which is sacred."  40  41 And they quote Simon and our Court of Appeal in White  42 and Bob.  43  44 "The very definition of a treaty thus makes it  45 impossible to avoid the conclusion that a  46 treaty cannot be extinguished without the  47 consent of the Indians concerned." 29195  Submissions by Ms. Mandell        1  THE COURT:  Surely that's first  year law school, contract law,  2 isn't it?  3 MS. MANDELL:  Well, you hope so, but there's been so many  4 arguments which the Supreme Court of Canada has had to  5 address lately about how treaty rights get  6 extinguished by implication, that they finally said  7 "Wait, it's by consent".  8 THE COURT:  But we don't have treaties here.  9 MS. MANDELL:  Well, we don't, but we say that the decision in  10 Sioui and Mitchell strengthens the argument of consent  11 advanced by the Plaintiffs.  We say that if treaties  12 are to be extinguished by consent, consent is  13 logically required for the Crown to acquire land from  14 the Indians or to accommodate the interests of the  15 Crown and the Indians by treaty.  16 THE COURT:  I just find a vast difference between an implied  17 extinguishment of a contractual agreement, which by  18 definition requires mutual agreement, and the type of  19 aboriginal right which we're concerned with here.  I'm  20 just seeing the two things as being completely  21 different kinds of things.  22 MS. MANDELL:  You know, my lord, I would have agreed with you,  23 except for the problem of the strength of the  24 aboriginal right or the treaty as it relates to  25 Federal regulation, and before 1982 you had the Court  26 in Derriksan and the Court in Sekia(Ph.) and George,  27 two decisions of the Supreme Court of Canada, saying  28 whether the right be an existing aboriginal right,  29 which is Derriksan, without pronouncing who it is, or  30 whether the right be a treaty right, which is Sekia  31 and George, both rights are not as strong as the right  32 of the Crown to abrogate or to regulate those rights  33 by federal regulation.  And so usually the issue is  34 not whether or not if a right is going to be --  35 whether or not an aboriginal right or a treaty right  36 are exactly the same in nature, which they're not, the  37 issue is whether or not as a matter of law either an  38 aboriginal right or a treaty right can be abrogated or  39 modified or regulated through federal regulation.  And  4 0 what all the extinguishment arguments have gone to is  41 what's the impact upon collision of the exercise of an  42 aboriginal and/or treaty right and the implementation  43 of a federal regulation.  And it's on that point that  44 the question of extinguishment or implied  45 extinguishment has arisen.  4 6 THE COURT:  I think we should take the afternoon adjournment  4 7 now. 29196  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell  THE REGISTRAR:  Order in court,  short recess.  1  MS. MANDELL:  Okay.  Court stands adjourned for a  (AFTERNOON RECESS TAKEN AT 3:00)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter  United Reporting Service Ltd. 29197  Submissions by Ms. Mandell        1 (PROCEEDINGS RESUMED  PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  I understand you are inquiring about an extra half  4 hour, Ms. Mandell.  5 MS. MANDELL:  What do you think?  6 THE COURT:  No problem with me.  Miss Yardley says it's all  7 right.  8 MS. MANDELL:  Thank you.  That would help.  My lord, I think  9 that it may very well be that I don't finish this  10 section and Mr. Adams has to do what he has to do  11 today, because we're not going to see him for the next  12 two.  13 THE COURT:  I see.  14 MS. MANDELL:  So I'll leave him the extra half hour and that  15 would be very convenient.  Thank you.  16 THE COURT:  Yes.  All right.  17 MS. MANDELL:  That would be very helpful.  Thank you.  My lord,  18 I'm at the top of page 13.  I make the point, and it's  19 a point which I would ask your lordship to be mindful  20 of, that in Sioui, and on the question of  21 accommodation the court ruled that a term of the  22 treaty provided for co-existence between the rights of  23 the Indians to carry on religious activity and the  24 ongoing objective of the Crown to open up land for  25 settlement.  It's significant that the treaty rights  26 were not seen as in conflict with the rights of the  27 Crown but as rights capable of living together with  28 the Crown's desire to open up the land for settlement.  2 9 The Province and the Federal Government's  30 extinguishment argument in the case at bar depend on  31 the proposition that there is an inherent  32 incompatibility between either the Crown opening up  33 lands for settlement and the exercise of aboriginal  34 title, which is the Provincial Government's argument  35 on the colonial period, or the exercise of aboriginal  36 rights on lands factually opened up for settlement,  37 which is Canada's argument.  In finding a co-existence  38 between the treaty rights and the rights of the Crown,  39 the Supreme Court of Canada in Sioui followed the  40 approach of the B.C. Court of Appeal in Bartleman.  41 And in Bartleman the court held that hunting rights  42 which were recognized and confirmed by the Douglas  43 treaties could and did co-exist with fee-simple grant  44 titles to -- this was a title that was granted to a  45 citizen in the Province of British Columbia.  In  46 finding co-existence rather than conflict in this  47 interpretation of treaty rights, the Supreme Court in 29198  Submissions by Ms. Mandell        1 Sioui and the B.C.  Court of Appeal in Bartleman  2 rejected the polarized characterization of Crown and  3 Indian rights presented by the Province in Canada at  4 the case at bar.  5 THE COURT:  I don't understand what this has got to do with your  6 argument when you say there never was any jurisdiction  7 to extinguish any aboriginal rights.  8 MS. MANDELL:  Well, there is — that's the argument after  9 Confederation.  Before Confederation your lordship is  10 faced with the argument of the Province that the --  11 that the -- there is an inherent incompatibility  12 between the statutes which design assisted to open up  13 the lands for settlement and the Indian aboriginal  14 rights and we're asking your lordship to appreciate  15 that the courts have viewed both settlement and the  16 existence of Indian rights compatibly and not in that  17 polarized conflicted way where the inevitable result  18 of the Crown choosing to open up the lands for  19 settlement would lead to the conclusion that that's a  20 clear and plain intention of the Crown to extinguish  21 aboriginal rights, which is what the Province argues  22 for in the colonial period.  23 THE COURT:  Well, I don't understand something obviously.  How  24 do you reconcile co-existence with your submission  25 that there can be no extinguishment?  Surely if you  26 open up lands for settlement and you allow preemptors  27 or settlers to move in and give them title, you have  28 to the extent of that grant at least transferred the  29 right to occupy that land to the grantee.  Now, that  30 isn't co-existence.  It may be that they can have  31 their aboriginal rights next door.  32 MS. MANDELL:  Well —  33 THE COURT:  But to the very land, the subject of the grant, it  34 seems to me that you have taken inconsistent  35 positions.  I am sure you haven't.  