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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-29] British Columbia. Supreme Court Jun 29, 1990

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 29221  Submissions by Ms. Mandell        1  Vancouver, B.C.  2 June 29th, 1990  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia.  7 Friday the 29th day of June, 1990.  Delgamuukw versus  8 Her Majesty the Queen at bar, my lord.  9 THE COURT:  Thank you.  10 MS. MANDELL:  Thank you, my lord.  If I could ask you to turn to  11 page 17 of the argument.  12 THE COURT:  17?  13 MS. MANDELL:  Yes.  14 THE COURT:  Yes.  15 MS. MANDELL:  And, my lord, before I begin to address the second  16 to the last proposition dealt with by Sparrow I'd like  17 to review the propositions which we say arise from  18 Sparrow which we've argued for to date which run  19 contrary to the argument of the province.  2 0 THE COURT:  Yes.  21 MS. MANDELL:  The first is contrary to the position of the  22 province existing aboriginal rights are unextinguished  23 rights and not rights which have been recognized by  24 executive legislative or any other action by the  2 5 Crown.  2 6 THE COURT:  Yes.  27 MS. MANDELL:  We say contrary to the position of the province  28 the rights are property rights, although not  29 traditional ones defined by the sui generis nature,  30 and as each applies to the laws and practices of the  31 court as each nation understands.  32 And we say contrary to the position of the  33 province there are existing aboriginal rights outside  34 Indian reserves in British Columbia.  And in Sparrow  35 it was fishing rights.  And these rights have survived  36 the colonial period, they survived union and they  37 survived the post confederation period.  38 And finally in the summary of this we say that  39 contrary to the position of the province fishing  40 rights outside reserves are not rights held in common  41 with everyone else.  The rights the courts held are  42 constitutionally protected within Section 35 and not  43 capable of interference except under circumstances  44 which can be justified and which do not bring into  45 disrepute the honour of the Crown.  So we say that the  46 province's propositions on all four of those points  47 have been decided upon by Sparrow, and Sparrow was 29222  Submissions by Ms. Mandell        1 contrary to the  position of the province.  2 I'd like to next address --  3 THE COURT:  Well, before you go on.  At some time I would like  4 to have your assistance on what this value loaded word  5 honour of the Crown or honour means.  I can think of  6 all kinds of meanings for the word honour.  And I'm  7 not sure what you -- I think I know what you might say  8 it means.  But I can think of, for example, using the  9 example of Sparrow the Crown might honestly believe  10 that the public interest requires a certain measure to  11 be taken.  Now, Sparrow suggests that the public  12 interest is not to be considered, or it  13 alternatively -- I forget the language it used, but it  14 suggests the public interest is not to be used.  15 MS. MANDELL:  It's too vague.  16 THE COURT:  It's too vague.  17 MS. MANDELL:  Yes.  18 THE COURT:  All right.  Well, if, for example, it says salmon  19 stocks are so low that we must ban all the fishing for  20 a year, and assume that the Crown honestly believes --  21 the ministers of the Crown believe that to be  22 necessary and they're acting on good advice.  23 MS. MANDELL:  Right.  24 THE COURT:  But they recognize that will be extremely harmful to  25 the plaintiffs.  26 MS. MANDELL:  Right.  We would say according to the test in  27 Sparrow that's justified.  Their regulation in that  28 case which impinges upon an aboriginal right would be  29 justified.  But your lordship is awake to the question  30 as to what value or what weight can be given to the  31 public interest as against the aboriginal right.  And  32 what the court in Sparrow said is that the aboriginal  33 right is a constitutionally protected property right  34 and there are no other property rights of any other  35 citizens in Canada which are likewise protected under  36 the constitution.  And it's also recognized that the  37 government will be swayed by its political  38 constituency which isn't the minority of the Indian  39 people.  And so when the court weighs up, and it is a  40 weighing test which is proposed by Sparrow, the  41 constitutionally protected right of the Indians as  42 against another purpose it can't be any other purpose  43 in the public interest.  It has to be a purpose which  44 is strong enough to measure as against the  45 infringement of the constitutional right.  And that's  46 what, in our submission, the Supreme Court of Canada  47 did in refusing the public interest test that the B.C. 29223  Submissions by Ms. Mandell        1 Court of Appeal  recommended in Sparrow and adopted  2 something which asks the court to measure up the  3 infringement of a constitutionally protected right  4 against some other interest.  And in Sparrow the court  5 said quite clearly that the conservation of all the  6 resource is in the interests of everybody.  And that  7 kind of infringement would certainly justify the  8 regulation and the honour of the Crown would be upheld  9 because both the Indians and non-Indians alike are  10 having their interests protected.  But if the  11 conservation required, for example, that there could  12 be 30,000 fish fished and the Crown felt that it was  13 in the interest to let sports fishermen do that before  14 the Indians or commercial fishermen then that would  15 not be consistent with the honour of the Crown and the  16 predicated rights of the Indian people which are first  17 to be considered in the equation.  18 THE COURT:  But in Sparrow the Court of Appeal seemed to say  19 that the priorities established by the Department of  20 Fisheries and Oceans which were, one, conservation,  21 two, aboriginal and, three, other.  The Supreme Court  22 of Canada seemed to say that wasn't a proper test to  23 apply.  24 MS. MANDELL:  Well, I think what the court did is they went back  25 to Jack when Mr. Justice Dickson said these are --  26 these are the constitutional priorities; Indian  27 fishing then -- conversation first, then Indian  28 fishing and then the commercial fishing.  And he said  29 those are the proper priorities to apply.  30 THE COURT:  But those were the tests that the Court of Appeal  31 approved in Sparrow.  32 MS. MANDELL:  Well, that's not apparent on the evidence.  Those  33 are -- that is the stated policy of the Department of  34 Fisheries.  But when the regulations actually had  35 their impact on the rights the Indian people argued  36 for and it was accepted that at least it's a point  37 which should be considered in a trial, a new trial,  38 that the application of the regulations didn't conform  39 with the policy.  And, in fact, on the facts of it the  40 rights were infringed.  And on the facts of it in a  41 manner which gave priority to the commercial and not  42 the Indian fishery.  And also on an occasion where  43 conservation wasn't the issue and so everyone got --  44 was agreed upon that these are the proper priorities.  45 But nobody agreed that that was how the regulations  46 and the body of the Fisheries Act was being  4 7 implemented. 29224  Submissions by Ms. Mandell        1  THE COURT:  All right.  Well,  now in testing the length of the  2 net which has to now take place in Sparrow what do you  3 say is the test to be applied insofar as the honour of  4 the Crown is concerned?  What are the factors that  5 bring into play the honour of the Crown?  Must they be  6 right, and if so by what standard?  Must they be  7 honest in the sense of honestly believed?  Must they  8 be a combination of both?  Must they prefer within the  9 priorities already established the claims of the  10 Indians for food over ceremonial, for example?  Honour  11 is such a value word.  How do you say it applies?  12 Does it mean anything more than honest?  13 MS. MANDELL:  Well, I think it —  14 THE COURT:  Honest belief I should say.  15 MS. MANDELL:  Honest belief.  I think that honest belief is  16 definitely a factor.  17 THE COURT:  It's a factor.  Yes.  All right.  18 MS. MANDELL:  I think also that the honour of the Crown will  19 likely not come into play in an ordinary case where  20 the conservation requirement is straight-forwardly  21 capable of permitting a harvestable catch, because at  22 that point the priority system is going to come into  23 play and the Indian people should be able to express  24 what their rights are and get the proper priority  25 before the other users take their share.  I think that  26 the honour of the Crown is probably going to come more  27 into play if and when we get down to the line where  28 there is a real dispute between whether or not there  29 can be any fishing by the commercial or the sports  30 fishery if the Indian people take the share that they  31 say is, and it's held to be encompassed within their  32 rights.  And I think if the court has to start to vie  33 between the rights asserted by the Indian people for a  34 share and the rights asserted by the commercial and  35 the sports fishery it may be that the honour of the  36 Crown is -- will be asked to come into play in its  37 interpretation of what the proper allocation ought to  38 be.  39 THE COURT:  All right.  Well, let me put it to you that the —  40 let us say that the Crown says the food fishery for  41 the Indians of the Skeena watershed requires 30,000  42 salmon.  43 MS. MANDELL:  I'm sorry.  Who said that?  44 THE COURT:  The Crown says 30,000 salmon and the Indians say a  45 hundred thousand.  4 6 MS. MANDELL:  M'hm.  47 THE COURT:  Now, how -- and assume that both have an honest 29225  Submissions by Ms. Mandell        1 belief in their  figures. Where does the honour of the  2 Crown operate there, or how does it operate?  3 MS. MANDELL:  I don't think that the honour of the Crown does  4 providing there's enough fish for everybody.  And the  5 question is what is the nature of the right.  6 THE COURT:  Let's say there is at least a hundred thousand fish  7 and that's what the Indians say we need.  It doesn't  8 know how much more there are.  They say we need that  9 much.  10 MS. MANDELL:  Well, I think the honour of the Crown is fully to  11 do with the honesty of the belief then.  There would  12 have to be some support for the belief that they take  13 that the Indian people should get less.  14 THE COURT:  Let's go to a matter of logging and let's say that  15 the Crown with his advice honestly believes that  16 certain cuttage is required in certain areas in order  17 to sustain the economy not just of the region, but of  18 the area.  And the Indians say, no, you shouldn't cut  19 this area at all or if you do you should do it  20 selectively.  And the Crown honestly believes it can't  21 be done economically with selective logging.  Do you  22 say again honest belief is enough or is it some other  23 test?  24 MS. MANDELL:  Well, if I can — that's a more complicated  25 problem.  26 THE COURT:  Oh, I know.  27 MS. MANDELL:  The first point we would say to that is that the  28 province does not have the legislative capability to  29 enact laws which affect Indians in the possession of  30 their land.  We argue they didn't have that right  31 before 1982 and they still don't.  32 THE COURT:  That's your first position.  33 MS. MANDELL:  In that example it would have to be a federal  34 regulation which we're contending for.  That is under  35 91(24) of the federal government has regulated logging  36 on behalf of the Indian people.   That would have to  37 be the example.  And if we were in that framework the  38 example that you asked for I think the honour of the  39 Crown definitely then might have to come in, because  40 what you're weighing up on one hand is the proper  41 exercise of the rights for the Indian people as  42 against equally competing -- it will seem to be  43 equally competing uses for that land and for that  44 timber by non-Indian people.  And I think that the  45 Crown in that case has to be seen not to be  46 dispossessing the Indian people of their rights in the  47 land in favour of possessing non-Indian people to use 29226  Submissions by Ms. Mandell        1 their land and  resources to make profits for  2 themselves alone.  And I think that the weighing up  3 between who is benefitting and who has the rights is  4 going to definitely require the Crown taking the same  5 position as the federal government ought to have been  6 taking all along, which is the protecting of the  7 Indian people against dispossession, because the  8 weight of the system is towards making sure that the  9 non-Indian peoples rights are or their interests are  10 maintained.  And I think that the honour of the Crown  11 will become quite important in seeing whether or not  12 the decision really does fairly and squarely keep the  13 Indian people in the exercise of their rights without  14 harmful dispossession.  And I do believe there will be  15 an honour of the Crown factor in that kind of  16 question.  17 THE COURT:  Then your submission is that 91(24) gives Canada the  18 authority to regulate forestry in the province?  19 MS. MANDELL:  As I think —  20 THE COURT:  As it relates to Indians.  21 MS. MANDELL:  As it relates to Indians.  They have never  22 exercised it, but in my submission constitutionally  23 they have the legislative authority to do that.  Yes,  24 I do believe so.  The province doesn't as it relates  25 Indians.  26 THE COURT:  I think you've got a Canadian stand-off there,  27 haven't you?  28 MS. MANDELL:  That's why we should negotiate.  29 THE COURT:  Well, I must say I'm terribly disturbed by the  30 suggestion that I should make an order that somebody  31 negotiate.  32 MS. MANDELL:  No.  I don't say you should.  I say that arises  33 from Sparrow, and that Sparrow has given the  34 framework --  35 THE COURT:  Anybody who has practised family law knows that  36 negotiation goes as far as two willing horses.  37 MS. MANDELL:  In this case three.  But I think Sparrow gives  38 some assistance.  39 I would like to carry on with the analysis as to  40 how Section 35 shields existing aboriginal rights  41 against provincial legislative power.  And I'm at the  42 bottom of page 17.  43 THE COURT:  Yes.  Thank you.  44 MS. MANDELL:  The court in Sparrow held that Section 35 shields  45 aboriginal rights against provincial legislative  46 power.  