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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-11] British Columbia. Supreme Court May 11, 1990

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 26228  Submissions by Mr. Adams 1  Vancouver, B.C.  2 May 11, 1990  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 11th day of May, 1990.  Delgamuukw versus Her Majesty  8 the Queen, at bar, my lord.  9 THE COURT:  Well, Mr. Adams, I think it's appropriate that  10 somebody at least mention that this is the third  11 anniversary of the commencement of this trial.  I  12 don't know what is appropriate to say.  I don't  13 remember if it was Richelieu or Talleyrand who said,  14 when asked what he did during the revolution, replied  15 he survived.  Maybe that's the most any of us can  16 claim.  At least I congratulate you all for having at  17 least survived.  Thank you, Mr. Adams.  18 MR. ADAMS:  My lord, my personal measure of the length of the  19 trial is that my younger son was born on the second  20 day of the trial, and was here yesterday briefly, and  21 is now three years old.  So, my lord --  22 THE COURT:  I should add that Ms. Thompson has brought a cake,  23 which she will apportion out during the adjournments  24 during the course of the day.  25 All right.  Thank you.  26 MR. ADAMS:  I had reached page 448, and I'm going to sprint to  27 the finish in the next hour, I hope.  2 8 THE COURT:  Yes.  29 MR. ADAMS:  The argument here is concerned with the events of  30 November 1909 that have come to be called the Kispiox  31 raid.  And what happened, in brief, is that the  32 Gitksan Indians at Kispiox ordered a construction crew  33 building a road up the Kispiox Valley to stop work,  34 and seized its tools and supplies.  And according to  35 the provincial government agent at Hazelton, the  36 passage highlighted in the middle of 448:  37  38 "They claimed the whole of the Kispiox Valley  39 as their forefathers' land; also that all  40 settlers must clear out."  41  42 And the provincial chief constable at Hazelton  43 swore in 40 special constables, which the evidence  44 indicates was virtually the entire adult population,  45 and staged a dawn raid on Kispiox.  There were seven  46 Indians arrested at the time and one other later.  47 They were charged with inciting the confrontation with 26229  Submissions by Mr. Adams 1            the road crew and all  but one were fined or imprisoned  2 for assault, intimidation, or inciting.  3 And then I go now to page 455.  And there is in  4 evidence an account of one of the Barbeau narratives  5 of a Charles Martin who was a Gitksan storekeeper in  6 Hazelton, and there are some quotations from that  7 account at line six on page 455.  He says:  8  9 "They made everybody in Hazelton as a special  10 police."  11  12 And then at the bottom of the page at line 28:  13  14 "W.H. Pierce was the missionary at Kispiox.  15 And they got Mr. Pierce to show the house where  16 the Indian was.  And Pierce went around with  17 them.  And at first they knocked at Mark  18 Johnson's house and they asked for his gun.  19 Give me your gun.  And he went in and handed  20 them his rifle to them.  And I cannot remember  21 what happened to them.  22 One of the white men hit Mark Johnson on his  23 head with the rifle and the rifle broke.  And  24 as soon as William Johnson his brother, saw  25 that he run, and one white man he shot at him  26 but missed out.  White people willing to start  27 the war there, but the Indians did not like  28 it."  29  30 At the bottom of 456, line 30:  31  32 "See how these white people were looking for  33 trouble.  And see how these Indians are kindly.  34 What would have done is the Indian had taken  35 their guns at that time and killed.  They would  36 have been slaughtered on both sides on account  37 of the white people.  But Indians are very  38 patient."  39  40 And then at line three on 457.  I'm sorry.  At  41 line 46:  42  43 "If it had not been for the wise advice of some  44 of the older people in Kispiox every white man  45 would have been killed, the whole town of  46 Hazelton would have been massacred."  47 26230  Submissions by Mr  highlighted passage --  2  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Adams  1  Then the next  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I'm sorry.  That's at line seven of 457?  457 starting at line 46.  Oh, 46.  Oh, yes.  Then the next highlighted passage at line 13:  "Every day, right up to this day, the white men  are always after the Indian.  They are always  looking for trouble.  And we overlook it all  and lay the blame on the government."  And then going to page 459.  The plaintiffs submit that, on the question of  what the Kispiox Indians understood about the  circumstances of the raid, and in particular whether  they conceded that the rule of the white community was  paramount, and you will recall that was Mr. William's  characterization of these events, Charles Martin's  account is the best available evidence.  It does not  so much contradict McDougall's account, which is  referred to earlier, from the police perspective, as  give the other side of the story from the point of  view of the Indians who are supposed, by Mr. Williams,  to have conceded.  And we refer at the top of 460 to Dr. Galois'  characterization of his effort:  "is to see the contact process which involves  on the one hand the white actions and  activities, on the other hand the Indian  peoples of the Upper Skeena, to see this as a  two-sided process.  And I think if we are going  to understand the history of the province we  have to incorporate an understanding of both  sides of the process.  And that's what I was  attempting to do."  I say some further light on the significance of  the Kispiox raid was shed by statements made the next  year when John McDougall came to the territory on  behalf of the Department of Indian Affairs.  And there  is a quotation from his record at line 42 on 460.  "The Indians said:  Our trouble began when  Judge O'Reilly made the reserve.  He did this  without consulting us and under protest from  our people.  God is our father.  He never 26231  Submissions by Mr. Adams 1 deceives.  The  Government has never done  2 anything for us.  The land belongs to us.  We  3 are living in hope day by day that the  4 Government will do us right.  Take the reserve  5 and the agent and the Indian Act and let us die  6 in peace.  Give us back the right which was  7 ours.  Deer, fish, fruit and liberty.  The  8 strong man has done us wrong.  We ask the  9 Government to do for us what is fair and  10 right."  11  12 And I refer to that, my lord, as a statement made  13 after the events of the Kispiox raid and negativing  14 the suggestion that the people at Kispiox had conceded  15 any of these questions.  16 I say at the bottom of 461 that the plaintiffs  17 submit that the events around the Kispiox raid, so far  18 as they're relevant to this case, should be understood  19 as an assertion of Gitksan ownership, and there is a  20 quotation.  21  22 "they claimed the whole of the Kispiox Valley  23 of their forefathers' land; also that all  24 settlers must clear out."  25  26 There is certainly also an assertion of federal  27 criminal jurisdiction, but as I've said a number of  28 times, that jurisdiction isn't challenged here.  And  29 finally, any concession to be found in the documents  30 was only accomplished by arming the whole white  31 population and invading Kispiox.  And we submit, as we  32 did in connection with the events of 1888, that a  33 concession or acquiescence produced by force has no  34 place as a foundation for an equitable estoppel.  It  35 is the very antithesis of equity.  36 Going to page 464.  I have already referred in the  37 reserve section at pages 148 to 149 to the  38 Stewart-Vowell Commission, these being federal  39 representatives.  And there is a quotation that I read  40 to your lordship yesterday in a slightly different  41 light as being a rejection of reserves, but I refer to  42 it again beginning at line 28 on 464 as a positive  43 assertion of rights.  And, again, this is McDougall  44 reporting the views of the Indians.  He says that:  45  46 "Basing their" —  47 26232  Submissions by Mr. Adams 1 I'm sorry.  Stewart-Vowell reporting the views of  2 the Indians.  3  4 "Basing their contention on the assumption that  5 all the land belonged to them to be hereditary  6 and that whites had taken it without conquest  7 or remuneration, they practically asked that  8 the whole country be surrendered to them.  9 This would involve dispensing with the present  10 system of reserves, the establishment of their  11 ancient tribal laws and customs for the  12 government of the territory and the forfeiture  13 of all rights, claims and interests of the  14 whites, et cetera, practically the establishing  15 of the conditions existing before the white man  16 came among them.  17 While the claims were made separately for the  18 surrender of each tribal chief's lands of his  19 forefathers, collectively it would involve the  20 entire country."  21  22 I go now, my lord, to 469 where I say it's  23 difficult to imagine clearer statements of Gitksan and  24 Wet'suwet'en ownership and jurisdiction than those  25 made to the Stewart-Vowell commission and quoted  26 above.  It is also difficult to imagine, taking the  27 accumulated evidence of repeated such assertions, what  28 could sustain the implication in the Province's  29 pleading that the Gitksan and Wet'suwet'en were  30 somehow representing that they would not assert their  31 legal rights.   The fact is, we submit that such  32 assertions began at contact and continue today.  33 There were further such statements now at the  34 bottom of 469 made to McDougall in 1910.  This was a  35 Department of Indian Affairs inquiry into the claims  36 and grievances of the Gitksan and Wet'suwet'en.  I  37 referred yesterday to his instructions that appear at  38 the top of 470.  39 And on page 474 is a quotation in the evidence of  40 an extract of McDougall's report, and at the bottom of  41 the page, line 13, he says:  42  43 "The Indian people of British Columbia have now  44 fully awakened to the knowledge that their  45 vested right to the ownership and long  46 centuries of occupancy of the greater portion  47 of the Province of British Columbia have never 26233  by either  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.  the British or  Adams  1  been dealt with  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Canadian governments.  That by British,  Sovereign, Royal Proclamation and by Canadian  government precedent, action, such ownership  and title has been conceded and respected and  many treaties have been made by these  governments with Indian people like themselves  whereby the Indian title (for consideration  stipulated) was relinquished on their side and  thus righteously required on the part of the  governments."  He goes on at line 36:  "However, it is a fact, and strange that it is,  these Indian people fully recognize the virtue  of government and place their faith in the  Ottawa government.  They believe that this is a  Christian government and therefore their case  will be (when it is understood) righteously and  justly dealt with.  Were it not for this blind  faith in Ottawa and the patience this has  engendered there would have been most serious  trouble (ere) this between the Indians and the  whites because of the overbearing impudence and  outrageous conduct of the latter.  I would respectfully submit that by mutual  endeavour such arrangement and agreement be  sought after by the provincial and federal  governments interested so that they decide upon  a course which will secure the extinguishment  of the Indian title to the lands in British  Columbia."  I'm going --  I haven't found that.  I haven't found that, Mr.  Adams.  You started, I think, at the bottom of 471?  474, my lord, at line 13 was the beginning of the  quotation.  I see this passage "now these people fully  awakened".  Didn't you start there?  Yes.  And at some point you jumped to where?  It may be in twice.  Yes, it does of -- the fuller  quote is the bottom of 474.  Oh.  All right.  And then going over on to 475, and that's where I 26234  Submissions by Mr. Adams  quoted in both Dr. Galois'  1  was reading from.  It  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  and Mr. William's evidence.  All right.  So 474 is the best place.  Oh, yes.  All  right.  I see it there.  And I had carried on almost to the bottom of 475.  Thank you.  And going now to 477 at the bottom.  McDougall's report is an example of both assertion  by the plaintiffs' ancestors, and recognition by the  federal defendant, of the ownership rights the  plaintiffs claim in this action.  There's not the  faintest suggestion in these documents that aboriginal  title had been extinguished by any act of government  or the plaintiffs.  We say nor, for once, is there any  suggestion that these were the inventions of the  outside agitators, rather than genuine claims by the  Indians.  The other recurring theme we have identified, that  of seeking the protection of the Crown, is also  present here, in McDougall's comments about the Indian  faith in government, and also in the Indian's  expressed hope that the government will do us right.  And we say most striking of all is the parallel  between McDougall's report of the Indian conviction  that their case will be, when it is understood,  righteously and justly dealt with, and the words of  Alfred Joseph in the plaintiffs' opening in this case  where he said:  "Your lordship has been notified of our  intention and why we are here.  We are here to  explain how we have asserted our laws and how  we have practised our laws within the Feasts,  and the defence here does not believe in our  laws, and that is why we are here to explain  everything to them."  At the bottom of page 478 there was a Gitksan  petition to Prime Minister Laurier in 1910, and it  included the reference at the bottom of 479 at line  two, there was a reference back to the 1908 petition,  and in the 1910 version it said this:  "The petition dealt with the question of the  land of our fathers, which we feel has been  taken away from us by the white men, and it  also requested that hunting rights and fishing 26235  Submissions by Mr. Adams 1 rights might be  more extensively granted to us.  2 Certain tracts of land which while not being on  3 a reserve have for generations been used by our  4 fathers as hunting grounds, and for getting  5 lumber, have now been taken away from us on the  6 pretence that the tracts were not part of the  7 reserves.  8 We humbly request that the taking away of such  9 land be stopped, and that the rights so long  10 ago enjoyed by our fathers be granted to us.  11 We also further humbly petition that the land  12 of our fathers may return to us."  13  14 And we say, my lord, on 480 here again, the themes  15 are rights to ownership of the land, and the  16 expectation that the Crown will be the agent, not of  17 their confiscation, but of their protection.  18 I go now to page 483.  There's a quotation there  19 from printed notices which apparently were being  20 attached to trees along the trails in the area of the  21 Skeena.  And the text is set out beginning at line 21.  22  23 "We the chiefs of Kitwancool and Kitwanga have  24 one thing to say.  We do not wish any white man  25 to take our land away.  26 This lands belongs to our fathers and King  27 George three tell this land belong to Indian.  28 We never fight for this land.  No pay us any  2 9 money.  30 We don't want government at Victoria to steal  31 this land from us.  32 We go to this land for berries and hunt wild  33 animals.  34 Take away land and we got no place to live on."  35  36 Beginning at the bottom of 483, my lord, and going  37 over I refer to an Indian -- large Indian delegation  38 to Premier McBride in 1911.  And this is on 484.  This  39 delegation met in Victoria with Premier McBride.  They  40 submitted a memorial which was not signed by  41 identifiable Gitksan or Wet'suwet'en, but the  42 delegation was described in the newspaper reports as  43 being:  44  45 "The principle Indians of every section of the  46 province, the delegates including chiefs from  47 the Nass and Skeena in the awakening north." 26236  bottom of  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. Adams 1 We say at the  484, that the meetings  less remarkable for the claims of the Indians, that  the Indians still hold full proprietary rights in the  unsurrendered lands of the province, than for the  position and attitude the provincial Premier's  recorded statements betray.  And this is -- there is a reference on 485 from  Dr. Galois' evidence in chief to a document P.C. 1081  which contained the accounts of this meeting, and he  refers there in the highlighted passage at line 13 to:  "The ongoing dispute between the provincial and  the federal government about the attempt to get  a case before the courts to get a decision on  the question of aboriginal title."  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  And then at the bottom of 486 there is a --  I'm sorry.  I've lost something here.  You've said  more significant was the -- I thought you were  saying -- indicating the response of the Premier.  Yes.  And I'm coming to that, my lord.  Oh, all right.  And there is a quotation at the very bottom of 486  from line 22 of the account of this meeting, and it  says :  "They"  Referring to the Indians.  "held to the view that possession remained in  them of the unsurrendered lands of the province  and were most anxious to have their minds set  at rest."  And then "he" at line 32 on 487, referring to  McBride:  "Explained how the matter had been brought to  the attention of the Government a few months  previously by some gentlemen of the province,  and how, when it was so brought, it had  received the careful attention of himself and  his ministers.  The conclusion was reached,  however, that the Indians had no title to the  unsurrendered lands, and, as a consequence the  Government would not take the question to the 26237  that the  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. Adams  re was no proper case  for submission."  1  Courts feeling  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  And then carrying on at line 46, and still  referring to McBride's statement:  "The Government was of the opinion that the  Indians were well satisfied with their position  and would not have raised the present agitation  but for the pernicious advice of some  unscrupulous whites.  The Indians of the province for the past 50  years, a period longer than the years of many -  perhaps most of the present chiefs - were  satisfied with the conditions as they exist and  as far as it - the provincial government - was  concerned, until certain persons made  complaints some months ago the matter was  unknown."  And, my lord, that statement has to be set against  the history that we have reviewed quickly in the past  several hours.  And there was a memorial submitted to McBride  following this meeting, and a portion of it is set out  on page 488 where this was said:  "We have heard from the Friends of the Indians  that you have declared that there is no issue  and that the Indians are well" --  :  I'm sorry, Mr. Adams, is this part of the memorial  which preceded the Premier's response or is this  something that came after his response?  :  This came after his response.  It was a written  submission following up.  I believe it came the next  day.  All right.  It was a follow-up memorial then.  That's correct.  Thank you.  "We have heard from the Friends of the Indians  that you have declared that there is no issue  and the Indians are well satisfied.  We have  come here at great expense to tell you that our  people are far from being satisfied, and are  becoming more dissatisfied every day.  We 26238  Submissions by Mr. Adams 1 certainly think  there is very great issue and  2 are to ask that the matter be submitted to the  3 courts, from which we hope to get justice, as  4 we cannot conceive of British law being  5 anything but just.  We are pained to hear that  6 the Friends of the Indians have been accused of  7 stirring up this matter; we declare this to be  8 untrue, as the matter originated entirely with  9 ourselves, years before the society of the  10 Friends of the Indians was organized."  11  12 And then the highlighted passage at the bottom:  13  14 "Trusting that this matter will be submitted to  15 the courts for adjudication, without further  16 delay,"  17  18 And so on.  19 And as is indicated at the bottom of 488:  20  21  22 "McBride replied to that memorial by letter to  23 Peter Kelly on March 25th, 1911 that:  24 The position taken by the Local Administration  25 is I trust made clear to you and and your  26 Colleague, that the Government has decided  27 there is no question to submit to the Courts."  28  29 And we say that the Province's pleading of  30 estoppel by laches and delay completely ignores the  31 historical record developed elsewhere in the  32 plaintiffs' argument, which establishes that the  33 Province actively frustrated any and every attempt to  34 have questions of aboriginal title adjudicated by the  35 courts.  We say that for that same province now to  36 plead equitable estoppel by laches and delay is simply  37 perverse.  38 And nor -- this is something I referred to  39 yesterday -- is the Province's obstruction of attempts  40 to litigate aspects of aboriginal title, ownership and  41 jurisdiction an historical curiosity.  And I referred  42 yesterday to the fact that Calder was eventually  43 decided on the issue of failure to obtain a fiat to  44 sue.  45 And at the bottom of 489 I make a further  46 reference to the Province's denial in 1983.  47 THE COURT:  That's not really an accurate legal statement 26239  That  pres  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. Adams 1 though, Mr. Adams,  upposes that the seven  judges have given the declaration.  MR. ADAMS:  The four judges, my lord, did all decide that the  case failed on failure to obtain a fiat.  That was Mr.  Justice Pigeon's decision.  THE COURT:  Three of them also said they were extinguished.  MR. ADAMS:  Yes.  But the majority decision in the Supreme Court  of Canada was on that issue.  It was Mr. Justice  Pigeon concurred in by three others, including Mr.  Justice Judson.  THE COURT:  I still am not satisfied that what you have stated  in that middle paragraph is an accurate statement as a  result of Calder.  You say it is?  MR. ADAMS:  I stand by it, my lord.  Yes, I do.  And then I refer at the bottom of 489 to the  Province's denial in 1983 to some of the present  plaintiffs of a fiat to raise a petition of right in  connection with fisheries questions.  THE COURT:  I'm sorry.  Where is that?  MR. ADAMS:  It's the bottom of 489, my lord.  THE COURT:  All right.  MR. ADAMS:  And the evidence -- the references to the evidence  are given there.  The evidence of Neil Sterritt and  Glen Williams.  And then at the top of 490 is a citation of the  case that I also referred to yesterday, the Air Canada  case, establishing in the Supreme Court of Canada that  there was no discretion in the Crown to refuse such a  fiat in a constitutional matter.  And I have looked  this morning at that case and confirmed what I had  suggested yesterday, which is that the Crown  Proceedings Act even after it was amended to remove  the requirement for a fiat to sue preserved the  requirement with respect to causes of action arising  pre-1974.  And that's clear in the case.  Mr. Grant  will be dealing with that case in more detail when it  comes to the question of limitations.  That takes me to page 492, my lord.  And still  dealing with the interview with McBride.  THE COURT:  4 92?  MR. ADAMS:  492, and right in the middle of the page.  The plaintiffs submit that out of the interview  between the representatives of the Indians and  McBride, three relevant conclusions should be drawn:  First, that ownership of unsurrendered lands was the  common assertion of the vast majority of the  Province's Indians.  Secondly, that the Province and 26240  Submissions by Mr. Adams 1 McBride's assertion to  the contrary notwithstanding,  2 was well aware of those claims and was not relying on  3 any representation that the claims would not be  4 pressed.  And, thirdly, that McBride himself was a  5 full-fledged believer in the outside agitator theory  6 of Indian assertions of rights.  That recalls his  7 statement that nothing ever would have arisen without  8 the pernicious advice of some unscrupulous whites.  9 That takes me, my lord, to page 497.  And in a  10 further reference to McKenna-McBride, which I dealt  11 with yesterday, there is a quotation at the bottom of  12 497 from one of the provincial McKenna-McBride  13 commissioners made at Kitwancool in April 1915, and he  14 was in discussion with an Albert Williams and was  15 questioning Mr. Williams and says:  16  17 "Mr. Tyson, your Inspector, tells me that you  18 possibly don't want help in the way of doctors,  19 schools and a farming instructor because you  20 think it might affect the land question - Is  21 that correct?"  22  23 And Albert Williams says:  24  25 "Yes, that is right."  26  27 And the provincial representative says:  28  29 "Well nothing of that kind will affect the land  30 question, because the Governor-General of  31 Canada has promised to take that matter before  32 the courts, so nothing of that kind will affect  33 the case."  34  35 Now, my lord, on 498 in the middle of the page I  36 refer to the Province's present pleading, and it's  37 paragraph 39B, that the plaintiffs have acquiesced in  38 this defendant's sovereign jurisdiction by seeking and  39 receiving benefits, licenses, grants and protection  40 from her, and that the plaintiffs are barred and  41 estopped by their laches, acquiesence and delay from  42 asserting the rights claimed by them against this  43 defendant.  44 And I simply put that side-by-side with the  45 provincial representative's assurances made at  46 Kitwancool, and I say at the top of 498 that given the  47 extensive contacts between the Kitwancool and the 26241  Submissions by Mr. Adams 1            other Gitksan villages  demonstrated in the evidence,  2 the plaintiffs submit that it's reasonable to infer  3 that this statement came to the attention of the other  4 Gitksan.  And we submit that it should -- should be  5 taken for exactly what it appears to be, an explicit  6 assurance by a representative of the provincial  7 government that accepting benefits from the Crown will  8 not prejudice claims to aboriginal title.  9 And we say that once again that the Province seeks  10 to ignore the promises of its own representatives  11 while benefitting from acts of the plaintiffs  12 undertaken in reliance on those promises.  The  13 plaintiffs submit that it is not they that should be  14 equitably estopped from raising their claim, but the  15 Province from raising the defence of acquiescence.  16 That takes me to page 500 at the bottom, my lord,  17 and the section on feasting and the potlatch laws.  At  18 the top of 501 is a reference back to the argument  19 about the continued operation and importance of the  20 feast as itself an assertion of ownership and  21 jurisdiction.  And Dr. Galois referred in his evidence  22 to both legal attempts to suppress the feast and to  23 its persistence in the face of those prohibitions.  24 Some of that evidence is set out on the following  25 pages.  26 And on 503 Mr. Willms in cross-examining Dr.  27 Galois made some effort to suggest that the legal  28 prohibition of the potlatch was directed toward  29 destruction of property and dog-eating, and not the  30 memory feasts which Loring described.  31 And we simply say the terms of the legislation are  32 quite clear, that the original prohibition made it a  33 misdemeanor to engage in or assist in celebrating the  34 Indian festival known as the potlatch.  Then in 1895  35 the prohibition is set out more precisely, and it's  36 reproduced at the bottom of 503, and what was  37 prohibited, among other things, was:  38  39 "Any Indian festival, dance or other ceremony  40 of which the giving away or paying or giving  41 back of money, goods or articles of any sort  42 forms a part or is a feature."  43  44 THE COURT:  Is this the date of the first enactment of that  45 impugned prohibition?  46 MR. ADAMS:  I believe 1884 is the original enactment which  47 simply referred to and prohibited the potlatch without 26242  Submissions by Mr. Adams 1 definition, and this  was an attempt to refine the  2 definition.  And I say, my lord, that it refined it in  3 the direction directly of prohibiting acts which you  4 have extensive evidence were central parts of the  5 feast as practised from the 1820s on.  6 THE COURT:  Well, could the potlatch not carry on without the  7 giving away or paying or giving back the money, goods  8 or articles?  9 MR. ADAMS:  Well, something that you would be allowed to call a  10 festival might have continued, my lord, but you have  11 heard three years of evidence of the essential feature  12 of the feast, including paying and giving back of  13 money, goods and articles.  You have heard evidence of  14 its central economic -- apart from any other  15 consideration its central economic role in the Gitksan  16 and Wet'suwet'en societies.  17 THE COURT:  I would have thought any artful country lawyer could  18 have easily walked through that section without the  19 slightest difficulty.  20 MR. ADAMS:  Then artful country lawyers must not have been  21 defending the plaintiffs' ancestors when they were  22 convicted of violations of the section, my lord.  23 THE COURT:  Well, that may be.  24 MR. ADAMS:  On page 504 we go on to say that Dr. Galois provided  25 the court a copy of a memorandum dated from 1918 from  26 Duncan Scott, who was the Deputy Superintendent of  27 Indian Affairs, directed to all Indian agents in  28 British Columbia.  And a passage from it is set out on  29 504, and it refers to the change in the Indian Act and  30 says with reference to the prohibition of the feast,  31 including the giving away aspects, which he refers to:  32  33 "Under existing conditions you are to exercise  34 these powers to the full in the matter of the  35 potlatch.  One of the objectionable features of  36 this ceremony is the congregating together of  37 numbers of individuals and the wasteful  38 distribution of food either as presents or in  39 feasting."  40  41 And in the next highlighted passage Scott goes on:  42  43 "I desire to emphasize that this policy is now  44 most essential; and it is expected that you  45 will act accordingly."  46  47 At the bottom of 504 I refer to a letter in 26243  Submissions by Mr. Adams 1            connection with the  feasts from Robert Tomlinson, and  2 this is Robert Tomlinson Jr. at Kispiox.  And we point  3 to that as inadvertent testimony to the persistence  4 and importance of the feast, and of Gitksan laws of  5 marriage and inheritance.  And an extensive quotation  6 from that is set out on 505.  Tomlinson Jr's complaint  7 is captured at the bottom of 505 when he says:  8  9 "The church bell can ring for a week-night  10 service, but while the feasts are on no one  11 turns up for the meeting.  Everthing has to  12 give place for these feasts."  13  14 At the bottom of 505 —  15 THE COURT:  What is the reference to mutilating on page 504?  I  16 don't see it in the section.  17 MR. ADAMS:  That was another piece of the prohibition, my lord.  18 I've edited the extract.  The point is that more than  19 mutilating was prohibited.  Any form of giving away or  20 paying back property was also prohibited.  21 THE COURT:  All right.  22 MR. ADAMS:  At the bottom of 505 and going over the page there's  23 reference to Barbeau's 1921 report on behalf of the  24 anthropological division of the Department of Indian  25 Affairs.  And there are extensive quotations from that  26 report following all the way through to page 510.  And  27 I simply point on the bottom of 506 to Barbeau's  28 response to one of Loring's statements where he says  29 that:  30  31 "Agent Loring's report from Hazelton to the  32 effect that no dancing of religious, ceremonial  33 or social character is being practised is far  34 from convincing, however, and may be due to the  35 Agent's attitude and pretended ignorance of the  36 fact."  37  38 And I would argue, my lord, that that difficulty  39 with Loring runs through many of the statements that  40 Loring makes about how everything's fading away,  41 changing and none of that happens here.  42 And going to page 510 is a reference to the  43 exhibits that establish the convictions of some of the  44 plaintiffs and their ancestors for violations of the  45 section.  And I make the point there that the records  46 of conviction which Dr. Galois cited were all for  47 giving away money or presents in contravention of the 26244  Submissions by Mr. Adams 1 Indian Act.  They were all in 1922 as well.  All convictions in 1922?  All of those were in 1922.  But those weren't -- those don't include every  conviction?  Well, I don't know, my lord.  I don't know of any  others before those.  Those are the only ones Dr.  Galois put forward, I think.  There was no effort, my lord, to catalog every  conviction there had ever been for violation of the  section.  Is there an indication of how many there were in  1922?  I believe there were four that Dr. Galois referred  to.  There are four exhibits listed there on page 510,  and I believe each of those referred to a separate  person in a separate instance.  Up to 1914 there was only one conviction in the  whole province.  Up to 19 —  :  '14 there was only one person pleaded guilty.  We don't know how many there were between '14 and  '22.  :  I don't, my lord.  Nor do we know, my lord, how many people were  dissuaded from carrying on the practice by the  existence of the law or the threat of prosecution.  Not many I gather.  Not many in these areas.  Not any of the plaintiffs, I take it.  Yes.  My lord, at the top of 512 there is the plaintiffs'  submission that the conclusion to be drawn from these  documents is that they and their ancestors continued  to hold feasts in the face of a legal prohibition  which was sometimes strictly enforced, and sometimes  mutually ignored.  And just on this question of people  being made cautious by the threat of prosecution there  is reference on page 508.  And this is from Barbeau's  detailed account -- well, first on 507, from the same  source, the highlighted passage at the bottom:  "Father"  Referring I believe to Father Godfrey.  2  MR.  WILLMS  3  THE  COURT:  4  MR.  WILLMS  5  THE  COURT:  6  7  MR.  WILLMS  8  9  10  MR.  ADAMS:  11  12  13  THE  COURT:  14  15  MR.  ADAMS:  16  17  18  19  MR.  WILLMS  20  21  THE  COURT:  22  MR.  WILLMS  23  THE  COURT:  24  25  MR.  WILLMS  26  MR.  ADAMS:  27  28  29  THE  COURT:  30  MR.  ADAMS:  31  MR.  WILLMS  32  THE  COURT:  33  MR.  ADAMS:  34  35  36  37  38  39  40  41  42  43  44  45  46  47 26245  Submissions by Mr. Adams 1 "asks,  potlatch?"  