Tell me why you  3 6 haven't.  37 MS. MANDELL:  All right.  My lord, our first position is that if  38 we're taking a grant, if that's your lordship's  39 analysis, we're taking an actual grant after 1871.  4 0 THE COURT:  Yes.  41 MS. MANDELL:  Our position first is that the Province can't  42 extinguish with that grant.  That's our first  43 position.  4 4 THE COURT:  Yes.  45 MS. MANDELL:  Now, the Province and the Federal Government both  46 suggest that forget about the constitutional vires  47 question and let's look at extinguishment from the 29199  Submissions by Ms. Mandell        1 eyes of the sovereign.  And we say that the giving of  2 the grant by mere fact that it's been given is  3 inconsistent with a notion of existing aboriginal  4 rights.  That's what the Federal Government says.  We  5 say -- my lord, if you will take a look at the  6 Bartleman case what happened there is that Mr. Groves  7 who was the person who owned the land in question  8 was -- his rights were pitted against the rights of  9 the Indian people to hunt over his land.  The question  10 was whether or not his land was unoccupied.  There was  11 no fences and it's where the people had traditionally  12 hunted.  And the court said in Bartleman that to the  13 extent that the land remains unoccupied  14 notwithstanding that it's fee-simple granted, there is  15 still a hunting right which is exercisable by Mr.  16 Bartleman over that land in question.  17 THE COURT:  Not by Mr. Bartleman.  By the Indians.  I am sorry,  18 Mr. Bartleman was an Indian.  19 MS. MANDELL:  Well, he was an accused in that case.  2 0 THE COURT:  All right.  21 MS. MANDELL:  So we say that there is not -- merely because --  22 and this is an argument which is an alternative  23 argument to the vires argument, we say that that  24 really should settle the matter.  But when you then  25 look at the extinguishment arguments which have been  26 presented by the Federal and Provincial Governments,  27 they both argue that for different reasons that there  28 is something inherently inconsistent with the  29 existence of aboriginal title with either the  30 intention to open up the land for settlement or the  31 actual granting of a grant.  And we say that it isn't  32 necessarily so that the intention is clear and plain  33 of the sovereign that aboriginal title is extinguished  34 if either of those two things happen.  Because we have  35 two cases now, both one out of our B.C. Court of  36 Appeal and one out of our Supreme Court of Canada,  37 that says there is a co-existence possible between the  38 right and the intention of the Crown to open things up  39 for settlement in one hand or the actual granting of a  40 grant in another.  And we say that there is no  41 inevitable conclusion which your lordship should be  42 drawn to that merely because the Crown wants  43 settlement that that evidence is an intention to  44 extinguish.  45 THE COURT:  I understand your vires argument.  I understand  46 Bartleman, because it seems to me that the court  47 dodged the question by saying well, as long as the 29200  Submissions by Ms. Mandell        1 land remains unused  you can continue to hunt over it.  2 I can even live with that.  But I do not -- I cannot  3 understand how you can have a grant of fee-simple and  4 have aboriginal rights continue except to that very  5 limited extent talked about by Bartleman and that  6 isn't what you are contending here, because Bartleman  7 it seems to me probably suggests that the moment the  8 grantee decides to fence it in, that's the end of the  9 right to hunt over it, isn't it?  10 MS. MANDELL:  That's definitely — that's right.  That's right.  11 If Mr. Groves had put a fence and a no trespassing  12 sign, that would have been the end of the case, but he  13 isn't.  14 THE COURT:  He had the right to control the ground you say is  15 the subject of an aboriginal right to hunt.  I find  16 those inconsistent.  17 MS. MANDELL:  Well, they are not inherently inconsistent.  They  18 are not so inconsistent, my lord, that you should be  19 able to draw --  20 THE COURT:  They are inherently inconsistent the moment Mr. X  21 puts up his fence, I take it.  22 MS. MANDELL:  I think that the — once we're down to a  23 fee-simple -- a grant being made in fee-simple to  24 somebody, once we're down to that extent, it's our  25 submission that if that grant were written the vires  26 of the legislative body to grant so as to extinguish  27 aboriginal title, you have at that time to look at  28 whether or not there is the conclusion to be drawn  29 that there is actual or factual extinguishment.  But  30 we say that there is nothing inherently compelling  31 which shows the clear and plain intention of the Crown  32 to extinguish aboriginal title if they had the vires  33 to do it by opening up the land for settlement or by  34 even issuing a Crown grant.  We say there is a  35 compatibility which is possible.  We don't have to --  36 we don't have to be driven to a polarized conclusion.  37 Our first argument is, as I said before, with respect  38 to the pre-Confederation period, there were no Crown  39 grants granted in the claims area and with respect to  40 the post Confederation period they were not -- it was  41 not within the power of the Province to extinguish  42 title.  43 THE COURT:  Well, I think you better press on.  I am still  44 unable to escape from the net of inconsistency in that  45 submission.  I find it inconsistent.  46 MS. MANDELL:  My lord, I could back you up one step further  47 then.  I do want to press on because of all the 29201  Submissions by Ms. Mandell        1 problems, but I do  want to remind your lordship as  2 well of the Saanichton Marina Case.  Claxton vs.  3 Saanichton Marina.  4 THE COURT:  That's a treaty case, isn't it?  5 MS. MANDELL:  It's a treaty case, but the fishing right was the  6 right to carry on our fisheries as formerly.  White  7 and Bob said that that particular expression was a  8 recognition of a pre-existing aboriginal right.  The  9 case proceeded on the basis that there was a right in  10 question.  Whether -- and the evidence is to the scope  11 of the right was the evidence as to how the Indian  12 people aboriginally fished in that particular  13 location.  And the court in that case without a big  14 discussion as to whether or not the right is  15 exclusive - there wasn't a claim made to the bed of  16 the river, and without a discussion as to whether or  17 not the right was a proprietary right or a  18 non-proprietary right or a treaty right in the granted  19 sense or a treaty right in the recognized sense, what  20 the court did was they analysed the nature and scope  21 of the right as understood by the Indians and measured  22 it against whether or not the Provincial grant of  23 occupation to the marina was consistent or  24 inconsistent with the proper exercise and enjoyment of  25 the right.  And in the end what you had is that the  26 right could be exercised and to the extent of  27 inconsistency with the grant of the marina the right  28 had to be permitted.  And we say that this is the kind  29 of model which is available to your lordship in  30 viewing Crown intention.  This is not to view the  31 question of remedies or to view the question as to  32 whether or not there has been an actual legislative  33 grant properly granted.  