And I'm just going to read you the first  47 sentence. 29227  Submissions by Ms. Mandell        1  2 "If Section 35(1) also affords aboriginal  3 peoples constitutional protection against  4 provincial..."  5  6 If Section 35 (1) ..."  7  8 I've added Section 35.  9  10 "...also affords aboriginal peoples  11 constitutional protection against provincial  12 legislative power.  We are, of course, aware  13 that this would, in any event, flow from  14 Guerin."  15  16 I would like to ask your lordship to pause and  17 realize that the court here is talking about British  18 Columbia.  They're not talking about provincial  19 legislative power in the abstract.  They're speaking  20 about a case involving aboriginal rights in British  21 Columbia, and they refer to Guerin which is another  22 case involving, at least in our submission, with  23 respect to Mr. Justice Dickson's dicta he is also  24 referring to aboriginal title in British Columbia.  25 THE COURT:  They're also talking about a federally controlled  26 industry, fishing.  27 MS. MANDELL:  Well, they — the court says — this is a general  28 proposition in our submission.  They say --  29 THE COURT:  You just said this is a case that relates  30 specifically to British Columbia.  31 MS. MANDELL:  Oh, yes, I agree with that.  But in the  32 proposition that Section 35 affords aboriginal peoples  33 protection against provincial legislative power they  34 refer back to Guerin and say that this proposition  35 flows naturally from Guerin.  And Guerin was about  36 land and Sparrow is about fishing and it's all about  37 British Columbia.  And we say that that is the  38 court -- the Supreme Court of Canada understanding  39 that point.  40 Now, if I could ask you to turn to page 18.  41 Canada has strenuously argued that provincial laws of  42 general application were capable of extinguishing  43 aboriginal rights before 1982 if the effect of their  44 on site implementation is to restrain the exercise of  45 aboriginal rights.  And they argue that the ruling in  46 Sparrow subjects provincial laws to the same  47 justifiability process as Sparrow has ruled 29228  Submissions by Ms. Mandell        1 appropriate for  federal legislation.  2 We say both arguments are wrong in law.  And we  3 say, my lord, that the fundamental error of Canada's  4 argument on extinguishment is that the province cannot  5 extinguish aboriginal title after 1871.  6 And this is a point which was decided in the  7 Royalties case.  And I've set out the passages from  8 the Royalties case.  And I'm referring to paragraph  9 57.  10  11 "It is, I think, true -- as Mr. Newcombe  12 argues -- that the Dominion alone was competent  13 to authorize the treaty in question."  14  15 And this same view was supported in the decision  16 of Mr. Justice Davies.  17  18 "...the Dominion and the Dominion alone could  19 act so as to extinguish the aboriginal title to  2 0 any lands within the Dominion.  21  22 The right and duty of determining when and the  23 terms on which such title ought to be  24 extinguished rests with the Dominion and with  25 it alone.  Considerations arising out of and  26 affecting the peace, order and good government  27 of Canada and other considerations affecting  28 the best interests of the Indians may well have  2 9 entered into the minds of that government when  30 determining the times and seasons at which it  31 was desireable or necessary to make such a  32 treaty as the one made in the case before us."  33  34 And I might point out, my lord, that the province  35 concedes this point.  It is the underpinning of their  36 counterclaim.  And if I could ask you to turn --  37 MR. GOLDIE:  It's the point I made in my opening in May of 1987,  3 8 my lord.  39 MS. MANDELL:  If I could just turn you to tab 5.  I want to  40 reinforce the fact that although we take issue with  41 the province on one point at paragraph 18, which is  42 part of their argument, they say:  43  44 "The constitutional foundation for the position  45 that the Province lacks the competence to  46 extinguish aboriginal title lies in the first  47 half of 91(24):  'Indians'." 29229  Submissions by Ms. Mandell 1                And we say also  lands reserved for Indians.  2 And the province goes on to say:  3  4 "Provincial legislation expressly purporting to  5 extinguish aboriginal title would necessarily  6 be discriminatory both in its territorial  7 application and in its application to one class  8 of citizens in its object and purpose; it would  9 therefore not be a law of general application  10 and could not be incorporated under Section  11 88."  12  13 So we say, and I'm at page 20 of the argument,  14 that if a provincial law was -- if a provincial law  15 passed the test presented in Sparrow, that is that the  16 intention to extinguish was clear and plain, the law  17 would be ultra virus the province as it would trench  18 on an exclusive legislative power under Section  19 91(24).  20 Now, there has been some argument, and I'm going  21 to deal with it later so I won't deal with it now,  22 that Section 88 miraculously makes provincial land  23 laws, provincial laws of general application  24 applicable to Indians including laws in relationship  25 to the land.  26 We say at paragraph 64, and we will meet this  27 point later, that there is no authority which permits  28 Section 88 to make applicable provincial legislation  29 to impair the possession of Indian people on their  30 lands.  31 And I might ask your lordship to be mindful of Mr.  32 Justice La Forest's statement in Mitchell where he  33 while addressing the question of provincial or federal  34 Crown definition within the Indian Act at page four of  35 his judgment says:  36  37 "As The Chief Justice notes, the constitutional  38 division of powers precludes interpreting 'Her  39 Majesty' as including the provincial Crowns in  40 many sections of the Act.  To take one example,  41 reading 'Her Majesty' as including the  42 provincial Crown in the context of Section 18  43 and 37-41 of the Act would be to deny the  44 federal Crowns plenary responsibility  45 respecting 'Indian Lands'."  46  47 Now, if I could just apply these principles to the 29230  Submissions by Ms. Mandell        1 tests in Sparrow.  We've already gone through them in  2 general and I'd like to simply give your lordship  3 examples as to what we say the result of all of this  4 means.  5 We say that no provincial legislation affecting an  6 aboriginal land rights could have extinguished  7 aboriginal title before 1982, and aboriginal rights  8 remain a burden upon provincial Crown title.  And  9 these rights are protected by Section 35(1).  10 At paragraph 68 we say, and I give for example the  11 logging, my lord.  For example, we would say that the  12 logging forestry legislation is provincial legislation  13 in relationship to the possession of lands.  And that  14 that legislation could not have had the effect before  15 1982 of extinguishing aboriginal title to the lands.  16 The province was not competent to do that.  And, in  17 any event we say, but it's an aside, that the  18 legislation is regulatory and not capable of  19 extinguishment.  20 MR. GOLDIE:  Well, my lord, is my friend suggesting that that  21 last proposition is stated in Sparrow, that the  22 province had no powers before 1982?  I read nothing in  23 Sparrow that supports that.  I just want to make sure  24 that I haven't missed something.  25 MS. MANDELL:  That proposition flows from 91(24) and 109, in our  26 submission, and is supported by Sparrow in the sense  27 that Sparrow anticipates and says that certain  28 provincial laws, in their language:  29  30 "That Section 35 affords aboriginal peoples  31 constitutional protection against provincial  32 legislative power."  33  34 And we say that is the provincial legislative  35 power that Sparrow is anticipating Section 35 affords  36 protection for.  37 MR. GOLDIE:  Well, I'm obliged to my friend.  I thought she was  38 addressing an argument about something before 1982.  39 MS. MANDELL:  All right.  I hope I've clarified it.  40 We say that provincial laws of general application  41 which did not affect Indians before the passage of  42 Section 35 will continue to apply to Indians.  And  43 this is the traffic laws.  44 THE COURT:  I have real trouble with that sentence.  45 MS. MANDELL:  Well, did not affect Indians as Indians.  46 THE COURT:  Legislation which does not affect Indians continues  47 to apply to Indians. 29231  Submissions by Ms. Mandell        1  MS. MANDELL:  This is provincial  laws of general application  2 which are neutral in their impact on aboriginal  3 rights.  And I give as an example the traffic laws.  4 THE COURT:  All right.  I think you mean which do not affect  5 Indians as Indians.  6 MS. MANDELL:  As Indians.  That's right.  7 THE COURT:  All right.  8 MS. MANDELL:  And the third category is if a provincial law of  9 general application affects Indians either of its own  10 force or by virtue of it having been incorporated by  11 reference through Section 88 of the Indian Act, the  12 Sparrow justificatory process would apply.  And an  13 example here would be the hunting laws that were dealt  14 with in Kruger and Manuel and Dick where it was a not  15 a case of aboriginal title, but a case of an Indian  16 hunting without reference to the question of  17 aboriginal title in the territory.  And we say where  18 those laws would be incorporated by reference to  19 affect Indians as Indians there would now be the  20 justification process required where the Indians would  21 present the rights and there would be a justification  22 for the application.  23 THE COURT:  I'm still not sure what your position is on the  24 retrospective nature of Section 35.  25 MS. MANDELL:  Well, I have to —  26 THE COURT:  Let's talk about a piece of land that was clear cut  27 in 1970.  28 MS. MANDELL:  All right.  We say that the province could not  29 extinguish the rights to that land by virtue of their  30 constitutional competence.  We say that when the land  31 regenerates and the Indian people can assume their  32 rights of use there, and their ownership of the land  33 as they see it, at that time the Indian people will  34 exercise the rights and if there is a proper  35 legislative regulation of the aboriginal rights to  36 that land it would go through the justification  37 process.  We don't say the province can do that.  38 THE COURT:  At the time of next actual interference?  39 MS. MANDELL:  At the time of the next actual interference.  40 That's right.  41 THE COURT:  All right.  42 MS. MANDELL:  Now, if I can address the last point that I will  43 deal with orally.  Section 35 is a vehicle for  44 negotiation of treaties.  I know your lordship can't  45 compel it, but I wanted to make the point that the  46 court in Sparrow envisioned a negotiation of the  47 treaty process.  And if I could ask you just to turn 29232  Submissions by Ms. Mandell        1 to page 22, the last  sentence of the quote.  2 THE COURT:  Page 22.  3 MS. MANDELL:  22 of the argument.  4 THE COURT:  Yes.  5 MS. MANDELL:  Beginning:  6  7 "Section 35(1), at the least, provides a solid  8 constitutional base upon which subsequent  9 negotiations can take place."  10  11 Are you with me?  12 THE COURT:  No.  Page 22?  13 MS. MANDELL:  There's a quote.  The last line of it.  14 THE COURT:  The line —  15 MS. MANDELL:  Page 22 of the argument.  16 THE COURT:  Of your argument.  The last line of 22, The courts  17 would not be required to decide every alleged  18 infraction?  19 MS. MANDELL:  Go up to the first quote which is on the top of  20 page 22.  21 THE COURT:  Oh, I'm sorry.  I thought you said the bottom of the  22 page.  23 MS. MANDELL:  Sorry.  24 THE COURT:  Yes.  I know where you are now.  25 MS. MANDELL:  26 "Section 35(1), at the least, provides a solid  27 constitutional base upon which subsequent  28 negotiations can take place."  29  30 And this was also the view of Mr. Justice  31 McFarlane in the MacMillan Bloedel case when he said:  32  33 "I think it is fair to say that in the end, the  34 public anticipates that the claims will be  35 resolved by negotiation and by settlement.  36 This judicial proceeding is but a small part of  37 the whole of a process which will ultimately  38 find its solution in a reasonable exchange  39 between governments and the Indian Nations."  40  41 MR. GOLDIE:  My lord, is my friend suggesting that those two  42 references are to the same thing?  Surely the  43 reference in Sparrow is to continuing efforts on the  44 part of aboriginal people to entrench rights in the  45 constitution.  46 MS. MANDELL:  We don't say that that's what it is.  We say that  47 this statement is -- read within the context of the 29233  Submissions by Ms. Mandell        1 decision in Sparrow is  the court tracks the various  efforts on the part of the Indian people to get  Section 35 entrenched and this is their conclusion at  the end as to what Section 35 is there for.  And we  say that negotiations follow logically from the  decision.  The finding in the court which compels  negotiations, we say, is the deathblow to the  proposition that aboriginal title exists at the  goodwill of the sovereign.  And so on a proper  interpretation now of the rights of the federal  parliaments, the provincial legislatures and the  Indian Nations each have rights and restrictions on  the full exercise of their authority, each as against  each other.  And that's what will bring people to the  table.  And that's what we say Sparrow has added to  and what they're anticipating.  THE COURT:  Surely that's not an argument you can usefully  address to me.  I can pronounce now I'm in favour of  negotiations.  MS. MANDELL:  Well, my lord —  THE COURT:  But it's a meaningless gesture on my part.  MS. MANDELL:  Well, if I could say this, that you cannot compel  negotiations, but you can appreciate the position  which the court in Sparrow has anticipated that the  Indian people, the federal government and the province  find themselves in, and that negotiations from their  point of view will follow.  THE COURT:  Well, that may be, but it's not a judicial function.  Even if I could compel negotiations you know the  parable of the unwilling horse.  MS. MANDELL:  Well, I just wanted to advise your lordship if I  can just address you this way and then complete what I  have to say overall.  