2  3 And the answer is:  4  5 "Forbidden by law; be careful; police, court,  6 prison."  7  8 And then on 508 a similar statement.  This is  9 Barbeau trying to find out where and when this is  10 going to take place so that he can witness it.  And  11 there's a further reference to:  12  13 "Police, Father Godfrey.  Dance, maybe not  14 tonight."  15  16 THE COURT:  I see they also giggled when they talked about  17 police and court and prison.  18 MR. ADAMS:  Yes.  And it's not clear what inference is to be  19 drawn from that fact.  It might be amusement, it might  20 be nervous laughter.  We don't know.  21 The further conclusion to be drawn, we say, is  22 that the feast retained considerable economic  23 importance, judging from the money, effort, and time,  24 not to mention the risk of arrest, prosecution, fine  25 and imprisonment, which its maintenance entailed.  And  26 further it was not some quaint irrelevant remnant of  27 lost customs which the Indians were carrying on, but  28 the central institution through which their ownership  29 and jurisdiction, and references to passages above the  30 inherited privileges and obtaining of names, were  31 displayed and maintained.  32 That takes me, my lord, to page 515, and the  33 reference is to a petition emanating from Kispiox in  34 1924 and supported by other Gitksan and directed to  35 Prime Minister Mackenzie King.  This was not only a  36 rejection of reserves, it was a claim to be the proper  37 inheritors of this land.  38 THE COURT:  You say it was from — it says the Allied Tribes.  39 Did you say it was a Gitksan petition?  40 MR. ADAMS:  Yes, it was a Gitksan petition.  41 MR. WILLMS:  Well, no.  This is the subject of some evidence by  42 Dr. Galois.  43 THE COURT:  All right.  44 MR. WILLMS:  They never signed it, but he gave some evidence  45 that he thought they supported it.  46 MR. ADAMS:  Yes.  And I rely on that evidence, my lord.  47 THE COURT:  All right. 26246  Submissions by Mr. Adams 1  MR. ADAMS:  And it contained a  demand on behalf of the Kispiox  2 and Glen Vowell people alone for a clear title to:  3  4 "A strip of land watered by the Kispiox and  5 Skeena Rivers; said strip of land to extend  6 from the Kispiox Sawmill approximately 80 miles  7 north and embracing the territory 15 miles to  8 the east and 15 miles to the west of Kispiox  9 River, thus including the moutain ranges on  10 both sides of the Kispiox Valley."  11  12 And there is a further reference at the bottom of  13 515 to a meeting between Gitksan representatives in  14 1924 with Prime Minister King at Prince Rupert, where  15 they supported Nisga statements on behalf of the  16 Allied Tribes.  17  18 "We stand by our claim that we have a  19 beneficial tribal ownership of our territory  20 which is an interest in the lands of British  21 Columbia under the provisions of the British  22 North America Act and as such was expressly  23 preserved to us by that Act."  24  25 Over the page there is reference on 516 to the  26 Nishga Petition of 1926.  It was this petition that  27 eventually made its way in front of the special joint  28 committee, which I'll be referring to shortly.  And  29 there is evidence that this petition was supported by  30 the Gitksan as well.  31 On 519 we go to the question of traplines and  32 trapline registrations in the period after 1925.  And  33 the top of 519 the plaintiffs submit that registration  34 of traplines, like any acceptance of reserves, was  35 induced by a combination of promises of protection for  36 the plaintiffs' rights, and threats of the  37 consequences of failing to register.  In addition, the  38 plaintiffs submit that there were significant elements  39 of recognition of Gitksan and Wet'suwet'en ownership  40 and jurisdiction in the conception and operation of  41 the trapline registration system.  42 And then going to 522 it is said --  43 THE COURT:  I take it the trapline registration began in 1925?  4 4  MR. ADAMS:  In 1925, yes.  45 At the top of 522 there is an extract from Mr.  46 Brody's evidence in which he characterized the  47 situation following implementation of the registration 26247  Submissions by Mr. Adams 1            system as one of  immense confusion over its meaning  2 and purpose.  And he says in the answer beginning at  3 the top of 522:  4  5 "A trapline registration system is put in  6 place, Indian individuals or groups register  7 within it, as they register they think they are  8 increasing their rights to the land, many of  9 them are encouraged to think that, many of them  10 are encouraged to think that by registering  11 they are going to be better defended against  12 the kinds of change they most fear, they are  13 encouraged to believe there is nothing about  14 trapline registration that need get in the way  15 of their custom, their matrilineality, and so  16 on, but on the other hand, the officials of the  17 day are, naturally enough, believing that they  18 are putting in place a whole new set of legal  19 arrangements.  At the same time, there are two  20 agencies at work here, on the white official  21 side, there is the Indian agent whose job it is  22 to represent the Indian point of view, and  23 provincial wildlife officers, whose job it is  24 to put in place a provincial system."  25  26 And he says at the bottom of the page:  27  28 "It is apparent they are understand"  29  30 That is the Indians.  31  32 "that they are liable to lose their hunting  33 rights unless these areas are specially  34 allocated to them, and I am of the opinion"  35  36 This is coming from Ditchburn, the Chief Inspector  37 of Indian Agents, speaking.  38  39 "I am of the opinion that you should endeavor  40 to set at rest their fears and point out to  41 them so long as they trap and hunt consistently  42 they need have no anxieties in this regard."  43  44 And then there's a further statement excerpted on  45 523 from Mr. Collison, who was the Indian agent, and  46 he says --  47 THE COURT:  And he's a federal official, is he? 26248  Submissions by Mr. Adams 1  MR. ADAMS:  Yes.  He is the  Indian agent on the Nass, and he's  2 here referring to at line 39 to Gitlaxiamix,  3 Greenville and Kincolith.  And he says about the  4 Nisga:  5  6 "They had been informed that these regulations  7 had been brought about by the Indian department  8 to offset the land question."  9  10 That's what he's disputing.  He goes on to say:  11  12 "It was explained to them that the regulations  13 were issued by the provincial government and  14 were not intended to interfere with their  15 hunting rights, but rather to protect their  16 hunting grounds outside the limits of their  17 present reserves from encroachment by white  18 trappers and others.  The Indians insisted that  19 they could not accept them until the land  20 question was finally settled."  21  22 And I just cite that, my lord, as an example of  23 the kinds of assurances that were being given in  24 support of the opinion I quoted from Mr. Brody.  25 On 524.  One avenue for the resolution of the  26 conflict between the Gitksan and Wet'suwet'en  27 matrilineal inheritance of House territories and  28 provincially mandated patrilineal inheritance of  29 registered traplines was the registration of  30 companies, corresponding to the House groups and  31 others with rights under the matrilineal system.  And  32 there are -- there is some discussion that follows in  33 Mr. Brody's evidence of that.  34 And then on 526 there is reference to a letter  35 from Mr. Perry, the Assistant Indian Commissioner for  36 British Columbia, in 1932 writing to the Secretary of  37 the Department of Indian Affairs where he says in the  38 highlighted portion at line 38 on 526:  39  40 "I'm afraid it will take several years to break  41 down the resistance of the Northern Indians to  42 the statutes and regulations which challenge  43 their own vaunted claims to to right of  44 possession and ownership of the country and  45 resources."  46  47 And Mr. Brody's comment on that letter is 26249  Submissions by Mr. Adams 1 highlighted at line two  on 526.  2  3 "This letter is dated 1932, trapline  4 registration was introduced in 1925 after seven  5 years in the northern part of the province, as  6 that says here.  Officials involved note that  7 the Indian system of what I would take to be  8 authority and ownership is still being followed  9 by the people themselves."  10  11 That is as of 1932.  12 And going over to 528, my lord.  We say further,  13 that the persistence of the Gitksan and Wet'suwet'en  14 systems of inheritance with reference to traplines is  15 not a relic of the past, rather the conflict and  16 accomodation between the Indian and provincial systems  17 continued into the 1970s and 1980s.  And there are  18 extracts from Mr. Brody's evidence set out to  19 demonstrate that.  20 Going to 532.  The principle conclusions which the  21 plaintiffs submit your lordship should draw from the  22 evidence on traplines are first, that through the  23 conflict and accommodations between the Indian and  24 provincial systems, the plaintiffs continued to  25 assert, and the Province continued to recognize,  26 Indian rights to specific territories, and secondly,  27 there was no representation by the plaintiffs that  28 they would not continue to rely on their rights of  29 ownership and jurisdiction over their territories, and  30 no reliance by the Province on any such  31 representation.  And we say again, there is no basis  32 on which to find that the plaintiffs are now estopped  33 by laches, acquiescence and delay from asserting their  34 rights.  35 At the bottom of 532 we take up the question of  36 forest and land tenures, and the plaintiffs submit  37 that seeking and accepting forest and land tenures  38 under the provincial system cannot be acquiescence  39 founding an estoppel against raising the rights  40 claimed in the present case, because again these acts  41 are not representations that aboriginal rights of  42 ownership and jurisdiction will not be relied upon,  43 again because there is no evidence whatever of  44 reliance by the Province on any such representation,  45 and because far from suffering a detriment in  46 consequence of any reliance the Province, we say, has  47 been unjustly enriched by its efforts spanning 120 26250  deny and  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr. Adams 1 years to disregard,  defeat the plaintiffs'  rights.  MR. WILLMS:  Well, where is the evidence of the unjust  enrichment, my lord?   I don't understand that point.  If it's based on evidence I'd like to know what the  evidence is.  MR. ADAMS:  I would have thought, my lord, that it was obvious  that the revenue accruing to the Province from the  sale and licensing of the use of resources has not  been going to the plaintiffs.  MR. WILLMS: Well, it's been going to roads, to hospitals, to  schools that the plaintiffs drive on and attend. I  don't know where the unjust enrichment is.  MR. ADAMS:  I'm not intending in this part of the argument, my  lord, to argue unjust enrichment further.  I simply  say that on the estoppel argument that far from being  a detriment if there is any feature of this at all  it's not detriment, it's unjust enrichment.  And  that's really the only argument I make about it.  I say at the bottom of 538 that this evidence in  connection --  THE COURT:  38?  MR. ADAMS:  538.  THE COURT:  Yes.  MR. ADAMS:  In the final paragraph there, that the evidence in  connection with forests and land tenures, we say,  refutes the provincial argument for the plaintiffs to  seek and accept these tenures amounts to a  representation that they no longer assert, and seek to  vindicate their aboriginal rights.  And then on 539, we say, again make reference to  this rather than being a detriment to it being unjust  enrichment of the Province.  The section beginning on page 540 and headed  "Legislated Inequities" is simply a catalog of some of  the legislative restrictions on various aspects of the  plaintiffs' activities and societies from time to  time.  And at the bottom of 547 we conclude that section  by saying that the plaintiffs rely on these various  provisions as instances of a persistent legislative  assault on their institutions, on their opportunities  to maintain and develop those institutions, and in  particular their ability to seek vindication of their  legal rights.  I refer in that section in particular, my lord, to  the 1927 amendments to the Indian Act which prohibited 26251  Submissions by Mr. Adams 1            raising money to pursue  aboriginal title claims.  And  2 we say that for the Province now to -- and that  3 section remained in effect until 1951.  For the  4 Province now to argue equitable estoppel on the basis  5 of alleged laches, acquiescence and delay flies in the  6 face, we say, of what the plaintiffs' persistent  7 assertions of their rights for 170 years, and that's  8 the evidence that I have just reviewed, and the  9 defendants' constant creation of obstacles in the path  10 of adjudication of those rights.  11 That brings me, my lord, to the final section of  12 the argument.  This is tab 4 and deals with the 1927  13 Special Joint Committee report, and a good deal of the  14 remaining argument is simply an historical review of  15 some of the documents, and I don't propose to spend  16 time on that.  I simply point at the top of 548 to the  17 pleading where the Province indicates in its paragraph  18 38A that it relies upon the Special Joint Committee  19 report of 1927.  And the way, very briefly, this  20 became an issue for the Special Joint Committee to  21 consider is detailed on 562 where it said the Allied  22 Tribes petitioned Parliament seeking to have a  23 judicial determination of the aboriginal title issue.  24 THE COURT:  I'm sorry.  562?  2 5  MR. ADAMS:  5 62, my lord.  26 The Allied Tribes asked for adjudication of their  27 claims by the Judicial Committee of His Majesty's  28 Privy Council.  The Special Joint Committee reported  29 on the petition and on its review of evidence  30 presented.  31 The committee reported that the petitioners had  32 not established any claim to the lands of British  33 Columbia based on aboriginal or other title.  The  34 committee concluded that the Dominion Government in  35 1914 had afforded the Indians full opportunity to have  36 the aboriginal title claim tested under the terms of  37 P.C. 751.  38 I pause there, my lord, to say that in the  39 provincial summary of argument the suggestion is now  40 made that the outcome of the Special Joint Committee  41 which was to say you have nothing and you'll get what  42 the Crown feels like giving you, reproduced the result  43 as if 751 had been accepted, had gone to court and the  44 Indians had won.  And I say that that reinforces the  45 point Mr. Rush made yesterday in argument that P.C.  46 751 in 1914 in the conditions it created before there  47 would be a reference to the court was a matter 26252  Submissions by Mr. Adams  for the Indians had they  accepted it.  entirely self-defeating  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Now, going to page 565 there is a section dealing  with the legal status of the Special Joint Committee  report, and the short characterization of the argument  from here on is that the Special Joint Committee  report as concurred in by both Houses of Parliament  had no legal status at all.  And the remainder of the argument to which I wish  to refer is just authority for that point.  The  pleading by the Province is that the report was  adopted by Parliament.  And in the first paragraph in  the middle of 565 we make the point that that is  factually not so, because Parliament is  constitutionally defined as consisting of the Queen,  the Senate and the House of Commons, and the Special  Joint Committee report never received the assent of  the Crown so it was missing part of Parliament.  The resolution --  I think it was a resolution adopting the report in  each House, was there?  There was a resolution in each House concurring in  the report.  Well, if a judge is removed from a joint address of  both Houses it doesn't need the consent of the Crown.  But that's constitutional.  You say that no resolution  of the House and Senate is effective without Crown's  approval?  Not unless there is some legislative or  constitutional mechanism making that effective.  And  that's absent here.  Yes.  That awful provision of the Judges Act I  mentioned, you would distinguish that by saying  constitutional provision for it?  Yes.  And there's none here?  Yes.  There is constitutional revision conferring  that authority on the Houses of Parliament in addition  to whatever they have inherently.  There is no such  provision here.  Thank you.  And we cite authority from Craies at the top of 566  that:  "Resolutions of either House of Parliament are  not equivalent to statutes... The resolutions of  any one of the legislative estates cannot alter 26253  Submissions by Mr. Adams 1 the law."  2  3 And, again, from various sources which are cited  4 in the middle of 566 that a resolution of either or  5 both Houses is not a law; it is simply an expression  6 of that estate's opinion and purposes.  7 And then the quotation reads:  8  9 "Every question when agreed to assumes the form  10 either of an order or a resolution of the  11 House.  By its orders the House directs its  12 committees, its members, its officers, the  13 order of its own proceedings and the acts of  14 all persons they concern by its resolutions the  15 House declares its own opinions and purposes."  16  17 And we say that's all it can do.  18 And, again, at the bottom of 566 we say a statute  19 comes into force only upon the triple assent of the  20 House of Commons, the Senate and the Crown.  21 And we make the point at the top of 567, that in  22 contrast with the procedure required to obtain Royal  23 Assent to a bill, the House of Commons and the Senate  24 concurred in the Report of the Special Committee in  25 one sitting, upon one day's notice, and without  26 debate.  And that Royal Assent was never sought nor  27 obtained.  28 And, again, the plaintiffs submit that  29 concurrence, by the Commons and the Senate, in the  30 Report had no legal effect whatever.  31 Now, the final point in connection with the  32 Special Joint Committee report, my lord, is that  33 because the Province goes on to argue that acts of  34 Canada and the plaintiffs subsequent to the  35 concurrence in the report had some legal effect we  36 rely simply on the evidence of Mr. Boys the first time  37 he was called.  And he gave evidence in  38 cross-examination by the plaintiffs when he was called  39 by Canada, and at the bottom of 567 he was aware that  40 one of the members of an Indian Advisory Committee  41 struck to advise on assignment of the B.C. Special  42 Vote, and your lordship will recall that that was one  43 of the recommendations or the realization of one of  44 the recommendations contained in the Special Joint  45 Committee report, had placed in the committee's  46 minutes a statement that his appearance was:  47 26254  Submissions by Mr.  as an admission of the  2  3  4  5  6  7  Adams  1  'Not to be taken  acceptance of $100,000 or any part thereof as a  waiver by me for myself, or the Indians of  British Columbia of their rights to the lands  of British Columbia, or other aboriginal rights  which they have."  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  MR. WILLMS  THE COURT:  MR. ADAMS:  Mr. Boys testified that he read that statement in  the minutes and considered it to be operative at the  time of his meetings with the committee in 1961.  He testified it was his general understanding as  Indian Commissioner for B.C. that the Canadian  government took the position that Indian participation  in discussions about the allocation of the B.C.  Special Vote money would not prejudice any of their  land rights in British Columbia, and that it was his  further understanding that participation in  administration of the Vote monies would not prejudice  any Indian rights to land.  He testified that as Indian Commissioner for B.C.  in 1961 the federal government did not consider the  Indian land question in B.C. to be settled.  He said  it was clear in the department and to him as Indian  Commissioner that the 1927 Special Joint Committee  findings on the Indian land in question were not  final.  And the plaintiffs submit at the top of 569 that  there's no basis in the law or on the evidence to  conclude that the 1927 Special Joint Committee report  had any legal effect, nor that any act of Canada or  the plaintiffs subsequently invested it with legal  effect.  When was the Special Vote first authorized?  That I don't have on the top of my head.  It was after 1927.  It was after 1927.  1927.  All right.  The references to  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  1959 and 1961 is that the it took  that long to occur to the federal government that  perhaps it should consult the Indians formally about  how to spend their money.  Has it ever been inflated for inflation?  It's now $300,000, I believe.  I see.  Yes.  That completes my submissions, my lord.  All right.  Thank you.  We will take the morning 26255  Submissions by Mr. Adams 1 adjournment now.  Thank  you.  2  THE REGISTRAR:  Order in court.  Court stands adjourned.  3  4 (PROCEEDINGS ADJOURNED)  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings transcribed to  9 the best of my skill and ability.  10  11  12  13  14  15 Peri McHale,  16 Official Reporter,  17 UNITED REPORTING SERVICE LTD.  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 26256  Submission by Ms. Mandell        1 (PROCEEDINGS RECONVENED  AT 10: 15 A.M. )  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  My lord.  6 THE COURT:  Does this go at the back of volume 8.  7 MS. MANDELL:  Well, I think you're going to be a little bit  8 tight.  We'll bring you another binder.  9 THE COURT:  Oh, it will go in.  If you're going to be starting  10 another volume, you can let me know whether you want  11 to move it or not.  It's fine there for now.  Thank  12 you.  13 MS. MANDELL:  All right.  My lord, I have till noon, and I'm  14 going to address you on section 35 of the Constitution  15 Act.  16 THE COURT:  All right.  17 MS. MANDELL:  My lord, section 35 was inserted into the  18 Constitution Act, and it's the submission of the  19 plaintiffs that it affords to us constitutional  20 protection for aboriginal rights to the claims of  21 ownership and jurisdiction made in this lawsuit and  22 further confirms that these rights cannot be  23 extinguished except by consent or by constitutional  2 4 amendment.  25 Section 35(1) has two aspects.  It recognizes and  26 affirms certain rights.  Those rights are described as  27 existing.  Section 35(3) and section 25 preserve the  28 treaty-making process and enact that future land  29 claims agreements shall form part of the Constitution.  30 Section 52 provides that laws inconsistent with  31 aboriginal and treaty rights are of no force and  32 effect.  33 And I'd like to take you through the sections in  34 detail set out at the bottom of page 1 and 2.  35 Beginning with section 25, this is inside the Charter:  36  37 "The guarantee in this Charter of certain rights  38 and freedoms shall not be construed so as to  39 abrogate or derogate from any aboriginal treaty  40 or other rights or freedoms that pertain to the  41 aboriginal peoples of Canada including  42  43 (a)  any rights or freedoms that have been  44 recognized by the Royal Proclamation...  4 5 and  46 (b)  any rights or freedoms that now exist by  47 way of land claims agreements or may be so 26257  Submission by Ms. Mandell 1  acquired..."  2  3 And then section 35, which is outside the Charter:  4  5 "The existing aboriginal and treaty rights of  6 the aboriginal peoples of Canada are hereby  7 recognized and affirmed.  8  9 In this Act, 'aboriginal peoples...' includes  10 the Indian, Inuit, and Metis peoples of Canada.  11  12 For greater certainty, in subsection (1)  13 'treaty rights' includes rights that now exist  14 by way of land claims agreements or may be so  15 acquired.  16  17 Notwithstanding any other provision of this  18 Act, the aboriginal and treaty rights referred  19 to in subsection (1) are guaranteed equally to  20 male and female persons."  21  22 And then section 52 I don't believe I have to read  23 to your lordship.  You're well aware of it.  24 I'd like to first address the rules of  25 construction which we are urging upon your lordship as  26 appropriate in interpreting section 35 rights.  In  27 construing the meaning and effect of section 35(1),  28 the court should be guided by the type of inquiry  29 which has been found to be appropriate for the  30 construction of provisions of the Charter.  31 The Supreme Court of Canada has explained that  32 constitutional provisions must be construed by  33 reference to the overall objectives which prompted  34 their enactment.  This is done to assist in the  35 detailed construction of any particular provision  36 because constitutional provisions must be given a  37 meaning which allows them to operate in aid of these  38 obj ectives.  39 And I'd like to refer your lordship to cases which  40 I know you're familiar with but to emphasize, if I  41 may, the underscored portions.  The first is Hunter  42 and Southam, and this is -- I'd like to remind you of  43 this principle, reading from the fifth line down of  44 the quote:  45  46 "A statute defines present rights and  47 obligations.  It is easily enacted and as 26258  Submission by Ms. Mandell        1 easily repealed.  A constitution, by contrast,  2 is drafted with an eye to the future.  Its  3 function is to provide a continuing framework  4 for the legitimate exercise of governmental  5 power and, when joined by a Bill of Charter of  6 rights, for the unremitting protection of  7 individual rights and liberties.  Once enacted,  8 its provisions cannot easily be repealed or  9 amended.  It must, therefore, be capable of  10 growth and development over time to meet new  11 social, political and historical realities  12 often unimagined by its framers.  The judiciary  13 is the guardian of the Constitution and must,  14 in interpreting its provisions, bear these  15 considerations in mind.  Professor Paul Freund  16 expressed this idea aptly when he admonished  17 the American courts 'not to read the provisions  18 of the Constitution like a last will and  19 testament lest it become one.'"  20  21 And I just wanted to here pause and say to your  22 lordship that we're urging upon you the definition of  23 reading into the section 35 rights with an eye to the  24 future rights which will be capable to grow for the  25 Indian people and not leave them, like Paul Freund  26 said, with a last will and testament but with rights  27 which are capable of expanding with them as they grow  28 into the future.  29 THE COURT:  When did Professor Freund say that; do you know?  30 MS. MANDELL:  I don't know.  It's not part —  31 THE COURT:  I just wondered if he said it in 1776 or —  32 MS. MANDELL:  No, in around 1960.  I could get you the exact  33 date.  34 THE COURT:  That's close enough.  35 MS. MANDELL:  But it's in the modern era.  36 THE COURT:  Right.  Thank you.  37 MS. MANDELL:  At page 4, still in the Hunter case, I remind your  38 lordship what Lord Wilberforce reiterated, when he  39 called a constitution a document "sui generis, calling  40 for principles of interpretation of its own, suitable  41 to its character," and finally, urging "a generous  42 interpretation avoiding what has been called 'the  43 austerity of tabulated legalism' suitable to give to  44 individuals the full measure of the fundamental rights  45 and freedoms referred to."  And finally, to underscore  46 that the Constitution should be interpreted in a  47 broad, purposive analysis.  And finally, at the final 26259  Submission by Ms. Mandell        1 part of the quote:  2  3 "It being...the obvious.  The Canadian Charter  4 of Rights and Freedoms is a purposive document.  5 Its purpose is to guarantee and to protect,  6 within the limits of reason, the enjoyment of  7 the rights and freedoms it enshrines..."  8  9 THE COURT:  That first sentence, is that correct, "It being with  10 the obvious"?  11 MS. MANDELL:  It should be, "It being the obvious."  12 MR. PLANT:  Could be, "To begin with the obvious."  13 MS. MANDELL:  Well, it's not correct.  14 THE COURT:  No.  All right.  Okay.  15 MS. MANDELL:  In Regina v. Therens the court considered whether  16 section 10 of the Charter requires that an accused be  17 advised of his rights to counsel prior to being given  18 a breathalyzer demand pursuant to section 235 of the  19 Criminal Code.  Section 10 provides a right to counsel  20 only on arrest or detention.  The Crown argued that  21 the section was not relevant because citizens are not  22 detained when they are given a breathalyzer demand.  23 The definition proposed by the Crown of "detained" was  24 the law prior to 1982.  25 And in the discussion as to how the Constitution  26 should be interpreted, in the reasons of Mr. Justice  27 Le Dain:  28  29 "In my opinion, the premise that the framers of  30 the Charter must be premised to have intended  31 that the words used by it should be given the  32 meaning which had been given to them by  33 judicial decisions at the time the Charter was  34 enacted is not a reliable guide to its  35 interpretation and application.  By its very  36 nature a constitutional charter of rights and  37 freedoms must use general language which is  38 capable of development and adaptation by the  39 court."  40  41 And in refusing the construction that because the  42 rights were so codified before 1982 and should  43 continue to be so, the court said at the middle of the  44 quote, and it's part of the underscored passage:  45  46 " is also clear that the Charter must be  47 regarded, because of its constitutional 26260  Submission by Ms. Mandell        1 character, as a  new affirmation of rights and  2 freedoms and of judicial power and  3 responsibility in relation to their  4 protection."  5  6 And finally, at page 6:  7  8 "...that on the whole, with some notable  9 exceptions, the courts have felt some  10 uncertainty or ambivalence in the application  11 of the Canadian Bill of Rights because it did  12 not reflect a clear constitutional mandate to  13 make judicial decisions having the effect of  14 limiting or qualifying the traditional  15 sovereignty of Parliament.  The significance of  16 the new constitutional mandate for judicial  17 review provided by the Charter was emphasized  18 by the Court in its recent decisions in Law  19 Society of Upper Canada... and Hunter v.  20 Southam..."  21  22 And we say that reading these basic principles  23 into the task before your lordship that you should be  24 construing the section 35 rights, as we're going to be  25 asking you to, in a purposive way having in mind the  26 purpose of the enactment and also very much having in  27 mind the future and not merely the past and the way  28 that the rights were used or have been earlier  29 incrusted within the context of existing law.  30 Thus, in Hunter, the legal status quo ante was not  31 entrenched, but rather the court entrenched the  32 fundamental civil right.  In the same way it is  33 submitted that the existing aboriginal and treaty  34 rights which were entrenched by section 35 are to be  35 construed in a manner which first defines the right,  36 then allows that the right be given full expression  37 into the future.  38 And I refer finally, on the non-Indian cases, to  39 the decision of Jean Claude Mahe where the court  40 considered the proper interpretation to be placed on  41 section 23 of the Charter and, in particular, whether  42 section 23 guarantees the right in Edmonton to the  43 management and control of a minority language school.  44 Before the particular subsection was examined the  45 court found that it was essential to consider two  46 general matters.  One is the purpose of the section  47 and, secondly, the relationship between the different 26261  Submission by Ms. Mandell        1 subsections and  paragraphs which comprise section 23.  2 Chief Justice Dickson, speaking for the court,  3 said:  4  5 "In interpreting Section 23 as in interpreting  6 any provision of the Charter, it is crucial to  7 consider the underlying purpose of the section.  8 As to the second matter, the structure of  9 section 23 makes it imperative that each part  10 of the section be read in the context of all  11 the constituent parts."  12  13 And we'll be urging that also upon you as a guide to  14 the interpretation of the various sections which we  15 say impact on a proper interpretation of section 35.  16 In the case of Sparrow the court affirmed that  17 section 35 was to be interpreted according to a  18 liberal and remedial manner, having regard to the  19 rules of interpretation applicable to the construction  20 of Indian statutes and treaties.  And your lordship  21 has already been referred to the special rule of  22 interpretation which was enunciated in the Supreme  23 Court of Canada in Nowegijick, and many cases before  24 and since, that Indian statutes and treaties are to be  25 construed liberally and that ambiguous expressions are  26 to be resolved in favour of the Indians, bearing  27 always in mind the honour of the Crown.  28 The provincial Crown in Sparrow argued that  29 section 37, which I haven't recited for you, but it  30 was a section which provided for a constitutional  31 conference where Indians were invited and the federal  32 and provincial governments attempted to define  33 aboriginal rights, they argued that that section is a  34 preamble to section 35 and in the absence of actual  35 definition, which would have arisen through the  36 conference, no aboriginal rights could be legally  37 enforceable.  In rejecting that argument the Court of  38 Appeal said this about the proper interpretation of  39 section 35:  40  41 "This submission gives no meaning to S.35.  If  42 accepted, it would result in denying its clear  43 statement that existing rights are hereby  44 recognized and affirmed, and would turn that  45 into a mere promise to recognize and affirm  46 those rights sometime in the future; or perhaps  47 never if the convention process fails to 26262  Submission by Ms. Mandell        1 produce a final  answer.  To so construe S.35(l)  2 would be to ignore its language and the  3 principle that the constitution should be  4 interpreted in a liberal and remedial way.  We  5 cannot accept that that principle applies less  6 strongly to aboriginal rights than to the  7 rights guaranteed by the Charter, particularly  8 having regard to the history and to the  9 approach to interpreting treaties and statutes  10 relating to Indians required by such cases as  11 Nowegijick..."  12  13 I'd like to now talk about the purpose which we  14 say section 35 was intended for and which we ask you  15 to consider in reviewing section 35, as the  16 authorities have, in our submission, required, with  17 the purpose of analysis.  18 It is submitted that the purpose overall in  19 enacting section 35 was to restore and ensure the  20 honour of the Crown in its dealings with the Indian  21 nations.  