But simply to view the nature  34 of the right as it relates to the Crown intention to  35 extinguish and we say that these cases demonstrate  36 that there is no inherent inconsistency which you must  37 go to merely because there is a design scheme to open  38 up the land or a grant.  39 THE COURT:  All right.  40 MS. MANDELL:  My lord, I'm at the bottom of page 13 and I'm into  41 Sparrow.  This is a place where Sparrow ruled,  42 something which previously hadn't been decided in this  43 manner.  It's to do with the honour of the Crown and  44 the fiduciary obligation.  The court ruled that Canada  45 has the responsibility to act in a fiduciary capacity  46 with respect to aboriginal peoples.  And they built in  47 this to the words recognized and affirmed in section 29202  Submissions by Ms. Mandell 1            35(1).  And if I could  ask your lordship to turn to  2 page 25, and this is the second paragraph:  3  4 "There is no explicit language in the provision  5 that authorizes this Court or any court to  6 assess the legitimacy of any government  7 legislation that restricts aboriginal rights.  8 Yet, we find that the words 'recognition and  9 affirmation' incorporate the fiduciary  10 relationship referred to earlier and so import  11 some restraint on the exercise of sovereign  12 power."  13  14 And we say here, my lord, that you should look at the  15 phrase, the title exists at the goodwill of the  16 sovereign as against the clear language in Sparrow  17 that the rights as well as the words recognized and  18 affirm which incorporate the fiduciary relationship  19 import some restraint on the exercise of sovereign  20 power.  Rights that are recognized and affirmed are  21 not absolute.  Federal legislative power continues,  22 including of course the right to legislate with  23 respect to Indians pursuant to 91(24).  These powers  24 must, however, now be read together with section 35.  25 In other words, Federal power must be reconciled with  26 Federal duty and the best way to achieve that  27 reconciliation is to demand the justification of any  28 government regulation that infringes upon or denies  29 aboriginal rights.  Such scrutiny is in keeping with  30 the liberal interpretive principle enunciated in  31 Nowegijick and the concept of holding the Crown to a  32 high standard of honourable dealing with respect to  33 the aboriginal peoples of Canada as suggested in  34 Guerin.  35 And then following from this finding of the  36 fiduciary -- and I just ask your lordship to note that  37 the Province -- I am sorry, the Federal Government  38 argues that it's the Province's fiduciary obligation  39 too, and I just ask your lordship here to note the  40 language in this paragraph:  Federal legislative  41 powers continue including of course the right to  42 legislate.  And similarly they say in other words,  43 Federal power must be reconciled with Federal duty and  44 it's definitely the Federal Government's regulations  45 that's in question, but we say, and I'll be submitting  46 to it further, that it's also the Federal fiduciary  47 obligation which is incorporated into section 35. 29203  Submissions by Ms. Mandell 1  THE COURT:  Well, do you say I  can read the Province for Federal  2 in that passage?  3 MS. MANDELL:  No, I don't.  I say you have to read Federal as  4 Federal.  5 THE COURT:  Thank you.  6 MS. MANDELL:  And then at page 26 what the court does following  7 this analysis of a Federal fiduciary obligation lodged  8 in section 35 is they establish a justification  9 process to protect rights against unlawful  10 infringement by Federal legislation.  The overriding  11 consideration of this justification process is to  12 ensure that regulations must uphold the honour of the  13 Crown.  14 And at page 26 the first paragraph:  15  16 Section 35(1) suggests that while regulation  17 affecting aboriginal rights is not precluded,  18 such regulation must be enacted according to a  19 valid objective.  Our history has shown,  20 unfortunately all too well, that Canada's  21 aboriginal peoples are justified in worrying  22 about government objectives that may be  23 superficially neutral but which constitute de  24 facto threats to the existence of aboriginal  25 rights and interests.  By giving aboriginal  26 rights constitutional status and priority,  27 Parliament and the provinces have sanctioned  28 challenges to social and economic policy  29 objectives embodied in legislation to the  30 extent that aboriginal rights are affected.  31 Implicit in this constitutional scheme is the  32 obligation of the legislature to satisfy the  33 test of justification.  The way in which a  34 legislative objective is to be obtained must  35 uphold the honour of the Crown and must be in  36 keeping with the unique contemporary  37 relationship, grounded in history and policy,  38 between Crown and Canada's aboriginal peoples.  39 The extent of legislative or regulatory impact  40 on an existing aboriginal right may be  41 scrutinized so as to ensure recognition and  42 affirmation.  43 The constitutional recognition afforded by  44 the provision therefore gives a measure of  45 control over government conduct and a strong  46 check on legislative power."  47 29204  Submissions by Ms. Mandell        1 And I stop there and  ask your lordship again to  2 appreciate the concept that aboriginal title does not  3 exist any more at the goodwill of the sovereign.  And  4 then finally, the court outlined the appropriate  5 analysis under section 35 in the context of a  6 regulation made pursuant to the Fisheries Act, but  7 they emphasized the importance of context in a  8 case-by-case approach.  And this is at the bottom of  9 page 26:  10  11 "In these reasons, we will outline the  12 appropriate analysis under s. 35(1) in the  13 context of a regulation made pursuant to the  14 Fisheries Act.  We wish to emphasize the  15 importance of context in a case-by-case  16 approach to s. 35(1).  Given the generality of  17 the text of the constitutional provision, and  18 especially in light of the complexities of  19 aboriginal history, society and rights, the  20 contours of a justificatory standard must be  21 defined in the specific factual context of each  22 case."  23  24 And so then the court went on to create an analysis  25 with respect to the Fisheries Act saying that we have  26 to do it on a case-by-case basis.  27 And at the bottom of page 16 of the argument, my  28 lord, I summarize the process which the court imposes  29 for an analysis under the fisheries regulations.  They  30 invite three questions:  Does the legislation in  31 question have the effect of interfering with an  32 existing aboriginal right.  If it does --  33 THE COURT:  I am sorry, you said at the bottom of page 16.  34 MS. MANDELL:  15.  35 THE COURT:  15.  I'm sorry.  36 MS. MANDELL:  Yes.  37 THE COURT:  Yes.  Thank you.  38 MS. MANDELL:  Does the legislation in question have the affect  39 of interfering with an existing aboriginal right.  If  40 it does have such an affect, it represents the prima  41 facie infringement.  If there is a prima facie  42 interference, the analysis moves to the justification.  43 This is the test which addresses the question of what  44 constitutes legitimate regulation of a constitutional  45 right.  