At the bottom of page 23 to 26 I've drawn to your  lordship's attention the unpleasant task that the  courts have had of admonishing Canada for not taking  Indian rights and its fiduciary responsibilities  seriously.  And we say, for example, in Paul and again  in Guerin the courts have had the unpleasant task of  saying to the Crown that even though we've pronounced  on certain rights you continue to act as if it's  business as usual.  And I draw your lordship's  attention in paragraph 84 to the argument of Canada in  this case which is reflective of Canada's  interpretation of aboriginal rights and the fiduciary  obligations.  And we say that even after Sparrow the  argument of the federal government is in a position  cour  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 29234  Submissions by Ms. Mandell 1            which is opposed to  the pronouncement of Sparrow, and  2 is opposed to the fiduciary obligations.  Rather than  3 interpreting the rights as the Indians understand them  4 and in a purposive analysis Canada's submission reads  5 out the rights reducing them to a few berry patches  6 and a few fishing sites and then they acknowledge that  7 the plaintiffs have had their rights extinguished by a  8 province that doesn't even have the constitutional  9 capability of doing that.  And we say that it's a  10 position which your lordship can understand does not  11 take the words of the court and read them -- reads it  12 to a place where they can be brought to the table.  13 And if I could ask your lordship to turn in the  14 argument to page 34.  I'm sorry.  Page 33.  I want to  15 address the province on this point too.  The  16 province -- and this is at paragraph 113 -- it relies  17 on the statement in Sparrow that sovereignty,  18 legislative powers and underlying title have always  19 vested in the Crown.  And from this the province  20 concludes that it has the ownership and jurisdiction  21 of lands outside of reserve lands and the plaintiffs  22 must engage in the justificatory process in order to  23 challenge any specific provincial statutes.  24 We say that the decision in Sparrow contradicts  25 the conclusion which the province seeks to have this  26 court draw.  Sparrow concerns aboriginal title off  27 reserve, and by virtue of the inclusion of the fishing  28 right within Section 35 the power of parliament is not  29 plenary, but is constrained by both the nature of the  30 right and the honour of the Crown.  And we notice that  31 the passage relied upon by the province ends with the  32 words, and at the top of page 34 the court says:  33  34 "We can not recant with much pride the  35 treatment accorded to the native people of this  36 country."  37  38 We say that Sparrow affirms that while  39 sovereignty, legislative power and underlying title is  40 vested in the Crown, a proposition which the  41 plaintiffs don't dispute, aboriginal rights in the  42 Indian Nations form a burden on Crown title and impose  43 fiduciary obligations on Canada.  44 And we say with the province reading Sparrow to  45 say it's business as usual and the federal government  46 reading Sparrow to say it's business as usual, even  47 though the courts may see that there's a negotiation 29235  Submissions by Ms. Mandell        1 possible --  2 THE COURT:  I just can't deal with that argument, Ms. Mandell.  3 I don't know if negotiations are possible or not.  4 MS. MANDELL:  Well, in our submission even if negotiations  5 aren't possible the matter can be dealt with on the  6 law.  7 THE COURT:  That clearly is the misfortune I find myself in.  I  8 don't find it helpful to say that these people ought  9 to be negotiating.  They have had three years of this  10 trial to negotiate if they wanted to.  I haven't seen  11 any -- I don't know of any indication that there's  12 been a willingness to negotiate on either side.  13 MS. MANDELL:  Well, my lord, I can say that it's not.  14 THE COURT:  You can say that, but I don't know that, Ms.  15 Mandell.  I really find it very troubling to be put in  16 a position where I should be telling these people what  17 they have every right to do, and which is none of my  18 business.  19 MS. MANDELL:  My lord, our submission is even if the statement  20 of the law were properly reaffirmed it could compel  21 negotiations.  That's the --  22 THE COURT:  That may follow, but that's nothing to do with my  23 function.  24 MS. MANDELL:  Well, I don't have time to debate it with you.  25 I wanted just to sum up to deal with the question  26 briefly of aboriginal jurisdiction.  And at the bottom  27 of page 34 we say that the court in Sparrow did not  28 have to decide the full nature of aboriginal  29 jurisdiction, but the decision taken together with the  30 nature of the inquiry recognizes the sui generis  31 nature of aboriginal jurisdiction, where on the  32 evidence such jurisdiction forms part of the existing  33 rights as understood by the Indians.  34 And I've given you a full litany of quotations  35 from Sparrow which I ask your lordship to read,  36 because in our submission it -- the court is in strong  37 language inviting the definition of aboriginal rights,  38 as we say they ought to do, in a proportion of  39 analysis to permit the survival of Indian Nations as  40 distinct peoples within Canada.  In our submission  41 what the court has done is -- they have in using the  42 language of the decision as I've set out at the top of  43 page 35 the court has invited the interpretation of  44 Section 35 as a promise to the Indian people, a place  45 in confederation which recognizes their continuing  46 existence and survival within their home lands as  47 distinct peoples. 29236  Submissions by Ms. Mandell        1 We say that  aboriginal jurisdiction is necessarily  2 part of the aboriginal right.  It gives the Indian  3 nations a chance to heal themselves, heal their  4 communities, heal their land.  Make decisions for  5 themselves which don't leave them as Canada's  6 decisions have today as the poorest people in Canada,  7 the highest suicide rate, the largest number of Indian  8 people in prison.  It allows Indian people to make  9 decisions for themselves, which they have made in the  10 past, and which they should be able to make for  11 themselves in the future.  12 But we say that Canada also promises to Canada the  13 assistance of the Indian Nations in protecting the  14 land for the future, applying to the task all the  15 lessons and values taught from generation to  16 generation by their ancestors who have stewarded this  17 land now called British Columbia for thousands of  18 years before the Province of British Columbia was  19 established.  And we say that's the joy of the  20 decision for the rest of Canada is that there's a  21 compelling of the Indian peoples' assistance in the  22 stewardship of the land.  And we say that's the  23 overall strength of Section 35 for everybody.  24 My lord, I'd ask you to read everything in between  25 that I missed.  2 6 THE COURT:  I've read everything.  27 MS. MANDELL:  Thank you.  28 MR. GOLDIE:  My lord, I take it I will have the opportunity of  29 saying something about the submissions with respect to  30 negotiations if those sections are to remain in there?  31 THE COURT:  Well, I'll reserve on that.  Certainly it hasn't  32 been a part of the argument up to this time, and is a  33 feature that's introduced.  34 MR. GOLDIE:  It is completely new.  35 MS. MANDELL:  Well, it was introduced by the court in Sparrow,  36 we say, and my friend could have commented upon it  37 then.  38 MR. GOLDIE:  That's not correct, with respect, my lord.  I did  39 not read, and I do not read the word negotiation in  40 Sparrow as having anything to do with the submissions  41 made by Ms. Mandell.  42 THE COURT:  I'm not going to commit myself to anything at the  43 moment.  We'll see how many other problems of this  44 nature might arise.  45 Well, I'm sorry.  I'm sorry.  I think because  46 negotiations is a matter that has been introduced into  47 this case, so far as I'm concerned, only today I think 29237  Submissions by Mr. Goldie        1 Mr. Goldie should be  allowed to say something about  2 that.  But I think he should say it now rather than at  3 the end of the plaintiffs' reply.  4 MR. GOLDIE:  Well, my lord, I point out that it is the  5 plaintiffs who started this action.  I point out that  6 there was a comprehensive land claims process  7 available to them which they were in the process of  8 using.  That is with the federal government.  They are  9 the plaintiffs in this case.  There was no  10 consultation before the writ was issued.  The  11 provincial government has no power constitutionally to  12 negotiate a treaty, or anything else.  That is a rock  13 upon which my friends rely.  When it comes to  14 exercising provincial powers in aid of native peoples  15 the province has acted.  And that is the case with the  16 Sechelt Indian Band acts.  But to suggest that there  17 is some -- with one submission say that the province  18 has no powers with respect to Indians and lands  19 reserved for Indians, and on the other hand to say  20 that the court has the power to override the  21 Constitution and compel negotiations is, in my  22 submission, a self-contradictory submission.  23 THE COURT:  I don't think Ms. Mandell has suggested that I  24 should make an order compelling negotiations.  25 MR. GOLDIE:  I took it that either that — either that, my lord,  26 or she was seeking to prejudice the province in your  27 lordship's eyes by suggesting that it has resisted  28 something which it could do if it wanted to do.  And  29 that just simply isn't the case.  30 THE COURT:  Well, I learned years ago that the referees often  31 only see the retaliation, and for that reason I will  32 not -- am not very enthusiastic about pointing fingers  33 of blame in the course of litigation in relation to  34 matters which are not properly part of the questions  35 in issue in the action.  I don't think negotiations  36 are -- well, I know they're not raised in the  37 pleadings, and I don't think they are included in the  38 basket of the juridical remedies that are available to  39 me.  Whether at the end of the day I would think it  40 appropriate to offer advice and run the risk of being  41 told to mind my own business, or to make  42 pronouncements on subjective rights and wrongs is a  43 matter I will want to give a lot of thought to, and I  44 hope exercise a good deal of restraint.  I think these  45 people are -- when I say these people I mean the  46 plaintiffs on the one hand and the defendant on the  47 other hand are all conscious of the opportunities that 29238  Submissions by Mr. Jackson        1 exist for them, and I  don't think they need me to tell  2 them that a settlement of disputed rights is always  3 desireable, and is always or usually very beneficial.  4 But I'm anxious not to step over the proper restraints  5 that I think are imposed upon the bench.  And I think  6 it's a salutary thing that they are imposed on us.  If  7 we were all out in expressing our views on what people  8 should do rather than pronouncing our rights we have  9 judicially that would be fractured and inconsistent,  10 and a lot of things, and not desireable.  I think I  11 should say no more about this question.  12 Mr. Jackson.  13 MR. JACKSON:  My lord, I'm handing Madam Registrar the second  14 volume of the plaintiffs reply, my lord.  My lord, to  15 assist your lordship's understanding this part of  16 reply is indexed.  And you'll see if you turn to tab 1  17 at the top of the page I have indicated the particular  18 part of the province's submissions to which this is a  19 reply.  2 0 THE COURT:  When you said indexed you mean --  21 MR. JACKSON:  The top of each section, the first page.  22 THE COURT:  It shows what part —  23 MR. JACKSON:  Yes, my lord.  This will help you identify the  24 part to which I am replying.  25 THE COURT:  These are all references to the province, are they?  26 MR. JACKSON:  Yes, my lord.  There will be a separate submission  27 in relation to the federal government's submissions.  28 The other thing I would advise your lordship is  29 that we set out with the intention to provide your  30 lordship with a companion volume which would give your  31 lordship, in the same manner as the province did, the  32 particular actual hard copy of transcript extracts  33 from court cases so that your lordship can use that  34 volume as a companion.  The pressure of time and the  35 strain on my resources have prevented that to be  36 completed for today's submissions.  What we intend to  37 do is give your lordship a companion volume which  38 would give your lordship that particular page which is  39 referred to, for example, where I cite from Mr.  40 Justice Hall's judgment in Calder.  So you'll have the  41 two volumes.  42 THE COURT:  All right.  43 MR. JACKSON:  Turning now then to one, my lord, which deals with  44 the province's argument regarding the source of  45 aboriginal interests.  I have set out what I  46 understand to be the provincial defendant's argument  47 in relation to the source of aboriginal interests. 29239  Submissions by Mr. Jackson        1 And I've done this in  order to, as it were, structure  2 the reply so that your lordship is aware of the  3 argument as the plaintiffs' understanding and just to  4 summarize that.  And I won't go through all of this.  5 Paragraph 1.  Aboriginal rights in a legal sense  6 do not pre-date the establishment of legal order.  7 Paragraph 2.  When sovereignty was asserted over  8 the mainland of British Columbia a legal order was  9 imposed upon the newly acquired territory but  10 aboriginal rights didn't come into existence  11 necessarily.  Any rights which the Indians might  12 thereafter have could only be what the law of the new  13 regime accorded them.  14 Down to paragraph 4.  It is axiomatic that the  15 source of a right which is enforceable against the  16 Crown must be found in an acknowledgement of the  17 existence of such a right, whether express, or from  18 necessary implication.  Express acknowledgement may be  19 found in an exercise of the royal prerogative or in an  20 Act of Parliament.  Necessary implication may arise  21 from a course of conduct by the executive on behalf of  22 the Crown.  23 And in paragraph 5.  The nature of the enquiry,  24 therefore, when the province asserted sovereignty over  25 a territory what legal rights, if any, were conferred  26 upon the Indians against the Crown.  