22 It will be submitted that three separate problems  23 were resolved by its enactment to this end.  The first  24 is that aboriginal rights are newly reaffirmed.  And I  25 go back to what the court said in Therens where the  26 court there said that the Charter must be regarded as  27 a new affirmation of rights and freedoms.  And we say  28 that here aboriginal rights are newly reaffirmed,  29 recognized as forming part of the Constitution.  30 Treaty making is reaffirmed as the vehicle for  31 accommodation of aboriginal rights within the  32 framework of the Constitution.  33 And we say as well that section 35 is remedial,  34 and there are two separate aspects to that.  One is to  35 place aboriginal and treaty rights beyond the power of  36 Parliament to suppress through statute, and the second  37 is to ensure that the Indian nations have a place  38 within Confederation based on their separate identity.  39 We say that Parliament and the legislatures must  40 now govern having regard to the fact that the  41 aboriginal peoples have a fundamental right to  42 continue to practise their own way of life as distinct  43 societies within their homeland.  44 I'd like to review each of those propositions now  45 in turn.  The first is --  46 THE COURT:  At some time will you or Mr. Jackson later touch on  47 the question of whether the aboriginal rights are 26263  Submission by Ms. Mandell        1 frozen --  2 MS. MANDELL:  Yes.  3 THE COURT:  — as of some date?  4 MS. MANDELL:  Yes.  I'm going to be dealing with that as a  5 matter of law, and I think that the submissions to you  6 tomorrow will be more specific as to the facts.  7 THE COURT:  All right.  Thank you.  8 MS. MANDELL:  The first — and I believe Mr. Jackson will have  9 something further to say about that as well.  10 THE COURT:  I have invited him to.  11 MS. MANDELL:  We'll be dealing with it in the fullness of  12 argument.  Part of my argument is responsive to that.  13 The first purpose which we've identified, which  14 has been already stated by me, is that aboriginal  15 rights are newly reaffirmed, and I'd like to take you  16 to page 9 where this is developed.  As earlier  17 developed in this submission, the doctrine of  18 aboriginal title as recognized in the common law  19 springs from the fact that the Indian nations were  20 there, organized in societies, when the Europeans  21 asserted sovereignty.  By 1763 the Indian nations  22 insisted that justice be done to them through the  23 recognition of their territorial rights and that the  24 Crown exercise its protectorate authority to prevent  25 frauds and abuses through illegal encroachment made  26 without Indian consent.  The Crown needed to ensure  27 the maintenance of British interests in North America  28 through peaceful accommodation between the Indian  29 nations and the non-Indian settlers.  This led to the  30 Royal Proclamation, the first aboriginal peoples' Bill  31 of Rights.  32 Today the Gitksan and Wet'suwet'en are still  33 there, still organized in societies on their  34 territory.  The purpose for the Crown's recognition of  35 aboriginal title in 1763 applies equally two centuries  36 later.  37 What has changed though between 1763 and 1982 is  38 the position of strength of the Indians.  In 1763,  39 prior to the intense period of colonization, disease,  40 and growing strength of the non-Indian people and  41 their governments, the Indian nations commanded a  42 capability of enforcing the Crown to respect and  43 confirm the recognition of their rights and  44 jurisdiction and to compel a process of treaty making  45 prior to non-Indian trespass into their territory.  46 The Gitksan and Wet'suwet'en do not share that  47 political advantage with their ancestors and rely upon 26264  Submission by Ms. Mandell        1 the courts to interpret  the proper purposes for which  2 section 35 was enacted and to constrain the  3 necessarily ambitious hand of the federal and  4 provincial governments to exercise their strength and  5 political power in the interest of the vast majority  6 of non-Indian people who maintain them in office.  7 Now, more than ever, the Gitksan and Wet'suwet'en rely  8 upon the force of law to enable an accommodation  9 between the Crown and the Indian nations based upon  10 the fundamental principles which remained alive in the  11 common law for two centuries and which are entrenched  12 in the Constitution.  13 This interpretation is consistent with the reading  14 of section 35 in the context of all of its constituent  15 parts and in light of other provisions of the Charter.  16 I'd like to examine the sections which we say,  17 read together, support this analysis.  First, section  18 35 is worded to parallel the wording of the Royal  19 Proclamation and is in keeping with the common law  20 that aboriginal rights are recognized in section 35(1)  21 as pre-existing legal rights not created by  22 legislative or executive action or by the Constitution  23 itself.  The language of section 35 acknowledges the  24 pre-existing nature of the rights.  25 Just as the common law affirmed those rights  26 giving them legal status, they now have been  27 recognized and affirmed in the Constitution giving  28 them the force of that supreme law.  29 Secondly, and in further parallel to the Royal  30 Proclamation, section 35 recognizes the collective  31 rights of the aboriginal peoples who are protected as  32 enjoying a collective political status or, it is  33 submitted, the right to an organized society.  This is  34 reflected in the definition found in section 35(2) of  35 aboriginal peoples, which includes the Indian, Inuit,  36 and Metis peoples of Canada.  37 The collective nature of aboriginal rights in a  38 peoples is further recognized by the placement of  39 section 35(1) outside the Charter.  Aboriginal rights  40 are entrenched in Part II of the Constitution Act.  41 The Charter, in its emphasis on the pre-eminence of  42 individual rights, reflects Canadian majoritarian  43 values.  The Charter, therefore, is not a sufficient  44 guarantee of the rights of the aboriginal peoples, who  45 continue to be predominantly collectivist and whose  46 world view centres on a belief in mankind's dependence  47 on the land based on the law of respect. 26265  Submission by Ms. Mandell        1 Further, and on  this point, section 25 of the  2 Charter serves as a shield to protect the rights  3 recognized and affirmed by the Royal Proclamation  4 against interference with the exercise of the  5 individual rights protected by the Charter.  This  6 provision further supports the above analysis that the  7 Indian nations were intended to have protected for  8 them in the Constitution collective rights which were  9 not to be interfered with by the possible conflict  10 between the assertion of individual rights.  11 I could just advise your lordship there that the  12 case of Regina v. Arcand, A-r-c-a-n-d, which I've  13 cited at page 11, and you can there get the volume and  14 the tab, supported the analysis that section 25 serves  15 as a shield to protect the rights recognized and  16 affirmed by the Royal Proclamation.  And this in some  17 way may address, but not completely, your lordship's  18 concern about the fact that how can the individual  19 rights that are exercisable within the nation, the  20 Gitksan and Wet'suwet'en nation, be seen to co-exist  21 with the Charter and individual rights which are  22 protected there, and section 25 clearly protects the  23 collective rights against the operation of the  24 exercise of individual rights which may at some time  25 in the future become in conflict with it.  26 THE COURT:  Well, section 25 deals with collective rights,  27 surely.  28 MS. MANDELL:  Well, section 25 is the guarantee in this charter  29 of certain rights and freedoms.  That's in the  30 Charter.  So that's not collective but individual  31 rights.  We're talking about the Charter.  32 THE COURT:  Treaty.  33 MS. MANDELL:  34  35 "...shall not be construed so as to abrogate or  36 derogate from any aboriginal treaty or other  37 rights or freedoms that pertain to the  38 aboriginal peoples of Canada including any  39 rights or freedoms that have been recognized by  40 the Royal Proclamation..."  41  42 THE COURT:  But I haven't heard any evidence about any  43 individual aboriginal right, have I?  Has anything  44 been advanced other than a collective aboriginal  45 right?  46 MS. MANDELL:  We have only concentrated in this case with the  47 collective right.  But what section 25 is stating, and 26266  Submission by Ms. Mandell        1 this is our submission  and was the analysis too of the  2 court in Arcand, is that, for example, my lord, if  3 somebody were to say that the equality provisions, for  4 example, of the Charter are being infringed upon  5 because of the treaty rights of the Indians, which  6 were guaranteed to them by either the Royal  7 Proclamation or as a result of the Royal Proclamation  8 a treaty was concluded, what section 25 does is  9 shields the collective right against the application  10 of -- the assertion of an individual right.  So in  11 that case the court would say that the -- while it's  12 true it's not equal, it's also true that the  13 Constitution requires that the collective right be  14 maintained against that kind of approach.  15 THE COURT:  Well, assuming for the purposes of the discussion  16 that there is an aboriginal right in a house to a  17 piece of territory.  18 MS. MANDELL:  Right.  19 THE COURT:  I can see an individual right to say, "I'm entitled  20 to my -- to participate in that communal right."  21 MS. MANDELL:  Absolutely.  That's right.  22 THE COURT:  I'd have no difficulty with that.  That would be  23 administrative law.  24 MS. MANDELL:  That's right.  There's no problem.  And that's  25 what the Court of Appeal in Pasco said, that the  26 collective -- the right is both communal and personal:  27 communal in the sense that it vests in the community,  28 but personal in the sense that it can be exercised by  29 individuals who are members in their personal  30 capacity.  And that's what was the description of the  31 Court of Appeal, for example, in somebody exercising a  32 fishing right, which would be a personal exercise of a  33 communal right.  34 THE COURT:  What would you say if a chief, after judgment in  35 this case affirming that right, said, "This is my  36 chiefly right.  It's not a communal right.  It's my  37 right"?  38 MS. MANDELL:  Well, he wouldn't be right.  I mean —  39 THE COURT:  I'm merely advancing this for the purpose of testing  40 the difference between the individual rights you're  41 talking about on page 12 and communal rights.  42 MS. MANDELL:  Well, I can respond by reference to a hunting case  43 that was decided up in Williams Lake.  Just let me  44 think of the name of it.  45 THE COURT:  It may be that the answer is simply that the chief's  46 position would be tested on an administrative law  47 basis. 26267  Submission by Ms. Mandell        1  MS. MANDELL:  Well, that's --  2 THE COURT:  I'm only worried -- I only have a problem then that  3 if the chief wins on that basis and said yes, it is  4 his individual right.  5 MS. MANDELL:  Well, my lord, I don't think that the — there's  6 two separate ways to look at it.  One is what rights  7 would he have or she under the legal system either of  8 the parties to contend for the proper interpretation  9 under the non-Indian legal system, and the other is,  10 to the extent that jurisdiction is recognized, what  11 rights are there under Indian jurisdiction to solve  12 the same problem.  13 And I can advise your lordship that in a case  14 which I argued up in Williams Lake involving some  15 hunting rights, and I'll think of the name as we move  16 along, the defendant argued that he had a right to  17 hunt which was based on an aboriginal right, and the  18 court in that case, after hearing all of the evidence,  19 said that he was hunting for doe when the evidence of  20 the elders was clearly that that was not part of their  21 framework of conservation laws, and so while the court  22 held that there was, for the purposes of the case at  23 least, an existing aboriginal right to hunt in that  24 place, the accused was hunting outside the framework  25 of his rights by hunting in violation of the internal  26 laws of conservation which were part of the aboriginal  27 framework of law.  28 THE COURT:  If that's so, what are the individual rights to  29 which you refer in the fourth line of the middle  30 paragraph on page 12?  31 MS. MANDELL:  This is, for example, section 15 rights.  This  32 would be if individual non-Indian people -- an example  33 would be this.  Somebody from the Sports Federation  34 says, "I challenge Treaty 8 and the rights protected  35 to the Indian people there to hunt because I say that  36 it violates equality rights, my right to be equal as  37 everybody else under the Constitution."  And what  38 section 25 says is that there can't -- that the  39 collective rights of the Indian people to hunt are  40 shielded against such an attack or such --  41 THE COURT:  Well, what you mean there then is non-Indian  42 individual rights?  43 MS. MANDELL:  That's right.  44 THE COURT:  Non-Indian.  45 MS. MANDELL:  That's right.  46 THE COURT:  It's amazing how these things get simplified.  47 MS. MANDELL:  I know. 26268  Submission by Ms. Mandell        1  THE COURT:  All right.  2 MS. MANDELL:  I'll carry on.  I'm in the middle of the point  3 that the reading of section 35 within the framework of  4 all of the sections supports the concept that  5 aboriginal rights and treating making are newly  6 reaffirmed, and I was speaking at this point about the  7 collective nature of the right, and I've taken your  8 lordship to section 25, and I'd like to continue at  9 the bottom of page 12.  10 Finally, treating making was preserved as the  11 vehicle for accommodating the rights of Indian nations  12 with Canada.  And we say that this can be seen in two  13 respects.  First is the placement of aboriginal rights  14 outside the Charter, where the limitation of the right  15 cannot be affected through the operation of section 1  16 and 33.  This limits the power of the governments to  17 override aboriginal rights in the public interest and  18 compels accommodation between aboriginal rights and  19 the rights and needs of non-Indians based on another  20 footing, and that footing is treaty making.  21 And when you look at the only amendment which has  22 happened to the Constitution since 1982, it is the  23 inclusion of section 35(3) and section 25(b), and what  24 there was added was to specify that treaty rights  25 include rights to be secured under land claims  26 agreements and that section 35 applies to any rights  27 and freedoms that now exist by way of land claims  28 agreements or may be so acquired.  The Constitution  29 thus provides a continuing reaffirmation of treaty  30 making as the proper vehicle to accommodate aboriginal  31 rights with the public and anticipates future  32 agreements.  33 We urge upon the court in this respect His  34 Lordship Judge McFarlane's comments in the case of  35 MacMillan Bloedel v. Mullin.  36  37 "I think it is fair to say that, in the end, the  38 public anticipates that the claims will be  39 resolved by negotiation and by settlement.  40 This judicial proceeding is but a small part of  41 the whole of a process which will ultimately  42 find its solution in a reasonable exchange  43 between governments and the Indian nations."  44  45 Finally, section 52.  We say that section 52, as  46 you know, states that the Constitution of Canada is  47 the supreme law of Canada and any law that is 26269  Submission by Ms. Mandell 1            inconsistent with the  provisions of the Constitution  2 is, to the extent of the inconsistency, of no force  3 and effect.  4 In the case of Denny the Supreme Court of Nova  5 Scotia Appeal Division adopted with approval Brian  6 Slattery's interpretation of the legal effect of  7 section 52 as it impacts on section 35.  And I'll just  8 read the underscored portion.  9  10 "The effect is to put the Constitution in a  11 position of legal paramountcy."  12  13 And the court itself concludes:  14  15 "Section 35 ensures that the rights named there  16 remain fully operable.  A statute that directly  17 impedes the exercise of a constitutional right  18 is inconsistent with that right and  19 constitutionally fails."  20  21 THE COURT:  "Consequently fails."  22 MS. MANDELL:  "Consequently fails."  23 THE COURT:  Constitutionally as well, I suppose.  24 MS. MANDELL:  That's right.  Thus, on an interpretation of all  25 of the sections of section 35 and the overall  26 enactment of the Charter, section 35 must be construed  27 to reaffirm the collective rights of the Indian  28 peoples to survive as organized societies into the  29 future.  This necessarily implies, we submit, a right  30 of jurisdiction to enable them to maintain their  31 distinctive societies and to conclude treaties.  32 As earlier discussed, aboriginal jurisdiction was  33 recognized in the treaty making process.  Not only  34 were the treaties concluded with consent, but  35 representations at the time of the treaty and terms of  36 the treaty themselves reaffirmed the promise of the  37 Crown that the Indian nations were to continue within  38 the framework of their own Indian governments, and the  39 choice to assimilate or not rested with the Indian  40 nations.  41 The statements made to the Cree and Beaver people  42 at the beginning of the negotiation of Treaty 8, which  43 has been referred to already in the submission by Mr.  44 Jackson, by Treaty Commissioner Ross bears repeating.  45  46 "As all the rights you now have will not be  47 interfered with therefore anything you get in 26270  Submission by Ms. Mandell        1 addition must be  clear gain... Indians are fond  2 of a free life and we do not wish to interfere  3 with it.  When reserves are offered to you  4 there is not intention to make you live on them  5 if you do not want to..."  6  7 This is not to say that the Crown did not hope for  8 a gradual assimilation and incorporation of the  9 Indians into the emerging colonial society.  However,  10 as Mr. Justice Norris stated in White and Bob, such  11 assimilation was not possible, and treaties were  12 concluded instead to work out an accommodation between  13 the Crown and the Indians which the Indians understood  14 would protect their way of life against assimilation.  15 Mr. Justice Norris' view was considered by the  16 Supreme Court of Canada in Simon, where Chief Justice  17 Dickson said the following, and I'll just read -- he's  18 referring to Mr. Justice Norris' comments about  19 treaty, and at the underscored passage:  20  21 "In the section 'Treaty,'"  22  23 and he's referring to this section in 87 and 88 that  24 refers to treaties being not impacted upon by the  25 operation of provincial laws.  26  27 "In the section 'Treaty' is not a word of art  28 and in my mind respectful opinion..."  29  30 THE COURT:  I think "in my respectful opinion," isn't it?  31 MS. MANDELL:  Yes.  32  33 " embraces all such engagements made by  34 persons in authority as may be brought within  35 the term 'the word of the white man' the  36 sanctity of which was, at the time of British  37 exploration and settlement, the most important  38 means of obtaining a goodwill and co-operation  39 of the native tribes and ensuring that the  40 colonists would be protected from death and  41 destruction.  On such assurance the Indians  42 relied."  43  44 It was necessary for the Crown to guarantee to the  45 Indians preservation and protection of their own way  46 of life in order to allow for continued settlement.  47 The interpretation of section 35 as reaffirming 26271  Submission by Ms. Mandell        1 the fundamental  principles is consistent with  2 political events and judicial pronouncements which  3 occurred both before and after the enactment of the  4 Constitution.  5 I'll first deal with the judicial pronouncements.  6 In 1981 the Indian nations from both Alberta and the  7 Maritimes brought a case before the British Court of  8 Appeal seeking a declaration that the Constitution  9 ought not to be patriated because of treaty  10 obligations owed to them by the Imperial Crown.  11 THE COURT:  Do you really think I should pay any attention to  12 that judgment?  13 MS. MANDELL:  Yes.  14 THE COURT:  It's not binding, is it?  15 MS. MANDELL:  Well, it's binding certainly on the point of —  16 THE COURT:  Where we've got the English Court of Appeal directly  17 interfering with the Canadian constitutional process.  18 While I have the highest regard for Lord Denning, from  19 whom I received a card on his 91st birthday the other  20 day, surely this is judicial activism in a most  21 unusual way, is it not?  22 MS. MANDELL:  Well —  23 THE COURT:  The great, overwhelming current judicial and legal  24 opinion, as I understand it, is that the court ought  25 not to have entertained the case at all.  26 MS. MANDELL:  Well, far for me to argue whether the court should  27 have heard it, but let me --  28 THE COURT:  Well, I mean, assuming though and recognizing I'm  29 not bound by it, surely there are many judicial  30 pronouncements on all these questions that I should  31 prefer over a case of this nature and kind.  32 MS. MANDELL:  Let me take two minutes and try and persuade you  33 why you should at least read it.  34 THE COURT:  Oh, I've read it.  I've read it several times.  It's  35 just a question of whether --  36 MS. MANDELL:  What you take from it.  37 THE COURT:  I mean, all cases have a certain standing, and some  38 are binding on us.  39 MS. MANDELL:  This is a law of the colonies.  This is a law  40 applicable to the colonies and part of the  41 Commonwealth, and to the extent that we --  42 THE COURT:  But the Supreme Court of Canada pronounced it in  43 exactly the same context at almost the same time.  44 MS. MANDELL:  Well, actually, what happened was when the Supreme  45 Court of Canada was asked to consider the question,  46 what was before them was the question whether there  47 was a constitutional convention that the provinces 26272  pat  iriation  2  3  4  5  6  '  7  ]  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Ms. Mandell        1 consent to the  of the Constitution.  And  your lordship will appreciate that the Indian nations  approached many of the provinces to try and include in  the question whether or not Indian consent was also  required.  THE COURT:  Yes.  MS. MANDELL: And there was no province that would agree to it,  and so the Supreme Court of Canada went ahead without  reference to whether or not there was any outstanding  and binding Crown obligations present to the Indian  nations or whether any Indian consent was required in  the patriation.  The Indian people went to London.  Now, you say that there's other cases that decide  it.  There's not.  What happened in London was that  the Constitution, still not having been patriated, it  was still seen by the British courts that they had  jurisdiction to determine whether or not there was any  outstanding obligations which Britain had before the  Constitution would come home.  And one of the problems  which it had to contend with is that for these  treaties that were being referred to in this case the  treaties were with the Crown of Britain and Ireland,  they were not with the Crown of Canada, and so it was  argued before the court in Secretary of State that how  is it that the Constitution can be patriated with our  treaties binding on you without our consent or without  there being some formal devolution.  And in this case  and in this sense the jurisdiction of the British  court was to determine what obligations rested with  Britain, not with Canada, the Crown in right of  Britain, before the Constitution could be patriated.  And the Constitution Act was still one step before  final, although the present wording of section 35 was  in the address, and that's what the court considered.  And bearing in mind submissions from the Government of  Canada and from the various Indian nations and the  British Government, and having heard what everybody  had to say about what the Constitution itself was  intended to do and did do, the judgment was made.  And I could just at this point refer your lordship  to the case of Regina v. Arcand.  I won't ask you to  turn it, but I'll just say to you that the court there  went into a fairly -- I'm sorry, it was Regina v.  Agawa.  The court spent a number of pages asking  itself what power it had to entertain the events which  preceded the enactment of the Constitution as part of  its consideration of the proper wording, and the 26273  Submission by Ms. Mandell        1 court, in fact, did say  that it was relevant for it to  2 hear all this material, much of it it did, and also  3 that it wasn't to be given great weight but it's  4 certainly something which the court could consider.  5 THE COURT:  Which court was that?  6 MS. MANDELL:  This is the Ontario Court of Appeal in Regina v.  7 Agawa, and the pages which that discussion occurs  8 on -- excuse me -- is pages 109 -- basically 109.  9 THE COURT:  They referred to Lord Denning's judgment, did they?  10 I'm surprised if they did.  11 MS. MANDELL:  No, they didn't.  They referred to a lot of the  12 commentary, some of which I'll refer to your lordship,  13 the debates on the Constitution.  14 THE COURT:  I haven't the slightest hesitation in reading what  15 Lord Denning said in the same way I would read a  16 textbook or any other learned pronouncement of these  17 questions, but I have to say to you that if it hasn't  18 been decided by a Canadian court, then it should be  19 decided by a Canadian court and not by the Court of  20 Appeal of England in circumstances such as this.  21 MS. MANDELL:  I understand what you're saying.  There have been  22 Canadian decisions which have applied, Secretary of  23 State, this case.  24 THE COURT:  Oh, I know they have, but not — I don't think  25 appellate courts have, although I --  26 MS. MANDELL:  It was — I don't think — I'll have to check for  27 you, but I do know that it's been considered.  And, my  2 8 lord, I don't want to spend much more time trying to  29 persuade you.  30 THE COURT:  I'm sorry to delay you.  I thought I better tell you  31 that I have serious misgivings about --  32 MS. MANDELL:  I'm not asking you to apply the decision.  I'm  33 asking you to consider it as -- it was Lord Denning's  34 last judicial statement before he retired.  35 THE COURT:  Well —  36 MS. MANDELL:  Whether that strengthens or weakens the decision,  37 I don't know.  38 THE COURT:  We all make one political speech too many.  He made  39 one too many.  40 MS. MANDELL:  Or else you want to say something before you go,  41 and this is what it is.  42 THE COURT:  He should have said something about the affairs of  43 the United Kingdom rather than about the Canadian  44 Constitution in the midst of a Canadian constitutional  45 crisis.  The question is one that surprised me and I'm  46 sure surprised a lot of others, that the court would  47 have even embarked upon it. 26274  Submission by Ms. Mandell        1  MS. MANDELL:  Well, I can only  say one further thing, and that  2 is the point that we're facing too and we're urging  3 upon your lordship, and that is where the Indian  4 nations have little, if any, true political power  5 given the relationships now between their numbers and  6 the numbers of the non-Indian majority.  It's often  7 the courts that have to intercede on their behalf in  8 order to create the equality and the equities which  9 they're entitled to.  10 I'm not going to read it to you in great length.  11 I would like you though to appreciate Lord Denning's  12 final comment.  There's two comments which I think are  13 important.  One is how he recognized that the Crown  14 has in the common law affirmed that Indian nations  15 like -- have rights possessing laws of their own,  16 which is part of the way that the common law itself  17 has recognized certain people possessing laws other  18 than that of the Crown.  And at page 18 I note this  19 passage because it hasn't as yet been referred to your  20 lordship on this point.  21  22 "The Indian peoples of Canada have been there  23 from the beginning of time.  So they are called  24 the 'aboriginal peoples'.  In the distant past  25 there were many different tribes scattered  26 across the vast territories of Canada.  Each  27 tribe had its own tract of land, mountain,  28 river or lake.  They got their food by hunting  29 and fishing; and their clothing by trapping for  30 fur.  So far as we know they did not till the  31 land.  They had their chiefs and headmen to  32 regulate their simple society and to enforce  33 their customs.  I say 'to enforce their  34 customs', because in early societies custom is  35 the basis of law.  Once a custom is established  36 it gives rise to rights and obligations which  37 the chiefs and headmen will enforce.  These  38 customary laws are not written down.  They are  39 handed down by tradition from one generation to  40 another.  Yet beyond they are well established  41 and have the force of within the community."  42  43 "...In England we still have laws which are  44 derived from customs from time immemorial.  45 Such as rights of villagers to play on the  46 green:  or to graze their cattle on the  47 common... These rights belong to members of the 26275  Submission by Ms. Mandell 1                   community:  and  take priority over the  2 ownership of the soil..."  3  4 In his last judicial statement made before  5 retiring, Lord Denning pronounced on the reliance  6 which the Indian nations of Canada should be able to  7 place on the fact that existing aboriginal and treaty  8 rights are placed within the Constitution.  And he  9 reviewed section 35 and section 25 and says in the  10 underscored portion on page 19:  11  12 "There is nothing, so far as I can see, to  13 warrant any distrust by the Indians of the  14 Government of Canada.  But, in the case there  15 should be, the discussion in this case will  16 strengthen their hand so as to enable them to  17 withstand any onslaught.  They will be able to  18 say that their rights and freedoms have been  19 guaranteed to them by the Crown -- originally  20 by the Crown in respect of the United  21 Kingdom -- now by the Crown in respect of  22 Canada -- but, in any case, by the Crown.  No  23 Parliament should do anything to lessen the  24 worth of these guarantees.  They should be  25 honoured by the Crown in respect of Canada 'so  26 long as the sun rises and the river flows'.  27 That promise must never be broken."  28  29 And I just wanted to here remind your lordship of  30 the division of power point that we spoke about on  31 whatever day it was this week where the federal  32 government under 91(24), as your lordship will recall,  33 under the B.N.A. Act maintained the power to legislate  34 for Indians and lands, the province held the  35 underlying Crown title, and the British Crown held the  36 power to amend the Constitution.  And the  37 constitutional crisis for the Indian people stemmed  38 from the fact that with the amending power returning  39 to Canada they feared that there would be a capable  40 redistribution of this power to their detriment, and  41 this is the fact that Lord Denning confronted and said  42 that your rights are guaranteed by the Crown and that  43 no Crown has the capability of derogating from those  44 rights.  45 Shortly after the entrenchment the parliamentary  46 committee on Indian self-government released its  47 unanimous report calling for negotiated modern 26276  Submission by Ms. Mandell        1 agreements by which  Indian peoples would retain land,  2 resources, and jurisdiction required to sustain them  3 as distinct peoples within Confederation.  And that  4 report's an exhibit and was referred to by Mr.  5 Jackson, and I'll provide to you the exhibit number.  6 So that's the first main point, that the  7 Constitution reaffirmed aboriginal and treaty rights  8 and placed them in the context of the Constitution as  9 collective rights, affirming again the treaty making  10 process.  11 The second main point that we say which is the  12 purpose of the Constitution is that section 35 is  13 remedial.  In the case of Jean-Claude Nahe Chief  14 Justice Dickson applied a remedial analysis to the  15 interpretation of section 23.  16  17 "A further important aspect of the purpose of  18 Section 35 is the role of the section as a  19 remedial provision.  It was designed to remedy  20 an existing problem in Canada and hence to  21 alter the status quo.  As Kaerans J. succinctly  22 put it, 'the very existence of the section  23 implies the inadequacy of the present regime.'"  24  25 Now, we say that section 35 addressed the  26 inadequacy in two separate and distinct ways.  One is  27 a legal inadequacy, which created the problem of the  28 Indian nations not only evolving into a minority  29 within Canada, but also under the convention of  30 parliamentary supremacy aboriginal and treaty rights  31 could be derogated from by competent federal  32 legislation.  33 Section 35 was intended to address the failure of  34 the Crown to honour its fundamental obligations to the  35 Indian people by exercising its power to regulate  36 aboriginal and treaty rights in derogation of such  37 rights.  38 Prior to the enactment of section 35 aboriginal  39 and treaty rights were characterized by the court as  40 common law rights capable of regulation or variation  41 by the Crown acting through competent legislation.  In  42 the result aboriginal and treaty rights were  43 suppressed by the application of regulatory regimes in  44 the area of hunting and fishing.  Thus the reasoning  45 of the North West Territories Court of Appeal in  46 Sikyea, later adopted by the Supreme Court of Canada  47 in that case. 26277  Submission by Ms. Mandell 1                Sikyea was a case  of a man who, pursuant to the  2 treaty, was hunting a migratory bird contrary to the  3 Migratory Birds Convention Act for food, and the facts  4 were that he was on welfare and was feeding himself.  5 And the treaty protected his right to hunt and fish in  6 that territory.  The court in Sikyea found that the  7 application of the Migratory Birds Convention Act  8 regulated the right and that the treaty right, however  9 expressed, could not be sustained over the federal  10 law.  11 Discussing the nature of the right which the  12 Indians obtained under the treaty, Lord Watson,  13 speaking for the judicial committee, said:  14  15 "Their Lordships have had no difficulty in  16 coming to the conclusion that, under the  17 treaties, the Indians obtained no right to  18 their annuities, whether original or augmented,  19 beyond a promise and agreement, which was  20 nothing more than a personal obligation by its  21 governor, as representing the old province,  22 that the latter should pay the annuities as and  23 when they became due...  24  25 While this refers only to the annuities payable  26 under the treaties, it is difficult to see that  27 the other covenants in the treaties, including  28 the one we are here concerned with, can stand  29 on any higher footing.  