Finally, if a valid interference is found, the  46 analysis proceeds to question whether the honour of  47 the Crown is being upheld.  And I will simply read the 29205  Submissions by Ms. Mandell  1  passage to you.  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  MS.  THE  MS.  THE  MS.  THE  MS.  THE  MS.  "If a valid legislative objective is found, the  analysis proceeds to the second part of the  justification issue.  Here, we refer back to  the guiding interpretive principle derived from  Taylor and Williams and Guerin.  That is, the  honour of the Crown is at stake in dealings  with aboriginal peoples.  The special trust  relationship and the responsibility of the  government vis-a-vis aboriginals must be the  first consideration in determining whether the  legislation or action in question can be  justified."  And then this is an important point which was argued  strenously before the Supreme Court of Canada.  Regulations may not be justified merely as being in  the public interest.  And the court said at page 29:  "The Court of Appeal below held, at page 331,  that regulations could be valid if reasonably  justified as 'necessary for the proper  management and conservation of the resources or  in the public interest.'  We find the 'public  interest' justification to be so void as to  provide no meaningful guidance and so broad as  to be unworkable as a test for the  justification of a limitation on constitutional  rights.  COURT:  Is that "so void" or was it "so vague"?  MANDELL:  I think it's "vague."  Sorry.  Yes.  COURT:  "Vague" is it?  MANDELL:  Yes.  COURT:  Thank you.  MANDELL:  Thus, the Court in Sparrow in its interpretation  of section 25 is both recognizing non-exist --  COURT:  You mean 35?  MANDELL:  35 (1) .  COURT:  Yes.  MANDELL:  As both recognizing non-extinguished rights and  imposing a fiduciary obligation on the Crown  decisively rejected the doctrine which has been the  underpinning of the analysis of both the Province and  Canada that aboriginal title is at "the goodwill of  the Sovereign."  While the Court in Guerin rejected 29206  Submissions by Ms. Mandell        1 this doctrine in its  finding that fiduciary  2 obligations restrain the hand of the Federal  3 government certainly its dealings with Indian reserve  4 land upon upon a surrender, the Court in Sparrow has  5 gone further and held that fiduciary principles must  6 guide the Crown in its dealings with aboriginal  7 peoples, whether or not a surrender is in issue.  As  8 the Court in Sparrow said at page 26:  9  10 "The constitutional recognition afforded by the  11 provision therefore gives a measure of control  12 over government conduct and a strong check on  13 legislative power.  While it does not promise  14 immunity from government regulation in a  15 society that, in the twentieth century, is  16 increasingly more complex, interdependent and  17 sophisticated, and where exhaustible resources  18 need protection and management, it does hold  19 the Crown to a substantive promise.  The  20 government is required to bear the burden of  21 justifying any legislation that has some  22 negative effect on any aboriginal right  23 protected under s. 35(1) ."  24  25 And at page 24:  26  27 "In our opinion, Guerin, together with Taylor  28 and Williams, ground general guiding principle  29 for s. 35.  That is, the Government has the  30 responsibility to act in a fiduciary capacity  31 with respect to aboriginal peoples.  The  32 relationship between the Government and  33 aboriginals is trust-like, rather than  34 adversarial, and contemporary recognition and  35 affirmation of aboriginal rights must be  36 defined in light of this historic relationship.  37 As commentators have noted, s. 35(1) is a  38 solemn commitment that must be given meaningful  39 content."  40  41 I say that Canada has argued that the Province shares  42 in the fiduciary obligations.  The passage quoted by  43 Canada in their concluding argument in support of this  44 proposition was from Mitchell.  Mr. Justice Dickson,  45 we say, was was in dissent on this port point.  Mr.  46 Justice La Forest, speaking for the majority, said  47 that the Provincial Crown bears no responsibility to 29207  Submissions by Ms. Mandell        1 provide for the  welfare and protection of native  2 peoples.  And if I could ask your lordship just to  3 turn to tab 4 of your materials, I wanted to identify  4 the passage of Mr. Justice La Forest's decision upon  5 which we rely.  It's tab 4 at page 31, the last  6 paragraph:  7  8 "The Provincial Crowns bear no responsibility  9 to provide for the welfare and protection of  10 native peoples, and I am not prepared to accept  11 the Parliament, in enacting s. 90, intended  12 that the privileges of s. 87 and 89 exempt  13 Indian bands from taxation and civil process in  14 respect of all personal property that they may  15 acquire pursuant to all agreements with that  16 level of government, regardless of where that  17 property is located."  18  19 It's not a considered point in Mitchell, but we say  20 that the passage which was cited by Canada is dissent  21 and Sparrow which clearly identifies the fiduciary as  22 Federal and Mitchell that clearly says that -- which  23 is true, that the Province bears no responsibility to  24 provide for the welfare and protection of native  25 peoples, would lodge the fiduciary with the Feds,  2 6 Federal Government.  But we say that except to the  27 extent that Provincial regulations becomes part of the  28 justificability process, and I'll talk about that  29 next, the Province bears no fiduciary responsibility  30 for Indians.  Canada holds the fiduciary obligations  31 recognized and confirmed section 35.  32 MS. KOENIGSBERG:  If I can just interject there.  I would like -  33 this came up yesterday - to make clear that the  34 context in which we took the position that the  35 Province does have a fiduciary obligation was in the  36 context that both Sparrow and Mitchell in the majority  37 would be taken to refer to power still available to  38 the Province after the passage of section 35 to affect  39 aboriginal right.  It's not a broad fiduciary  40 obligation.  It would only be when they are as the  41 Crown affecting those.  42 MS. MANDELL:  All right.  Thank you, my lord.  I would like to  43 try and get through the next section and then turn --  44 my lord, we are constrained by timetable problems  45 among our team, and I'd ask that at this point I would  46 be permitted to stop the section 35 argument and turn  47 it over to Mr. Adams who unfortunately is not going to 29208  Submissions by Ms. Mandell        1 be with us for the  next two days, and I'll continue.  2 My lord, I know that --  3 THE COURT:  Yes.  4 MS. MANDELL:  My lord, I know that there is probably a lot which  5 you have to do tonight too.  But if your lordship  6 could read the argument as I have submitted to you, if  7 you'll have an opportunity --  8 THE COURT:  You mean the balance?  9 MS. MANDELL:  The balance of the argument, it will be  10 considerably easier tomorrow to move through it.  11 THE COURT:  Yes, I will endeavor to do that.  12 MS. MANDELL:  Thank you, very much.  13 MR. WILLMS:  It would be helpful too — I have read it.  I don't  14 understand what regulations the justificatory process  15 attaches to here.  