In answering that  27 question the content of the relationship between the  28 Crown and the aboriginal inhabitants of a particular  29 territory at a particular time is not historically or  30 legally pre-determined.  Because the history of  31 relations between the aboriginal inhabitants of Canada  32 and the Crown differs across the country and  33 aboriginal rights were, at least prior to 1982,  34 dependent upon the goodwill of the sovereign, it  35 cannot be said that the common law of aboriginal  36 rights is uniform across Canada.  37 My friend continued in paragraph 6.  What was  38 created and protected in British Columbia was an  39 interest of the native peoples in their occupied  40 village sites and, where they had adopted an agrarian  41 way of life, as in the southern interior, cultivated  42 fields and as much land in the vicinity of each as  43 they could till, or was required for their support,  44 together with the right to free exercise and enjoyment  45 of fishing in the lakes and rivers and hunting all  46 over unoccupied Crown lands in the colony.  47 And I make the point in paragraph 7, Mr. Goldie 29240  Submissions by Mr. Jackson        1 amplifying in his oral  submissions made it clear that  2 those rights of harvesting were not exclusive rights,  3 but were rights shared in common with everyone else in  4 the province.  5 In paragraph 9 --  6 MR. GOLDIE:  Harvesting.  My friend is not referring to  7 harvesting in the field, surely?  8 MR. JACKSON:  No, my lord.  I'm referring to hunting and  9 fishing.  10 In paragraph 9, the colony gave effect to its  11 policy by, among other things, setting aside reserves  12 for the use and benefit of the native peoples.  13 Reserve allocation gave territorial definition to the  14 areas where the Crown had determined to protect Indian  15 occupation.  The policy of reserve allocation became  16 the central element of the process by which the  17 colonial legal order acknowledged and gave effect to  18 the fact of aboriginal presence.  19 And summing that whole line of argument aboriginal  20 title -- paragraph 10.  Aboriginal title in colonial  21 British Columbia properly so called, consisted of the  22 interest of the native peoples in their occupied  23 village sites and cultivated fields, which interest  24 was both created and protected by the allocation of  25 reserves.  26 And then, my lord, in paragraphs 11 to 15 I  27 summarize the way in which Mr. Goldie traced that  28 thesis into Chief Justice Begbie's benchbook, and how  29 in turn Chief Justice Begbie saw that proposition or  30 those propositions flowing from the judgment of  31 Chancellor Boyd in St. Catherine's Milling.  32 And I say in paragraph 15 that it is in Chancellor  33 Boyd's judgment which in many ways is the intellectual  34 and judicial source of the provincial defendant's  35 argument.  36 And paragraph 16 I deal with the way in which that  37 argument is said to be buttressed by Earl Grey and Dr.  38 Arnold.  And perhaps, my lord, I could ask my friends  39 to make use of their computer to assist your lordship.  40 I don't have Dr. Arnold's cite.  Our photocopying  41 machine ate it.  Perhaps in view of the resistance we  42 have to the cultivated fields thesis, but I'm afraid I  43 don't have a copy of that here.  If my friends would  44 provide that to your lordship that would assist me and  45 your lordship.  46 MR. GOLDIE:  I'm sorry.  I didn't quite follow you.  Are you  47 referring to what Lord Grey quoted in his dispatch? 29241  Submissions by Mr. Jackson        1  MR. JACKSON:  Yes, my lord.  2 MR. GOLDIE:  With respect to Dr. Arnold?  3 MR. JACKSON:  Yes.  4 MR. GOLDIE:  I can't assist you in that regard.  5 MR. JACKSON:  Oh.  6 MR. GOLDIE:  I do not have Dr. Arnold's thesis other than is  7 quoted by Lord Grey and as set out by Lord Grey in the  8 dispatch.  That document is in evidence.  9 THE COURT:  Yes.  I'm not sure what —  10 MR. JACKSON:  I would be helped by the reference to the document  11 in evidence, my lord.  12 MR. GOLDIE:  Oh, well, yes, we can do that.  13 THE COURT:  All right.  14 MR. JACKSON:  In paragraph 17, my lord, the next proposition in  15 the provincial defendant's argument is that there is  16 no estate known to the common law which is based on  17 possession prior to the assertion of sovereignty.  All  18 interests in land in British Columbia must derive  19 either mediately or immediately from the Crown.  When  20 the civil and criminal laws of England, as the same  21 existed at the date of the English Law Proclamation of  22 1858, the principle that the basic title to all land  23 was vested in the sovereign was the law in British  24 Columbia.  The effect of the proclamation was to  25 extinguish, by denying recognition to, any claim, if  26 such existed, including aboriginal title, which did  27 not derive from a grant by the sovereign.  28 And I say in paragraph 18, my lord, that at this  29 stage in the province's argument in their oral  30 submissions they cited extensively from the decision  31 of Mr. Justice Blackburn in the Milirrpum case  32 regarding the distinction between settled and  33 conquered or ceded colonies.  And later in their  34 written submissions the provincial defendant referred  35 to Blackstone's commentaries regarding this  36 distinction and cited further passages from Milirrpum.  37 As the plaintiffs understand the provincial  38 defendant's argument based upon Mr. Justice  39 Blackburn's reasoning, it is that British Columbia was  40 established, as a matter of law, as a settled colony.  41 In a settled colony the law of England applied.  42 English law, as applied in England, a fortiori did not  43 include any rule recognizing native title - there were  44 no natives.  The Welsh may have something to say about  45 that, my lord, but these propositions I think the  46 argument is clear.  Furthermore, English law as  47 applied to a settled colony never included any 29242  Submissions by Mr. Jackson        1 recognition of native  title.  And Mr. Justice  2 Blackburn based this conclusion on several grounds.  3 One of them is that Blackstone makes no reference to  4 the doctrine of aboriginal rights (or as expressed by  5 Mr. Justice Blackburn "communal native title").  6 Furthermore, Mr. Justice Blackburn finds that based  7 upon his analysis of the American jurisprudence and  8 the African and Indian cases no such doctrine was ever  9 incorporated into the common law as it applied to  10 settled colonies.  The lack of recognition of any  11 doctrine of aboriginal title at common law is also  12 said by him to be supported independently by reference  13 to the principle of English law of real property that  14 the Crown is the source of title to all land.  15 Therefore the only title native people can assert  16 is one which is recognized by the Crown after its  17 assertion of sovereignty.  18 It is important, I say in paragraph 19, my lord,  19 to understand the basis upon which Mr. Justice  20 Blackburn found that Australia was a settled colony  21 and therefore the concept of communal native title had  22 no application there.  He did so partly by reference  23 to the Blackstonian classification and his lordship's  24 understanding that the definition of settled colonies  25 as desert and uncultivated included territory in which  26 live uncivilized inhabitants in a primitive state of  27 society.  And I'll be coming back to that.  The  28 principle reason was, however, that the matter had  29 been settled so far as Australia was concerned by the  30 decision of the Privy Council in Cooper v. Stuart  31 where their lordships found that New South Wales was  32 "a colony which consisted of a tract of territory  33 practically unoccupied, without settled inhabitants or  34 settled law, at the time when it was peacefully  35 annexed to the British dominions."  Counsel for the  36 aborigines in Milirrpum, now Mr. Justice Woodward,  37 argued that this was a statement which was  38 historically inaccurate, particularly in light of  39 modern anthropological knowledge; that the very  40 evidence in Milirrpum itself was that the subject land  41 was not without settled inhabitants or settled law;  42 indeed that the evidence showed that the subject land  43 had highly settled inhabitants and settled law.  His  44 lordship, Mr. Justice Blackburn, however concluded  45 that the question of whether a colony was settled or  46 not was a matter of law and not a matter of fact.  And  47 he held that: 29243  Submissions by Mr. Jackson        1 "Whether or not  the Australian aboriginals  2 living in any part of New South Wales had in  3 1788 a system of law which was beyond powers of  4 the settlers at that time to perceive or  5 comprehend, it is beyond the power of this  6 court to decide otherwise than that New South  7 Wales came into the category of a settled or  8 occupied colony."  9  10 And we say, my lord, that accepting the provincial  11 defendant's argument that B.C. is a settled colony  12 carries with it the denial, as a matter of law, of the  13 historical fact, in the words of Professor Wilson  14 Duff, and these were words which were cited by Mr.  15 Justice Hall in Calder.  16  17 "At the time of contact, Indians of this area  18 are among the world's..."  19 That should be were among the world's.  20  21 "...most distinctive peoples.  Fully one-third  22 of the native population of Canada lived here.  23 They were concentrated most heavily along the  24 coast line and the main western rivers, and in  25 those areas they developed their cultures to  26 higher peaks in many respects than in any other  27 part of the continent north of Mexico."  28  29 And we say, my lord, that such a perverse  30 conclusion should not be readily drawn by this court  31 as a basis for the adjudication of the legal rights of  32 the plaintiffs.  33 In paragraph 21, my lord, this in some ways is the  34 heart of the section in terms of the reply.  It is the  35 plaintiffs' submission that three central tenets of  36 the provincial defendant's argument are fundamentally  37 flawed and should be rejected by this court.  And  38 these tenets are that:  First, the asserted status of  39 British Columbia as a settled colony is legally  40 relevant to the determination of the plaintiffs'  41 aboriginal rights; secondly, that in a settled colony  42 English law applies and the common law of England  43 never recognized any doctrine of aboriginal title in a  44 settled colony; and thirdly, the only aboriginal  45 rights enforceable against the Crown are those which  46 the Crown recognizes expressly or by necessary  47 implication. 29244  Submissions by Mr. Jackson        1 As to the first  tenet it is the plaintiffs'  2 submission that the settled/conquered colony dichotomy  3 was developed for the purposes of determining what  4 laws governed British subjects in newly acquired  5 territories and that the dichotomy has played no part  6 in the law of aboriginal rights as it has developed in  7 North America.  The error we say in the provincial  8 defendant's argument (to the extent that it is based  9 upon the settled/conquered colony dichotomy) is its  10 failure to appreciate that the principles determining  11 the relationship between the British Crown and  12 aboriginal peoples in North America developed or  13 crystallized into a special branch of British common  14 law applicable to the colonies distinct from and not  15 dependent upon the various rules relating to settled  16 or conquered or ceded colonies.  And I will be  17 developing that point, my lord, later on in this  18 submission.  19 As to the second tenet, to the extent that the  20 provincial defendant's argument relies upon the  21 Milirrpum decision that the doctrine of native title  22 was never part of the common law, it is submitted that  23 this proposition has been rejected in the judgments of  24 the Supreme Court of Canada in Calder and Guerin.  And  25 I will be developing that point, my lord, later in the  2 6 submission.  27 The third tenet in the provincial defendant's  28 argument - that no aboriginal title can be enforced  29 against the Crown unless it has been acknowledged by  30 the Crown expressly or by necessary implication - we  31 say has also been rejected by the Supreme Court of  32 Canada.  And that third tenet, my lord, is what I want  33 to now address your lordship on.  34 In paragraph 25 I say, to the extent that the  35 provincial defendant's argument that no native title  36 can exist in a settled colony unless recognized by the  37 Crown depends on the distinction between settled and  38 conquered colonies, the rejection of the relevance of  39 that distinction to the law of aboriginal rights - for  40 reasons I will come to - undermines the basis for the  41 recognition doctrine and it falls to the ground for  42 lack of any legal foundation.  43 It is further our submission that to the extent  44 that the recognition doctrine does not depend upon the  45 settled/conquered colony distinction the doctrine has  46 been rejected by the Supreme Court of Canada.  47 Now, in Calder, my lord, the recognition doctrine 29245  Submissions by Mr. Jackson        1 was advanced by the  provincial defendant and accepted  2 by the B.C. Court of Appeal.  Although Mr. Goldie on  3 several occasions sought to distinguish his version of  4 the recognition doctrine from that accepted by the  5 B.C. Court of Appeal in Calder it appears to the  6 plaintiffs that the only distinction is that the  7 province in this case suggests that its version of the  8 recognition doctrine is directly linked to the settled  9 colony issue which was not considered in Calder.  Thus  10 if the settled colony point has no legal weight, the  11 province's recognition argument in this case either  12 falls to the ground ex proprile vigore or else it is  13 in essence the same argument accepted by the B.C.  14 Court of Appeal in Calder, and we say rejected.  15 Paragraph 28, my lord, I say that the way in which  16 the recognition doctrine seems to be associated, at  17 least to the plaintiffs, with the settled colony point  18 arose in the context of an addendum submitted by the  19 province relating to Mr. Justice Hall's criticism - in  20 fact rejection - of the Court of Appeal's erroneous  21 application of the Act of State doctrine.  Following  22 discussion between your lordship and Mr. Goldie we say  23 is instructive of the province's position.  