It is always to be kept  30 in mind that the Indians surrendered their  31 rights in the territory in exchange for these  32 promises.  This 'promise and agreement', like  33 any other, can, of course, be breached, and  34 there is no law of which I am aware that would  35 prevent Parliament by legislation, properly  36 within s. 91...from doing so."  37  38 In stating the law in this way the courts were  39 giving effect to the constitutional convention of  40 parliamentary supremacy.  The Crown, acting through  41 Parliament, could alter common law rights and  42 obligations of all citizens, including the suppression  43 of hunting and fishing rights created or confirmed by  44 the Crown in treaties.  45 This situation was not viewed with equanimity by  46 the judiciary.  In Sikyea the court said --  47 THE COURT:  I'm sorry, I'm not following you here.  Do you say 26278  Submission by Ms. Mandell        1 that Chief Justice  Dickson adopted Lord Watson's  2 dictum there?  3 MS. MANDELL:  It wasn't Dickson, was it?  4 THE COURT:  Oh, I'm sorry.  Well, you said later adopted by the  5 Supreme Court of Canada.  6 MS. MANDELL:  This is Sikyea on its way to the Supreme Court of  7 Canada.  8 THE COURT:  Well, this passage from Lord Watson, was it adopted  9 by the Supreme Court of Canada?  10 MS. MANDELL:  Yes.  My lord, I should tell you that — I just —  11 THE COURT:  I'm surprised if they did.  12 MS. MANDELL:  I just want to draw your attention to something.  13 It's one of these funny nuances in Indian law.  You'll  14 recall that Mr. Rush argued to you in response to the  15 Province's argument that aboriginal rights do not need  16 to be recognized or affirmed by any sovereign  17 enactment that they're pre-existing.  Do you remember  18 that?  19 THE COURT:  Oh, yes.  20 MS. MANDELL:  Yeah.  Well, that's not so for treaty rights.  21 It's been held by the courts, and I can draw to your  22 lordship's attention, if you want to, that treaty  23 rights do have to be affirmed by some sovereign  24 enactment.  They don't simply exist as a pre-existing  25 right.  Now, many of the treaties weren't.  There  26 was -- for some of the treaties there were no orders  27 in council or any enactments which brought them into  28 effect, and it wasn't until 1951, with the enactment  29 of section 87, now section 88, that treaty rights were  30 effectively affirmed in the law, and it's a very  31 passive affirmation.  But, in any event, you'll recall  32 section 88 saying that laws of general application in  33 the province do not apply so as to abrogate treaty  34 rights, and that's been considered by the court to be  35 a positive affirmation.  36 Now, what happened then is that the courts  37 considered, well, can section 88 apply to provincial  38 laws.  Clearly it does.  What about federal?  And the  39 case of Regina v. George, the Supreme Court of  40 Canada's case, said that federal statutes are still  41 applicable to abrogate treaties or to regulate them.  42 Nobody had actually confronted the situation where  43 there was de facto abrogation.  44 And so we now head into the problem posed by  45 Sikyea, where you've got a federal statute, the  46 Migratory Birds Convention Act, applying so as to  47 regulate to the point of suppressing the exercise of a 26279  Submission by Ms. Mandell        1 right.  And the court  didn't like what they had to do,  2 but they had the law to apply, and that's what the  3 decisions go on to say.  And the court in Sikyea says:  4  5 "It is, I think, clear that the rights given to  6 the Indians by their treaties as they apply to  7 migratory birds have been taken away by this  8 Act and its Regulations.  How are we to explain  9 this apparent breach of faith on the part of  10 the Government, for I cannot think it can be  11 described in any other terms?  This cannot be  12 described as a minor or insignificant  13 curtailment of these treaty rights, for game  14 birds have always been a most plentiful, a most  15 reliable and a readily obtainable food in large  16 areas of Canada.  I cannot believe that the  17 Government of Canada realized that in  18 implementing the Convention they were at the  19 same time breaching the treaties that they had  20 made with the Indians.  It is much more likely  21 that these obligations under the treaties were  22 overlooked -- a case of the left hand having  23 forgotten what the right hand had done."  24  25 And he concludes, unfortunately, that he's got to do  2 6 what he's got to do.  27 THE COURT:  Who is that that's speaking there?  28 MS. MANDELL:  This is the Supreme Court.  29 THE COURT:  This is the Supreme Court of Canada?  It doesn't  30 sound like the Supreme Court of Canada.  31 MS. MANDELL:  No, I'm sorry, this is — I'm going to have to  32 find out.  It's been several days since I saw which  33 court.  34 THE COURT:  It sounds like a trial judge of the Northwest  35 Territories.  36 MR. PLANT:  It's from the Court of Appeal judgment, which is in  37 my friend's brief of authorities at Volume 8, tab 5,  38 and the passage at the bottom of page 21 of her  39 submission appears at page 335 of the Court of Appeal  4 0 judgment.  41 MS. MANDELL:  I thank my friend for that.  42 THE COURT:  All right.  I still don't know whether anybody has  43 affirmed that language of Lord Watson, but if somebody  44 can find that out, I'll be glad to know, but I can  45 look it up.  46 MS. MANDELL:  I can look it up for you too at the break, my  47 lord. 26280  Submission by Ms. Mandell        1  THE COURT:  All right.  Thank  you.  Well, is there anything very  2 different from that than the Court of Appeal of this  3 province in Sparrow saying these rights are subject to  4 regulation?  They're not subject to being abolished,  5 but they're subject to regulation in the interest of  6 preserving a species.  7 MS. MANDELL:  Well, actually, there is something different, and  8 we'll see that when we look at the section 35 cases.  9 THE COURT:  All right.  10 MS. MANDELL:  The same facts have appeared back before the Court  11 of Appeal, that is, treaty, Migratory Birds  12 Convention Act, now section 35, now what, and the  13 courts have found that the right is protected.  And I  14 can -- I'll take you through the case that looks at  15 it.  Although there is, according to the courts, still  16 some capability of regulation, the regulation,  17 according to the court, was not one which was intended  18 under the treaty, and I'll take you into that case.  19 Section 35 has made a difference precisely to these  20 facts.  21 THE COURT:  Oh, yes.  Indeed.  22 MS. MANDELL:  In his dissenting opinion in Regina v. George Mr.  23 Justice Cartwright argued that section 87 of the  24 Indian Act should be construed to insulate treaty  25 rights from the operation of federal as well as  26 provincial law.  27  28 "We should, I think, endeavour to construe the  29 treaty of 1827 and those Acts of Parliament  30 which bear upon the question before us in such  31 manner that the honour of the Sovereign may be  32 upheld and Parliament not made subject to the  33 reproach of having taken away by unilateral  34 action and without consideration the rights  35 solemnly assured to the Indians and their  36 posterity by treaty.  Johnson, J.A., with  37 obvious regret, felt bound to hold that  38 Parliament had taken away those rights, but I  39 am now satisfied that on its true construction  40 s.87 of the Indian Act shows that Parliament  41 was careful to preserve them."  42  43 Well, he was hoping, but he wasn't -- it wasn't  44 the decision of the court.  But the sentiment about  45 not liking to do this was expressed throughout.  46 Section 35 can be seen to some extent as a  47 response to Parliament's failure to insulate Indian 26281  Submission by Ms. Mandell        1 aboriginal and treaty  rights from federal regulatory  2 laws of general application.  It was recognized that  3 the right to harvest the land remained vitally  4 important to aboriginal people and that regulations  5 placing limits on the full exercise of those pre-  6 existing rights was contrary to the honour of the  7 Crown.  8 THE COURT:  I think we'll take the adjournment now, please.  9 Thank you.  10  THE REGISTRAR:  Order in court.  Court stands adjourned.  11  12 (PROCEEDINGS ADJOURNED AT 11:15 A.M.)  13  14 I hereby certify the foregoing to  15 be a true and accurate transcript  16 of the proceedings transcribed to  17 the best of my skill and ability.  18  19  20  21  22  23 Leanna Smith  24 Official Reporter  25 UNITED REPORTING SERVICE LTD.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 26282  Submissions by Ms. Mandell        1 (PROCEEDINGS  RESUMED AT 11:30 A.M.)  2  3 SUBMISSIONS BY MS. MANDELL:  4  5 THE COURT:  Thank you. Miss Mandell?  6 MS. MANDELL:  My lord, I am sorry, I didn't find the Supreme  7 Court of Canada and Sikyea.  I am going to look for it  8 at lunch.  9 THE COURT:  I can read that.  10 MS. MANDELL:  I am on page 23.  My lord, I am still addressing  11 the issue of remedial.  And I am at the second main  12 point and that is that we say that among the remedial  13 purposes in enacting Section 35 was to ensure to the  14 Indian nations a place within Confederation based on  15 their separate identities.  For many years prior to  16 the enactment of Section 35 the governments pursued a  17 policy of assimilation towards the Indian nations,  18 which, while ultimately motivated to create equality,  19 had the effect of denying to the Indian people their  20 separate identity and special rights to the land.  21 And so we had the testimony of a number of  22 witnesses which, in our submission, was not intended  23 to bring to your lordship a case of poverty and -- or  24 a case of there being complaints made to the court  25 about treatment, but it was inevitable that the  26 witnesses in giving their testimony could not but  27 refer to the effect of assimilation policies as they  28 had felt them on their lives.  29 So we had descriptions of the outlaw of the feast  30 which made criminals of such chiefs as Jeffery  31 Johnson, Hanamuxw, who raised a totem pole in 1945  32 under the threat of imprisonment.  We had the  33 testimony of Emma Michell, who during the same period  34 testified that feasting regalia was burned.  35 Art Matthews testified that at residential school  36 from his personal experience all the children that  37 tried to speak their language would be punished for  38 it.  39 Dora Wilson-Kenni testified to her experience of  4 0 hearing and watching her grandmother attempt to  41 prevent the desecration of the graves of her ancestors  42 when B. C. Hydro was putting in their power poles.  43 Alfred Joseph spoke about the location around the  44 outflow of Owen Lake where his grandfather's house was  45 located.  He described in his evidence that the place  46 had been turned into a garbage dump.  He recalled also  47 that when he was in residential school he went to 26283  Submissions by Ms. Mandell 1            Ootsa Lake and he  pictured the lake in his mind and he  2 talked about it:  3  4 "From what I saw then there was meadows all  5 around the lake and the people were living  6 right in the shore of Ootsa Lake and nice flat  7 area where they were living."  8  9 And when he went back 1982 it was altogether  10 different, there is a spillway and water and dead  11 trees sticking out of the water.  12 You have heard evidence of the evidence of  13 dispossession by the Wet'suwet'en people from their  14 land and while you have heard much about Basil Michell  15 and his experience, it bears repeating how he felt  16 when this happened.  17  18 "Even though we were young we really hurt by  19 what was done to us.  Our people had cleared  20 the land and white people just moved in and  21 chased us off the land.  We weren't very happy  22 about it. The white people that worked for the  23 government just went home after we were chased  24 off our land and we were left to die because we  25 had to live in tents 60 below weather.  It  26 wasn't right what they did to us."  27  28 This continues, Dora Wilson-Kenni testified that  29 her mother and stepfather, Charlie Austin, lived in a  30 cabin in Spookw's territory from 1944 to 1958.  After  31 that they used the cabin for hunting and trapping  32 marten and weasel and berry picking.  She testified  33 that the cabin was burned in 1983.  Before the time  34 when the cabin was burned the family received a  35 letter:  36  37 "By written authority of the Ministry of Lands,  38 Parks and Housing pursuant to Sections 57(1),  39 and (2)(1) of the Land Act you are hereby given  40 notice to cease the unauthorized occupation or  41 use, vacate the area, remove any improvements  42 and leave the Crown land in a safe, clean and  43 sanitary condition within ten days from the  44 date of this notice."  45  46 And the cabin was burned after the notice.  The  47 evidence revealed that the real competition present 26284  Submissions by Ms. Mandell        1 where the province  claimed the ownership and history  2 of a particular location by denying the ownership and  3 history of the Gitksan and Wet'suwet'en.  There was a  4 very interesting exchange by Madeline Alfred and the  5 province on this and I wanted to draw to your  6 lordship's attention the exchange.  She was asked  7 about Trout Creek and she said she used to have -- the  8 people would have their night camp at that place, it  9 was a field where people used to camp.  And on  10 cross-examination she was shown a photograph of the  11 store and she was asked to identify it and she says:  12  13 "That's the place they calld S'aay K'e T'aay —  14 the area where the ancestors used to camp.  15 ...we used to go trapping and hunting out  16 towards Ta Baegh T'ai at the lake there.  When  17 we travelled to that area we used to stop off  18 there at Trout Creek to have lunch there."  19  20 Now, the Province of British Columbia sees S'aay  21 K'e T'aay as a store, where citizens of the province  22 carry on business.  Madeline Alfred sees the place as  23 a camping area where she and her ancestors would camp  24 and have lunch on their way to their hunting and  25 trapping areas.  The collision of vision springs from  26 a fundamental injustice which reflects biases and  27 prejudices of an era where the Indian way of life on  28 the land is disregarded, blocked out, made invisible  29 in favour of a non-Indian occupation authorized by the  30 province.  31 It's our submission that Section 35(1) was enacted  32 as a rejection that Indian people and Indian rights  33 could be overtaken by a more powerful and dominant  34 government.  The section was seen as a step forward to  35 enable Indian people to exist as distinct peoples,  36 free to live their distinct societies now and in the  37 future.  This can be seen in part from the debate  38 prior to its enactment.  39 The purpose for the enactment of Section 35 was the  40 subject of controversy, the decision to entrench  41 treaty rights was first reached by parliament on  42 January 30th, 1981, and subsequently that proposal was  43 dropped in negotiations between the Government of  44 Canada and the province.  That about face created a  45 storm of protest and a renewal of lobbying and lengthy  46 negotiations.  These ultimately led to an agreement to  47 entrench the present Section 35.  Immediately prior to 26285  Submissions by Ms. Mandell 1            the announcement of  that agreement, the leaders of the  2 Conservative and New Democratic parties spoke in  3 parliament and called for the return of aboriginal and  4 treaty rights to the constitutional package.  5 The Right Honourable Joe Clark -- this is when  6 the -- this is when it was put back in, Section 35 was  7 now put back in and these are the speeches that are  8 being made to announce the section as part of the  9 constitution:  10  11 "I want to speak for a moment, if I might, of  12 the nature of that duty, the nature of our  13 responsibility to the aboriginal people of the  14 country.  One in this nationalistic age would  15 be reluctant to quote a poet from the United  16 States, except perhaps in the case of  17 aboriginal title, because the aboriginals were  18 here before the United States or Canada was,  19 before the 49th Parallel meant anything more  20 than a widening in the trees.  I am struck by  21 the words of Robert Frost when speaking of  22 Americans, Canadian, people who came late to  23 this continent.  He said:  'The land was ours  24 before we were the lands'.  25 Mr. Frost was speaking of the white  26 population not the natives.  The land of this  27 continent belonged to, was used by, the  28 original people well before the concept of land  29 took root as something that was possessed and  30 parcelled out.  Land, to the natives, was where  31 you lived, where you worked and where you took  32 your nature.  It was heritage, not just  33 territory.  In a very real sense, land and  34 people were the same.  We took that away, we  35 who came later.  We took it away as an  36 inevitable consequence of our civilization and  37 the compensation we offered was often meagre,  38 often mean, sometimes nothing at all.  But the  39 original people were here before our  40 civilization.  Our treatment, our meagre mean  41 treatment of them has increased our obligation  42 not diminished it.  43 We cannot reverse history but we can take  44 account of it.  A minimum step must be for  45 theis Parliament to put in a document that  46 deals with the rights of our people and to  47 acknowledge at least the particular rights of 26286  Submissions by Ms. Mandell        1 our first  people to draw their life and their  2 culture from what we made our land."  3  4 When Section 35 agreement was reached by the  5 federal and the nine provincial governments, the  6 minister of Indian affairs reported on that  7 accomplishment to parliament:  8  9 "Members of the House, I cannot overemphasize  10 the significance that I place on the events of  11 the last couple of days in view of the outcome.  12 The distance that native people have come in  13 thse few short days by gaining recognition of  14 their aboriginal and treaty rights is what is  15 soon to become the highest expression of law of  16 this land is immeasureable at at this time.  17 However, I predict that history will prove it  18 to be a giant step.  Let it be said now that  19 the disappointment that I and others felt  20 earlier this month on the eve of the accord,  21 when it became evident that some province's  22 rights was second only to that of the native  23 peoples themselves.  24 Let it be said now for the record that many  25 of us share a high degree of elation today.  I  26 recall, moving out of the Convention Centre  27 with native leaders, what I and some of my  28 colleagues had to face when Section 34 was  29 dropped.  One cannot measure the terrible  30 grief, disappointment and utter frustration  31 they expressed on that particular day.  I want  32 the Indian people especially to understand why  33 I feel as I do.  To be sure, the contrast  34 between my disappointment of a few days ago and  35 my mood today is uplifting, but that is not the  36 only reason.  Honourable Members, we are here  37 today in the House of Commons with a motion  38 that proposed to accord to native peoples is a  39 unique status in the highest law of the land."  40  41 Following the enactment of Section 35, Chief  42 Justice Dickson in Simon indicated that the Supreme  43 Court of Canada was prepared to address inappropriate  44 judicial attitudes expressed towards Indian people.  45 Commenting on Regina versus Syliboy, in which Mr.  46 Justice Patterson ruled that the Maritime Treaties  47 were not legal agreements because the Indian nations 26287  Submissions by Ms. Mandell        1 at the time were not  sufficiently civilized to be a  2 party to the treaty, Chief Justice Dickson said:  3  4 "It should be noted that the language used by  5 Patterson, J. illustrated in this passage,  6 reflects the biases and predjudices of another  7 era of our history.  Such language is no longer  8 acceptable in Canadian law and indeed is  9 inconsistent with the growing sensitivity to  10                   native rights in Canada."  11  12  13 This remedial interpretation is not one urged upon  14 the premis of rectification of all past wrongs:  it is  15 rather the interpretation that flows from a realistic  16 view of history.  As Mr. Justice MacKinnon said in  17 Regina v. Taylor and Williams:  18  19 "Cases on Indian or aboriginal rights can never  20 be determined in a vacuum.  It is important to  21 consider the history and oral traditions of the  22 tribes concerned, and the surrounding  23 circumstances at the time of the treaty relied  24 on by both parties in determining the treaty's  25 effect.  Although it is not possible to remedy  26 all what we now perceive as past wrongs in view  27 of the passage of time, nevertheless it is  28 essential that in keeping with established and  29 accepted principles that the courts not create  30 by a remote, isolated current view of past  31 events, new grievances."  32  33 And we urge that interpretation on your lordship in  34 approaching the Section 35 rights which the plaintiffs  35 are saying we -- within the declarations of the  36 case -- are entitled to and have proved.  37 Now, lastly I would like to review the authorities  38 which have looked at Section 35.  There are many.  39 There is one case, Sparrow, which has already been  40 argued before the Supreme Court of Canada as your  41 lordship is aware.  Two other decisions of the Courts  42 of Appeal, Regina v. Agawa and Denny, are decisions of  43 the Courts of the same status as the B. C. Court of  44 Appeal.  I believe Agawa is before the Supreme Court  45 of Canada?  Yes.  And I am not sure about Denny.  And  46 we also refer you to one of many of the lower court  47 decisions, Regina vs. Arcand, because its reasoning 26288  Submissions by Ms. Mandell        1 and the propositions  cited in it are now being applied  2 in cases around the country in interpretation of  3 Section 35.  We say, by the way, that in looking at  4 the Section 35 cases, my lord, you will see some  5 consensus about what Section 35 is shaping up to look  6 like, but not complete consensus in any respect about  7 interpretation that your lordship is bound to place on  8 the meanings with all the sections read together as we  9 have been urging upon you.  10 The Sparrow decision of the B. C. Court of Appeal,  11 and I would like to review the findings in Sparrow, I  12 will do it briefly because I know your lordship is  13 familiar with the case.  14 The case rested entirely on Section 35, hunting  15 fishing -- I am sorry, fishing contrary to the  16 regulations as pitted against an existing aboriginal  17 right within Section 35.  And we say these findings  18 are important for your lordship to consider.  19 First, the court found that the plaintiffs enjoy an  20 existing aboriginal right to fish for food and  21 ceremonial purposes in waters outside the reserve and  22 that the lower court was wrong in holding no  23 aboriginal rights can exist in British Columbia.  24 And I wanted here to remind or advise your lordship  25 of something which we hadn't spoken about earlier, and  2 6 that was when Mr. Rush was submitting to you about the  27 rejection by the courts of the proposition that the  28 Crown has to recognize rights in order to create their  29 existence under the law.  The B. C. Court of Appeal in  30 Sparrow, at page 315 to 319 addressed this question  31 and expressly at page 317, rejected that as a valid  32 interpretation of rights.  33 It is submitted that the Court of Appeal's decision  34 on this point refutes the argument of the defendants  35 in this case that aboriginal rights were extinguished  36 before Confederation, at union, by the establishment  37 of reserves, or after Confederation by acts of the  38 Crown inconsistent with the existence of such rights.  39 The second finding in Sparrow is that regulation of  40 rights prior to 1982 did not extinguish rights.  And  41 the court said:  42  43 "In our view, the 'extinguishment by regulation'  44 proposition has no merit.  It is clear that  45 there was an aboriginal right. It is equally  46 clear that such right has not been  47 extinguished, either expressly as Mr. Justice 26289  Submissions by Ms. Mandell 1                   Hall would  require, or by implication, as Mr.  2 Justice Judson held.  3 ...regulatory legislation may affect or  4 interfere with the enjoyment of common law  5 property rights, but that the result is not to  6 extinguish the right.  7 Third, in the case of the fishery, while  8 Section 35 precludes extinguishment by federal  9 legislation, this is now after Section 35, the  10 aboriginal right could be regulated, and the  11 court said:  12  13 " is relevant to observe that  14 extinguishment and regulation are essentially  15 different concepts.  Even if there could not  16 now be extinguishment, it would not follow that  17 there could not be regulation.  It may be that  18 a power to extinguish is necessarily  19 inconsistent with the recognition and  20 affirmation of aboriginal right in s.35(l) .  21 There is no necessary inconsistency with the  22 power to regulate."  23  24 The power to regulate the right in the fishery  25 flows from the definition of the word 'existing' in  26 Section 35;  the nature of the right; ad the third is  27 the Federal Government's constitutional obligations  28 over the fishery.  29 And I just review the three foundation points for  30 the court's finding on those areas.  Involving the  31 definition of the right, the court said:  32  33 "It must be borne in mind that what is  34 recognized and affirmed in Section 35(1) is the  35 existing right.  In 1982, the Indian right to  36 fish existed in circumstances profoundly  37 different from those prevailing before or in  38 the early years of white settlement when the  39 fishery was thought to be 'inexhaustable'...  40 the constitutional recognition of the right to  41 fish cannot entail restoring the relationship  42 between Indians and salmon as it existed 150  43 years ago.  The world has changed.  The right  44 must now exist in the context of a parliamentry  45 system of government and a federal division of  46 powers.  If cannot be defined as if the  47 Musqueam band had continued to be a 26290  Submissions by Ms. Mandell 1                   self-governing  entity, or as if its members  2 were not citizens of Canada and residents of  3 British Columbia.  Any definition of the  4 existing right must take into account that it  5 exists in the context of an industrial society  6 with all of its complexities and competing  7 interests.  The 'existing right' in 1982 was  8 one which had long been subject to regulation  9 by the federal government.  It must continue to  10 be so because only government can regulate with  11 due regard to the interests of all."  12  13 With respect to nature of the right:  14  15 "It was in the beginning a regulated, albeit  16 self-regulated, right.  It continued to be a  17 regulated right, and on the 17th of April,  18 1982, it was a regulated right.  It has never  19 been a fixed right, and it has always taken its  20 form from the circumstances in which it has  21 existed."  22  23 As to the constitutional responsibility of  24 Canada to protect fish:  25  26 "Section 35(1) of the Constitution Act, 1982  27 does not purport to revoke the power of  28 Parliament to act under Head 91(12) or 91(24).  29 The power to regulate fisheries, including  30 Indian access to the fisheries, continues,  31 subject only to the new constitutional  32 guarantee."  33  34 And at page 331:  35  36 "If the interests of the Indians and other  37 Canadians in the fishery are to be protected,  38 then reasonable regulations to ensure the  39 proper management and conservation of the  40 resource must be continued."  41  42  43 Finally, the court held that even though there was  44 a power to regulate Indian fisheries, this must be  45 done to ensure the priority of aboriginal rights to  46 fish for food and ceremony:  47 26291  Submissions by Ms. Mandell 1                  "Those  regulations which do not infringe the  2 aboriginal food fishery, in the sense of  3 reducing the available catch below that  4 required for reasonable food and societal  5 needs, will not be affected by the  6 constitutional recognition of the right.  7 Regulations which do not bear upon the exercise  8 of the right may nevertheless be valid but only  9 if they can be reasonably justified as being  10 necessary for the proper management and  11 conservation of the resource or in the public  12 interest.  These purposes are not limited to  13 the Indian food fishery."  14  15  16 Now, that was the first runner at the race track  17 in Section 35, the Agawa case, if could I summarize,  18 the issue was whether fishing rights guaranteed by the  19 Robinson Huron Treaty were insulated by Section 35  20 from regulation.  Like Sparrow the court found that  21 the right to fish existed.  And in so doing, the court  22 relied on Sparrow to find the regulation of rights  23 prior to 1982 did not extinguish them.  24 However, the court's analysis of why the right to  25 be regulated and the degree of regulation, differed  26 from the analysis of the court in Sparrow.  The first  27 concern of the court was the need to protect the  28 resource in today's world.  29  30 "Much has changed since the treaty was executed.  31 At that time, fish and game may have been  32 regarded as limitless resources.  They are no  33 longer.  Conservation and management of fish  34 and game resources are required if they are to  35 be protected from exstinction and presumably  36 for the benefit of Indians and other  37 Canadians."  38  39  40 THE COURT:  You told me this is the Ontario Court of Appeal?  41 MS. MANDELL:  Yes.  42 THE COURT:  It's the Ontario Court of Appeal?  43 MS. MANDELL:  Yes.  44 Secondly, said the court in Agawa, Indian rights  45 should be exercised within a balancing of interest  46 with the rights of others.  47 26292  Submissions by Ms. Mandell        1  2 "In this aspect, Indian treaty rights are like  3 all other rights recognized by our legal  4 system.  The exercise of rights by an  5 individual or group is limited by the rights of  6 others.  Rights do not exist in a vacuum and  7 the exercise of any right involves a balancing  8 with the interests and values involved in the  9 rights of others.  This is recognized in  10 Section 1 of the Charter which provides that  11 limitation of Charter rights must be justified  12 as reasonable in a free and democratic  13 society."  14  15 And the court held that because conservation is  16 manifestly the purpose of the licensing provisions and  17 the regulations, and since the regulation in issue  18 applied to all residents of Ontario and serves a valid  19 conservation purpose, the regulation was held to  20 constitute a reasonable limitation on the fishing  21 right.  22 In Regina versus Arcand, the accused were charged  23 with an offence contrary to the Migratory Birds  24 Convention Act.  This is the case that parallels  25 Sikyea, but only now after the pronouncment of Section  26 35.  27 And the accused relied upon their treaty rights to  28 hunt, which according to the treaty, the right to hunt  29 was "...Subject to such regulations as may from time  30 to time be made by... Canada."  And that's the wording  31 of the treaty.  The court found that the Indians had  32 an existing treaty right within Section 35 and relied  33 on Sparrow to say that rights which are regulated are  34 not extinguished.  Further, the Migratory Bird  35 Convention Act were not the kind, said the court,  36 contemplated by treaty.  Canada provided an  37 analysis --  I am sorry, this should be Conrad, J.,  38 not Canada.  Mr. Justice Conrad provided an analysis  39 of the proper interpretation to be placed on the words  40 "existing", "recognize and affirm".  We set out his  41 analysis of these phrases, existing and recognized and  42 affirm, because they, in our submission, they have  43 been picked up and applied.  44 Existing.  He posed two alternatives, either the  45 rights exist as they were entrenched in 1982, which is  46 subject to the full range of regulations, and he  47 entitled that "the frozen rights theory", or that 26293  Submissions by Ms. Mandell        1 Section 35 recognized  unextinguished treaty rights in  2 their original form.  And he called that the original  3 rights theory.  He noted that there is judicial  4 agreement that Section 35 does not have the effect of  5 reviving treaty rights which have been extinguished  6 prior to 1982.  And I think he is right on that point.  7 I could find no cases to the contrary.  8 The court in Agawa rejected the frozen rights  9 theory on the basis that the effect would be to read  10 into Section 35 the myriad of regulations that existed  11 in 1982.  And Mr. Justice Conrad also rejected this  12 approach and I could just advise your lordship that  13 Agawa goes further and says if we are going to bring  14 in all the regulations and everything that was already  15 applicable to a right in 1982 among other problems of  16 it being varied from place to place, the amendment of  17 a regulation may also create new constitutional  18 dimensions of difficulty that we hadn't even contended  19 for and he goes into great depth on this myriad of  20 regulation problem and rejects the notion.  21 In preferring the original rights theory, Mr.  22 Justice Conrad approved of the test proposed by  23 Professor McNeil, which was also cited in the Agawa  24 case to determine whether or not a right exists.  And  25 we also urge this test on your lordship.  26 A workable test that might be applied to determine  27 whether a particular right has been extinguished or  28 merely rendered unexerciseable, would be to ask  29 whether the right would be restored if the legislation  30 affecting it would be repealed.  If the answer is no,  31 then the right must have been extinguished.  If yes,  32 it must still exist and therefore is entitled to  33 constitutional protection under Section 35(1) .  34 Now, the court in Arcand also addressed the meaning  35 of recognized and affirmed.  The two alternative  36 interpretations --  37 THE COURT:  Before you leave existing, it seems to me that Mr.  38 Jackson's argument was that there was a third one,  39 which was, if I understand B correctly, which was that  40 whatever rights existed at the time sovereignty was  41 asserted, or at the time of contact, whichever is  42 relevant, but which could be enhanced subsequently.  43 Where would you put that?  You referred to all  44 those -- I shouldn't say all those -- but a number of  45 cases in the Court Of Aboriginal Claims in the United  46 States, which suggested that aboriginal rights could  47 grow after the time of sovereignty. 26294  Submissions by Ms. Mandell        1  MS. MANDELL:  And also can grow  after the entrenchment of  2 Section 35.  