They don't say which Provincial  16 regulations have to be justified.  17 THE COURT:  Well, I suppose, Mr. Willms, that Miss Mandell is  18 saying that you have not argued any right to  19 extinguish aboriginal rights since Confederation.  20 MR. WILLMS:  It's not the extinguishment, my lord.  I took  21 Sparrow and my friend's submissions to talk about  22 interference, not extinguishment.  And it's the  23 interference and her submissions on interference in  24 this section that concern me, because certainly there  25 is legislation that interferes that we know about, but  26 which ones are we supposed to have justified?  27 THE COURT:  Miss Mandell will answer your question tomorrow.  2 8 MS. MANDELL:  Yes.  Thank you.  2 9 THE COURT:  All right.  Thank you.  Mr. Adams.  Where did  30 Sparrow come from.  It's tab 2, isn't it?  Yes.  I  31 found it.  Thank you.  32 MR. ADAMS:  My lord, the three tabs that I've handed up can be  33 added to the binder Miss Mandell has been working  34 from.  35 THE COURT:  All right.  36 MR. ADAMS:  And there should be eventually a tab with a roman II  37 to distinguish mine from hers.  38 THE COURT:  All right.  Go ahead, Mr. Adams.  I will catch up to  3 9 you.  40 MR. ADAMS:  My lord, these three tabs deal successfully with  41 three aspects of the reply.  The first has to do with  42 the nature of the contact and pre-contact Indian  43 societies.  The second has to do with reserves and the  44 third has to do with assertions of ownership and  45 jurisdiction.  Tab one dealing with the nature of the  46 pre-contact societies simply reviews eight  47 propositions which we say are responses to arguments 29209  Submissions by Ms. Mandell        1 made principally by  the Province.  And the first  2 appearing on page one of tab one is whether and to  3 what extent the historical documentary record can  4 speak to the nature of pre-contact societies.  And the  5 Province's argument is set out in the first paragraph  6 that since your documents only start at 1823, you  7 can't say out of the documents anything about the  8 state of the societies before that.  And we say in the  9 second paragraph that the assertion underlying that  10 proposition is that if you can only get Professor Ray  11 and the Hudson's Bay documents out of the way, then  12 the door is open for the Court to accept Dr.  13 Robinson's speculative hypothesis that the complex of  14 territoriality, chieftainship, feasting and trade  15 observed by Harmon and Brown was a product of the  16 white fur trade.  And we have Dr. Robinson's evidence  17 in cross-examination, notwithstanding that it was  18 cited in her bibliographies that the historical record  19 was virtually mute.  And we say that the Province's  20 attack on Professor Ray is designed to make sure that  21 the historical record stays mute rather than  22 permitting an experienced scholar to let it speak.  23 And at the top of page two we reply to the assertion  24 that Professor Ray simply assumed that what was  25 happening in 1820 was happening prior to 1820.  26 MR. WILLMS:  My lord, this is not proper reply.  I have skimmed  27 through the first bit of it and perhaps in the  28 interests of time my friend should carry on, but it's  29 not proper reply.  It's just a repeat and a  30 reiteration of what my friend said at length  31 originally in discussing Dr. Ray, Dr. Robinson, the  32 historical record.  This is nothing new.  The  33 historical record came up in his argument and I  34 replied to it.  This isn't reply.  This is nothing new  35 that's raised in the Province's argument.  This is  36 just a response to the Province's argument and that's  37 not proper reply.  38 MR. ADAMS:  Well, my lord, with respect it's a response, it's a  39 reply to a concept that was raised for the first time  40 in the Province's argument and that is that  41 specifically someone who reads historical records  42 isn't in the position to draw any inferences about  43 what may have existed before and it's to that --  44 MR. WILLMS:  Well, I never said that.  In fact, Dr. Ray did draw  45 inferences.  I said that in my argument and so did Dr.  46 Robinson.  Their inferences are different.  That's all  47 I said.  This is not proper reply. 29210  Submissions by Ms. Mandell 1  THE COURT:  Well, I think I am  going to take advantage of Mr.  2 Willms' suggestion that you should proceed and I'll  3 have to decide as we go along.  I don't want to take  4 the time to analyse the argument and reply of the  5 Crown to determine whether this is now reply.  I  6 certainly have heard this before and this was part of  7 your original submission, Mr. Adams, but I think we'll  8 take advantage of what Mr. Willms has said.  9 MR. ADAMS:  My lord, I'm not going to have time in any case to  10 do anything other than introduce these propositions  11 and point to the evidence that is assembled in support  12 of them.  13 THE COURT:  Yes.  All right.  14 MR. ADAMS:  On page three I refer to the Provincial oral  15 argument and the citation to the transcript is given  16 to the cross-examination of Professor Ray on the  17 question of what the historical documentary evidence  18 does and can speak to.  And I say that the  19 re-examination of Dr. Ray is simply not referred to,  20 not cited, and that what Processor Ray was in a  21 position to do was make considered judgments about the  22 likelihood that the social organization observed by  23 the Bay traders raced inland from the coast, following  24 the fur trade.  25 And I go to my second proposition at page five.  26 This has to do with the assertion by the Province in  27 its argument that there is no evidence whatever of  28 territoriality with respect to any resource other than  29 beaver.  Now, the plaintiffs certainly made their case  30 and made their argument that you ought to find  31 territories and territoriality.  The assertion that is  32 new and the Province's argument is that there is no  33 evidence of any kind with respect to any resource  34 other than beaver.  And the passages beginning at page  35 two are a reply to and a reference to that  36 proposition.  37 On page 12 of the argument, the third proposition  38 has to do with the kinship groupings and other  39 groupings in the plaintiffs' societies at contact  40 where the Province argues that the historic evidence  41 shows that there weren't any houses and there they  42 were referring to house groups at the time of contact.  43 And what is say set out in this section is simply a  44 discussion of the -- out of Professor Ray's evidence  45 of the kinship terms and the other social groupings  46 that were present at the time.  And that is quite an  47 extensive section of transcript, because Brown 29211  o various  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 referred extensively  kinship terms.  On  page 23 after that long section of transcript we say  that the Province argues that a number of points that  the unit of social organization of the Gitksan and  Wet'suwet'en at contact was not the house or any other  kinship group but the village and that they also  lacked any sense of a larger grouping such as a  nation.  And we refer there to our argument as to the  kinship and other links across villages and the  citation is given there.  