I'm not  24 going to take you through it, my lord, but it was my  25 understanding of that that your lordship was grappling  26 with the idea of what's the difference.  And I can  27 advise your lordship it's something the plaintiffs  28 have been grappling with.  What's the difference  29 between the recognition doctrine as argued by the  30 plaintiffs and the Act of State doctrine argued in  31 court and rejected.  I understand that to be Mr.  32 Goldie's position that it is the settled colony point.  33 And I say in paragraph 29 it would therefore  34 appear that the recognition doctrine advanced by the  35 province is entirely dependent upon the proposition  36 that B.C. was a settled colony.  37 MR. GOLDIE:  Well, I shouldn't let my friend be deceived.  I did  38 point out that the propositions that Mr. Justice Hall  39 relied upon stemmed from a text which in turn had  40 failed to take into account the jurisprudence which I  41 brought to the court's attention.  42 MR. JACKSON:  My lord, I say in paragraph 30, although Mr.  43 Goldie in this way, the way I've just described, and  44 perhaps I can add in the way he just indicated, seeks  45 to distance himself from the Calder Court of Appeal  46 Act of State version of the recognition doctrine it is  47 submitted that the distinction is more apparent than 29246  Submissions by Mr. Jackson        1 real.  We say this is  best illustrated by comparing  2 the recognition doctrine advanced by the province in  3 Calder and accepted by the Court of Appeal with the  4 argument of the province in this case.  And as is set  5 out in the judgment of Mr. Justice Tysoe the  6 province's argument in Calder was:  7  8 "There is no Indian title capable of judicial  9 recognition in the Courts of Canada unless it  10 has previously been recognized by the  11 legislature or the Executive Branch of the  12 government."  13  14 In acceding to that argument, my lord, the Court  15 of Appeal relied principally on a series of Privy  16 Council cases including the Vajesingji case.  Mr.  17 Justice Tysoe cited from that case for the following  18 proposition:  19  20 "But a summary of the matter is this:  When a  21 territory is acquired by a sovereign state for  22 the first time that is an out of state."  23  24 That should be an act, my lord.  25 THE COURT:  Oh, yes.  2 6  MR. JACKSON:  27 "It matters not how the acquisition has been  28 brought about.  It may be by conquest, it may  29 be by cession following on treaty, it may be  30 occupation of territory hitherto unoccupied by  31 a recognized ruler.  In all cases the result is  32 the same.  Any inhabitant of the territory can  33 make good in municipal courts established by  34 the new sovereign only such rights as that  35 sovereign has, through his officers,  36 recognized.  Such rights as he had under the  37 rule of his predecessors avail him nothing."  38  39 My lord, in paragraph 32 I point out that that  40 proposition is relied upon as cited by the provincial  41 government for exactly the same point.  42 In paragraph 33, my lord, I say that the  43 recognition doctrine espoused by the Court of Appeal  44 in Calder has been rejected by the Supreme Court of  45 Canada.  In Calder itself Mr. Justice Judson while he  46 agreed with the Court of Appeal that any aboriginal  47 title of the Nishgas had been extinguished he did not 29247  Submissions by Mr. Jackson        1 base his decision on  the recognition principle.  2 Although he refrained from expressly disagreeing with  3 it, his citation from American cases demonstrates that  4 his lordship saw no merit in the province's argument.  5 Thus he cited a passage from the Santa Fe case in  6 which the Supreme Court said:  7  8 "Nor is it true, as respondent urges, that a  9 tribal claim to any particular lands must be  10 based upon a treaty, statute or other formal  11 government action.  As stated in the Cramer  12 case 'The fact that such right of occupancy  13 finds no recognition in any statute or other  14 formal governmental action is not conclusive'."  15  16 Now, Mr. Justice Hall, of course, addressed this  17 issue head on.  Properly characterizing the Court of  18 Appeal recognition doctrine as the "Act of State  19 doctrine", he held that it had no application to the  20 claim being made by the Nishga principally because it  21 had never been invoked in claims dependent on  22 aboriginal title and applying it would be inconsistent  23 with the rationale of the doctrine.  And I have set  24 out at length, my lord, Mr. Justice Hall's statements.  25 And I would just refer your lordship to the last  26 paragraph.  27  28 "Once it is apparent that the Act of State  29 doctrine has no application, the whole argument  30 of the respondent that there must be some form  31 of 'recognition' of aboriginal rights falls to  32 the ground."  33  34 Now, my lord, the provincial defendant in one of  35 its addendums, which I identify at paragraph 35, while  36 insisting that it has not relied upon the Act of State  37 doctrine nevertheless criticizes Mr. Justice Hall's  38 rejection of the doctrine as applied by the Court of  39 Appeal.  And we say that the basis for this criticism  4 0 is not well founded.  At Paragraph 2 9 of the addendum  41 the Province suggests that the Court of Appeal was  42 considering the Act of State doctrine from the point  43 of view of recognition of an interest; Mr. Justice  44 Hall was considering it from the point of view of  45 extinguishment.  And we say this is demonstrably not  46 the case.  Mr. Justice Hall in the passages I cited,  47 or referred your lordship to, was responding directly 29248  Submissions by Mr. Jackson        1 to the Court of  Appeal's statement "that there is no  2 Indian title capable of judicial  3 interpretation... unless it has previously been  4 recognized either by the legislature or the executive  5 branch of government".  6 My lord, we say that this point in relation to  7 recognition has been laid to rest by both the Court of  8 Appeal in Sparrow and by the Supreme Court in Guerin.  9 The decision of the B.C. Court of Appeal in Sparrow  10 has specifically addressed the status of the  11 recognition principle adopted by the Court of Appeal  12 in Calder and its analysis is entirely consistent with  13 that of the plaintiffs, and equally inconsistent with  14 that of the respondents.  Consistent with the  15 plaintiffs and inconsistent with the provincial  16 defendant.  The court stated:  17  18 "The primary ground of decision in the Court of  19 Appeal was different.  In the words of Mr.  20 Chief Justice Davey it was:  21  22 'In each case it must be shown that the  23 aboriginal rights were ensured by prerogative  24 or legislative act, or that a course of dealing  25 has been proved from which that can be  26 inferred.'"  27  2 8 And just dropping down to the next but one  29 paragraph:  30  31 "That view was not accepted in the Supreme  32 Court.  Mr. Justice Hall set out in detail his  33 reasons for holding that aboriginal title does  34 not depend on treaty, executive order or  35 legislative enactment.  Mr. Justice Judson, at  36 least by implication, expressed the same view."  37  38 My lord, the Court of Appeal in Sparrow then  39 quoted exactly that statement I read to your lordship  40 from the Santa Fe case as the basis for its conclusion  41 that Mr. Justice Judson by implication rejected the  42 recognition doctrine.  43 The Court of Appeal -- and of course, as your  44 lordship is aware, this was a full bank of the Court  45 of Appeal.  46  47 "Six judges of the Supreme Court have joined in 29249  Submissions by Mr. Jackson        1 rejecting the  view that aboriginal title can  2 exist only if conferred by treaty, statute or  3 agreement, there can be no justification for  4 continuing to treat that view as binding."  5  6 And we say, my lord, that really so far as your  7 lordship is concerned ends the debate regarding the  8 recognition doctrine.  9 However, in paragraph 37, my lord, we refer your  10 lordship to what Mr. Justice Dickson said in Guerin.  11 And I would point out to your lordship that this  12 passage was in fact relied upon, and forms part of the  13 judgment of the B.C. Court of Appeal judgment on  14 Sparrow on this point.  And I'll just refer your  15 lordship to the third paragraph.  16  17 "The principle that a change in sovereignty  18 over a particular territory does not in general  19 effect the presumptive title of the inhabitants  2 0                   was approved by the Privy Council in Amodu  21 Tijani v. Southern Nigeria.  That principle  22 supports the assumption implicit in Calder that  23 Indian title is an independent legal right  24 which, although recognized by the Royal  25 Proclamation of 1763, nonetheless predates it."  26  27 And then the last two sentences I've underlined.  28  29 "The situation of the Indians is entirely  30 different.  Their interest in their lands is a  31 pre-existing legal right not created by the  32 Royal Proclamation, by Section 18(1) of the  33 Indian Act, or by any other executive order or  34 legislative provision."  35  36 My lord, in paragraphs 38 and 39 I note that there  37 may be some difficulty in reconciling the Vajesingji  38 decision and Amodu Tijani, and Lord Denning in Oyekan  39 v Adele, which is referred to in paragraph 39.  40 Now, my lord, if I could imagine in a moment of  41 playing the role of harsh professor I might set a  42 problem asking students to try and reconcile those two  43 decisions.  Whether or not they are reconcilable is  44 debatable I say in paragraph 40.  What is not  45 debatable is that in the context of the Canadian  46 development of the law of aboriginal rights the  47 recognition principle has been rejected unequivocally 29250  Submissions by Mr. Jackson        1 as part of that law.  It is respectfully submitted  2 that the provincial defendant's attempt to breathe  3 life into it by recharacterizing it or linking it with  4 the settled colony doctrine must fail.  5 Would this be an appropriate point to take the  6 break, my lord?  7 THE COURT:  Yes.  8 THE REGISTRAR:  Order in court.  Court stands adjourned for a  9 short recess.  10  11 (PROCEEDINGS ADJOURNED)  12 I hereby certify the foregoing to  13 be a true and accurate transcript  14 of the proceedings transcribed to  15 the best of my skill and ability.  16  17  18  19  20  21 Peri McHale,  22 Official Reporter,  23 UNITED REPORTING SERVICE LTD.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 29251  Submissions by Mr. Jackson        1        (PROCEEDINGS RESUMED  PURSUANT TO MORNING ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  I'm on tab 2, my lord.  6 THE COURT:  Yes.  7 MR. JACKSON:  In relation to the matter of aboriginal title.  8 The Plaintiffs in their submissions have acknowledged  9 that their claims to ownership and jurisdiction are  10 'radical' in the literal meaning of the word in  11 asserting inherent, fundamental rights going to the  12 root of the relationship between Crown and aboriginal  13 peoples.  And we say that the arguments advanced by  14 the Provincial Defendant in this section can only be  15 characterized as 'heretical' in the literal meaning of  16 that word in that they are so contrary to the accepted  17 doctrine of aboriginal title as it has been stated in  18 Canadian law.  The Provincial Defendant maintain that  19 notwithstanding Calder, Baker Lake, Guerin and Sparrow  20 the common law does not recognize any aboriginal  21 rights to lands and resources outside reserves.  The  22 Provincial Defendant says in paragraph 4 that the  23 decision of the Supreme Court in Calder "read  24 carefully, is not authority to the contrary."  Mr.  25 Goldie acknowledges that this position flies in the  26 face of what other Canadian judges have held.  And he  27 in fact cited what Mr. Justice Mahoney said in  28 Baker Lake that:  29  30 "...the clear agreement of the other six judges  31 on the point is solid authority for the general  32 proposition that the law of Canada recognizes  33 the existence of an aboriginal title  34 independent of the Royal Proclamation or any  35 prerogative act of legislation.  It arises at  3 6 common law."  37  38 Mr. Goldie says that this statement of Mr. Justice  39 Mahoney reads too much into the judgment of Mr.  40 Justice Judson and that subsequent cases, including  41 the judgment of Mr. Justice Dickson in Guerin "builds  42 on this error."  And that, my lord, is at paragraph 22  43 of my friend's argument.  Before addressing the basis  44 for the Province's argument it is important to recall  45 the review -- the views expressed by Mr. Justice  46 Dickson.  And I will just refer your lordship to the  47 first sentence there. 29252  Submissions by Mr. Jackson        1  2 "In Calder, this Court recognized aboriginal  3 title as a legal right derived from the Indians  4 historic occupation and possession of their  5 tribal lands."  6  7 And further down near the bottom of the page:  8  9 "Mr. Justice Judson and Mr. Justice Hall were  10 in agreement, however, that aboriginal title  11 existed in Canada (at least where it had not  12 been extinguished by appropriate legislative  13 action) independently of the Royal  14 Proclamation."  15  16  17 Now, paragraph 4 I summarize the Province's  18 argument.  It is that in relation to the judgment of  19 Mr. Justice Judson that in light of the manner in  20 which the declaration sought by the Nishga's was  21 framed "that the aboriginal title otherwise known as  22 Indian title of the plaintiffs to their ancient tribal  23 territory  ... has never been lawfully extinguished",  24 and in light of the admission in the case that the  25 claimed -- the area claimed was in fact the ancient  26 tribal territory of the Nishga, "it was unnecessary to  27 determine whether aboriginal title existed, let alone  28 its form and content."  29  30 The Province next asserts that "based on the key  31 admissions of fact Mr. Justice Judson held that the  32 rights, the existence of which was implied in the  33 declaration prayed for by the plaintiffs, was an  34 equitable one dependant upon the good will of the  35 sovereign - that is to say - that its very existence  36 was dependent on the Crown's recognition of it.  37  38 Thus, my lord, far from finding that aboriginal  39 rights can exist as a matter of common law the  40 Province asserts that Mr. Justice Judson's judgment  41 affirms the converse that any such right is dependent  42 upon recognition by the Crown, what I have referred to  43 as the ubiquitous recognition doctrine.  