I think that the right to grow or the  3 concept of growing with respect to an aboriginal  4 right, I would like to address after I talk to you  5 about one thing that you're raising, and that is that  6 in dealing with the original rights thesis, you will  7 notice that the court was dealing with the treaty  8 right.  And one of the arguments which Mr. Justice  9 Conrad addressed in adopting the original rights  10 thesis, is that we have got the treaty, let's start  11 from somewhere, and the question was whether or not we  12 start from the rights after they had been regulated up  13 to 1982 or as they existed on the face of the treaty.  14 So I wanted to draw to your lordship that distinction.  15 And then as to this further question about how do we  16 define aboriginal title, I don't -- I think I am going  17 to finish where I am going and come back to that  18 because it is part of a larger discussion.  19 THE COURT:  All right.  You're on page 39?  2 0 MS. MANDELL:  Thank you.  21 What we urge upon you, though, out of this first  22 analysis, is the proposition that the analysis begin  23 with the nature of the right and not with the nature  24 of the regulation upon it.  And in determining whether  25 or not a right exists in Section 35, that is whether  26 it's been regulated or extinguished, the test to be  27 applied is whether or not it is rendered exerciseable  28 if the legislation affecting it were repealed.  29 That begs the question as to how you define the  30 right in the first place, but it does take us further  31 down the road at this stage in looking at a mechanism  32 for determining whether the right exists into Section  33 35.  34 THE COURT:  You might as well know that I am troubled by this  35 original right.  I would have thought the original  36 right would be at the time or, let's say, sovereignty.  37 MS. MANDELL:  That's true for an aboriginal, a discussion of  38 aboriginal rights.  39 THE COURT:  You say and it would also be at the time of treaty  40 if there was a treaty?  41 MS. MANDELL:  Well, there is very few treaties.  I only know of  42 two, that is the treaties on Vancouver Island and the  43 treaties in the Maritimes, which expressly recognizes  44 and affirm existing aboriginal rights.  Most of the  45 other treaties substitute the existing aboriginal  46 title for a mix of reserve rights which are usually in  47 the reserve in hunting and fishing and certain other 26295  Submissions by Ms. Mandell        1 promises that are  spelled out in the treaty.  So we  2 would begin a treaty analysis with a look at what the  3 treaty says not at what the rights were at the time of  4 assertion of sovereignty.  We begin an aboriginal  5 analysis at a different point in time.  6 THE COURT:  Why don't I respectfully disregard all treaty cases?  7 MS. MANDELL:  Why don't you?  For what purpose?  8 THE COURT:  Because they add a factor that doesn't exist in this  9 case.  10 MS. MANDELL:  Well, I think that would be treacherous.  I  11 wouldn't do that.  12 THE COURT:  Tell me why?  Why take on something that doesn't  13 apply to this case at all?  14 MS. MANDELL:  Well, you saw in Simon, for example, that the  15 treaty there was the right to "hunt as formerly",  16 that's the wording of the treaty.  What the court does  17 say, well, that treaty both recognizes an existing  18 right and it also does something more being affirmed  19 in the treaty.  20 THE COURT:  If you say hunt as formerly, that means before the  21 treaty there was a right to hunt so you would start  22 there.  23 MS. MANDELL:  Then you're going to have to start with an  24 aboriginal right.  But you wouldn't disregard Simon,  25 who then talks about the way in which various rights  26 could be extinguished because it's very difficult for  27 your lordship to be able to separate -- in fact it's  28 not intended in the cases that you do, that certain  29 principles will apply equally although they are being  30 articulated in a treaty case, they are principles  31 which are with respect to the pre-existing aboriginal  32 right which was recognized in treaty.  33 THE COURT:  Sparrow wasn't a treaty case?  34 MS. MANDELL:  Sparrow?  Sparrow  was not a treaty case, that's  35 right.  But you then get Agawa and, for example, that  36 applies the principles of Sparrow to the question of  37 whether or not the right to can be regulated prior to  38 1982 and therefore extinguished.  39 THE COURT:  That would be the same whether there was a treaty or  40 not, if they are relying on Sparrow and if Sparrow is  41 correctly decided.  42 MS. MANDELL: That's right.  It's true.  But if you ignore the  43 treaty cases you are going to ignore stratas and sub  44 stratas of the law which is applicable across the  45 country.  46 THE COURT:  Two treaty cases, to cases where there are treaties.  47 You needn't be overly concerned, I hadn't thought of 26296  Submissions by Ms. Mandell        1 this until this moment  and I thought I would explore  2 it with you.  3 MS. MANDELL:  Oh, my God.  I just never thought for a minute —  4 I have not urged all the treaty cases upon you.  There  5 is a large number of, most of the country is treaty so  6 there is a large number of treaty cases throughout the  7 country that your lordship hasn't been exposed to.  8 THE COURT:  Indeed.  But you see I am troubled by this division  9 on page 30 of your argument between frozen rights and  10 original rights.  Mr. Jackson contended that an  11 original right shouldn't be frozen, it could go.  So  12 that implies to me that an aboriginal right my include  13 a capacity to be expanded.  14 MS. MANDELL:  Absolutely.  15 THE COURT:  All right.  Then why —  16 MS. MANDELL:  Can't a treaty right?  17 THE COURT:  Well, I would think a treaty right would have some  18 difficulty in expanding because it arises from a  19 treaty and that that treaty in most cases, released  20 the aboriginal right, replaced it on one view of the  21 treaty.  But, I am just testing the propositions here.  22 MS. MANDELL:  The only point I would urge urge upon your  23 lordship at this point, I don't think the original  24 rights thesis is a thesis which your lordship here has  25 to concern yourself with in relation to aboriginal  26 title.  That doesn't mean that you don't have to look  27 at all the cases. I don't think that that thesis is  28 one which is directly applicable to aboriginal rights  29 but what is is his rejection of the frozen rights  30 thesis, that we say is applicable because that thesis  31 could have been applied equally to a treaty right as  32 it could have been applied in the Court of Appeal in  33 Sparrow.  34 THE COURT:  Well, it depends on the terms of the treaty,  35 wouldn't it?  36 MS. MANDELL:  Well, in Arcand they were dealing with a treaty  37 that was inherently subject to regulation.  And the  38 court --  39 THE COURT: That's a gloss that the court has put on the treaty.  40 MS. MANDELL:  No, in it's inside the treaty itself.  41 THE COURT:  It's inside the treaty?  42 MS. MANDELL:  Yes.  43 THE COURT:  Then it's contractual.  44 MS. MANDELL:  The court was able through giving the wording of  45 Section 35 a large and liberal interpretation, which  46 is a principle we urge upon your lordship, to say that  47 the subject to regulation clause within the treaty, 26297  Submissions by Ms. Mandell 1            was a clause the -  which contemplated certain kinds  2 of regulations, and the regulation at the case at bar,  3 was not the kind of regulation contemplated by treaty.  4 So there was a large and liberal interpretation placed  5 on Section 35 by the courts, and brought the case,  6 therefore, out of the same pool as Sikyea had sat in  7 in applying the federal regulation to the Indian  8 right.  9 THE COURT:  Well, you needn't be overly concerned.  Sometimes I  10 have some very bad first thoughts and I have only --  11 it's only the juxtaposition of A and B on page 38 that  12 raised this whole question.  13 MS. MANDELL:  I understand what you're saying.  I am at page 39  14 and I am reading the recognized and affirmed  15 definition in Arcand.  The two alternative  16 interpretations are that the treaty rights are to be  17 taken note of or, alternatively, that they are to be  18 given a constitutional validity.  In preferring the  19 second interpretation, Mr. Justice Conrad said:  20  21 "The inclusion of Section 35, coupled with  22 Section 52, in my opinion, does entrench  23 existing treaty rights.  The constitution  24 itself not only recognizes but affirm these  25 rights.  Surely the use of both words suggests  26 something more than mere notice.  Affirm at a  27 minimum must at least be an assertion that the  28 right exists.  Once a right is given  29 constitutional recognition and affirmation, it  30 seems to me it must receive constitutional  31 protection.  Section 52 of the constitution  32 provides that any law inconsistent with the  33 provisions of the constitution is, to the  34 extent of inconsistency, of no force and  35 effect."  36  37 And as I noted, the regulation was held to be  38 inconsistent with the treaty and inconsistent with  39 section -- it should be inconsistent with Section 52  40 and of no force and effect.  41 THE COURT:  Instead of 35?  42 MS. MANDELL:  Yes.  Finally, in the case of Denny, the  43 appellants were charged with fishing contrary to the  44 fisheries regulations and relied in defence on their  45 aboriginal rights recognized by treaty.  Chief Justice  46 Clarke found that the appellants' aboriginal rights to  47 fish in the waters in question were protected by 26298  Submissions by Ms. Mandell        1 section 35(1) . In  finding that regulation does not  2 extinguish rights the court relied on Sparrow.  And  3 Chief Justice Clarke found that existing meant  4 unextinguished.  5  6 "Section 35 is a substantive guarantee of the  7 aboriginal and treaty rights of the aboriginal  8 people of Canada.  Professor Hogg provides a  9 useful overview of this section in  10 constitutional law of Canada.  11  12 'Section 35 is outside the Charter of Rights,  13 which occupied Sections 1 to 35 of the  14 Constitution Act.  Section 35's location  15 outside the Charter of Rights provides certain  16 advantages.  The rights referred to in Section  17 35 are not qualified by Section 1 of the  18 Charter, that is the rights are not subject to  19 "such reasonable limits prescribed by law as  20 can be demonstrably justified in a free and  21 democratic society."  Nor are the rights  22 subject to legislative override under section  23 33.  Nor are the rights effective only against  24 governmental action, as stipulated by section  25 32 of the Charter.  On the other hand, Section  26 35's location outside the Charter carries a  27 disadvantage that the rights are not  28 enforceable under section 24, a provision that  29 permits enforcement only of Charter rights.  30 The word "existing"'",  31  32 Still quoting from Professor Hogg,  33  34 "'In sub-section (1), probably has the effect  35 of excluding aboriginal or treaty rights that  36 have before April 17th been extinguished by  37 voluntary surrender or competent legislation.  38 In other words, Section 35 does not  39 retroactively an anul prior extinguishments of  40 native rights so as to restore the rights to  41 unimpaired condition.  Such an interpretation  42 would leave the word "existing" with not work  43 to do, not to mention the ramifications of such  44 a radical interpretation.  The words "existing"  45 in Section 35 means unextinguished.'"  46  47 And the Court of Appeal says: 26299  Submissions by Ms. Mandell        1  2 "I accept the proposition that existing as used  3 in the context of Section 35(1), is to be  4 equated with the term unextinguished."  5  6 Chief Justice Clarke then addressed whether Section  7 35 recognizes unextinguished rights in their usual  8 form or whether protection is only given to rights  9 subject to regulation.  In answer to this question he  10 adopted the approach of the B. C. Court of Appeal in  11 Sparrow.  On the facts of the case in Denny, the  12 regulation did not give priority to Indian rights and  13 the regulation was ruled inconsistent with  14 constitutional rights within the meaning of Section  15 52.  16 Based on the decision of the courts above, several  17 points are significant.  First, it is submitted that  18 the preferred analysis of the word "existing" is  19 "unextinguished".  This was the express finding of the  20 court in Agawa, Arcand and Denny, and was the implied  21 finding in Sparrow.  22 Second, all the courts agreed that regulation of a  23 right does not constitute extinguishment.  24 Third, the test to determine whether a right is  25 extinguished was, in our submission, best expressed in  26 Arcand and cited with approval in a Agawa, namely to  27 ask the question whether the right would be restored  28 if the legislation affecting it was repealed.  29 Now, applying those first two tests to the case at  30 bar, my lord, we say this: we have submitted above  31 that the plaintiffs' claim of ownership of the  32 territories was unextinguished prior to Confederation,  33 at Confederation or after; only the federal government  34 had the power to extinguish after Confederation and  35 they did not.  We have already submitted that  36 provincial laws were not constitutionally competent to  37 extinguish aboriginal title after Confederation, it is  38 therefore submitted that the plaintiffs' right of  39 ownership is an existing aboriginal right within  40 Section 35.  41 The plaintiffs' right of jurisdiction has two  42 aspects:  The exercise of jurisdiction off the reserve  43 forms part of the federal common law which was never  44 extinguished and we argue is encompassed within  45 Section 35(1). To the extent that the federal --  46 THE COURT:  You don't find any conflict between saying that  47 something is common law and secondly saying it's not 26300  Submissions by Ms. Mandell        1 capable of  extinguishment?  2 MS. MANDELL:  No.  Well, maybe you should talk to me about that.  3 Say that again.  4 THE COURT:  Well, maybe I am repeating myself.  Common law is a  5 growing tree, and if you say that, you say it is a  6 common law, that the aboriginal right off the reserve,  7 at least, I am not sure you say just off the reserve.  8 MS. MANDELL:  Yes, I am, at this point.  9 THE COURT:  At least off the reserve is a common law right.  10 MS. MANDELL:  Federal common law, yes, and was never  11 extinguished.  12 THE COURT:  Well, I think it comes back to the same thing, if  13 you're saying that you're really saying that perhaps  14 you're saying no more than this, that if it's a common  15 law right it has to be capable of growth.  16 MS. MANDELL:  That's right.  And we say that once it's in to  17 Section 35 --  18 THE COURT:  And changed?  19 MS. MANDELL:  Yes.  You're afforded all of the broad and liberal  20 interpretations capable of allowing it to grow further  21 into the future.  22 THE COURT:  So if at the date of the new constitution, the date  23 of Section 35, a territory was within a House by  24 reason of a peace settlement, with a reversionary  25 right to a former owner, that that aboriginal right  26 wouldn't be frozen, that aboriginal right would expire  27 when the territory returned to the original House,  28 assuming, for example, perhaps it was Nishga.  Would  29 you say that aboriginal right would then be  30 extinguished by its own proprio vigore?  31 MS. MANDELL:  I see where you're going.  I think you're too  32 intermeshed in the system.  You see, what I would say  33 is the consent of the extinguishment of the right is  34 as between the Crown on one hand and the Indians on  35 the other.  So quite apart from whether or not inter  36 se, the Indian people may, through the operation of  37 their own laws, transfer territory in a peace  38 settlement back and forth.  To the extent that  39 territory was at the time of sovereignty and still is,  40 under the ownership of the Indian nations, we say that  41 there is an existing aboriginal right there and they  42 can do with it as they please.  43 THE COURT:  What if they didn't please but by the nature of the  44 right itself, it was subject to self-extinguishment?  45 MS. MANDELL:  Well, self-extinguishment, but I say  46 extinguishment is a concept as between the Crown and  47 the Indians, not as between the Indians and each 26301  Submissions by Ms. Mandell        1 other.  Extinguishment  creature --  2 THE COURT:  Well, as to the right of the chief to enforce that  3 right against the Crown, it would be gone when the  4 aboriginal right reverted to the original house, as  5 between that chief and the house it would be  6 extinguished.  7 MS. MANDELL:  You would not have a claim of the Gitksan chief at  8 that time to a right in that territory in this court.  9 THE COURT:  Even though he had it on April 15th, 1983?  10 MS. MANDELL:  But the — I see what you're getting at.  My lord,  11 the -- I see what the problem that you're posing.  But  12 I think that the analysis is still best focused on the  13 relationship of the aboriginal, the existence of the  14 aboriginal title on one hand and whether or not that  15 title has been extinguished by the Crown on the other.  16 I think that's the —  17 THE COURT:  you want to confine it to the aborigines in the  18 Crown's --  19 MS. MANDELL:  I think the word — I think extinguishment is a  20 term of art, I don't think it's a term of -- I don't  21 think it's a loose term which describes the transfer  22 of rights inter se among the Indian people.  23 Extinguishment is a term which describes whether or  24 not the Crown has divested, through consent or through  25 legal means, the right of the Indian nations to their  26 land at all and has provided that the title of the  27 Indian nations is now disencumbered and the Crown  28 provincial can take advantage of its underlying title.  29 But I think the word extinguishment is entirely  30 confined to that context.  And certainly within the  31 meaning of Section 35 we would so state.  32 Now, you will recall that Mr. Jackson argued to you  33 that the aboriginal right in its form, that is, moving  34 over on the Indian side of things, not the Crown's  35 side of things, on the Indian side of things the  36 aboriginal title was capable of being transferred  37 under their laws, we say is an incident of their  38 ownership and it's capable of being transferred and  39 capable of passing through succession and it's capable  40 of having access rights granted to it.  That's what we  41 say is the property itself of the title and what gives  42 rise to a claim and ownership as opposed to use and  43 occupancy, that all of that is inter se, the Indian  44 people and isn't as against the Indian nations and the  4 5 Crown.  4 6 THE COURT:  All right.  47 MS. MANDELL:  I am worried that you are still not with me. 26302  Submissions by Ms. Mandell        1  THE COURT:  I understand your  argument, but I see all sorts of  2 difficulties if you had a St. Catherines-type case  3 where one chief had the right on April 15th, 1983 and  4 then it expired and Westar made a deal with the new  5 chief and said, okay, we will log it together and we  6 will share the revenue and the first chief said "I had  7 that aboriginal right in 1982, it's preserved in the  8 constitution by the constitution and it's still mine."  9 And the argument could be between 2 9 chiefs, it could  10 be between the old chief suing Westar, it could be  11 Westar seeking an injunction against the old chief.  12 MS. MANDELL:  My lord, you just walked into why the surrender  13 provisions of the Royal Proclamation required full  14 assembly.  I mean, this is not --  15 THE COURT:  I am assuming all procedural requirements have been  16 satisfied.  17 MS. MANDELL:  Mr. Jackson is going to use it for his next moot.  18 THE COURT:  I will look forward to finding out how it's decided.  19 I think I would prefer the decision to some of the  20 authorities that I have heard on this subject, not in  21 this argument, of course, but in other cases.  But you  22 go ahead.  23 MS. MANDELL:  Thanks.  I am on page 43.  I have just dealt what  24 off-reserve.  Let me deal with on-reserve for the  25 minute.  Federal rights on reserves but when we are  26 dealing with the right with respect to jurisdiction, I  27 say that there is a different, a different problem and  28 that is that the Indian Act has regulated and at times  29 supressed the full exercise of jurisdiction, defining  30 as it does such areas of Indian membership, Indian  31 government, election, the use of Indian lands, and  32 resources on the reserves.  33 It is submitted the right of jurisdiction is now  34 capable of full exercise, that is, if the test is if  35 you stopped regulating it could it spring back to  36 normal, and is an existing aboriginal right within  37 Section 35.  38 The cases interpreting Section 35 have ruled for  39 reasons reasons and to different degrees that  40 aboriginal treaty rights under Section 35 can be  41 regulated by the federal government.  It is  42 significant that all cases dealing with federal  43 regulatory power have been concerned with the  44 migratory resource when conservation and allocation to  45 the non-Indian user is very much at issue.  46 While the courts have seen the necessity of  47 preserving the right to regulate the fishery resource 26303  Submissions by Ms. Mandell        1 to ensure  conservation, the right to regulate all  2 aboriginal rights is not implied in the decisions and  3 should not be so interpreted by this court.  As the  4 court in Agawa pointed out, "Indian property rights  5 may remain unqualified."  6 Further, in its concern over conservation of the  7 resource, the Court of Appeal in Sparrow held that a  8 regulation may be valid if reasonably justified as  9 necessary for "the public interest", without  10 identifying what kind of public interest would qualify  11 for this purpose.  It is submitted that limitation in  12 the public interest should be confined to only those  13 clearly having greater constitutional value than the  14 interest protected by Section 35.  To allow any public  15 interest is justification for regulatory encroachment  16 on aboriginal fishing rights would defeat the remedial  17 effect of the section and reintroduce legislative  18 overide of aboriginal rights, and I should add in the  19 interests of the broad public, which is one of the  20 purposes, in our submission, that Section 35 was  21 introduced.  22 The court in Agawa went further and imposed a  23 Section 1 limitation to a Section 35 right and an  24 analysis, it is submitted, that which is clearly  25 inconsistent with the proper interpretation of Section  26 35, placed as it is outside the charter.  27 The courts imposing a regulation on the right  28 appears to be based in part on a theory that the  29 fishery must now be regulated by the government in  30 order to avoid the destruction of the resource.  This  31 is not necessarily the case.  For years Indian  32 hunting rights have been exempted from provincial  33 regulation of general application and governed by the  34 Indian nations themselves.  Although it has, from time  35 to time, been argued that such exemptions would result  36 in the destruction of the resource and thereby nullify  37 the Indian right and deny hunting opportunities to  38 others, these arguments have been rejected by the  39 courts and Canadian experience shows that such  40 exemptions do not threaten wildlife resources which  41 are harvested by Indians and others.  42 I just cite the broad number of cases and  43 territories within which Indian hunting rights  44 functions free of provincial regulatory control, and I  45 draw to your lordship's attention the last on the  46 list, which is Regina v. Bartleman, where sections of  47 Vancouver Island, after this decision, were now 26304  Submissions by Ms. Mandell        1 capable and are being  hunted by the Indian people  2 under the Saanich treaty, without application of  3 provincial hunting laws.  4 Regulatory regimes have been developed in  5 Washington and Oregon -- actually, I shouldn't say  6 that, it's not without application of provincial  7 hunting laws, it also is and by application of Indian  8 peoples own laws, it's not an unregulated right, it's  9 just that it's regulated by the Indians themselves.  10 Regulated regimes have been developed in Washington  11 and Oregon to give effect to 19th Century treaties.  12 Many aspects of the regulatory systems have been  13 defined by negotiations.  These new regulatory regimes  14 support a viable fishing industry for non-Indian,  15 sports and commercial fishermen as well as Indians and  16 include strengthened measures to protect and enhance  17 the fishery.  18 It is submitted that the courts of appeal in Agawa  19 and Sparrow, while correctly identifying that  20 aboriginal and treaty rights are not static and must  21 be interpreted in the context of a changing society --  22 the position indeed which the plaintiffs have advanced  23 in urging that this court reject  the "frozen rights"  24 of Baker Lake -- have failed to take into account two  25 points.  First, the Indian nations too have become  26 more complex and it does not logically follow that in  27 the circumstances the Indians should have less power  28 of self-government and federal government more in  29 relationship to them and resources upon which they are  30 dependent.  And our submission is that the Indian  31 people need more powers of self government to lead  32 their nations as unique and organized societies,  33 distinct nations, into the future too.  Further, the  34 principal and principled process for accomodation  35 between the interests of aboriginal peoples and other  36 Canadians is that of treaty making.  It is this  37 process which the plaintiffs have submitted is the  38 historical and legal chain of continuity which links  39 the Royal Proclamation and Section 35.  That chain and  40 its contemporary relevance is directly incorporated  41 into Section 35 through the vehicle of Section 35(3),  42 which provides that rights that now exist by way of  43 modern land claims agreements or may be so acquired  44 have the status of "treaty rights."  45 In 1990, no less than in 1690, the way in which the  46 peaceful and equitable accomodation of the rights of  47 aboriginal peoples with the interests and objectives 26305  Submissions by Ms. Mandell        1 of the non-aboriginal  society is to be achieved is the  2 treaty-making process, based upon mutual respect and  3 consent, that changes brought about by a changing  4 industrial society and the increased pressures upon  5 and demands for land and resources is best reflected  6 not in unilateral federal regulation but in the  7 consentual, comprehensive agreements such as those  8 which have been worked out of in the past decade  9 between the aboriginal people of the north and the  10 federal government.  The dramatic contrast in the  11 brevity of Treaty No. 8 and the complexity of the  12 Inuivialuit Final Agreement is not to be attributed to  13 the greater verbosity of draftspersons in 1983  14 compared to 1898 but to the need for a greater legal  15 sophistication and precision in defining rights and  16 creating institutions capable of mutual accommodation  17 in light of modern realities.  That the modern land  18 claims agreements are designed to work out a  19 principled and fair accommodation between aboriginal  20 societies and other Canadians in the context of a  21 complex, modern society can be most clearly seen in  22 the principles of the Inuivialuit Final Agreement.  23 We have set these out previously But in this context  24 they bear repeating:  25  26 To preserve Inuivialuit cultural identity and values  27 within the changing northern society;  28  29 To enable the Inuvialuit to be equal and meaningful  30 participants in the northern and natural economy and  31 society; and,  32  33 To protect and preserve the Arctic wildlife  34 environment and biological productivity.  35  36 It is submitted that this last principle is  37 mirrored in the Gitksan-Wet'suwet'en laws of respect  38 and is a principle which history will show is of far  39 greater importance and value to the future of all  40 Canadians, aboriginal and non-aboriginal, than Mr.  41 Justice Gould's attribute of traditional common law  42 ownership which gives the right "to destroy at your  4 3 whim."  44 My lord, I have three more pages, should we stay or  45 go?  46 THE COURT:  Let's stay and finish.  47 MS. MANDELL:  Okay. 26306  Submissions by Ms. Mandell        1  THE COURT:  If that's all right  with you.  2 MS. MANDELL:  The issue of accomodating aboriginal and treaty  3 rights within the context of the changing world,  4 including the presence of non-aboriginal peoples, is  5 one which other countries have faced. We have in these  6 submissions referred to the Treaty of Waitangi and we  7 have argued that the provisions of this treaty most  8 clearly articulate the fundamental principles of the  9 common law regarding aboriginal rights. In a decision  10 handed down in February of this year, the New Zealand  11 Court of Appeal addressed the role of the Treaty of  12 Waitangi in relation to a contemporary dispute as to  13 the context of Maori fishing rights.  As was said in  14 the Maori Council case, the treaty is a living  15 instrument and it has to be applied in light of  16 developing national circumstances.  For most of the  17 150 years of the lifetime of the treaty, the Maori  18 were, in general, evidently content to raise no  19 objection to Pakeha (non-Maori) sea fishing.  The  20 resource was abundant.  The problem has arisen in  21 recent decades when inshore fish stocks had become  22 depleted and the more valuable fishing areas are  23 distances from the coast which Maori fishing canoes  24 can have reached at best only sporadically.  Certainly  25 the over fishing of traditional Maori fishing grounds  26 has created a situation not foreseen at the time of  27 the treaty.  As the Waitangi Tribunal have said of the  28 Muriwhenna Fishing Report, the Treaty "was not  29 intended to exclude non-Maori from fishing.  The  30 exception was that non-Maori fishing --  31 THE COURT:  The expectation.  32 MS. MANDELL:  The expectation that was that non-Maori fishing  33 would not unduly impinge upon Maori fishing interests  34 without a prior arrangement or agreement, or unless  35 those interests wereclearly waived.  36 I might advise your lordship that from the passage  37 beginning as was said in the Maori Council case to the  38 end of the page, that's all part of the quotation from  39 within the case.  You might have already have  40 appreciated that.  41 After citing from the Ontario Court of Appeal  42 decision in Agawa, President Cook continued:  43  44  45 "In the end of the task of the Courts in this  46 field may be to interpret and apply the  47 legislation (the Maori Fisheries Act 1989) in a 26307  Submissions by Ms. Mandell        1 way taking into  account the realities of life  2 in present-day New Zealand.  A balancing and  3 adjusting exercise may be called for.  The High  4 Court judges, in applying s. 88(2) of the  5 Fisheries Act may find that the question  6 becomes whether the provisions of the Maori  7 Fisheries Act of 1989 are sufficient  8 translation or expression of traditional Maori  9 fishing rights in present-day circumstances.  10 The position resulting from a 150 years of  11 history cannot be done away with overnight.  12 The Treaty obligations are on-going.  They will  13 evolve from generation to generation as  14 conditions change.  The North American  15 experience is instructive in this respect also.  16 The Courts there have so exercised their  17 jurisdiction so as to bring about or encourage  18 changes with what the Supreme Court of the  19 United States calls 'all deliverate speed'.  20 The phrase was used, for instance, in Brown v.  21 Board of Education."  22  23 In the case known by the name of the late Judge  24 Boldt, it was in 1974 that the judge declared that  25 tribes of the North West whose ancestors had been  26 signatories to a treaty had a right to share in the  27 available fish stock.  Nearly ten years and much more  28 procedure and negotiation were necessary before their  29 actual proportion of the fishery began to approach the  30 level thought appropriate.  Over that time community  31 attitudes gradually changed in the direction of  32 acceptance of genuine sharing and it has been said by  33 the governor of Washington State that a new  34 co-operative spirit has taken hold.  35 By granting the declarations which the plaintiffs  36 seek in this case and in upholding the fundamental  37 principles which the plaintiffs assert are the  38 foundations for aboriginal rights this court will  39 enable the Gitksan and Wet'suwet'en to begin with "all  40 deliberate speed" the process of negotiating  41 negotiating a modern land claims agreement with the  42 federal and provincial governments in order to achieve  43 a just, balancing and accomodation of interests.  44 While that agreement will have to pay appropriate  45 restitutional attention to the 150 years of B. C.  46 history in which the rights have been disregarded, it  47 will be principally dedicated to securing the legal, 26308  Submissions by Ms. Mandell        1 cultural and economic  foundations of Gitksan and  2 Wet'suwet'en generations yet unborn.  3 We say, finally, that it is not without  4 significance that as this oral legal argument  begins  5 in British Columbia some of the leading judges and  6 lawyers in the common law world are beginning the  7 Commonwealth Law Conference in New Zealand.  In  8 granting the declarations sought by the plaintiffs,  9 this court will ensure that 1990 is not only the  10 anniversary of a treaty which 150 years ago embodied  11 the fundamental principles governing relationships  12 between aboriginal peoples and the Crown but also the  13 year in which a Canadian Chief Justice declared those  14 principles as the constitutional foundation upon which  15 the future will be based.  16 THE COURT:  I am surprised to hear you say that.  If you thought  17 that I am sure you would have made if safe for me to  18 go there.  19 MS. MANDELL:  We would have liked to have you go there.  20  21 (PROCEEDINGS ADJOURNED FOR LUNCH)  22  23  24  25  26  27  28 I hereby certify the foregoing to be  29 a true and accurate transcript of the  30 proceedings herein to the best of my  31 skill and ability.  32  33  34  35  36 Wilf Roy  37 Official Reporter  38  39  40  41  42  43  44  45  46  47 26309  Submissions by Ms. Pinder        1 (PROCEEDINGS RESUMED  PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  Ms. Mandell.  4 MS. MANDELL:  My lord, I would like to introduce Ms. Pinder,  5 who's going to be addressing you on the fisheries.  6 THE COURT:  You don't need to do that.  7 MS. MANDELL:  We decided that now that there is a possibility of  8 getting her name on the record that we should bring  9 her in as a guest lecturer this afternoon.  10 THE COURT:  All right.  Thank you.  11 MS. PINDER:  My lord, I already have suffered some abuse in my  12 brief time in this courtroom, which is that I am told  13 that the argument I'm going to give this afternoon is  14 too short.  