We submit that neither of  the Province's propositions concerning kinship groups  or nations can stand in the face of Brown's  observations which are in the preceding transcript  passages as to the existence and importance of both  kinds of grouping.  Page 24, I take up the continuing assertion in the  Province's argument that when you read "Atnah" in the  historical records you can't read Gitksan.  And the  evidence on that point is simply reviewed in the  following passages.  And we point out towards the bottom of page 27  that the Province simply omitted from its argument any  reference to Professor Ray's re-examination which  included the Court's questions and Professors Ray's  responses on that issue.  And we say at page 31 that in suggesting that the  "Atnah" of the Brown records were not Gitksan, the  Province is also seeking to ignore the published work  of two of the treatise writer's upon whom it otherwise  seeks to rely.  And the cites from Tobey and Bishop  are set out in the following pages.  On page 32 on a related point we say the Province  argues that the Gitksan - and here they are implicitly  conceded that the Atnah are Gitksan - may have been  recent arrivals in an unfamiliar territory as  evidenced by their alleged lack of warm clothing.  And  the citations to the Provincial argument is given  there.  As for the facts, in 1825 Brown described the  Gitksan as dressed in groundhog robes and caribou  leggings.  He also said the Atnah had blankets made  from mountain sheep's wool.  And we say simply that  the Province's effort in its argument to portray the  Gitksan in 1820s, as recent arrivals in their  territory is without any foundation in the historical  documentary evidence.  Now, beginning on page 33 and  the fifth proposition -- 29212  Submissions by Ms. Mandell  to this one, my lord.  And speed  1  MR. WILLMS:  Okay.  I do object  2 doesn't justify going through it.  I raised this were  3 my friend during the middle of his argument about the  4 settlement at Gitanmaax, and he chose to leave it for  5 later and leave Ogden for later and all of that.  And  6 in my submission the issue has been joined and it's  7 past.  We even had the benefit of Mr. Rush stand up  8 during my argument and point out the one version of  9 Downey in 1859.  10 THE COURT:  Yes.  11 MR. WILLMS:  This matter has been canvassed.  It doesn't need to  12 be canvassed any further.  13 MR. ADAMS:  Well, my lord, in my submission it needs to be  14 corrected, because the Province made two assertions  15 that go to this point.  One was Downey and I take it  16 from reading the oral argument that they have now  17 retreated on that question, although they haven't  18 retreated at all from their proposition.  But they are  19 continuing to assert what is quoted under proposition  20 five that Dr. Ray was certainly incorrect in his  21 theory of the existence in the 1820s of a village at  22 the forks of the Bulkley and Skeena River.  And all we  23 do is set out the passage from Brown that establishes  24 that he was not only not certainly incorrect, he was  25 perfectly correct.  26 THE COURT:  But we never even established that Brown was talking  27 about the forks of the Skeena and the Bulkley, did we?  28 MR. ADAMS:  We did, my lord, and that evidence is set out.  2 9 THE COURT:  I didn't think we got that down.  30 MR. WILLMS:  With all due respect, in Dr. Ray's first draft he  31 called Kispiox the forks.  He had Kispiox at the  32 forks.  And there is lots of forks all the way up the  33 river.  Forks all over the place.  34 MR. ADAMS:  Yes.  And in my submission, my lord, and the  35 references are set out here, the Province simply left  36 out of its argument on this point any reference either  37 to Professor Ray's view that there was a village at  38 the forks and his explanation of how he concluded  39 that.  40 THE COURT:  Well, I certainly am not going to deprive myself of  41 the opportunity to direct myself to the evidence by  42 the use of this material.  It may not be proper reply,  43 but I -- again, I don't think that I ought to slow  44 things down to the pace that would be necessary for me  45 to deal fairly and juristically with the objection.  I  46 take it you are not going to press it any further than  47 you have gone, are you, Mr. Adams? 29213  Submissions by Ms. Mandell        1  MR. ADAMS:  I am not, my lord.  I am on to my sixth proposition  2 and I just stop here to refer ahead to page 45.  3 THE COURT:  Yes.  4 MR. ADAMS:  Because there are a number of questions of this  5 category which we say at the bottom of 45 that  6 standing alone, questions such as the existence of a  7 Gitksan village at Gitanmaax, the location of Hotset  8 and other questions don't raise major factual issues  9 which this Court must resolve in order to adjudicate  10 the legal claims of the parties.  But we say they do  11 serve to illustrate, and this is the thrust of the  12 reply, that many of the Province's confident and  13 sweeping assertions as to the contents and appropriate  14 interpretation of the historical documentary record  15 will not withstand careful scrutiny.  And in my  16 submission, my lord, it's simply impossible for the  17 plaintiffs to anticipate every such assertion that the  18 Provincial might make and meet it with the evidence in  19 detail.  In some sense we're obliged to wait for the  20 mistakes and then identify the mistakes and these are  21 examples of the mistakes.  22 MR. WILLMS:  We did give -- I read from the argument, my lord,  23 with all due respect to my friend, and it's all set  24 out in the argument and he got it before he started.  25 MR. ADAMS:  The fact, my lord, that I had my friend's written  26 argument before I started does not deprive me in my  27 submission of a right to reply to it properly.  The  28 proposition six on page 38 deals with the location of  29 Hotset, whether it was Moricetown, whether it was  30 Hagwilget and --  31 THE COURT:  What do you say it was?  32 MR. ADAMS:  I say it was clearly in the vicinity of Moricetown.  33 And we say beyond that that it doesn't really matter.  34 Except to the extent --  35 THE COURT:  I think that's what the Province says.  36 MR. ADAMS:  No.  The Province says that it — the name travelled  37 after the rock slide is what the Province --  38 MR. WILLMS:  With the people.  The people as all people in this  39 area took the name with them, the name of the village  40 where they lived.  41 THE COURT:  All right.  You say Hotset equals Moricetown.  42 MR. ADAMS:  Yes.  And as to the name having travelled, beginning  43 on the bottom of page 40 we simply refer to a number  44 of instances in the evidence.  For instance, in 1828  45 clearly after the rock slide where Pambrun  46 distinguished Hotset and Roche Tombe.  In 1833 where  47 McGillivray is talking "Rochers Deboules", not 29214  Submissions by Ms. Mandell        1 "Hotset".  And just  point to that as evidence that the  2 name hadn't been transferred at all and there is other  3 evidence referred to of a similar character.  4 At the bottom of page 41 the seventh proposition.  5 And the argument is set out at the top of 42.  The  6 Province argued that native methods of resolving  7 disputes had terminated some years before 1872.  And  8 your lordship may recall that was the Kitseguckla  9 fire, and that the well-known Gitksan custom of  10 revenge killing was in 1884 stronger than the  11 lately-asserted custom of compensation.  