44  45 The Plaintiffs have already cited from the  4 6 unanimous judgment of the Court of Appeal in Sparrow  47 which clearly expresses the view of that Court that 29253  Submissions by Mr. Jackson        1 the recognition  doctrine was, implicitly in the case  2 of Mr. Justice Judson, and expressly in the case of  3 Mr. Justice Hall, rejected by the Supreme Court in  4 Calder.  The Court of Appeal in the course of its  5 discussion on that point also addressed and equally  6 clearly rejected the position advanced by the  7 Provincial Defendant that Mr. Justice Judson's  8 judgment carries with it no acknowledgment of any  9 common law doctrine of aboriginal title.  And the  10 Court of Appeal stated:  11  12 "On the substantive issue, the basis of  13 decision by Mr. Justice Judson was essentially  14 the same as the trial judge, Mr. Justice Gould  15 and the alternative ground of decision by the  16 judges of this court.  That is that the  17 aboriginal title of the Nishga had been  18 extinguished by general land legislation before  19 British Columbia should be  20 entered...confederation.  That, of course was  21 not a finding that no aboriginal title could  22 exist."  23  24 And this is the point that I wish to emphasize, my  25 lord.  26  27 "There cannot be extinguishment of something  28 which never existed."  29  30 My lord, in paragraph 8 I say the proposition in  31 the last sentence would seem so self-evident that its  32 refutation should not seem necessary.  And we say that  33 nor can the Court of Appeals point in Sparrow be met  34 by the assertion, which is one which the Province  35 makes, that on the facts of Calder there was an  36 admission that the territory claimed was within the  37 ancient tribal territory of the Nishgas.  That  38 admission, my lord, without the accompanying  39 doctrine -- without the accompanying acceptance of a  40 doctrine of common law aboriginal title would not give  41 rise to a legal interest necessitating any inquiry  42 into the issue of extinguishment.  It is submitted  43 that the argument of the Provincial Government in this  44 case that Mr. Justice Judson's judgment did not by  45 necessary implication involve a recognition of the  46 doctrine of aboriginal title arising at common law is  47 without merit as a matter of logic as well as a matter 29254  Submissions by Mr. Jackson        1 of law.  2  3 And we say, my lord, in paragraph 9 that equally  4 untenable is the Province's assertion that the opinion  5 of Mr. Justice Hall on the existence at common law of  6 the doctrine of aboriginal title was obiter.  My lord,  7 that was in response to a question from your lordship  8 as to what Mr. Goldie said was the ratio of Mr.  9 Justice Hall's judgment.  He said it was the  10 application of the Royal Proclamation to British  11 Columbia.  And I say, my lord, that it is difficult to  12 conceive how the Province can maintain that argument.  13 The judgment of Mr. Justice Hall begins his analysis  14 of the law with the following statement:  15  16 "While the Nishga claim has not heretofore been  17 litigated, there is a wealth of jurisprudence  18 affirming common law recognition of aboriginal  19 rights to possession and enjoyment of lands and  20 aborigines precisely analogous to the Nishga  21 situation here."  22  23 And then he goes into the judgment of Mr. Justice  24 Stron in St. Catherine's Milling.  He goes into the  25 Marshall decisions.  And having done all that and  26 concluded that aboriginal title arises at common law,  27 he then goes on and says, and I have cited there:  28  29 "Paralleling and supporting the claim of the  30 Nishgas that they have a certain right or title  31 to the lands in question is the guarantee of  32 Indian rights contained in the Proclamation of  33 1763."  34  35 And he makes the Royal Proclamation point.  And I say,  36 my lord, that Mr. Justice Hall's judgment saw the  37 Proclamation and the common law as parallel.  Neither  38 can be characterized and neither can be dismissed as  39 obiter.  40  41 And, my lord, on page 4 I deal with some of the  42 points my friends has made in relation to the Guerin  43 decision.  And in paragraph 10 I say that it is not  44 appropriate to dismiss Mr. Justice Dickson's  45 observations as to the nature of aboriginal title at  46 common law as being obiter.  They were an essential  47 part of his decision in deciding what it was and the 29255  Submissions by Mr. Jackson        1 source of the rights  reflected in the Indian Act and  2 the source of the fiduciary obligation.  And we say,  3 my lord, that those are necessary parts of his  4 decision.  5  6 In paragraph 11, my lord, I deal with some  7 propositions which Mr. Goldie asserted in relation to  8 Madam Justice Wilson's judgment in Guerin.  Mr. Goldie  9 suggested that Madam Justice Wilson's reference at one  10 point in her argument of St. Catherine's Milling was  11 at one point an endorsement of her ladyship's -- my  12 friends say that the "tenure of the Indians is a  13 personal and usufructary right dependant upon the  14 goodwill of the sovereign."  And I say that those last  15 words "dependant upon the goodwill of the sovereign"  16 were no part of Madam Justice Wilson's judgment.  And  17 they expressly contradict the argument that the  18 Indians rights are in fact at the pleasure of the  19 Crown.  And I will refer your lordship to those two  20 statements.  21  22 On page 5 and on the top of page 6, my lord, I  23 address what I refer to as the Star Chrome point.  24 Your lordship may remember, and hopefully your  25 lordship will be able to understand better than I have  26 been able to Mr. Goldie's point about the Star Chrome  27 case.  I have done my best to understand it.  And  28 probably to analyze the point is irrelevant to any  29 issue your lordship has to determine.  30 MR. GOLDIE:  Well, if you didn't understand it, I hope your  31 lordship will not listen to the analysis.  32 MR. JACKSON:  I have sought to understand it as best I can, my  33 lord.  34 I will turn, my lord, to tab 3 which deals with  35 the Defendant's argument and response to what we said  36 about ownership and jurisdiction.  And I am doing  37 this, my lord, not simply in argument but I would be  38 entitled to use it to restate propositions.  39  40 I say, my lord, that my friend in stating our  41 propositions has done so inaccurately.  My lord,  42 propositions 2 and 3, and your lordship will recall  43 these are the propositions which I developed in  44 response to your lordship's inquiry as to how we  45 differentiated our assertive rights to ownership from  46 a claim to fee simple in the common law.  And the  47 second and third of our propositions are set out there 29256  Submissions by Mr. Jackson        1 that aboriginal title  is a sui generis common law  2 proprietary interest distinct from an estate in fee  3 simple.  We do not claim such an estate.  And that  4 their interest is based on their possession  5 pre-existing the assertion of Crown sovereignty.  6  7 Now, the Provincial Defendant says in commenting  8 upon these proposition:  9  10 "There is no estate known to the common law  11 which is based on possession prior to the  12 assertion of sovereignty."  13  14 And repeats one of its principal tenants:  15  16 'All interests in British Columbia must derive  17 either immediately or immediately from the  18 Crown."  19  20 In paragraph 4, my lord, I say that the Plaintiffs  21 do not claim "an estate" under the common law system  22 of land tenure.  And we say that the Province has  23 failed to heed the caveat which both the Privy Council  24 in Amodu Tijani and the Supreme Court in Guerin, and  25 more recently in Sparrow has said about not trying to  26 characterize aboriginal title within the procrustean  27 bed of the common law system of real property estates.  28 THE COURT:  What's a procrustean bed.  29 MR. JACKSON:  I think one from which you can't wriggle out.  30 THE COURT:  I see.  31 MR. GOLDIE:  In this case it is eight untenable propositions.  32 MR. JACKSON:  And, my lord, I have referred you there to what  33 Mr. Justice Dickson said in Guerin about the  34 suggestion of getting rid of the assumption that the  35 ownership of lands naturally breaks itself up into  36 estates.  37 MR. GOLDIE:  My lord, this is not reply, with great respect.  I  38 addressed eight propositions.  My friend said I didn't  39 understand them.  And now he is repeating his  4 0 argument.  41 MR. JACKSON:  I say, my lord, that my friend has improperly  42 characterized and stated what we meant.  43 THE COURT:  Well, you can certainly correct him.  You say he has  44 misstated your proposition.  45 MR. JACKSON:  I am also, my lord, surely entitled to point out  46 the extent to which his statements are contrary to  47 what is established law. 29257  Submissions by Mr. Jackson        1  THE COURT:  Yes.  I think the  objection is to re-argue your own  2 case.  3 MR. JACKSON:  My lord, I am endeavouring, particularily in light  4 of the time, not to do that.  It is impossible for me  5 to point out to your lordship what we say are the  6 errors in our friend's position and what is  7 inconsistent with what the law is without in fact  8 setting out the proposition.  It is not an attempt to  9 have a second crack, my lord.  10 THE COURT:  Well, in so many of these matters I am in a  11 procrustean bed from which I cannot escape.  And I  12 think I have to led you proceed.  13 MR. JACKSON:  Thank you, my lord.  We say in relation to the  14 argument that the common law knows no aboriginal  15 interest based upon possession prior to the assertion  16 of sovereignty, the judgment of Justice Dickson  17 constitutes a complete repudiation of that  18 proposition.  And I have set out in paragraph 5 the  19 statements from Mr. Justice Dickson in Guerin to that  20 effect.  21  22 In paragraph 19C at paragraph 6 on page 2, the  23 Provincial Defendant deals with the Plaintiffs'  24 assertion that their right of ownership is founded on  25 exclusive possession.  And the Province argues that in  26 order to support such a claim the Plaintiffs have to  27 show up to the time of the issue of the writ exclusive  28 possession as against the Crown.  And my friends says  29 this the Plaintiffs cannot do.  30  31 I say on page 3 at the top, the short answer to  32 the Province's position is that all the cases in which  33 the concept of exclusivity has been discussed require  34 its demonstration as against other native peoples.  35 And I have referred your lordship to the passages in  36 our submission where we deal with that.  The purpose  37 of the requirement of exclusivity is to ensure that an  38 Indian claim to lands has a sufficient connection to  39 those lands as compared to lands "wandered over by  40 many tribes or groups."  And the conceptual answer to  41 my friend's proposition, my lord, is that the doctrine  42 of aboriginal rights is based upon pre-existing  43 possession and legally results in an aboriginal title  44 vesting as a burden on the underlying or radical title  45 of the Crown.  That underlying title comes into  46 existence upon the assertion of sovereignty by virtue  47 of the doctrine of discovery.  Therefore, both 29258  Submissions by Mr. Jackson        1 logically and legally  the issue of proving exclusive  2 possession as against the Crown cannot arise.  The  3 Crown has no pre-existing possession.  4  5 To read the requirements of exclusivity in the way  6 the Province suggests - that is that the Plaintiffs  7 have to show that they continue to have exclusive  8 possession as against the Crown - would mean that the  9 Crown by the simple device of disregarding the rights  10 of the Plaintiffs and illegally taking possession of  11 their lands can lawfully defeat their claims.  12 MR. GOLDIE:  Well, my lord, this simply is a repetition.  As my  13 friend points out, he goes back to the opening day.  14 This is a repetition of their argument.  This is not  15 reply at all.  I was dealing with eight propositions.  16 Now, my friend has introduced a couple of words to say  17 how wrong I was.  He says in paragraph 4:  18  19 "The Plaintiffs say in reply that they do not  20 claim "an estate" under the common law system  21 of land tenure."  22  23 Those words "system of land tenure" are not in this  24 proposition.  So he is simply using the device of  25 saying I didn't understand.  I, counsel, didn't  26 understand what his argument was and then repeating  27 his argument.  2 8 THE COURT:  I would have thought that this was more like a new  2 9 argument.  30 MR. JACKSON:  What proposition are you referring to?  31 THE COURT:  The system of disregarding the Plaintiffs' rights  32 and unlawful title.  It sounds almost like conquest  33 which is not really -- it's been a matter of comment  34 from time to time, but it hasn't been the basis of any  35 proposition by the province.  36 MR. JACKSON:  Your lordship will recall I have made a reference  37 on several occasions without -- and we don't take this  38 as being sort of a ruling by your lordship, your  39 lordship commented on certain propositions as being a  4 0 right to make the right kind of argument.  And what we  41 are saying here, my lord, the argument of the Province  42 that you have to show exclusive possession in regard  43 to having disregarded rights and having made grants  44 necessarily defeats the claims of the Plaintiffs at  45 the very point where they argue that those grants and  46 those acts are made in disregard of their rights.  47 MR. GOLDIE:  Well, my lord — 29259  Submissions by Mr. Jackson        1  MR. JACKSON:  I don't wish to  sort of take too much time up on  2 this point, my lord.  3 MR. GOLDIE:  I said it refers back to a proposition that was  4 stated in their opening.  That proposition was never  5 developed other than in their opening.  And I was  6 addressing the proposition that is put forward by the  7 Plaintiffs in this case that they can oust the  8 jurisdiction of the Province.  And I said if you are  9 going to oust the jurisdiction of the Province and  10 oust the jurisdiction from possession, you've got to  11 show possession as against the province.  I wasn't  12 talking about use and occcupancy here.  I was talking  13 about jurisdiction and ownership.  14 THE COURT:  Well, I am not nearly smart enough to be able to  15 figure out whether the Plaintiff is repeating.  I  16 don't remember even how many days of argument they  17 had.  