15 THE COURT:  Oh, dear.  Well, I don't know.  16 MS. PINDER:  I apologize for that.  17 THE COURT:  I'm not sure we can tolerate that, Ms. Pinder, but  18 do the best you can.  19 MS. PINDER:  I believe that this has been inserted in your  2 0 volume.  21 THE COURT:  On fisheries?  22 MS. PINDER:  Yes, on fisheries.  23 THE COURT:  Yes.  Yes.  24 MS. PINDER:  Some days ago Mr. Grant spoke to you concerning the  25 summary of the evidence which has been led on the  26 question of the fisheries, and I want to put that  27 evidence in a legal context, and also to try to answer  28 some of the questions which you raised at that time  2 9 with Mr. Grant.  30 The plaintiffs say that their general claim for  31 aboriginal title in their territories is sufficient to  32 encompass a claim to the ownership of the riverbed and  33 the foreshore within the territories, and ownership of  34 the fish.  And that comes out of various common law  35 notions as to the proprietary title to the land, which  36 we draw on by analogy.  And those principles say that,  37 in effect, the ownership of the bed of a river is like  38 ownership of other land, and that it carries with it  39 certain things, certain profits a prendre, certain  40 rights, and those rights are as to the fisheries.  And  41 so in that sense it's only necessary for this court to  42 declare that there is an extinguished aboriginal title  43 in the territories and that would include a  44 declaration which would carry with it a title to the  45 fisheries.  46 And so we maintain that as our basic proposition  47 and we then go into focus on other aspects of the 26310  Submissions by Ms. Pinder        1 aboriginal title to the  fisheries, which are  2 particular to the fisheries, but we say that those  3 special aspects are all part of the overall aboriginal  4 title.  5 And so we have two propositions.  The first one  6 being that the fishing locations of the plaintiffs are  7 part of the overall fishery.  As such they are in the  8 territories over which aboriginal title is claimed and  9 so they are part of the sui generis aboriginal title  10 of the plaintiffs.  11 And the two cases that are under the first  12 proposition, A.G.B.C. v A.G. Canada and The Queen v  13 Robertson, are authority for the proposition that:  14  15 "The solum of a bed of river is a property  16 differing in no essential characteristic from  17 other lands.  The owner of the bed of the river  18 has the exclusive right of fishing; this is the  19 right of property and is sometimes called a  20 territorial fishery."  21  22 And then focusing in on the aboriginal right to  23 fish, or the special aspect of the fishery, we say  24 that as a second proposition one analogous incident of  25 the sui generis fishing rights included within the  26 first principle, and therefore part of those bundle of  27 rights, is that the right to fish is in the nature of  28 a profit a prendre.  29 And, again, we're drawing that by analogy.  And  30 I'll go into more detail in some of those analogous  31 principles, but profit a prendre is a fully recognized  32 proprietary interest, and that is part of what is  33 included in the overall title.  34 Then referring very briefly to the evidentiary  35 test, your lordship will have noted that in the  36 Sparrow case the evidence which was called in that  37 case, and which was relied upon by the Court of Appeal  38 to prove aboriginal title was, if I can say, minimal  39 evidence.  The court held at page 308 that it had been  40 proven through the evidence of the chief and the  41 anthropologist that the Musqueams have a history as an  42 organized society going back from before the coming of  43 the white man.  The taking of the salmon was an  44 integral part of their life, and continues to be so  45 until this day.  46 So we submit that the evidence which is before  47 your lordship is abundant and full and certainly is 26311  Submissions by Ms. Pinder 1            sufficient to meet  go far beyond the Sparrow test,  2 but it at least meets this test, and therefore there  3 can be no doubt that the plaintiffs have met the  4 burden of proving that they have the aboriginal right  5 to fish.  6 The reliance which the people have had on the  7 fisheries over the centuries is evidenced by the  8 wealth of the fishing sites and the abundant evidence  9 as to the importance of the fish.  10 And so turning to what is and what is not at issue  11 before your lordship.  The plaintiffs are claiming a  12 proprietary title to the fishery as part of aboriginal  13 title against the provincial Crown.  14 We do not ask your lordship to make declarations  15 which encompass all aspects and elements comprised  16 within the plaintiffs' aboriginal title to the  17 fisheries.  And, of course, there's been discussion  18 before this court as to the various jurisdictions of  19 the two Crowns, and we are, of course, only asking you  20 to deal with that with which you can deal.  And that  21 is the title as against the provincial Crown.  22 Also, the particular way that the fisheries are  23 owned and controlled within the Gitksan and  24 Wet'suwet'en societies as amongst themselves, and as  25 between themselves is, of course, very important  26 evidence as to the relationship of the people to their  27 fishery.  But we are not asking your lordship to make  28 declarations in respect of any of those details as to  29 the ownership.  And it does not form any part of the  30 relief claimed.  These are matters of internal  31 management.  And so when your lordship heard evidence  32 that a particular house on a particular site, and the  33 abundance of evidence that you heard there, we are not  34 asking you to make any declaration that a house owns a  35 particular site.  And we say this not only because so  36 many of those things are internal to the societies,  37 but also that the plaintiffs' claim is with respect to  38 fisheries as a whole, and it is the overall fishery  39 that the plaintiffs are claiming.  40 THE COURT:  Well, would you say that's a right to the fishery  41 free of provincial regulation?  42 MS. PINDER:  In the sense that -- yes.  The short answer is yes.  43 Because the full proprietary title to the fishery is  44 in the plaintiffs.  There is no room for a provincial  45 proprietary interest in that fishery.  46 THE COURT:  And if you're right presumably the neighbouring  47 nations to the west could claim the whole of the 26312  Submissions by Ms. Pinder        1 fishery and deprive  your clients of it entirely.  2 MS. PINDER:  Well, I mean, there are certain internal  3 self-regulating matters over the fishery.  I mean --  4 THE COURT:  I don't know what they are, of course.  Should I  5 assume that they have the same sort of regulation that  6 the Wet'suwet'en -- the Gitksan and Wet'suwet'en  7 claim?  8 MS. PINDER:  Well —  9 THE COURT:  Do I assume that in the absence of proof the law of  10 another nation is the same as Gitksan law?  That's the  11 rule of international law.  12 MS. PINDER:  It sound like a good law.  It sounds like a good  13 rule.  14 THE COURT:  All right.  15 MS. PINDER:  I'm not -- and I should probably take this question  16 under advisement.  I'm not sure that your lordship  17 needs to be concerned about what other -- what other  18 Indian nations may do in respect of the fishery.  19 THE COURT:  Well, let me say then that if your proposition is  20 right the Gitksan could deprive the Wet'suwet'en of  21 any Skeena salmon.  22 MS. PINDER:  Well, I don't think so in the sense that —  23 THE COURT:  If you're free of provincial regulation.  I'm  24 talking just geography now, I'm not talking law.  25 MS. PINDER:  There are within the societies, as I understand it,  26 various governing principles which require the people  27 not to waste the fish, to take only what they need,  28 and also to respect the needs of others.  29 THE COURT:  Of course the Gitksan could do that easily and still  30 deprive the Wet'suwet'en of any fish.  Any Skeena  31 fish, anyway.  They can only take what they need, but  32 they could block off the Bulkley.  33 MS. PINDER:  Well, it occurs to me, my lord, that the questions  34 that you are raising are -- come -- are being asked  35 out of the context of the evidence, and they may be  36 theoretical, and they may not be of concern insofar as  37 there is a relationship between the people and the  38 river and the river and the fishery.  And the  39 evidence, as I understand it, has been that in fact  40 there is no right of ownership which allows the people  41 to take without being conscious of other users of  42 other nations further up river or down river, as the  43 case may be.  And certainly the fishery as it has been  44 managed by the people in the past has not shown that  45 it is the subject of the kind of abuse and concern  46 that your lordship is raising, but it may be that I  47 should consult with my colleagues. 26313  Submissions by Ms. Pinder        1  THE COURT:  I'm only asking to  test your propositions.  I take  2 it -- and it's none of my business if you're  3 comfortable making this submission in your capacity as  4 counsel for the Wet'suwet'en.  5 MS. PINDER:  We are asserting that the -- the legal rights as  6 part of the aboriginal right to the fishery involve  7 the full plenary ownership of the fish as it goes by  8 the various fishing sites.  9 THE COURT:  Yes.  10 MS. PINDER:  But I don't think that either the Gitksan people or  11 the Wet'suwet'en people claim the right that they can  12 extinguish the fishery, as it were, or use it in a  13 manner which, in effect, amounts to an abuse, amounts  14 to a destruction of it, and so --  15 THE COURT:  You must say that that -- the protective agency must  16 be the federal government, because you say you want it  17 free of provincial control so presumably federal  18 control, or do you say it's only subject to Gitksan  19 control, or do you say Gitksan Wet'suwet'en control?  20 MS. PINDER:  Well, what I say is that the use of the fishery and  21 the ownership of the fishery is subject to the control  22 of the Gitksan in their society, and the control of  23 the Wet'suwet'en, and that there is abundant evidence  24 before you that those societies exercise their  25 ownership and their jurisdiction over the fishery in  26 such a way that should not cause concern as to the  27 misuse of the fishery.  28 THE COURT:  I'm not aware of any evidence that would suggest the  29 Wet'suwet'en had any jurisdiction over Gitksan lands.  30 You're asserting, really, that the beds of the rivers  31 are part of the Gitksan lands.  The beds of the Skeena  32 are Gitksan lands.  33 MS. PINDER:  Yes.  34 THE COURT:  As I say, I'm not aware of any evidence that  35 suggests that the Wet'suwet'en could have any  36 jurisdiction over that part of the claim territory, so  37 I'm having difficulty seeing where the control from  38 the Wet'suwet'en would come from, as you just  39 mentioned.  40 MS. PINDER:  Excuse me.  41 THE COURT:  Certainly.  42 MS. PINDER:  What I would like to do, my lord, is to — I'm —  43 in checking with my colleagues they agree with the  44 responses that I've given to your lordship, but  45 obviously there are -- there may be details of the  46 evidence of which I am not familiar, and that it may  47 be -- 26314  Submissions by Ms. Pinder        1  THE COURT:  The only thing that  is at all troubling to me in the  2 evidence at the moment is whether there's any  3 suggestion of Wet'suwet'en participation in Gitksan  4 control of their territories.  I don't think there is  5 any.  Mr. Grant seems to agree with me.  6 MR. GRANT:  No, there isn't, my lord.  7 THE COURT:  All right.  I leave that question open if you or one  8 your colleagues can come back later, as you wish.  9 MS. PINDER:  I was dealing with the nature of the matters at  10 issue, and I think that we want to make -- make it  11 abundantly clear that what is being claimed in the  12 case is what we have described as the fishery, and  13 that in that -- in its most encompassing sense, of  14 course, that involves the river and its resources from  15 one boundary of each territory to the other.  And so  16 the individual fishing sites are geographically  17 located in the larger fishery, but because it is a  18 systemic river and a systemic fishery what we are  19 claiming as part of the aboriginal title to the  20 fishery is indeed the whole river system within the  21 territories.  And so that the available places to fish  22 change, the size of the fishing areas change over  23 time, and with the various flows of the water as do  24 fishing methodology, and so none of this is fixed.  25 And the ownership of the fishery as a whole is  26 communal in the collective confederacy of the Gitksan  27 and the Wet'suwet'en Houses.  And that is the nature  28 of the claim that is being made.  29 I'm not sure if your lordship has any trouble with  30 that proposition.  I took it from your comments to Mr.  31 Grant the other day that there may have been some  32 confusion as to whether or not there was a claim over  33 the particular sites and how that fit what the fishery  34 really was.  And I think all we're saying is that that  35 the people have called evidence and have explained to  36 your lordship about how they fish, and what, they do  37 it at various locations, and how those locations are  38 owned by the houses and controlled, et cetera.  But  39 those locations are within the context of the -- of  40 the fishery which is within the river system within  41 each territory.  42 THE COURT:  Well, I don't want to take up time unnecessarily,  43 but there is a problem.  I see a problem in the fact  44 that the plaintiffs have been at some pains to point  45 out that if a chief owns both sides of the river then  46 he owns the whole river, but if there are different  47 chiefs on either side of the river he only owns half 26315  Submissions by Ms. Pinder        1 the river.  And all the  evidence has suggested that  2 these fishing sites are individually and separately  3 owned and exclusively owned.  They haven't been put  4 forward, as I recall the evidence, on a communal  5 basis.  They have been put forward on an individually  6 owned basis.  And to that extent I have some  7 difficulty with the submission you've just made.  8 MS. PINDER:  Well, the individual ownership of the sites, I  9 submit, is important evidence about the way that the  10 people have organized themselves.  11 THE COURT:  That, of course, can be dealt with as a land matter.  12 MS. PINDER:  Yes.  13 THE COURT:  I'm more concerned with the communal nature of  14 fishery when the evidence is that chiefs own separate  15 sides of the river.  16 MS. PINDER:  But stepping back from a particular location where  17 there may or may not be ownership going out to the  18 middle of the river, or that ownership on both sides  19 of the river may meet, separate and apart from that  20 what we're saying is that that is part of the fishery.  21 And you've heard evidence about how the people  22 organize themselves in terms of the specific  23 locations.  But we are asking you in dealing with the  24 aboriginal title to the fishery as part of the overall  25 claim to deal not with the particular locations, but  26 the fishery as a whole which we say is from one -- the  27 river is within the territory from one end to the  28 other.  And it's in that sense that the rights to the  29 fishery as a whole in respect of claims by third  30 parties such as the Crown are held in this collective  31 communal way.  And then -- so the fishery as a whole  32 is this -- is a collective communal resource and then  33 the people themselves have through their laws and  34 customs, that have evolved over hundreds of years,  35 have histories to the various sites, ways different  36 people have rights to them, different houses have  37 rights to them, et cetera.  But that is again evidence  38 of how the people have, in a responsible fashion,  39 organized themselves.  But it does not -- we say you  40 need to then look at the fishery as a whole rather  41 than those -- rather than the individual sites,  42 because of course we have migrating stocks, we have a  43 resource which is moveable and is moving.  And the  44 people should not in consideration of their  45 proprietary rights are not fixed to particular  46 locations in terms of their overall interest.  47 And so the analogy which occurred to me is that 26316  Submissions by Ms. Pinder        1 when companies for  example are given the rights to  2 explore for oil and gas, which is also in a different  3 sense a migratory resource, but is considered in that  4 way, they are given the rights over a territory and  5 they are not told well you have to affix yourself to  6 one particular location, because there needs to be the  7 ability to find where the resource is.  And similarly  8 people who have territorial rights to hunting, it  9 would be absurd to say well, you know, you have the  10 right to hunt by locating yourself near a particular  11 tree waiting for the game to come by.  Obviously there  12 are places which are good places, which are important  13 places because of the way that the river is, and the  14 way that the people fish.  But it's important that the  15 fishery be seen in the context of the river, and the  16 fish in the river, and the need to use whatever  17 developing methodologies there may be in order to  18 exploit the resource and use it as part of the needs  19 of the society.  20 And we were concerned, my lord, that by focusing  21 on the sites, as was necessary to do, that we may have  22 lost the forest for the trees, and we want to get back  23 to what the forest is, or the river is.  24 THE COURT:  Well, the problem I have with that is that simply  25 isn't the basis upon which the claim has been put  2 6 forward.  And what you're saying makes eminent good  27 sense.  If I was creating a new country now that's the  28 way I would do it.  But I have understood this case to  29 be that we have -- our plaintiffs individually have  30 from time immemorial occupied and used that particular  31 land and that particular resource at that particular  32 location and it's ours by ancient possession.  Not  33 that it's communal.  And the communal approach makes  34 eminent good sense.  I will wait to hear from some of  35 your friends what evidence there is, if any, to  36 support that.  37 MS. PINDER:  Well, I don't know that there's, at least  38 conceptually, any contradiction between my  39 propositions to you and your statements to me in  40 that -- that within the fishery, which is as part of  41 the overall aboriginal title, participates in the  42 description of aboriginal title which is that it is a  43 personal and communal right.  Now, I think that it's  44 been established in the case law that that is an apt  45 description of aboriginal title.  46 Now, all that I'm suggesting to you is that when  47 we look at the fishery as a whole we say, firstly, 26317  Submissions by Ms. Pinder        1 that the plaintiffs'  general claim to aboriginal title  2 over the entire territory.  If you did -- your  3 lordship did nothing more than said yes, the  4 plaintiffs have unextinguished aboriginal rights over  5 the entire territory and left the consequences of that  6 for another case I would argue that what you have  7 found is, of course, as part of that is that there is  8 a fishery there, because the fishery flows from the  9 land.  It flows from the ownership of the land and  10 so —  11 THE COURT:  I made that suggestion to Mr. Rush early in the case  12 and said why do we have to prove these internal  13 boundaries.  And he rejected that suggestion and said  14 no, we have to prove all internal boundaries.  My  15 suggestion was if you win on your overall claim you  16 can divide it up any way you want.  If you don't win  17 on your overall claim you have nothing to divide up.  18 I don't know if that's inconsistent with what you're  19 saying or not.  I think it is.  I kind of think it's  20 inconsistent.  21 MS. PINDER:  Maybe we're experiencing the danger of a guest  22 cameo appearance.  23 THE COURT:  Oh, I'm sure anybody that's making this submission  24 would have the same difficulty.  I don't think -- I  25 don't think there is -- I don't think the evidence  26 will be of any help to you, Ms. Mandell -- Miss -- oh,  27 dear.  28 MS. PINDER:  Pinder.  29 THE COURT:  Leslie.  You go ahead and make whatever submission  30 you think you should make.  31 MS. PINDER:  Let me see if I can come at it one more time.  32 There is --  33 THE COURT:  You'll forgive me calling you by your first name.  34 That's the only one I can think of.  35 MS. PINDER:  Please do.  36 There is an overall fishery which is part of  37 aboriginal title, but we can -- because this fishery  38 is so important to the people, and it is such a  39 critical aspect to their economy and their culture and  40 their way of life as it has been immemorially, then  41 special evidence or particular evidence has been  42 called about that.  43 Now, if we look at aboriginal title as a pie we  44 can focus in as part of the aboriginal title to the  45 fishery is part of that.  And then within the  46 aboriginal title to the fishery what you have -- you  47 have heard evidence about various sites which are 26318  Submissions by Ms. Pinder        1 within the internal  ownership system of the Gitksan  2 and the Wet'suwet'en are held in certain ways, are  3 managed in certain ways, there are certain  4 presumptions that the people -- there are certain  5 rights which the people have to the middle of the  6 river which is part of the way that they use the  7 fishery.  Now, in my submission, what is not before  8 you -- it's not -- it's not important for your  9 lordship to say well -- and you put this question to  10 Mr. Grant.  You know, we don't have a metes and bounds  11 description of this particular fishing site.  Well,  12 you don't need one, because the fishing site is only a  13 location.  An opportunity, as it were, in its crudest  14 sense where the people go in order to fish.  And  15 amongst themselves, of course, terrifically important  16 rules have been established in order to sort that out.  17 But it is part of the fishery which, according to the  18 case which is later on in my submission -- and perhaps  19 we can go there.  It's on page five.  20 This is in the Mark Fishing case where it was the  21 court in Fowler which referred to Mark Fishing and  22 quoted with approval the decision of Chief Justice  23 Davey and said that the fishery -- and this is the  24 common law fishery, has these four elements.  There is  25 a natural resource, there is the right to exploit the  26 natural resource, there is the place where the  27 resource is found, there is the place where the --  28 sorry.  There is the place where the resource is found  29 and the place where the right is exercised.  Now,  30 those elements in combination create a fishery.  What  31 comes from that fishery at common law are the right to  32 take the fish, the proprietary interest in the fish,  33 the right to have an opportunity, the ownership of the  34 bed of the river.  Those things flow from a common law  35 fishery which we say by analogy is an appropriate  36 legal concept.  37 Now, in some sense your lordship has focused in on  38 various parts of the fishery in the evidence that you  39 have heard as to the houses, but the houses' ownership  40 of the sites in its most -- in its broadest sense we  41 have the territory of a people and the river within  42 those -- rivers within those territories.  And we say  43 that the resources, the various rivers, the rights to  44 exploit the resource is the right of course to go and  45 fish and use whatever methodology can properly be used  46 to obtain the resource.  It is the place and all the  47 places -- the places which have been used in the past, 26319  Submissions by Ms. Pinder        1 the places which might  be used in the future as  2 technology changes.  It's where the resource is found.  3 It's found in the river and where the rights are  4 exercised.  So it really is a -- it's a large concept.  5 And in my submission I'm trying to move you again away  6 from the notion that it's fixed in one particular  7 location.  That's part of it, of course, but when  8 you -- when you look at the resource as a whole then  9 it is the confederacy of houses in the two societies  10 where the -- where the large communal rights to the  11 fishery as a whole are claimed.  And then within that  12 you have then the various ways that the people have  13 intersay organized themselves in relation to various  14 locations.  15 THE COURT:  What you're saying then is that these four  16 components of fishery are collective and are the  17 fishery, and that they are part of the sui generis  18 aboriginal right which the Gitksan own or are entitled  19 to?  20 MS. PINDER:  Yes.  21 THE COURT:  That is on the Skeena and the Wet'suwet'en along the  22 Bulkley?  23 MS. PINDER:  Yes.  24 THE COURT:  Well, I don't have any difficulty understanding  25 that.  I still have some minor difficulty with whose  26 right it is.  Whereas you say it's the confederacy or  27 it's the individual houses, but the greater I suppose  28 includes the lesser.  29 MS. PINDER:  M'hm.  Yes.  30 THE COURT:  All right.  Want to go back to page three or two or  31 whatever you were.  Two, I think.  32 MS. PINDER:  Yes.  I was just — I'll pick up on the third point  33 on page two at the bottom.  And this is with respect  34 to the boundaries of the reserves.  35 We say that the court is not -- that you need not  36 concern yourself as to the reserved boundaries.  That  37 you are not being asked to deal with the reserved  38 rights to fish or the rights which pertain to the  39 reserves.  40 THE COURT:  You're saying I should ignore the reserves in this  41 question?  42 MS. PINDER:  The boundaries, yes.  43 The position before your lordship is to deal with  44 aboriginal title and not, you know -- my submission is  45 that Guerin says that the underlying title to reserves  46 and the underlying title to reserves being aboriginal  47 title, the rights are the same, but because you are 26320  Submissions by Ms. Pinder        1 focusing in on the  aboriginal rights you needn't  2 concern yourselves with the reserved interests or any  3 presumptions which flow from an argument which may be  4 made in other cases as to reserved rights.  5 In dealing with the incidents of title, all of the  6 authorities dealing with Indians and fishing have as  7 the essential starting point for the discussion that  8 fishing rights are part of the content of aboriginal  9 title.  And I don't believe that that can be in  10 dispute.  And as we've said that insofar as the  11 people, the plaintiffs at bar, have shown that the  12 fishing is part of their economy and their culture,  13 and part of the fabric of their organized society at  14 the time of contact, then they have proved that the  15 rights are included within aboriginal title.  So the  16 difficult issues which we have been discussing concern  17 the relationship of fishing rights not to aboriginal  18 title, but the scope and extent of those rights.  19 I have set out a passage from the Court of Appeal  20 in Pasco just to refer your lordship to the comments  21 by the Court of Appeal in that case.  And, of course,  22 as your lordship is aware, the Pasco case is a case  23 which deals with and is focused most entirely on  24 fishing.  And the court there in describing the nature  25 of the rights referred to the personal and communal  26 aspect of the rights.  And this -- this may be again  27 by analogy a helpful way in and to the distinction  28 between the use of the sites and the fishery overall.  29 THE COURT:  Are the claims not advanced in Pasco in the name of  30 the bands and the chiefs?  31 MS. PINDER:  They're —  32 THE COURT:  Both.  33 MS. PINDER:  They're advanced by the chiefs on behalf of the  34 members of the band and the members of the nations.  35 Members of the bands and members of the nations.  36 THE COURT:  Yes, all right.  There is that difference with this  37 case then.  38 MS. PINDER:  Yes.  Insofar as there's not house structure or  39 that kind of entity which is -- which the people are  40 raising.  But -- and in that sense there may be in  41 this particular society more emphasis on one aspect of  42 the -- the joint nature of the rights than another in  43 that it's still in my submission appropriate to look  44 at the rights as being personal and communal in that  45 they are -- fishing rights are exercised by people,  46 and so in that sense they are personal.  But as the  47 court said in Pasco when an individual -- and this 26321  Submissions by Ms. Pinder        1 came up in Sparrow as  well, when an individual is  2 fishing what that individual is doing is exercising a  3 personal right which is then participating in the  4 communal right.  And so it's not simply a personal  5 right or simply a communal right, but it is both.  And  6 so when you look at the ways that the houses owned the  7 fishing sites and organize who can go there, and that  8 sort of thing, what is being sorted out at that level  9 is the exercise of personal rights.  And that when you  10 look at the fishery as a whole what your lordship is  11 looking at is a proprietary right of the society as a  12 whole and in that way it is the communal aspect of the  13 right which is foremost when you look at the overall  14 title at vis-a-vis third parties, vis-a-vis the  15 provincial Crown.  16 We've set out four various components of the  17 declarations which we say are appropriate in this  18 case.  And again it probably bears repeating once more  19 that the -- because fishing and the right to fish and  20 aboriginal title to the fishery is part of aboriginal  21 rights and aboriginal title then the bundle of rights  22 which I'm describing in this section are part of the  23 first proposition.  But when we -- when we hone in on  24 this particular aspect of the title and the fishery  25 then we say that the aboriginal right to fish includes  26 the right and title to the fisheries along the water  27 courses within the territory.  And that should be  28 territories.  Both territories.  The right and title  29 to the fisheries of the plaintiffs includes a  30 proprietary interest in and to the bed and banks of  31 the rivers.  That the right and title to the fisheries  32 of the plaintiffs includes property in the fish, being  33 a profit a prendre of the watercourses.  And that  34 whatever the Province's right may be unless and until  35 the aboriginal title to the fisheries of the  36 plaintiffs have been lawfully dealt with those rights  37 continue.  They are an interest other than the  38 Province in relation to Section 109 of the  39 Constitution.  And they are existing aboriginal rights  40 within Section 35.  41 La Forest as he then was in authoring the text in  42 Natural Resources and Public Property under the  43 Canadian Constitution --  44 THE COURT:  That's pre-charter, though, isn't it?  45 MS. PINDER:  Yes.  Referred to the right to hunt and fish as  46 being part of the usufructory right, and that it is an  47 interest other than of the Province's in the lands 26322  Submissions by Ms. Pinder        1 that the Province  acquired.  2 The common law developed -- that developed around  3 the fishery is instructive in, again by analogy,  4 assisting the court in looking at these sui generis  5 rights.  And there are a number of propositions which  6 I will refer your lordship to.  The distinction, of  7 course, which comes up in those cases dealing with the  8 common law fishery is that, of course, they, the  9 people, are bringing various claims because they have  10 grants from the Crown to a several fishery, and so  11 they are cases that use the language of grants and the  12 language of intention and that, of course, is not  13 appropriate to an aboriginal right.  But at the same  14 time there are incidents of the fishery at common law  15 which are useful.  16 I have referred you to Fowler which picks up on  17 the 1863 edition of Patterson on Fishery Law and  18 defines the fishery as the right of catching fish in  19 the sea or particular stream of water, and also  20 frequently used to locate the locality where the right  21 is exercised.  Again you have the right to do  22 something and the location.  23 And similarly in Fowler the court refers to the  24 dictionary definition of the fishery as:  25  26 "The business, occupation or industry of  27 catching fish or of taking other products of  28 the sea or rivers from the water."  29  30 Again this language is language of the profits of  31 a particular resource and the profits of land.  32 And then we have the four elements to which I have  33 referred your lordship, all of which are present in  34 the plaintiffs' concept of their aboriginal right to  35 fish and have been referred to in the evidence.  36 So what we are doing in this section is we're  37 saying we can go from the fishery, the rights to the  38 fishery and see what incidents those rights have in  39 relation to the land.  I said earlier we can go from  40 the land and get to the fishery, and in this section  41 we are going the other way, from the fishery to its  42 incidents.  And it is usual in the common law concept  43 of the fishery that that fishery includes ownership of  44 the bed and banks of the rivers.  45 We have set out three statements drawn from the  46 cases.  First of all from Emerson there is a  47 presumption at common law that the owner of the 26323  Submissions by Ms. Pinder  1  fishery is the owner of  the solum  2  THE  COURT:  3  MS.  PINDER  4  THE  COURT:  5  MS.  PINDER  6  7  8  9  10  ]  11  12  13  14  15  16  17  18  THE  COURT:  19  MS.  PINDER  20  21  22  23  24  25  26  27  28  29  30  31  32  1  33  34  35  36  37  38  39  40  41  f  42  43  44  1  45  46  47  What does solum mean, the bed of the river?  :  The bed, yes.  Yes.  :  And I've said that the reverse is true.  You can go  from the solum to the fishery.  And that proposition  is also discussed in A.G. Canada and A.G.B.C..  In Emerson it was undisputed that the defendants  there possessed a fishery over part of the foreshore,  but the contest was that the Crown claimed the right  to the foreshore, the solum, the riverbed, the land as  it were, and the court said:  "But it is said that the possession of a right  of several fishery" --  There is a typo.  Yes.  "Is evidence of the ownership of the soil over  which it is exercised.  It has undoubtedly been  laid down in more than one case that the  ownership of a several" --  At least we're consistent.  "Several fishery raises a presumption that the  freehold is in the grantee of the several  fishery."  And then after citing various authorities the  court holds:  "Finding, then, such high authority for the  proposition that the ownership of a several  fishery is evidence of the ownership of the  soil, I'm not disposed to depart from it."  It's interesting that the court -- in addition to  this finding the court in Emerson also referred to  evidence led by the respondents that in fact they used  in their technology of fishing.  