And what  12 follows is simply references to the evidence that say  13 that it's incorrect to assert that native methods of  14 resolving disputes had been terminated before 1872, at  15 least with respect to the plaintiffs, and secondly  16 that it's incorrect to describe the custom of  17 compensation as lately-asserted.  In fact, it appears  18 throughout the Bay records and the evidence for that  19 proposition is an assembled there.  20 On page 46 we take up the final proposition having  21 to do with the nature of the pre-contact societies.  22 This is something that arises from Canada's argument.  23 And a question your lordship asked in the course of  24 that argument, it was asserted there by Canada that  25 the evidence in this case does not establish that the  26 plaintiffs' ancestors hunt or trapped fur for  27 commercial purposes before contact.  And the material  28 that's set out following that observation is designed  29 to demonstrate that in saying so Canada was factually  30 wrong.  And by and large in the passages from Brown  31 and Harmon, the significant portions referring to the  32 trade in furs among the Indians are highlighted.  33 And we say at the end of 56 that on the basis of  34 those materials there was obviously a considerable  35 intra-Indian trade in furs and other products, both  36 the primary and manufactured, at the time of contact.  37 So that it wasn't just raw furs that were moving  38 Indians to Indians.  It was also, for instance,  39 groundhog robes and mountain sheep wool blankets, both  40 manufactured by the Gitksan.  41 At tab 2 we take up, I believe it's three  42 propositions out of the argument on reserves.  The  43 first has to do with the Province's assertion in its  44 argument that what O'Reilly was doing in allocating  45 reserves in the claim territory was applying a policy  46 of Douglas.  They say that he was simply countering  47 false rumours, that is in giving assurances that the 29215  Submissions by Ms. Mandell        1 plaintiffs' ancestors  would lose nothing in the  2 reserve-making process.  That O'Reilly was simply  3 countering false rumours that the government wished to  4 deprive the Indians of their land in carrying out  5 Governor Douglas' policy of reserve villages sites and  6 cultivated fields.  And we say in answer to the first  7 proposition that the rumours weren't false.  That the  8 Provincial defendant is here saying that it did  9 effectively deprive the plaintiffs' ancestors of their  10 lands, although its first proposition is that they  11 didn't have any land so there was nothing to do  12 deprive them of.  13 As to O'Reilly's application of Douglas' policy,  14 we set out at the bottom of page one and going over on  15 to two some quotations from things that Douglas had to  16 say about the nature of the reserve-making process and  17 in particular who it was who was going to get to  18 decide whether the boundaries of the reserves were.  19 And so that we have Douglas saying at the bottom of  20 page one:  21  22 "leave the extend and selection of the land  23 entirely optional were the Indians."  24  25 That's the underlined and highlighted passages.  He  26 says that:  27  28 "The surveying officers, having instructions to  29 meet their wishes,"  30 That is the Indians' wishes,  31  32 "in every particular,"  33  34 And the land being reserved was clearly not confined  35 as the Province suggests to village sites and  36 cultivated fields.  There were also references  37 highlighted at the top of page two to:  38  39 "All the favourite resorts of the tribes... and  40 to include every piece of ground to which they  41 acquired an equitable title through continuous  42 occupation, tillage, or other investment of  43 their labour."  44  45 And again in the middle of page two there is a  46 reference from Douglas to the wishes of the natives  47 themselves with respect to boundaries and that those 29216  Submissions by Ms. Mandell        1 should in all cases be  complied with.  And we say  2 simply that by contrast O'Reilly, in evidence that is  3 already dealt with by the plaintiffs in their argument  4 on reserves, ignored many requests for reserves,  5 failed or refused to visit some places, refused to  6 reserve some places he did visit, assured the Indians  7 that their fisheries were protected whether or not  8 they were reserved, and never referred to hunting  9 rights as being limited to unoccupied Crown lands.  10 In fact, we say at the bottom of page three:  11 Whereas Douglas appeared to contemplate that the  12 Indians would define their own boundaries, O'Reilly  13 insisted that the onus was on the Indians to satisfy  14 him as to their lands requirements.  And we set out a  15 passage that illustrates that going over to to page  16 four.  17 And then we say finally, on that question, that  18 it's noteworthy that none of the statements by  19 O'Reilly referred to by either the plaintiffs or the  20 defendants in argument purport to confine the  21 plaintiffs' hunting or otherwise to unoccupied Crown  22 lands.  The phrases he used, as we've indicated were  23 "where you will as heretofore" and "the entire  24 country."  Nor were there any suggestions that such  25 rights as suggested by Canada would vanish the moment  26 either government authorized an inconsistent use;  27 rather, the promise was that the rights would not be  28 interfered with.  29 Beginning on heading two on page four, we take up  30 briefly the question about whether there was serious  31 objection to the reserve-making process at any place  32 other than Kispiox.  And I don't propose to refer to  33 that argument beyond identifying the proposition that  34 there was, and that the evidence to that effect was  35 ignored by the Province in making its argument.  36 At the bottom of page five, the third proposition  37 has to do with statements to and by the  38 McKenna-McBride Royal Commission in 1915.  These are  39 simply not dealt with by the Province in its argument.  40 But what I want to point your lordship to here is that  41 if you are looking for a place to apply the honour of  42 the Crown --  43 MR. WILLMS:  What's my friend replying to?  If he says I didn't  44 deal with it, what's he replying to?  Other than  45 perhaps to split his case.  46 MR. ADAMS:  My lord, at the moment I am attempting to respond to  47 a question your lordship asked Miss Mandell while I 29217  Submissions by Ms. Mandell        1 was sitting here that  it goes with this material, and  2 that is, that if your lordship is looking for a place  3 to apply the principle out of Sparrow as to the honour  4 of the Crown, and of course I didn't have Sparrow at  5 the time that I made my own argument on this question,  6 that when you set side by side assurances by the  7 Federal and Provincial representatives on the  8 McKenna-McBride Royal Commission that Indian  9 reserves -- that Indian requests for or acceptance of  10 reserves would not be taken as surrender nor prejudice  11 an opportunity to have a judicial determination of  12 rights.  Beside the Province's argument that it's  13 entitled to the benefit of a surrender when reserves  14 are accepted, there you have a place to apply the  15 principle of upholding the honour of the Crown in  16 rejecting that argument.  