And I am not smart enough to figure out whether  18 this is reply specifically to about a 15-day argument,  19 or whether this is something new, or whether it is  20 permissible or  not permissible.  I am not able to  21 come to grips with these concepts in the time that is  22 available.  I think the only thing that I can do is to  23 say how much judges dislike reply just for this reason  24 and ask you to please proceed.  25 MR. JACKSON:  I should just point out, my lord —  26 THE COURT:  I am not in the position to say whether it is proper  27 or improper.  28 MR. JACKSON:  I appreciate your lordship's difficulty.  This is  2 9 in relation to an addendum, my lord, which my friends  30 put in.  It was not something which we therefore had,  31 as it were, in order to anticipate --  32 THE COURT:  Well, that depends what the addendum relates to.  33 MR. JACKSON:  It relates to a very general proposition.  And it  34 is a very specific addendum.  35 THE COURT:  No, I think you should go ahead.  36 MR. JACKSON:  Thank you, my lord.  My lord, I am at paragraph 9.  37 And this relates to the fifth proposition of the  38 Plaintiffs regarding the character of their  39 proprietary interest was that "the precise legal  40 character of the Plaintiffs interest is determined by  41 an analysis of the laws and usages of the Plaintiffs  42 in the context of their organized society."  43  44 And, my lord, at paragraph 10 I say that this  45 proposition as explained by the Plaintiffs in their  46 oral argument is a reflection of the type of inquiry  47 set out by the Privy Council in Amodu Tijani for 29260  Submissions by Mr. Jackson        1 understanding the  nature of the native title without  2 unduly confining it within the doctrinal constructs of  3 English Real Property Law.  And it was designed to  4 provide your lordship with a basis upon which your  5 lordship could accurately define the Plaintiffs'  6 rights based upon an evidentiary base which is within  7 the Canadian and North American jurisprudence.  8  9 And the Provincial Defendant in referring to the  10 evidence of the Plaintiffs' land holding system such  11 as the exstensive knowledge of place names, defined  12 boundaries and the process of confirming succession  13 and transmission of rights, says that:  14  15 "It is bordering on fantasy and unsupported by  16 any authority to say that the common law of  17 England or British Columbia ever recognized  18 such internal gestures as constituting idicia  19 of exclusive possession of any kind, much less  20 that against the Crown."  21  22 And, my lord, in reply we say that this in fact  23 reflects exactly the kind of attitude and approach by  24 the Privy Council in Amodu Tijani which Mr. Justice  25 Dickson in Guerin said the court should try and avoid.  26 And that point, my lord, I think is underscored in the  27 Sparrow case.  28  29 And I have set out, my lord, on page -- I will  30 come to it, but if your lordship will just turn to a  31 moment to page 6 at the very top where the court in  32 Sparrow said:  33  34 "While it is impossible to give an easy  35 definition of fishing rights, it is possible,  36 and indeed, crucial, to be sensitive to the  37 aboriginal perspective itself on the meaning of  38 the rights at stake."  39  40 And, my lord, we say that that is authority for  41 the idea -- if more authority was needed after  42 Amodu Tijani and Guerin for your lordship to in fact  43 embark upon and take cognizance of as evidence, this  44 material as a basis for properly characterizing the  45 nature of aboriginal rights --  4 6  THE COURT:  I have as much trouble with that as I have with the  47 honour of the Crown.  What does it mean to be 29261  Submissions by Mr. Jackson        1 "sensitive to the  aboriginal perspective"?  "To be  2 sensitive", does that mean understand it?  Does it  3 mean give effect to it?  Does it mean define it anyway  4 they would have it defined?  5 MR. JACKSON:  No, my lord.  I think it means to have regard to  6 the nature of the interest as the -- to understand the  7 system in the context of the Defendants way of dealing  8 with land -- the Plaintiffs way of dealing with land  9 within a local system.  10 THE COURT:  What does "have regard to" —  11 MR. JACKSON:  To have regard to the evidentiary basis.  12 THE COURT:  Think about it?  13 MR. JACKSON:  I think give effect within the law.  14 THE COURT:  Well, that's circular, isn't it?  And back to where  15 I started if I have to do it according to law.  16 MR. JACKSON:  My lord, this particular point, and I think I deal  17 with this in the very next set of propositions.  18 THE COURT:  All right.  19 MR. JACKSON:  And if I can just take your lordship to paragraph  20 13, and these propositions I think will hopefully help  21 your lordship.  I say, my lord, in relation to my  22 friend's dismissal of these internal gestures as being  23 proper evidence of anything, least of all evidence of  24 exclusive possession against the Crown, I say that the  25 complete misreading by the Provincial Defendant of the  26 Plaintiffs' propositions regarding their asserted  27 claims to ownership and the nature of the judicial  28 inquiry required to analyze those claims is further  29 reflected in the Provincial Defendant's statement of  30 the Plaintiffs' proposition 6.  Proposition 6 is that:  31  32 'The Plaintiffs' interests, so analyzed, has  33 the essential hallmarks of ownership and not  34 merely use and occcupancy."  35  36 And the Provincial Defendant has restated, my lord,  37 that proposition this way:  38  39 "The Plaintiffs' interests, so analyzed (that  40 is, according to to their own views) has the  41 essential hallmarks of ownership and not merely  42 use and occcupancy."  43  44 My lord, the words "so analyzed" is a reference to the  45 analysis in Amodu Tijani.  And I say that is what the  46 Court was also saying in Sparrow in the passage I just  47 quoted, my lord.  The court should look at the 29262  Submissions by Mr. Jackson        1 available evidence of  the Plaintiffs system of land  2 holding and based upon that evidence including  3 evidence of its essential characteristics, determine  4 what the nature of the interest is.  Because the  5 Plaintiffs say that their interest is ownership does  6 not mean it is.  The Plaintiffs clearly have gone far  7 beyond asserting ownership as a conclusionary  8 proposition.  They have placed before this court a set  9 of objective criteria or hallmarks of ownership and  10 have advanced the argument that the evidence properly  11 analyzed by your lordship shows that the Plaintiffs'  12 system of land holding conforms to those requirements.  13 THE COURT:  Well, your opening sentence is one that gives me the  14 kind of difficulty I have when you say I am to look at  15 the available evidence of the Plaintiffs' system of  16 land holding.  So that presumes acceptance of the  17 system of land holding from which they contend, or to  18 at least assume that there is a system of land  19 holding.  And then based upon that evidence, including  20 evidence of the essential characteristics, determine  21 what the nature of the interest is.  22 MR. JACKSON:  Yes, my lord.  23 THE COURT:  It seems to me it is defining a term by its own --  24 in its own terms.  25 MR. JACKSON:  No, my lord.  I think what we have sought to do in  26 terms of what we have placed before you, we have said  27 here is the evidence of how the Plaintiffs use their  28 territory.  This is the evidence of the way in which  29 rights are transmitted.  This is the evidence of  30 certain ways which rights are granted to other house  31 members.  These are the various rights and privileges  32 members of the house have.  That's the evidence.  33 THE COURT:  I don't have any trouble with looking at the  34 evidence and saying here is what they say, here is  35 what they did.  And from that defining, if I can,  36 within the law what the interest should be declared to  37 be.  That's difficult, but that's manageable.  But if  38 I add this other one which Mr. Justice Dickson says I  39 have to add into it of having regard to the way they  40 view it, I assume that's something additional to what  41 they say and what they did.  42 MR. JACKSON:  Yes, my lord.  I think the explanation, and I  43 agree it is like so much of this rather an elliptical  44 type of statement.  45 THE COURT:  It is mesaphysical.  46 MR. JACKSON:  What Chief Justice Dickson did in Sparrow — my  47 lord, there was a reference and I was going to come to 29263  Submissions by Mr. Jackson        1 this in relation to  the federal case.  What Chief  2 Justice Dickson, he referred in his article  3 immediately after this proposition to a law review  4 article.  It is an article by Leroy Little Bear.  And  5 Mr. Little Bear analyzed the Indian concept of  6 ownership in a fairly general kind of way.  It wasn't  7 meant to be the Indian kind of ownership at large.  It  8 was some general descriptions of the Indian concept of  9 ownership which was different from the common law  10 estates, particularily it is a collective right.  And  11 the rights are exercised within the constructs of a  12 society which has a holistic way of looking at the  13 world.  So that, for example, the people own the land  14 but other animals, other living persons are also  15 viewed as being part of that.  And that's what Mr.  16 Little Bear said.  17 He said if you are trying to understand the Indian  18 concept of ownership, don't just look for the  19 hallmarks of a common law estate.  You have to  20 understand that the way Indian people may express  21 their ownership concepts is in a vernacular, a  22 discourse which is not that familiar to western  23 society.  24 And I think from the referential incorporation of  25 that proposition that Chief Justice Dickson was saying  26 in understanding aboriginal rights the courts should  27 have regard to the way in which aboriginal peoples  28 themselves define their rights.  Not that that is the  29 litmus test of whether they have the rights, but that  30 the court should not say what you are saying is not  31 the way I normally think about ownership.  32  33 We have said to your lordship these are the  34 hallmarks of what we say are ownership, exclusive  35 possession, a system of transferability of rights,  36 indeterminate succession.  A number of other  37 hallmarks, defined boundaries.  And we have said that  38 those are not limited to the Gitksan and Wet'suwet'en.  39 They are general kinds of hallmarks of ownership, both  40 common law, the system of estates and other systems.  41 And we have said look at this evidence.  Draw your own  42 judgments as to whether it is credible.  Having done  43 so, apply it to this as it were a grid of objective  44 features of ownership to the extent that this  45 evidence --  46 THE COURT:  That's what I was looking at in the first place.  4 7  MR. JACKSON:  H'mmm? 29264  Submissions by Mr. Jackson        1  THE COURT:  That's what I was  looking at in the first place.  2 What is this feature of ownership that is different?  3 MR. JACKSON:  It is just apply it to exclusive possession.  And  4 we say the law permits you to make a declaration that  5 the pre-existing rights of the Plaintiffs are in law  6 rights which are properly characterized as ownership.  7 So, my lord, it is not substituting your lordship's  8 judgment for those of the Plaintiffs.  9 THE COURT:  It is adding a factor to the equation that I am  10 having real trouble understanding how it can be  11 applied in any manageable way.  And the main  12 difficulty I have with it, I don't see what it adds to  13 the discussion.  It seems to me that you have asked me  14 to look at the same thing twice, and it seems to me  15 that that's what you suggest Chief Justice Dickson  16 did.  17 MR. JACKSON:  My lord, I don't think I am asking you the same  18 thing twice.  I think the problem is the way in which  19 the Plaintiffs themselves talk about their rights may  20 not appear to your lordship to be the same way as  21 which non-native people talk about their rights.  That  22 does not mean that they are not proprietary interests,  23 though.  I think maybe that's the simple point, my  24 lord, that one should not necessarily impose the  25 estate system upon aboriginal title and say because it  26 is not an estate in law under the common law system of  27 real property it is not a proprietary interest.  I  28 think that's the essential point.  29 THE COURT:  I think I understand what you are saying.  I am not  30 sure how I can factor that addition really into the  31 equation.  32 MR. JACKSON:  I think it is more, my lord, as I understand Mr.  33 Chief Justice Dickson's judgment without in any way  34 suggesting that he had this in mind, it appears that  35 the Plaintiffs as being an endorsement not that these  36 trials should last three years, obviously no one told  37 him that.  38 THE COURT:  He didn't have the factor problem that I have.  39 MR. JACKSON:  No, my lord.  But he is saying that if the courts  40 are to understand aboriginal rights and do justice to  41 aboriginal rights, it is important that we have, as it  42 were, an open mind as to how rights of property can  43 arise and how we characterize them in the context of  44 aboriginal rights.  45 THE COURT:  Well, as I say, I think I understand what you are  46 saying.  I am not sure how I can factor it, but I will  47 do the best I can. 29265  lord, paragraph 14  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. Jackson        1  MR. JACKSON:  And I say, my  is the essence of  our response to the Provincial Defendant's point on  that.  My lord, I don't think I am going to deal with  much of the next part.  Paragraph 16 and 17 deals with  the Provincial Defendant's reliance upon Milirrpum.  And we say that Mr. Justice Blackburn's judgment in  Milirrpum has been undermined at its foundations by  the judgments in Calder and Guerin.  And your lordship  should not have regard to Mr. Justice Blackburn's  conclusions.  They are wrong in law so far as Canada  is concerned.  There is no doctrine of aboriginal  title existing as a matter of common law.  In paragraphs 18, my lord, through to the end of  this section, I deal with three cases which my friends  introduced in support of the proposition that "the  plenary rights of governance which are claimed by the  Plaintiffs in this action are unsupported by  authority.  Such rights would be inconsistent with the  sovereignty of the Crown."  