They used part of the  actual foreshore.  And that again is evidence which  may lead to the notion that the solum is part of the  fishery and therefore goes with it.  My understanding of the language of several  fishery at common law is that it is meant to connote 26324  Submissions by Ms. Pinder        1 an exclusive fishery.  And in the 1901 case of  2 Hanbury v Jenkins it's stated there that:  3  4 "The Plaintiff claims a several fishery.  There  5 is no doubt that a several fishery means an  6 exclusive right to fish in a given place, and  7 then citing various authorities.  A several  8 fishery may exist either apart from, or as  9 incident to, the ownership of the the soil over  10 which the river flows but since  11 Attorney-General v Emerson it must taken as  12 settled that where a several fishery is proved  13 to exist the owner of the fishery is to be  14 presumed to be the owner of the soil, unless  15 there is evidence to the contrary."  16  17 THE COURT:  But surely that's not good law in Canada, is it?  18 Surely it's been decided in the Supreme of Canada that  19 the foreshore of Canada belongs to the Crown.  But we  20 don't need to bother with that --  21 MS. PINDER:  No, we don't.  22 THE COURT:  -- In this case.  We don't have a foreshore here.  23 That's one right you don't claim.  24 MS. PINDER:  Well, you know, all the complex law dealing with  25 the riparian rights and the various pieces of  26 legislation that have been passed to rebut those  27 presumptions doesn't concern us here, because we are  28 dealing with the original rights.  29 THE COURT:  I just had to work in the Higby case, because it was  30 the first case I ever worked on starting 40 years ago  31 today.  32 MS. PINDER:  Right.  33 THE COURT:  And then it was only —  34 MS. PINDER:  Then the third proposition from Fitzgerald v  35 Firbank -- and many of these cases discuss whether or  36 not the fishery is corporeal or an incorporeal  37 hereditament.  But it is abundantly clear it is an  38 interest in property, a profit a prendre.  It is a  39 right which is a -- deserves to be as protected as any  40 fee simple title.  It is a vested property right, and  41 an action in trespass will sound for its infringement.  42 My lord, those I submit are the principles -- some  43 of the principles that your lordship can look to in  44 dealing with the incidents of the fisheries which are  45 being claimed by the plaintiffs in the case at bar.  4 6 THE COURT:  All right.  Thank you, Ms. Pinder.  47 Who's next?  Do you want to take the afternoon 26325  Submissions by Ms. Pinder        1 adjournment now?  2 MR. GRANT:  That may be appropriate, my lord.  3 THE COURT:  Yes.  Thank you.  4 THE REGISTRAR:  Order in court.  Court stands adjourned.  5  6 (PROCEEDINGS ADJOURNED)  7  8 I hereby certify the foregoing to  9 be a true and accurate transcript  10 of the proceedings transcribed to  11 the best of my skill and ability.  12  13  14  15  16  17 Peri McHale,  18 Official Reporter,  19 UNITED REPORTING SERVICE LTD.  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 26326  AT 3:  15 P  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Grant  ,M. )  (PROCEEDINGS RECONVENED  THE COURT  MR.  THE  GRANT  COURT  MR.  THE  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  GRANT  COURT  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Grant.  MR. GRANT:  Thank you, my lord.  My lord, this is a section of  the argument relating to the issue of limitations and  particularly the defence of the Province with respect  to the provincial limitations provisions and the Crown  Proceedings Act.  And a binder -- I will be bringing a  binder up for your lordship.  What was the section that I just dealt with?  What  volume was that in?  It was in Volume 5 at the end of tab 1.  It's the  last part of ownership.  I rather thought that was a new volume, but it  wasn't?  No.  All right.  Thank you.  So if you bear with us, I'll have a binder for your  lordship later, which I can assure you will be the  last binder.  Oh.  Well, it is Thursday afternoon after all.  It's Friday, my lord.  No, no.  We're sitting tomorrow.  It must be  Thursday.  MR. GRANT:  That's true.  That was my thinking.  One of the  things I wanted to say before I start this, my lord,  is that you have formulated certain questions that we  will be dealing with tomorrow relating to the exact  scope, nature and framing of the declarations, so in  this argument I do group the declarations in the  general parameters, but it's not to ignore your  question.  I am going to come back to that tomorrow,  so I thought you may be -- to anticipate what you may  be concerned with.  Now, my lord, in answer to the Province's reliance  on the Limitations and the Crown Proceedings Act, we  have four propositions, and the first, and I highlight  this -- this is the primary one -- that the remedies  sought herein are all constitutional in nature and,  therefore, beyond the purview of any provincial or  federal prescription legislation.  Secondly, the  provincial limitation legislation is constitutionally  inapplicable to bar actions relying upon aboriginal  rights and title.  Now, alternatively, my lord, if you  find that the prescription legislation is applicable,  that your lordship may and ought to rely on the 26327  Submission by Mr. Grant        1 equities between the  parties to preclude the Province  2 from relying upon the Limitations Act.  And,  3 alternatively, when the common law doctrine of  4 discoverability is applied to the facts herein, the  5 plaintiffs' cause of action is not statute barred.  6 Now, firstly, my lord, with respect to the  7 declarations of constitutionality as to constitutional  8 validity, it's our submission that the declarations we  9 are seeking from the court are to determine whether  10 the provincial Crown's actions are ultra vires either  11 resulting from common law or aboriginal title, the  12 Royal Proclamation, the B.N.A. Act and/or the  13 Constitution Act of 1982.  14 Now, the declaratory relief sought by the  15 plaintiffs is constitutional in nature.  We are  16 seeking declarations with respect to the vires of the  17 provincial Crown's actions within the plaintiffs'  18 territory and are asserting that the actions of the  19 provincial Crown within their territory which  20 unawfully infringe upon their aboriginal title are  21 unconstitutional.  The declarations sought from this  22 court are those which will clarify and determine the  23 vires of such actions and whether the plaintiffs,  24 because of the ultra vires actions of the provincial  25 Crown, are entitled to damages.  And I will return to  26 that issue of the constitutionality of provincial --  27 the unconstitutionality of provincial actions leading  28 to damages tomorrow more specifically.  29 I have set out the characterizations under three  30 groupings of the declaratory relief sought.  The first  31 one's of existing ownership and jurisdiction over the  32 territory and with respect to other than over the  33 territory.  That's the declarations 1 to 6.  And  34 that's a challenge to the constitutionality of  35 provincial laws and actions of the provincial Crown  36 taken pursuant to such statutes which have unlawfully  37 infringed the aboriginal title of the plaintiffs to  38 their territories and the rights incidental thereto.  39 Secondly are the declarations determining the  40 scope of the provincial Crown's jurisdiction within  41 the plaintiffs' territory, and those are a question of  42 clarification, those declarations in the prayer for  43 relief.  44 And thirdly is the declaration of entitlement to  45 damages.  Now, this one I wish to spend a few moments  46 on.  Declaration 12 seeks a declaration of the  47 plaintiffs' present entitlement to damages resulting 26328  Submission by Mr. Grant        1 from past ultra vires  actions of the provincial Crown.  2 We rely on the Max Potash case and A.G. Canada v.  3 B.C. and Thorson.  We seek a declaration of  4 entitlement to damages resulting from the past ultra  5 vires actions of the provincial Crown.  Of course your  6 lordship is aware this is a declaration of entitlement  7 at this time and not one in which we are seeking the  8 recovery of specific property or money in terms of  9 monetary damages.  10 It's our submission that all of these declarations  11 fall outside the purview of the Crown Proceedings Act  12 and the Crown -- its referential incorporation of the  13 Crown Procedure Act.  14 Because the declarations sought in the action are  15 declarations which are constitutional in both  16 substance and form, the Province cannot either through  17 the Crown Proceedings Act or the Limitations Act  18 preclude this court from granting them.  Chief Justice  19 Laskin in Thorson, quoted with approval in the Air  20 Canada v. B.C. case, clearly established that neither  21 Parliament nor a legislature can preclude a  22 determination of constitutional validity of  23 legislation or actions of the Crown.  And he stated:  24  25 "The question of the constitutionality of  26 legislation has in this country always been a  27 justiciable question.  Any attempt by  28 Parliament or a Legislature to fix conditions  29 precedent, as by way of requiring consent of  30 some public officer or authority, to the  31 determination of an issue of constitutionality  32 of legislation cannot foreclose the Courts  33 merely because the conditions remain  34 unsatisfied."  35  36 Now, my lord, in this case we are challenging the  37 provincial power to pass laws purporting to impair the  38 ownership and authority of the plaintiff over the  39 lands and resources.  And, as we will illustrate  40 tomorrow, we are at the point of seeking a declaration  41 which shall recognize the constitutional priority of  42 the plaintiffs' ownership and authority over the  43 territory and resources vis-a-vis the provincial  44 defendant.  The interaction of provincial laws which  45 do not affect the plaintiffs' jurisdiction is an issue  46 to be considered in the particular circumstances of  47 each case, as shall be discussed with respect to the 26329  Submission by Mr. Grant        1 remedies argument.  2 Now, my lord, in the Law Society case Justice  3 Estey stated that:  4  5 "This form of action takes on much greater  6 significance in a federal system where it has  7 been found to be efficient as a means of  8 challenging the constitutionality of  9 legislation."  10  11 And he is there, of course, referring to the Dyson-  12 type declaration.  13 And I go on to suggest to your lordship that in  14 this case we are seeking Dyson-like declarations  15 and/or declarations substantially identical to those  16 addressed by the Supreme Court of Canada in the B.C.  17 Power and Max cases, those cases standing as examples  18 of the relief available arising from illegality of  19 actions of a provincial Crown under ultra vires  20 legislation.  21 Now, your lordship is familiar with the B.C. Power  22 case, and I have summarized -- or, actually, I have  23 quoted from Justice La Forest in the Air Canada case  24 where he summarized the point in the B.C. Power case,  25 and I will not summarize the facts as summarized by  26 Justice La Forest, as you're fully aware of them.  But  27 as Chief Justice Kerwin stated in that case:  28  29 "In a federal system, where legislative  30 authority is divided, as between the Dominion  31 and the Provinces, it is my view that it is not  32 open to the Crown, either in right of Canada or  33 of a Province, to claim a Crown immunity based  34 upon an interest in certain property, where its  35 very interest in that property depends  36 completely and solely on the validity of the  37 legislation which it has itself passed, if  38 there is a reasonable doubt as to whether such  39 legislation is constitutionally valid.  To  40 permit it to do so would be to enable it, by  41 the assertion of rights claimed under  42 legislation which is beyond its powers, to  43 achieve the same results as if the legislation  44 were valid."  45  46 Now, if I may pause there, my lord, that's exactly  47 the circumstance we have here when we see the, and I 26330  Submission by Mr. Grant        1 dare say, my lord, the  audacity of the provincial  2 defendant to rely on the limitations provision in the  3 Crown Proceeding Act as a defence in this case when  4 the very constitutionality of the provincial ownership  5 over the territory is what is in question.  And, of  6 course, that was made clear in these cases by the  7 Supreme Court of Canada.  And, of course, in the Air  8 Canada case Justice La Forest went on to quote from  9 then Justice Dickson in the Max Potash case, which  10 again I know your lordship's familiar with the case or  11 at least the facts of it.  Quoting from Justice  12 Dickson, who stated:  13  14 "The principle governing this appeal can be  15 shortly and simply expressed in these terms:  16 if a statute is found to be ultra vires the  17 legislature which enacted it, legislation which  18 would have the effect of attaching legal  19 consequences to acts done pursuant to that  20 invalid law must equally be ultra vires because  21 it relates to the same subject-matter as that  22 which was involved in the prior legislation.  23 If a state cannot take by unconstitutional  24 means it cannot retain by unconstitutional  25 means."  26  27 Now, in the same manner, my lord, in the case at  28 bar the Crown cannot rely on the Limitation Act to  29 protect unconstitutional legislation, and the conduct  30 arising from that legislation I may add, my lord,  31 which is, of course, the conduct of entering on to the  32 territory directly or through third parties, licensees  33 and others and extracting the resources and taking the  34 wealth of the territory without the consent of the  35 plaintiffs.  36 I then refer your lordship to the Dyson case, and  37 I'm not going to -- I've just summarized it on page 7.  38 But Dyson was referred to in the Law Society case by  39 the -- as a cornerstone for declaratory relief against  40 the Crown in situations where a petition of right is  41 not appropriate.  As Justice Estey stated in the Law  42 Society case:  43  44 "The declaratory action has long been known to  45 the courts here and in the United Kingdom.  In  46 its modern form it is epitomized in the case of  47 Dyson v. A.G., where the court found the 26331  Submission by Mr. Grant 1                   plaintiff entitled  to proceed against the Crown  2 for a declaration without proceeding by way of  3 petition of right.  Cozens-Hardy M.R. at p. 416  4 recognized the court's jurisdiction to receive  5 such case 'although the immediate and sole  6 object of the suit is to affect the rights of  7 the Crown in favour of the plaintiffs'."  8  9 And I emphasize:  10  11 "This form of action takes on much greater  12 significance in a federal system where it has  13 been found to be efficient as a means of  14 challenging the constitutionality of  15 legislation."  16  17 And that, of course, is the situation that we're  18 in here, whereas Ms. Mandell and Mr. Rush have  19 explained to you, particularly Ms. Mandell in her  20 argument in the last few days, that we are dealing  21 with an aboriginal -- a constitutionally protected  22 aboriginal right, and it comes within -- it's also  23 recognized in the federal common law.  24 I refer back to the statement in Max Potash of  25 Justice Dickson where he stated the important role the  26 courts have in insuring legislatures do not engage in  27 illegal or unconstitutional exercise of power, and he  28 stated:  29  30 "The courts will not question the wisdom of  31 enactments which, by the terms of the Canadian  32 Constitution, are within the competence of the  33 legislatures, but it is the high duty of this  34 court to insure that the legislatures do not  35 transgress the limits of their constitutional  36 mandate and engage in the illegal exercise of  37 power.  Both Saskatchewan and Alberta inform  38 the court that justice and equity are  39 irrelevant in this case.  If injustice results,  40 it is the electorate which must administer a  41 rebuke and not the courts.  The two Provinces  42 apparently find nothing inconsistent or  43 repellent in the contention that a subject can  44 be barred from recovery of sums paid to the  45 Crown under protest, in response to the  46 compulsion of the legislation later found to be  47 ultra vires." 26332  that  such  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Grant        1 And again I dare say  -- those  propositions apply a fortiori to the case at bar with  respect to the Province's attempt to hide behind these  pieces of legislation, the Crown Proceeding Act and  the Limitations Act.  And, of course, in that case it was the  Proceedings Against the Crown Act which purported to  limit the liability of the Crown for actions taken  under a ultra vires enactment.  The Province of  Saskatchewan was relying on the provision as a defence  to declaratory relief sought by the plaintiffs to have  illegal taxes paid under protest repaid to the  plaintiff.  Now, Justice Dickson held with respect to  such reliance, and I'm halfway down the quote, my  lord:  "Since it is manifest that if either the federal  Parliament or a provincial legislature can tax  beyond the limit of its powers, and by prior or  ex post facto legislation give itself immunity  from such illegal act, it could readily place  itself in the same position as if the act had  been done within proper constitutional limits.  To allow monies collected under compulsion,  pursuant to an ultra vires statute, to be  retained would be tantamount to allowing the  provincial legislature to do indirectly what it  could not do directly and by covert means to  impose illegal burdens."  And, of course, the defence of the Province in --  not only here, but as Mr. Adams referred you in the  last two days as well, the defence of the Province, my  lord, fits right within that concept of Justice  Dickson.  They say -- they say, "We have always said  that the Gitksan and Wet'suwet'en have no rights, and  because we've always said that, we have been  consistent.  And they didn't bring a court action  until 1984."  And they say now, "Because we've always  said it, it's irrelevant whether it's constitutional  or unconstitutional.  We can be protected by our  ongoing conduct."  And that's -- that is part of the  defence that's raised, and I say that that is not --  flies in the face of these principles.  THE COURT:  But is that your claim, Mr. Grant?  Isn't your claim  for a declaration that you have -- that your  aboriginal rights are in good standing? 26333  Submission by Mr. Grant        1  MR. GRANT:  Yes.  : It would seem to me that the argument you're making  would be more appropriate if you were saying that the  Province did this and that was unconstitutional.  :  The Province --  :  Had done this or had done that, which is  unconstitutional.  :  The Province has entered into the territory.  The  Province has alienated the resources of the territory.  The Province has taken -- has utilized resources of  the territory and taken profits from the territory.  All of that -- those -- that conduct is  unconstitutional because they have done it in total  ignoring of the plaintiffs' rights of ownership, which  are constitutionally protected rights.  :  What I'm talking about, of course, is a pleading  point.  Have you pleaded specific legislative, I'll  call them, unconstitutionalities or unconstitutional  indignities or have you --  :  We have pled that provincial -- we have pled that  the provincial legislation is constitutionally  constrained and cannot affect the aboriginal rights of  the plaintiffs.  In response to a demand for  particulars, and the court directed order of  particulars, we have listed the statutes, but that's  statutes in -- that's statutes as they stand now, and  a constitutional notice has been filed.  :  You say that in either your pleadings or your  particulars you have alleged certain unconstitutional  or ultra vires enactments?  :  We have alleged that provincial legislation to the  extent -- I mean, this is a reading down question.  :  Yes.  :  Provincial legislation to the extent that it  adversely impacts on the ownership and jurisdiction of  the plaintiffs is unconstitutional.  :  Yes.  All right.  Thank you.  :  Of course, that doesn't affect its applicability  outside of the territory with other people.  Now, Dickson drew an analogy to the inability of  the provinces to limit judicial review of  constitutionality, and then he stated -- referring to  B.C. Power.  Then he stated:  "The principle governing this appeal,"  being, of course, the Max case,  2  THE  COURT  3  4  5  MR.  GRANT  6  THE  COURT  7  8  MR.  GRANT  9  10  11  12  13  14  15  16  THE  COURT  17  18  19  20  MR.  GRANT  21  22  23  24  25  26  27  28  THE  COURT  29  30  31  MR.  GRANT  32  33  THE  COURT  34  MR.  GRANT  35  36  37  THE  COURT  38  MR.  GRANT  39  40  41  42  43  44  45  46  47 26334  Submission by Mr. Grant        1 "can be shortly and  simply expressed..."  2  3 And I've quoted that from you -- before you before,  4 and it appears to be repeated at that point, my lord.  5 Going to page 10 of my argument, it's our  6 submission that neither the Crown Proceedings Act nor  7 the Limitations Act can be relied upon to deny the  8 plaintiffs the declaratory relief sought.  We are  9 seeking declarations the Province has unconstitu-  10 tionally acted in ways which have directly infringed  11 upon their aboriginal rights.  The declarations sought  12 from this court are precisely the means by which the  13 plaintiffs seek to ensure that no further infringement  14 occurs.  The Province cannot successfully rely on  15 conditions in the Crown Procedure Act or their own  16 Limitations Act to prevent this court from making  17 declarations with respect to the ultra vires actions  18 of the Province within the plaintiffs' territory.  The  19 Province cannot continue to exercise powers which they  20 have assumed unconstitutionally.  21 Now, in the Calder decision Pigeon applied the  22 Privy Council case of McLean Gold Mines to conclude  23 that the Nishga's claim failed because of their  24 failure to obtain a fiat, and I believe that was  25 raised in the argument by Mr. Adams.  But going back  26 to McLean, in that case, which is in our authorities  27 at the citation I have there, the plaintiff sought  28 recovery of property which had been the subject of a  29 forfeiture application.  The plaintiff asserted the  30 Crown did not have the title it needed to assume  31 possession of the property in issue and sought  32 recovery of such property.  The Privy Council held  33 that the substance of the declaration must be  34 considered to determine whether it in fact fell within  35 the requirement of proceeding by petition of right.  36 In so doing the Privy Council held that:  37  38 "However the plaintiffs' claim may be viewed, it  39 seeks in substance and reality to avoid the  40 title acquired by and vested in the Crown as  41 the result of the impugned forfeiture."  42  43 Such facts differ widely from the declarations  44 sought by the plaintiffs in this action.  The  45 plaintiffs do not seek to disturb the underlying title  46 of the Crown, but rather seek declarations regarding  47 the constitutional nature of their own title and the 26335  Submission by Mr. Grant 1            constitutionality of  actions taken with respect to  2 their ownership and jurisdiction over that territory  3 by the Provincial Crown.  And that highlighted portion  4 indicates why the Limitations Act and the Crown  5 Proceeding Act can't be used as a cloak by the  6 provincial defendant.  7 Now, Pigeon's judgment was also premised on a  8 characterization of the action as questioning the  9 Crown's absolute title in fee.  Now, this  10 characterization, whether or not he was correct in  11 that, is not apt to the claims of the plaintiffs in  12 the case at bar and not consistent with the  13 fundamental common law principles concerning  14 aboriginal title to which Mr. Jackson discussed in  15 argument.  16 Now, while in Calder Pigeon also considered Dyson,  17 it's submitted that this ruling has now been  18 superseded by Thorson, the Law Society, and the Max  19 Potash cases, all, of course, cases of the Supreme  20 Court of Canada.  21 THE COURT:  What are you referring to there, Calder or Dyson or  22 both?  23 MR. GRANT:  Calder.  While Pigeon considered Dyson.  It's his  24 ruling.  That's Pigeon's ruling, my lord, has been  25 superseded.  2 6  THE COURT:  All right.  27 MR. GRANT:  Now, the Province in paragraph 40 of its defence  28 suggests that section 17 of the Crown Proceeding Act  29 applies to the declaration of entitlement to damages.  30 That section reads:  31  32 "Notwithstanding the repeal of the Crown  33 Procedure Act, that Act applies to a cause of  34 action for proceedings against the Crown that  35 arose before August 1, 1974, whether or not it  36 is considered to be a cause of action  37 continuing after August 1, 1974."  38  39 Now, in the Haymour Holdings case our Court of  40 Appeal held that the causes of action before them  41 arose from several events, some of which occurred  42 prior to August 1st, '74, and others continuing beyond  43 August 1st, '74.  In so doing they applied this  44 section to conclude the relief sought must be  45 available under the Crown Procedure Act of 1960.  The  46 court in Haymour considered the relief allowed against  47 the Crown under the 1960 Crown Procedures Act, and 26336  Submission by Mr  definition.  2  THE COURT  Grant  1  they refer to the  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  I think I remember what happened in Haymour, but you  said the court in Haymour considered the relief  allowed.  Relief sought.  They said the relief sought should be allowed,  didn't they?  They considered -- no.  They considered the relief  allowed against the Crown under the 1960 Crown  Procedures Act, and they came to the conclusion  that —  "Considered" there means thought about, does it?  Thought about, yes.  All right.  I'm sorry.  I understand.  And I'm going into their  consideration of the meaning of the word -- of relief,  and this is the quote from the court in Haymour:  "The relief which a subject may claim under the  Crown Procedure prescribed by this  definition found in s. 2 of the Act,"  and they quote the definition, which is that:  "'relief includes every species of relief  claimed or prayed for in any petition of  right, whether a restitution of any  corporeal right, or a return of lands or  chattels, or a payment of money, or  damages or otherwise.  That definition and the extent of the relief  available to a subject has been discussed in  Deeks Sand...a judgment of Justice Wilson at  the time...and McDonald...a judgment of Doiron  J.  In each case Tobin and the Queen...and  Feather and the Queen...are relied upon as  establishing the limited nature of the claim  available, by fiat, against the Crown.  In Deeks, Wilson J. observed that Tobin was  a case 'where Her majesty's law officers,  having issued her fiat to allow the suppliant  to commence proceedings against her,  successfully maintained, on the trial, that the  petition must fail, because the relief sought  was in respect of a tort, which cause of action 26337  Submission by Mr. Grant  enforceable by petition of right'.  1  was not  2  3  4  5  6  7  need not cite the passages from Tobin or  Feather.  They can be found in both Deeks and  McDonald and in the original reports."  In a lengthy extract from the judgment of Cockburn he  refers to -- states:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. PLANT  THE COURT  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  " becomes apparent that the proceeding by  petition of right cannot be resorted to by the  subject in the case of a tort."  "The cases also make it clear that 'payment of  money or damages' (referred to in the  definition of relief) is limited to where  restitution of property cannot be given."  Now, firstly, my lord, in the case at bar the  declaration as to entitlement to damages is, in our  submission, a declaration in the nature of a Dyson-  style order.  The foundation for this declaration  includes a claim for unjust enrichment which, the  plaintiffs submit, may be a claim which could formerly  have been brought by petition of right.  In any event, the scope of the damages temporally  is an aspect of quantification which should be  considered as part of the issues of damages which has  been deferred.  And really what I'm saying there, that  the whole issue -- there's certainly been continued  taking of resources from the territories that the  plaintiffs say are theirs by the defendants and  continuing unjust enrichment by the defendants by  accumulating wealth from those resources.  There's no pleading of unjust enrichment.  The  phrase doesn't appear anywhere in the statement of  claim.  I mean, it's an interesting argument.  He's using some shorthand to describe transfer of  wealth from land into somebody's pocket, I think.  He's not talking about the legal cause of action, I  don't think.  Well, the concept of unjust -- the question of the  entitlement to damages --  Don't lean too hard on an open door, Mr. Grant, or  you're going to --  I won't lean on that door.  All right.  But, in any event, my lord, what I'm saying is that 2633?  of damage  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Grant        1 the question of the issue  s and the temporal  nature of the damages certainly has an effect on  quantification.  It's our position that the  entitlement to damages can be found, and the  quantification issue would include an analysis of the  temporal effect.  Now, the next issue is the inapplicability of  provincial prescription legislation to declarations of  constitutionality.  The courts can determine the  constitutional --  THE COURT:  Incidentally, did you apply for a fiat in this case?  MR. GRANT:  In the case before your lordship?  THE COURT:  Yes.  MR. GRANT:  No.  THE COURT:  All right.  Thank you.  MR. GRANT:  But you heard evidence of an application for a fiat  which was denied with respect to certain fisheries --  THE COURT:  In some other case?  MR. GRANT:  Yeah.  That's the only reference where there was a  fiat.  THE COURT:  Yes.  All right.  MR. GRANT:  The courts can determine the constitutional validity  of legislation and actions taken pursuant to such  legislation no matter how old.  In none of the cases  noted above were there concerns raised with respect to  the issues of timeliness, laches or delay.  And I'm  referring here to the Attorney-General of -- that  should be below, my lord, the cases I am going to come  to.  THE COURT:  Noted below.  All right.  MR. GRANT:  Yes.  In the A.G. of Manitoba and the Forest case  the Supreme Court of Canada, of course, held that the  Official Language Act of Manitoba was inoperable  although it had been enacted 90 years earlier.  In a recent decision of Dumont and the  Attorney-General of Canada and Attorney-General of  Manitoba -- this is the Metis case -- the Supreme  Court of Canada upheld the Manitoba Metis' ability to  seek declarations that legislations and orders in  council passed in the 1870s and 1880s by the federal  and provincial Crown were unconstitutional.  The Crown  in right of Canada and the Crown in right of Manitoba  unsuccessfully attempted to block the Metis  applications for such declarations on the basis that  the declarations related to spent legislation and  affected the rights of persons now deceased.  In the B.C. Power case the Supreme Court of Canada 26339  Submission by Mr. Grant  neither the provincial Crown  1  clearly established that  2 nor the federal Crown can pass legislation which  3 results in the Crown being immune to challenges that  4 their actions or statutes are ultra vires.  And I've  5 already in the first part referred to B.C. Power.  6 THE COURT:  But that wasn't a limitation problem?  7 MR. GRANT:  No, that wasn't a limitation.  This is dealing with  8 the prescription legislation, that's right, as it was  9 there, and Max Potash as well.  10 THE COURT:  We're dealing with limitations, aren't we?  Is that  11 your heading?  12 MR. GRANT:  Yes.  Sorry, that's a subheading under limitations.  13 That's right.  And that is not -- that is not a -- was  14 not a limitation.  15 THE COURT:  No.  16 MR. PLANT:  It's a Crown immunity case.  17 THE COURT:  Oh, yes.  18 MR. GRANT:  I know that.  19 MR. PLANT:  Well, that's different from presciption.  20 MR. GRANT:  Now, if I go to page 16, my lord, the provincial  21 prescription legislation does not apply, in our  22 submission, to declarations resting on aboriginal  23 title and rights.  Provincial limitation statutes are  24 constitutionally incapable of barring actions relying  25 upon aboriginal rights and title and cannot extinguish  26 aboriginal title and rights.  These are matters solely  27 within the jurisdiction of the federal Crown.  There  28 is no jurisdiction in the provincial Crown which  29 provides it with the constitutional ability to  30 unilaterally terminate rights which are subject to  31 exclusive federal jurisdiction.  32 The provincial Crown relies upon a two year  33 limitation period for damages in respect of injury to  34 person or property, including economic loss arising  35 from injury, six year limitation for any other action  36 not specifically provided for in this act or any other  37 act, and an ultimate 30 year limitation, which  38 operates notwithstanding the postponement sections.  39 Alternatively, the Crown pleads the plaintiffs' rights  40 to bring the action were statute barred prior to July  41 1975.  42 Now, my lord, the provincial Crown in relying on  43 such statutes is seeking to obtain extinguishment  44 through the back door.  On the expiration of a  45 limitation period fixed by the Limitation Act, the  46 title of a person formerly having a cause of action to  47 the property is extinguished. 26340  Submission by Mr. Grant        1 Limitation periods  which destroy by extinguishment  2 the subject matter of federal jurisdiction cannot, in  3 our submission, be read down to apply and cannot be  4 read to only incidentally affect matters under federal  5 jurisdiction.  6 And I refer you here to our argument in Volume 7  7 with respect to the lack of provincial power to  8 extinguish aboriginal title and the necessity for  9 extinguishment of aboriginal title to be by consent  10 or, in the alternative, by express legislation.  11 I also submit, my lord, that section 88 of the  12 Indian Act does not give my friends any comfort  13 because it cannot be relied upon to incorporate the  14 Limitation Act or its predecessors as such  15 incorporation could result in the extinguishment of  16 their aboriginal rights.  Section 88 does not provide  17 for the incorporation of general provincial  18 legislation which would, and I quote from I believe it  19 was Derickson -- it's a case referred to by my  20 colleague Ms. Mandell -- "impair the status and  21 capacities..." of the plaintiffs to seek the  22 protection of this court against unconstitutional  23 restrictions on those rights by the provincial  24 defendant.  