17 At pages six and seven we refer to questions your  18 lordship asked of counsel for the Province in argument  19 as to what prevented the plaintiffs from acting  20 prudently in securing what they could by way of  21 reserves while reserving the right to continue  22 pursuing their larger claim.  And it was suggested in  23 response to that by my friend that people did nothing  24 about it, and that's highlighted in the middle of page  25 seven from the transcript, and we simply say that the  26 Province failed to deal with the evidence that the  27 plaintiffs and their ancestors continuously from the  28 1820s to the 1990s did something about it.  29 Finally on that point, there is a suggestion by  30 the Province that when the plaintiffs ancestors went  31 to the Royal Commission in 1915 and asked to have  32 their land back, and the emphasis by the Province  33 there is on the word back, that the Indians were  34 acknowledging that it had earlier been surrendered  35 ceded or abandoned.  We say simply that responding to  36 an illegal seizure of land by saying I want it back  37 isn't an acknowledgement of anything of the kind.  38 MR. WILLMS:  My lord, my friend referred to Duncan in his  39 argument.  He doesn't need to refer to Duncan again.  40 MR. ADAMS:  The third tab, my lord, is a single point having to  41 do with the missionary conspiracy theory, and really  42 the argument we make is summed up in the heading, and  43 it's a list of all the categories of people:  44 missionary, lawyers, anthropologists, historians, the  45 governor general and other Indians, absolutely anyone  46 but the plaintiffs and their ancestors as being the  47 originators and promoters of Indian ideas of land 29218  Submissions by Ms. Mandell        1 ownership and  jurisdiction.  And we have made our  2 argument as to the unconvincing and offensive  3 character of that argument and the reference is set  4 out there.  We say here that the theory contains no  5 explanation as to why the Gitksan and Wet'suwet'en  6 should so readily have been persuaded to adopt the  7 missionaries' (and others') formulations of their  8 ownership rights.  We say that there is a simple  9 explanation that the missionaries and the others  10 learned about Indian concepts of territory and  11 property from the Indian societies they observed.  And  12 we refer in that respect to the evidence that far from  13 being the puppets of the missionaries, the ancestors  14 of the plaintiffs ignored the best efforts of the  15 missionaries to suppress the feast.  16 At the top of page two we point to the evident  17 function of this "missionary conspiracy" argument in  18 the defendant's scheme of things.  We say that is  19 raised by them in an attempt to create an  20 insurmountable hurdle to the proof and vindication of  21 aboriginal rights.  The Province, in particular, says  22 in general in its argument that the only rights which  23 can be asserted in the Canadian court are those known  24 to, and recognized in, the Canadian legal system, not  25 those existing aboriginally.  However, as soon as the  26 plaintiffs' ancestors can be seen to have had  27 assistance in casting their conceptions of ownership  28 and jurisdiction in forms and terms that Canadian  29 legislatures and courts can understand and take  30 cognizance of, the Province argues that missionaries  31 and others invented the concepts.  32 We say this argument is a double bind: it says  33 that ownership and jurisdiction can't be judicially  34 recognized until they are expressed in terms of  35 European concepts, but as soon as they are, they can't  36 be indigenous ideas, and so can't be recognized as  37 aboriginal rights.  It seems to follow that the only  38 people who can have legal rights in this system are  39 either Europeans or assimilated Indians.  And we say  40 at the bottom of page two the plaintiffs say that  41 their choice is not, as the defendants would appear to  42 have it --  43 MR. WILLMS:  We don't appear to have it that way, my lord.  I  44 take umbrage.  45 MR. ADAMS:  Well, the appearance is what my argument is and my  46 characterization of the plaintiffs' argument.  47 MR. WILLMS:  I am just clearing it up.  We don't appear to have 29219  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Ms. Mandell        1 it that way.  MR. ADAMS:  The plaintiffs say that their choice is not, as the  defendants would appear to me to have it, between  being museum artifacts enjoying dwindling rights of  foraging on land no one else has yet thought to use  and, on the other hand, being assimilated.  Rather,  they are entitled to assert, and have asserted in  various ways since first contact, their right to  develop and flourish into the future as living  societies.  And that completes my submissions, my  lord.  I have got another section here.  Tab 3.  That was tab 3, my lord.  That was tab 3?  Tab 3 is three pages long.  There is something wrong with my book, because I  have been following you and underlining it as I read  it and I haven't reached tab 3 yet.  Tab 2 should be reserves and it goes seven pages.  Yes.  And then tab 3.  Wait a minute.  Wait a minute.  Tab 2 is plaintiffs'  reply to resistance and acceptance of reserves, yes.  And then tab 3 should start the page numbering over  again, assertions of ownership and jurisdiction.  Yes.  I have read that.  That was tab 3.  Oh, that's all right.  I have got your tab 3 twice.  I will give that set back to Mr. -- all right.  Mr.  Jackson.  JACKSON:  My lord, I would just like to know your lordship's  pleasure about tomorrow morning.  Is it possible for  us to start at 9:30?  No, I am afraid it's not.  I have to raise an  estoppel against Mr. Rush on this one.  He said -- I  asked him yesterday and he said he would be sitting  regular hours and I have made an appointment for  something at quarter after nine which I think will  take more than half an hour.  No, I don't think I can,  I am sorry.  JACKSON:  Is there any possibility in terms of tomorrow  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS:  THE COURT  MR. ADAMS  THE COURT  MR.  THE COURT:  MR.  evening  9  THE COURT  MR. ADAMS  THE COURT  MR  No, there is not.  Beyond four?  No.  Again, I -- well --  JACKSON:  You will appreciate, my lord, we are in some  difficulty given the late start today. 29220  Submissions by Ms. Mandell        1  THE COURT:  Oh, yes.  I car  certainly start early on Saturday.  2 But I'm -- I can sit until five tomorrow.  3 MR. JACKSON:  That would be, I think, a great help to us.  4 THE COURT:  I can do that.  But there is a social function in  5 the building for the demise of the County Court and I  6 have to attend there.  My dear friend and associate  7 Chief Justice Campbell was appointed Associate Chief  8 Justice of the Supreme Court today and I am his guest  9 tomorrow.  10 MR. JACKSON:   I wouldn't be thinking of sitting beyond that in  11 any event, my lord.  Thank you.  I am obliged.  12  13 (PROCEEDINGS ADJOURNED UNTIL FRIDAY, JUNE 29, 1990 AT  14 10:00 A.M.)  15  16 I hereby certify the foregoing to  17 be a true and accurate transcript  18 of the proceedings transcribed to  19 the best of my skill and ability.  20  21  22  23  24  25 Laara Yardley,  26 Official Reporter,  27 UNITED REPORTING SERVICE LTD.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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