And I refer you to the argument regarding  25 the scope of section 88 and the constraints on  26 provincial legislation which has already been made by  27 my colleague Ms. Mandell.  28 Furthermore, Justice Le Dain in The Queen and  29 Smith, reversed by the Supreme Court of Canada on  30 other grounds, in which the court held that otherwise  31 valid provincial prescription legislation could not  32 extend beyond the matter over which it had  33 jurisdiction.  And that's a case where Smith, whose  34 family had for a period of 135 years adversely  35 possessed reserve lands, relied on the New Brunswick  36 Limitations Act.  That statute provided that no claim  37 for lands or rent shall be made after a continuous  38 adverse possession of 60 years and that at the  39 determination of a limitation period the right and  40 title of such person to land was extinguished.  And  41 then after considering the implication of the  42 Limitations Act on the reserve, Justice Le Dain  43 stated:  44  45 "On this view of the matter I am of the opinion  46 that the provincial law respecting the  47 limitation of actions for the recovery of land 26341  Submission by Mr. Grant 1                   could not  constitutionally apply so as to give  2 the respondent or his predecessors in  3 occupation a possessory title good against the  4 Indian right of occupation or the right of the  5 federal Crown to claim possession for the  6 protection of the Indian interest.  7  8 What is really involved is the existence of  9 land as part of a reserve or surrendered lands  10 within the meaning of the Indian Act.  If  11 provincial law respecting the limitation of  12 actions could apply so as to have the effect of  13 extinguishing the Indian title or the right of  14 the federal Crown to recover possession of land  15 for the protection of the Indian interest, it  16 could have a dismembering effect analogous to  17 that which was held in the Campbell-Bennett  18 case to be beyond provincial legislative  19 competence.  It would have the effect of  20 destroying or eliminating a part of the very  21 subject-matter of federal jurisdiction.  If  22 provincial legislation of general application  23 cannot constitutionally apply to restrict the  24 use of land reserve for the Indians within the  25 meaning of section 91(24) of the B.N.A. Act, as  26 was held in the Peach Arch case (a conclusion  27 that appears to have been impliedly approved by  28 the Supreme Court of Canada in the Cardinal  29 Case) then a fortiori, must this be true of  30 legislation that would have the effect of  31 extinguishing the right to possession of such  32 land."  33  34 And this holding was approved by the Supreme Court  35 of Canada in the Paul case, which says:  36  37 " seems that as a constitutional matter  38 provincial prescription legislation would not  39 apply to Indian lands. "  40  41 And, of course, your lordship appreciates the  42 arguments that have been made in the last week.  You  43 can see that we are, of course, saying that these are  44 Indian lands that we're dealing with.  45 And I refer you to the Oneida case, in which the  46 U.S. Supreme Court relied upon the -- rejected the  47 applicability of state limitation statutes to an 26342  action resting on  abori  gina  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Grant        1  1 title.  And Justice  Powell in that case for the majority held that state  limitation acts could not apply to the federal common  law action for violation of Indians' possessory  rights.  There was no federal statute of limitations  governing federal common law actions by Indians to  enforce property rights.  Now, with particular reference -- at the bottom of  page 20, my lord.  With particular reference to the  declaration of entitlement to damages sought here,  there is, in essence, no distinction between the claim  here and that dealt with by the Supreme Court of  Canada in Max.  There the claim was for a declaration  of entitlement to repayment of monies, a claim that  sounds in damages no less than that in the case at  bar.  There the limitation to action for recovery was  the Crown Proceeding Act.  For the purposes of this  arm of the argument, the limitation here is under the  Limitations Act.  There is no distinction between the  two in terms of a purposive analysis.  The court in  Max relied upon the unconstitutionality of the  provincial action upon which the cause of action was  based in denying recourse by the province to a  statutory limitation to recovery.  And, of course,  that's what my friends are relying on here.  Isn't a claim for money had and received really an  action of assumpsit different from an action for  damages?  Was Max a claim for money had and received?  Yes , it was.  You say there's no difference between that and an  action for damages for, as it were, for trespassing?  One is contract, one is tort.  That's -- that's right.  There is a distinction  there.  But what we say is, is that what the Supreme  Court of Canada said, my lord, is that the Province  could not protect themselves in that case by the -- by  the Crown Proceeding Act because they were protecting  an unconstitutional act, and you couldn't do that.  Was the issue in that case -- was it immunity or the  requirement of a fiat or that sort of thing versus  limitation?  The issue was immunity.  Not limitation?  Not limitation.  Are you mixing these two up or are you doing it  deliberately?  MR. GRANT:  I'm not doing it deliberately to mix up, my lord,  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT  THE COURT  MR. GRANT  THE COURT 26343  Submission by Mr. Grant  1  but I say this.  In Max  2  THE  COURT  3  4  MR.  GRANT  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  THE  COURT  40  41  42  MR.  GRANT  43  THE  COURT  44  MR.  GRANT  45  THE  COURT  46  MR.  GRANT  47  THE  COURT  :  And deliberately in the sense that the same  principles apply to them both.  :  Well, the same principles apply to them both when  you deal with the constitutionality question, and as  the -- on page 6, where I quote from Dickson on that,  the last part of that quote is:  "If a state cannot take by unconstitutional  means it cannot retain by unconstitutional  means."  And that was the decision in Max.  And in Max  Justice Dickson didn't limit himself to the  legislation he was making there because he talks about  it generally.  He said:  "...if a statute is found to be ultra vires the  legislature which enacted it, legislation,"  not Crown proceedings, but legislation,  "which would have the effect of attaching legal  consequences to acts done pursuant to that  invalid law must equally be ultra vires because  it relates to the same subject-matter as that  which was involved in the prior legislation."  So what he's saying is is you can't -- the Crown  cannot protect itself by its own legislation from its  unconstitutional acts, which makes, I say, eminent  sense and legal sense in terms of the federal system  and the question of their constitutional power to do  that.  And in that sense, my lord -- maybe in that way  I am mixing the two, but because it's the  constitutionality or the unconstitutionality of the  conduct which is -- cannot be covered or cloaked or  hidden.  :  Okay.  I may have been wrong a moment ago in  suggesting that an action of assumpsit is contract.  I'm not sure it is.  Well, I didn't want to say that, my lord, but --  It's not tort.  -- I didn't think it was.  It's not tort.  But I don't think it's contract.  It's obligationes quasi. 26344  Submission by Mr. Grant        1  MR. GRANT:  Yes.  :  The analogy or the distinction is the same, but  certainly there's distinction between assumpsit and  trespassing.  Yes.  One is clearly --  Yes.  All right.  I'll look up the first edition of -- and  find out.  :  I'll see if I can provide you -- I'll discuss it  with my colleagues.  :  Thank you.  :  This arm of the argument I'd like to deal with is  the question of --  :  Going back to -- I'm not sure again because  assumpsit really is just an inferred promise to pay.  It sounds to me like contract.  Sorry, the action for money had and received?  Yes.  In Canada the action for money had and received  sounds in unjust enrichment, which is -- the whole  notion of quasi contract has been kicked out --  Yes.  -- the window thanks to Pecus and Becker (phonetic).  Yes.  All right.  Thank you.  Now, my lord, I think this sort of -- this section  here in terms of the application of equity to  limitation periods certainly is a serious  consideration on the facts of this case.  We submit it  would be very -- it would be inequitable to allow the  provincial Crown to rely on the Limitation Act as a  defence in this action.  Should this court determine  that provincial prescription legislation applies to  the relief sought herein, it would be inequitable and  unjust to allow such statutory limitation periods to  bar the plaintiffs' action.  Rather, justice demands  the the statutory limitation be overridden.  And in Williams' text on limitation of actions in  Canada, with respect to common law and equitable  principles related to the bringing of actions, he  said:  "The basic position is that limitation periods  are not part of the common law but were  imported by statute to restrict the bringing of  common law actions.  The result of this was  confinement of the operation of the statutory  2  THE  COURT  3  4  5  MR.  GRANT  6  THE  COURT  7  MR.  GRANT  8  THE  COURT  9  10  MR.  GRANT  11  12  THE  COURT  13  MR.  GRANT  14  15  THE  COURT  16  17  18  MR.  PLANT  19  THE  COURT  20  MR.  PLANT  21  22  23  THE  COURT  24  MR.  PLANT  25  THE  COURT  26  MR.  GRANT  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 26345  Submission by Mr. Grant        1 limitation periods  to those actions that they  2 actually purported to cover.  Meanwhile, the  3 courts of equity were developing limitation  4 principles of their own to govern the actions  5 heard before them.  These principles were not  6 based entirely upon lapse of time but depended  7 also upon the maxims of equity and the way in  8 which courts consistently dealt with the  9 substance of the cases before them.  Therefore  10 the passage of time would, considered in  11 conjunction with prejudice, act as an  12 inducement to the other party to rely upon a  13 particular state of affairs.  Good conscience  14 would usually demand that the expectation of  15 the induced party that he would not be  16 subjected to an action should not be upset."  17  18 The Canadian courts, my lord, have been prepared  19 to apply principles of equity to prevent a party from  20 relying on limitation periods which, but for the  21 particular facts before the court, would otherwise be  22 available.  And such cases can be categorized in two  23 categories:  inducement, fraud or equitable estoppel;  24 and injustice resulting to the plaintiff through  25 application of a limitation period, whereas no  26 prejudice to the defendant would flow if no such  27 reliance were allowed.  28 In the Flewelling v. Baldwin case our Court of  29 Appeal applied equitable estoppel to prevent a  30 defendant from relying on the Limitation Act, and in  31 that case the court held that the defendant had  32 induced the plaintiff to postpone the proceedings to  33 the defendant's benefit.  34 In Nailen and Powell River a court of this  35 province held the defendant's promise to construct a  36 small retaining wall to correct the damages resulting  37 from his trespass on the plaintiff's land estopped him  38 from hiding behind the limitation period and avoiding  39 liability.  40 In Johnson and B.C. Hydro the court applied  41 equitable estoppel to preclude the defendant from  42 reliance upon the Limitations Act.  Mr. Justice Murray  43 held the evidence compelled the application of  44 estoppel, barring the defendant from reliance on any  45 such limitations.  In that case the defendant had  46 acknowledged its trespass on the plaintiffs' reserve  47 and had encouraged the plaintiffs to undertake 26346  Submission by Mr. Grant 1            negotiations for  settlement.  2 In Clarke and Gaytee Studios Inc. the Saskatchewan  3 Court of Appeal reviewed the rationale behind applying  4 equity to prevent a litigant from relying on a statute  5 of limitation.  At issue before that court was whether  6 an amendment ought to be made to allow a party to be  7 added after the lapse of limitations.  After reviewing  8 the cases which set out that in the ordinary case the  9 court has no power by adding a person to the  10 proceedings as a party defendant to deprive that  11 person of the benefit of the Statute of Limitations or  12 of any other statute which limits the time within  13 which he may be pursued, the court went on to hold:  14  15 "Nevertheless the rule established by the  16 foregoing decisions must sometimes give way to  17 other rules founded on natural justice and  18 recognized by law.  Thus, for instance, we are  19 often told the 'fraud vitiates all things,' and  20 I know of no limit to the words 'all things' as  21 used in the axiom.  Therefore cases can be  22 found in which a party had so conducted himself  23 towards another that his statutory protection  24 was set aside and he was not allowed the  25 benefit of a lapse of time which, without his  26 deceit or other wrong-doing, would not have  27 taken place.  So we find, that while stead-  28 fastly refusing in ordinary cases to allow  29 amendments intended to defeat the Statute of  30 Limitations, the Judges of the English Courts  31 have been careful not to declare themselves  32 powerless to relieve against oppression or some  33 other form of injustice."  34  35 That court considered the facts before it so as to  36 determine whether it could prevent the perpetration of  37 an injustice.  The court allowed the addition of a  38 party even though it could find no fraudulent intent  39 in the withholding or furnishing of information.  40 Rather, the addition of the party was allowed because,  41 as the court states:  42  43 " allow the corporation to take advantage  44 now of the situation which has been created  45 would, I think be positively unjust to the  46 plaintiff."  47 26347  Submission by Mr. Grant 1                And without, of  course, reciting the evidence, I  2 only refer you back to the arguments you've heard in  3 the last few days from Mr. Adams and Mr. Rush and, of  4 course, the comments made by the McKenna-McBride  5 Commission to the predecessors of the plaintiff with  6 respect to the creation of reserves as an example.  7 In G & R Trucking and Walbaum the Chief Justice of  8 the Saskatchewan Court of Appeal reviewed both English  9 and Canadian jurisprudence which illustrate the  10 problems faced by courts when applications to amend an  11 action by adding or substituting a new party after the  12 expiration of a limitation period come before them.  13 Chief Justice Bayda reviewed the relevant case law,  14 identifying the problem before the court as follows:  15  16 "How does one give effect to the purpose of the  17 statutory limitation periods and at the same  18 time give effect to the purpose behind the  19 power of amendment?  The purpose of the  20 limitation periods is two-fold.  Firstly, they  21 secure the defendant by enabling him to rely on  22 the fact that he no longer will have to  23 preserve or seek out evidence to defend claims  24 against him.  Secondly, they protect the  25 defendant from economic and psychological  26 insecurity that results from the possibility  27 that contingent claims may be asserted by legal  28 action and may disrupt his finances, and affect  29 his business and social relations.  The purpose  30 behind the power of the amendment is to correct  31 an injustice that would otherwise ensue as a  32 result of a mistake, often of an information or  33 procedural nature, and usually made unwittingly  34 and not by the person most likely to suffer,  35 that is, the litigant.  The English courts have  36 adopted a conservative, strict constructionist  37 approach, placing emphasis on the limitation  38 periods.  The Canadian courts, on the other  39 hand - particularly as demonstrated in the more  40 recent cases - have sought the balance the two  41 principles of law involved here and have  42 perhaps adopted a more evenhanded approach.  In  43 so doing, they have been more lenient in  44 allowing amendments where no real prejudice  45 resulted to the opposite party (apart from the  46 right to rely on the statute of limitations),  47 but at the same time, have been careful not to 26348  Submission by Mr. Grant 1                   unfairly attenuate  the exacting force of the  2 limitation periods.  That approach, in my  3 respectful view, is the right one."  4  5 And the court then compiled a list of equitable  6 factors arising from common law which could be  7 considered when determining whether the Statute of  8 Limitations ought to be overridden.  The court  9 concluded it must determine whether the interests of  10 justice should result in the party being precluded  11 from relying upon the expiration of a limitation  12 period.  13 Now, both lines of authority disclose an  14 application of equitable principles in a determination  15 of whether or not it would be just to allow a  16 defendant to rely on a limitation period.  17 Now, I say, my lord, that the evidence relevant to  18 your review of the equities between the parties has  19 been reviewed above when considering acquiescence,  20 delay or laches.  Such evidence, I say, my lord,  21 compels your lordship to conclude it would be  22 inequitable if any limitation periods were applied to  23 preclude the plaintiffs from obtaining the relief  24 sought herein.  25 Now, my lord, this is particularly so in view of  26 the 1927 amendment to the Indian Act -- this is, of  27 course, after the joint committee -- which stated:  28  29 "Every person who, without the consent of the  30 Superintendent General expressed in writing,  31 receives, obtains, solicits or requests from  32 any Indian any payment or contribution or  33 promise of any payment or providing money for  34 the prosecution of any claim which the tribe or  35 band of Indians to which such Indian belongs,  36 or of which he is a member, has or is  37 represented to have for the recovery of any  38 claim or money for the benefit of the said  39 tribe or band, shall be guilty of an offence  40 and liable upon summary conviction for each  41 such offence to a penalty not exceeding two  42 hundred dollars and not less than fifty dollars  43 or to imprisonment for any term not exceeding  4 4 two months."  45  46 Now, my lord, the provincial defendants in their  47 argument say that this section does not expressly 26349  Submission by Mr. Grant        1 prohibit the plaintiffs  from bringing a claim to the  2 court.  It doesn't.  It provides instead a quasi  3 criminal sanction against any legal counsel who  4 accepted any remuneration for prosecuting such a case.  5 MR. PLANT:  Without the consent.  6 MR. GRANT:  The provincial defendant also argues -- yes, without  7 the consent of the superintendent general, who may  8 well be the person that is being sued in such a case,  9 as the federal Crown involved.  This is the provincial  10 defendant's argument, and I'm quoting because I think  11 they neatly put their position forward in their  12 argument, their summary of argument.  13  14 "In summary, by April 1927 a legal regime which  15 denied the Indian claim to ownership, and gave  16 effect to its denial, was well and firmly  17 established."  18  19 They considered that there might have been some  20 ambiguity before then, but they -- so they put a clock  21 at that time.  22  23 "The limitations clock had begun to run, yet the  24 Indians did not sue to vindicate their alleged  25 rights.  26  27 Accordingly, pursuant to section 16 of the  28 Statute of Limitations the Plaintiffs' right to  29 recover possession of land within the Claim  30 Area was barred and, by virtue of section 41,  31 extinguished, no later than April 1947."  32  33 My lord, this —  34 THE COURT:  That's 30 years.  35 MR. GRANT:  Twenty years after April 1927 under the Statute of  36 Limitations Act of the time, my lord.  This is the  37 provincial argument, which they succinctly state in  38 terms of their limitation period.  3 9 THE COURT:  Yes.  40 MR. GRANT:  My lord, I note that this proposed ultimate  41 limitation period of 1947 meant that the plaintiffs  42 lost their rights because they did not prosecute while  43 they were prohibited from paying for legal advice on  44 the very issue of the scope and extent of aboriginal  45 title.  46 THE COURT:  But surely that statute's got nothing to do with the  47 commencement of a limitation period. 26350  Submission by Mr. Grant 1  MR. GRANT:  No, no, no.  They're  not -- the April 1927 date the  2 provincial defendant raises, they're not saying that's  3 the commencement.  They're saying -- in their argument  4 they say, well, it could be at the time of sovereignty  5 and different times, and then they say but maybe the  6 plaintiffs don't know, but they say --  7 THE COURT:  Ultimately.  8 MR. GRANT:  Ultimately you look at it all.  By April 1927 the —  9 after the joint committee and after all these series  10 of factors, they say by this time they knew and the  11 clock begins to run.  And, of course, this amendment  12 to the Indian Act remained in force until 1951.  What  13 I say, my lord, is that the conjuncture of those facts  14 clearly shows the inequity of acceding to the  15 provincial defendant's argument that the limitation  16 period should apply.  17 Now, then I say, of course, and reiterate that, of  18 course, because the declarations are constitutional in  19 nature the Crown Procedure and Crown Proceedings Act  20 don't apply, which I've already referred you to in my  21 argument.  22 Now, the final ground of argument with respect to  23 the applicability of the Crown Procedure, Crown  24 Proceedings limitations -- I'm sorry -- with respect  25 to the Crown limitations is the reliance on the common  26 law rule of discoverability with respect to time  27 limitations.  This rule applies so as to determine  28 when time commenced to run with respect to the causes  29 of action asserted.  And this -- I take it, from a  30 reading of the defendant's argument, that this is why  31 they go -- they make some other options, but they go  32 to April 1927.  33 In Central Trust and Rafuse, a 1986 decision,  34 Justice Le Dain canvassed English and Canadian cases  35 with respect to the common law rule of  36 discoverability.  In that case the Nova Scotia Court  37 of Appeal had held that the appellant's action in tort  38 or contract was statute barred because, however  39 characterized, the cause of action for negligence  40 arose, for the purposes of the Statute of Limitations,  41 when the negligence occurred and not when it was  42 discovered or ought to have been discovered.  The  43 Supreme Court unanimously rejected this finding and  44 applied the common law rule of discoverability,  45 relying extensively on Justice Wilson's decision in  46 the Kamloops case.  47 In the City of Kamloops case the common law rule 26351  Submission by Mr. Grant        1 of discoverability was  applied to the limitation  2 period contained in section 738(2) of the Municipal  3 Act.  Justice Wilson held that for the purposes of the  4 limitation period the cause of action arose when the  5 plaintiff discovered the damage or with reasonable  6 diligence ought to have discovered it.  She saw the  7 primary need for the common law rule of  8 discoverability as being:  9  10 "...the most serious concern is the injustice of  11 a law which statute-bars a claim before the  12 plaintiff is even aware of its existence."  13  14 Justice Le Dain in Central Trust adopted her  15 decision in the City of Kamloops and held:  16  17 "I am thus of the view that the judgment of the  18 majority in Kamloops laid down a general rule  19 that a cause of action arises for purposes of a  20 limitation period when the material facts on  21 which it is based have been discovered or ought  22 to have been discovered by the plaintiff by the  23 exercise of reasonable diligence, and that that  24 rule should be followed and applied to the  25 appellants cause of action in tort against the  26 respondents under the Nova Scotia Statute of  27 Limitations. "  28  2 9 Now, my lord, when you apply this common law rule  30 to the facts of this case at bar, we submit that this  31 court must determine when the plaintiffs discovered or  32 ought to have discovered the material facts on which  33 their cause of action is based.  The authorities which  34 outline the requisite knowledge illustrate the  35 considerations which your lordship should apply.  36 In the Newton and Camell Laird case Newton had  37 been exposed to asbestos in his work from 1943 to  38 1955.  In 1965 he was diagnosed as having a lung  39 ailment due to that work.  In March of that year he  40 told a medical board that his illness was attributable  41 to work with asbestos.  He died later that year, and  42 his wife sued for damages approximately one year after  43 his death.  Her action would have been out of time if  44 Newton had requisite knowledge when he spoke to the  45 medical board in March 1965.  Under the English  46 Limitation Act the running of time is postponed until  47 the plaintiff is in possession of the requisite actual 26352  The Engli  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submission by Mr. Grant        1 or constructive facts,  sh Court of Appeal  determined very clearly that courts must consider all  circumstances of the plaintiff when assessing  knowledge, and they found:  "The material and decisive facts in the present  case were:  First, that he was suffering from a  serious illness due to exposure to asbestos  dust; second, that the defendants were guilty  of negligence or breach of duty; and third,  that his illness was attributable to their  negligence or breach of duty.  When did Mr.  Newton have actual or constructive knowledge of  those facts?  He had actual knowledge of the  first in January, 1955, but he never had actual  knowledge of the second or third before he  died.  ...the test of constructive" --  THE COURT:  Don't these cases all depend upon the language of  the limitation statute?  Our court's turning itself  inside out trying to figure out what our present act  means.  It's all over the place, and it relates to the  language of the limitation period.  MR. GRANT:  But I say, my lord, with respect to this proposition  of the common law rule of discoverability adopted by  the Supreme Court of Canada that --  THE COURT:  But in British Columbia we have a statute that has  put the discoverability rule in.  MR. GRANT:  Yes, but the question is, is that that is a more  recent statute, that rule of discoverability.  It's 1960 or something.  1975, as I recall, or '79.  Well, yes, I think -- well, it's some years ago now.  Yes.  But what I'm saying is, is when one looks at  the -- as I pointed out earlier, my friends are  relying on the 19 -- the Limitations Act of -- that  was enforced, for example, in 1927.  So the common law  rule of discoverability would apply from the earlier  time.  COURT:  I don't see what 1927 has got to do with it.  GRANT:  Well — or let's take 1846 or 18 — the  applicability of the --  COURT:  Of the claim to sovereignty.  GRANT:  Of the claim to sovereignty.  That's why looking at  the common law rule of discoverability applies.  And,  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  THE  MR.  THE  MR. 26353  weight of  the  evide  2  3  4  5  6  7  8  9  THE  COURT  10  11  MR.  GRANT  12  13  THE  COURT  14  15  16  17  MR.  GRANT  18  19  20  21  22  23  THE  COURT  24  MR.  GRANT  25  THE  COURT  26  27  28  29  MR.  GRANT  30  THE  COURT  31  32  33  34  35  36  MR.  GRANT  37  38  THE  COURT  39  40  MR.  GRANT  41  42  THE  COURT  43  MR.  GRANT  44  THE  COURT  45  46  47  MR.  GRANT  Submission by Mr. Grant        1 of course, I think the  .ce  demonstrates that not only was there inhibition on the  plaintiffs from that discoverability, but, of course,  there was actual conduct by the defendant, the  colonial government in 1871 and later, from preventing  them from having a sense that they -- their rights  were -- that they had rights against the province  which -- and the province was denying that.  How can you rely on Evans when I have just delivered  judgment disagreeing with it?  My lord, I wasn't going to refer to it.  It's matter  o f my --  Well, I didn't really disagree with it.  I just sort  of slid around it.  As I say, these sections all  depend upon the language of the British Columbia  convoluted statutes.  But the test -- the test is that -- these cases --  yes, these cases, of course, are all dealing with  Limitations Act.  But what the cases, my lord, are  doing are determining what is, as I set out, what is  the discoverability and what do you look to to  determine what the discoverability is.  Well —  Now, of course, it's in the statute.  Mr. Justice Taylor has just written a long judgment  on that issue, with which I had the honour of  concurring or adding my own addition on that whole  question.  I will -- my lord, I haven't referred to that.  Well, I don't think you need to because it's based  upon the British Columbia statute that was passed, as  you say, in '75.  I thought it was a little earlier  than that.  But if you're going to rely on British  Columbia jurisprudence on discoverability -- well,  unless you go back to some other period.  But the principle in Kamloops, the principle of  discoverability, I say, applies.  I think the Kamloops case was based upon the present  British Columbia statute.  Well, the Kamloops case took into account the  Municipal Act.  Yes.  But —  Yes.  You may be right.  It may not -- it may have  been a one-year limitation period in the Municipal  Act.  It was the Limitation Act under the Municipal Act 26354  Submission by Mr. Grant  1  738 (2)  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  :  All right.  :  But what Madam Justice Wilson said is that  notwithstanding that there was -- the common law rule  of discoverability applied.  :  Oh, I have great misgivings about that.  That's what  she said.  She may have said it with respect to a  provision of the Municipal Act but not with respect to  the provisions of the Limitations Act.  :  But, my lord, that's why I went on from that to  Justice Le Dain, who adopted her comments in the City  of Kamloops in the Central Trust case, and then he  said:  "I am thus of the view that the judgment of the  majority in Kamloops laid down a general rule  that a cause of action arises for purposes of a  limitation period when the material facts on  which it is based have been discovered or ought  to have been discovered by the plaintiff by the  exercise of reasonable diligence, and that that  rule should be followed and applied to the  appellants cause of action in tort against the  respondents ..."  In that case it was Novia Scotia's Statute of  Limitations.  This is on page 28, my lord.  THE COURT:  Yes.  MR. GRANT:  At the bottom.  What I'm saying is that there is  a -- and I think it's been skewed in some sense  because, of course, the considerations your lordship's  had and Mr. Justice Taylor in an analysis of the  Limitation Act of British Columbia is you're looking  at what does this sense of discoverability mean under  the British Columbia statute, but what I'm referring  to is that there's a common law rule of discoverability which would apply pre-dating that, if  necessary.  THE COURT:  Why don't you just add an infant Gitksan as a  plaintiff against whom the limitation period hasn't  yet started to run?  MR. GRANT:  Well, in terms of the —  MS. MANDELL:  Okay.  MR. GRANT:  We could add a few thousand, my lord, I'm sure.  The  application will be here tomorrow morning.  Of course,  it's the concept of the representative action of the  Gitksan.  But the issue here is that my friends are 26355  triggered  on a spec  2  3  4  5  THE  COURT  6  7  MR.  GRANT  8  9  THE  COURT  10  11  12  13  14  MR.  GRANT  15  16  THE  COURT  17  18  MR.  GRANT  19  20  21  22  23  24  THE  COURT  25  MR.  GRANT  26  27  28  29  30  THE  COURT  31  MR.  GRANT  32  THE  COURT  33  MR.  GRANT  34  35  36  37  38  THE  COURT  39  40  MR.  GRANT  41  42  THE  COURT  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  THE  COURT  47  MR.  GRANT  Submission by Mr. Grant        1 saying, and they have  specific date and  say, well, you're out of luck because you're beyond  that date, and I think that presumably that doesn't  apply to an infant.  But none of the plaintiffs were infants at any  relevant date here, I suppose.  Several of the plaintiffs were probably infants in  1927.  Oh, yes, indeed they were.  So time wouldn't run  against them under that legislation, I don't think,  until they attained their majority.  You haven't  mentioned the Bear Island case.  Didn't Mr. Justice  Steele apply the Limitation Act of Ontario?  Yes, he did, my lord.  He did apply the Limitations  Act of Ontario in Bear Island.  You're not going to even give it the courtesy of  ignoring it -- or mentioning it.  My lord, I think there's so many problems inherent,  with all due respect, in Mr. Justice Steele's decision  that I think that -- I considered and looked at that,  and I haven't dealt with that in terms of this  argument.  I don't think that that principle that he  relies on is applicable to -- in this case.  Well —  It's not been dealt -- it's never -- it's like some  of the other things in that judgment, my lord.  It's  one of a kind.  It's a sui generis decision maybe in  terms of that because it's a decision in which he  doesn't apply -- in which he applies those principles.  All right.  Thank you, Mr. Grant.  I take it you've read the end of my argument.  Yes, I have.  Then I don't need to reiterate it for you.  I do  want to emphasize that we say that the question of the  scope of prescription limitation on damages, my lord,  as I focus on the end, that's something to deal with  in the quantification issue.  Thank you, my lord.  All right.  Now, I take it that counsel are going to  take up some of their time tomorrow, are they?  Yes, my lord.  I think I had given you a proposed  schedule at the beginning, and I have left my --  9:30 till 4:00.  If that's what I said, then --  And that will be sufficient?  That will be sufficient.  Yes.  All right.  I hope I have the pleasure of saying good-bye before 26356  Submission by Mr. Grant        1 4:00, but we'll see.  2 THE COURT:  All right.  Thank you.  We'll adjourn till 9:30  3 tomorrow morning then.  4 MR. GRANT:  Thank you, my lord.  5 THE REGISTRAR:  Order in court.  This court stands adjourned.  6  7 (PROCEEDINGS ADJOURNED AT 4:18 P.M.)  8  9 I hereby certify the foregoing to  10 be a true and accurate transcript  11 of the proceedings transcribed to  12 the best of my skill and ability.  13  14  15  16  17  18 Leanna Smith  19 Official Reporter  2 0 UNITED REPORTING SERVICE LTD.  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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