And the first one, my  lord, is in relation to Southern Rhodesia.  It is the  Madzimbamuto case in which the courts held that the  sovereignty was not split as between Southern Rhodesia  and the Crown.  We are not asserting any splitting  sovereignty, my lord.  We have acknowledged the  underlying sovereignty as the underlying title is  acknowledged in the Crown.  The second case, my lord of Sobhuza v. Miller we  say is readily distinguishable.  And I have set out at  some length, my lord, what that case is about.  I am  not going to take your lordship through it.  But I  will take you to our conclusions on page 9 where  halfway down the page I say that the Sobhuza case is  primarily to be seen as an application of the  Act of State doctrine as explained by Mr. Justice Hall  in Calder to the extent that what was an issue in the  grants made by a previous sovereign and what the  appellants were seeking to enforce was the terms of a  Convention made between the Crown and another state.  Alternatively it the case can be viewed as one in  which the Crown expressed a clear and plain intention  to extinguish aboriginal title in respect to certain  lands.  On either basis, my lord, it is no support for  the proposition for which the Provincial Dependent  relies upon it. 29266  Submissions by Mr. Jackson        1 The third case, my  lord, is the Australian case of  2 Coe v. The Commonwealth of Australia.  And my friend  3 took you through the various amendments to a Statement  4 of Claim which were applied for and rejected.  And  5 they were rejected because the amendments sought to  6 ask the municipal court to dispute and in fact to say  7 that the foundation of Australia was illegal.  And the  8 court said that that is something which the courts  9 could not go behind.  We say, my lord, no such  10 assertion is made in this case.  11 Coe v. The Commonwealth has no application to the  12 issues before your lordship.  13  14 And in paragraph 21 I say, my lord, the Plaintiffs  15 in this case do not raise claims which are adverse to  16 the sovereignty of the Crown.  They acknowledge the  17 sovereignty of the Crown and say that the rights they  18 assert are compatible with that sovereignty.  In  19 asserting rights of jurisdiction characterized as  20 rights of internal self-government, the Plaintiffs are  21 making a claim which the highest Courts have  22 acknowledged can live alongside the sovereignty of the  23 Crown.  This is made very clear in the following  24 passage from Worcester v. Georgia, my lord, which was  25 cited with approval by the Supreme Court of Canada in  26 its recent judgment in Sioui.  And this is a reference  27 to the pre-proclamation policy of the English Crown.  28  29 "Such was the policy of Great Britain towards  30 the Indian Nations inhabiting the territory  31 which he...that should be she...excluded all  32 other Europeans; such claims, such her  33 practical exposition of the charter she had  34 granted, she considered them as nations capable  35 of maintaining the relations of peace and war,  36 of governing themselves under her protection;  37 and she made treaty's with them, the obligation  38 of which she acknowledged."  39  40 And I say on page 11, my lord, that the underlying  41 premises of the statement in Worcester is that the  42 Crown had asserted sovereignty by virtue of the  43 doctrine of discovery and claimed the exclusive right  44 to enter into relationships with the Indian Nations.  45 This was an assertion of sovereignty viz a viz other  46 European Nations.  It was also an assertion of  47 sovereignty as against the Indian to the extent that 29267  Submissions by Mr. Jackson        1 it concluded them from  dealing with any other  2 sovereign.  But it was not an assertion of sovereignty  3 which denied them the rights of inn certainly self  4 governance under the general protectorate of the  5 Crown.  And that is the character of the rights  6 asserted by the Plaintiffs in this case.  7  8 Now, my lord, at tab 4 I am addressing an addendum  9 that was filed by myself in response to your  10 lordship's question which in turn asked my friends to  11 relate the arguments of the Provincial Defendant that  12 colonial law and policy limited its recognition of  13 aboriginal rights to village sites and cultivated  14 fields and the Plaintiffs' submission that the  15 recognition of aboriginal rights in the pre-1761  16 colonial law policy was far more -- was more far  17 reaching and exstensive.  18  19 And I say at paragraph 3, my lord, before  20 responding to the Province's addendum which raises  21 some new points which were not dealt with in our  22 argument, an important preliminary point should be  23 addressed.  The Plaintiffs have had considerable  24 difficulty in determining the Provincial Defendant's  25 position as to what rights if any colonial law  26 acknowledged aboriginal peoples to have at the time of  27 the establishment of the colony of British Columbia.  28 On the one hand the Province has relied upon the  29 proposition that English law did not recognize any  30 doctrine of aboriginal title.  31  32 However, elsewhere in their argument the  33 Provincial Defendant states that colonial law did  34 recognize a non-proprietary aboriginal interest in  35 village sites and cultivatedd fields.  And the  36 Province places principal reliance for this upon the  37 Select Committee Report in New Zealand and in  38 particular the views of Earl Grey.  39  40 Paragraph 5, my lord, I say the Plaintiffs at one  41 point understood these to be different, indeed  42 alternative arguments regarding colonial law.  The  43 first proposition is that there was no recognition of  44 any legal entitlement whatsoever; the alternative is  45 that there was a recognition but limited to village  46 sites and cultivated fields.  However from other  47 passages in the Provincial Defendant's argument and in 2926E  consisten  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. Jackson        1 particular the  and persistent reliance upon  the recognition principle, the Plaintiffs were left  with the distinct impression that the real position of  the Province was that even that limited interest in  the village sites and cultivated fields was not  legally recognized at common law and was dependent for  legal protection upon express or implied recognition  by the Crown after the assertion of sovereignty.  My  lord, that impression was ultimately confirmed by Mr.  Goldie in the course of the Province's oral arguments.  And I have set out the exchange between your lordship  and Mr. Goldie which I say makes this clear.  And if I could take your lordship down to your  lordship's last comment on page 2:  "THE COURT:  I have no difficulty understanding the  A to B to C to D submission that you have been  making.  The problem that I have with it is to  fit into it the recognition of the Indians  claim of some sort to their village sites and  cultivated fields.  MR. GOLDIE:  Well, I will be submitting that the  claim is one that justice and humanity requires  to be recognized...  THE COURT:  Well, are you saying that it is an act  of grace then on behalf of the Crown to  recognize there -- to recognize the justice of  them continuing to enjoy their village sites?  MR. GOLDIE:  My submission will be that it was so  regarded in 1858...  THE COURT:  So your submission, is back to what Mr.  Justice Taschereau said in St. Catherine's  Milling?  MR. GOLDIE:  It comes very close to it.  THE COURT:  That if they had a claim, it was a  claim to the generous bounty of the Crown.  MR. GOLDIE:  Well, he put it —  THE COURT:  He put it more eloquently than I just  put it.  MR. GOLDIE:  Well, he put it in terms of a higher  than legal responsibility."  Mr. Goldie further down in the passage, my lord, four  lines down in the last quote on that page:  "MR. GOLDIE:  My submission is that in order to 29269  Submissions by Mr. Jackson        1 bring into play  the courts of justice there has  2 to be a creation or a recognition of an  3 interest."  4  5 And at the very bottom of the page:  6  7 "And it was up to the Crown, and I don't -- I  8 don't say it's a matter of whim or fancy, but  9 it is up to the Crown to determine the extent  10 of the interest so recognized.  And that was  11 shown by the language in St. Catherines'  12 Milling, where Lord Watson went out of his way,  13 in my submission, to talk about the pleasure of  14 the sovereign."  15  16 And so, my lord, it seems to the Plaintiffs that  17 the real position when you are getting down to basics  18 of the Province is that there is no legal entitlement  19 to any interest, even a non-proprietary interest in  20 relation to cultivated fields and village sites unless  21 there is recognition by the Crown.  And so, my lord,  22 the Province's duality, it seems to me, ends up to  23 being a single proposition.  24  25 My lord, with that point in mind, the Plaintiffs  26 have the following submissions to make by reply to the  27 Province's addendum.  And the first case the Province  28 relied upon is Sheldon v. Ramsay.  And they relied  29 upon it for the proposition that the common law of  30 England recognizes no interest in lands other than one  31 derived from the Crown.  Now, the Plaintiffs take no  32 issue with this general proposition of English law  33 insofar as it is correct directed to an interest  34 claimed by English settlers or other non-aboriginal  35 peoples.  It is the Plaintiffs' submission however  36 that the proposition does not apply to a claim based  37 upon aboriginal title since that is a pre-existing  38 right not dependent upon any grant from the Crown.  39  40 Furthermore, my lord, to the extent that the  41 Provincial Defendant argues that this principle does  42 apply to a claim based upon aboriginal title  43 Sheldon v Ramsay is of absolutely no assistance to the  44 Provincial Defendant because the lands in question in  45 that case were not claimed by aboriginal title.  My  46 lord, what happened in that case, and it relates to  47 the lands I address your lordship on, these were the 29270  Submissions by Mr. Jackson        1 lands which were  granted to the six nations after they  2 left America after the American revolution.  And Lord  3 Haldimand granted them lands in perpetuity.  Joseph  4 Brant took the position that he had a fee simple grant  5 and he started granting leases.  The validity of one  6 of those leases was in issue in this case.  And what  7 the Court said was that Lord Haldimand had no  8 authority to make the grant in the first place.  To  9 the extent that he did, what he granted was a reserve  10 which could only be surrendered in accordance with the  11 Royal Proclamation.  And to the extent that he could  12 grant a legal interest in fee simple Joseph Brant had  13 no authority given by the Iroquois to make any  14 disposition.  And the Court in saying that made the  15 comment which my friends have relied upon, my lord,  16 which you will see set out on the bottom of page five  17 where the court said:  18  19 "We cannot recognize any peculiar law of real  20 property applying to the Indians - the common  21 law is not part savage and part civilized."  22  23 And, my, lord what he was saying there was to the  24 extent that the Six Nations did have a grant of a  25 legal fee simple, they could not deal with that in any  26 other way than any other fee simple could be dealt  27 with by proper conveyancing techniques and a proper  28 conveyance which was not present in this case.  So the  29 case, my lord, has nothing to do with aboriginal  30 title.  And that goes on, my lord, to paragraph 11 on  31 page 6.  32  33 At paragraph 12 my friends refer to Wheaton's  34 "Elements of English Law" for the proposition that  35 there was one thing in which Britain, France and  36 Holland agreed and that was "of almost entirely  37 disregarding the right of the 'Native inhabitants of  38 those regions [of North America]."  And we say, my  39 lord, that that bold assertion is simply inconsistent  4 0 with what happened on the ground as we have recited  41 that to your lordship at some length and as it is how  42 the courts, the colonial courts themselves have  43 conceived that process.  44  45 My lord, in paragraph 13, paragraph 4 of their  46 addendum, my friends seek to find further support for  47 the proposition in Wheaton's case that the rights of 29271  Submissions by Mr. Jackson        1 the native people were  almost entirely disregarded in  2 Calvin's case.  In Calvin's case, my lord, Lord Coke  3 made a distinction between infidels and other aliens.  4 And at the bottom of page of, my lord, he came to this  5 conclusion that all infidels are, according to him, in  6 law perpetual enemies, and "as with the devils, whose  7 subjects they be, and the Christian, there is  8 perpetual hostility and there can be no peace."  He  9 then goes on, my lord, to distinguish between the  10 effects of a conquest on the kingdom of a Christian  11 king and the effects of conquest on the territory of  12 an infidel monarch.  And he says in the case of a  13 conquest of a Christian kingdom, while the king may  14 alter and change the laws of that kingdom, until he  15 does they continue.  However, in relation to the laws  16 of an infidel country, the laws are ipso facto  17 abrogated.  That's the proposition for which my  18 friends rely upon.  19 MR. GOLDIE:  I beg your pardon, my lord.  I don't rely upon  20 Calvin's case at all.  21 MR. JACKSON:  Well, I —  22 MR. GOLDIE:  Excuse me.  I was responding to your lorship's  23 request that I provide some further information about  24 the colonial law as of 1760.  I suggested, and it was  25 no more than that, that Calvin's case might be the  26 source of the distinction which appears in some of the  27 later commentors.  I don't rely upon it.  28 MR. JACKSON:  Well, my lord, I am happy to hear that because  29 Calvin's case is thoroughly discredited.  And you will  30 see, my lord, in paragraphs 14, 15, 16 and 17.  31 MR. GOLDIE:  I am well aware of all of that, my lord.  I have  32 explained my position that I was putting it forward as  33 a suggestion of the possible origin of a proposition  34 that appears in some of the later commentors.  35 MR. JACKSON:  My lord, if my friend is not relying upon it and  36 if he knows that the decision has been completely  37 undermined by subsequent authorities, I question of  38 what relevance or use it is to your lordship to be  39 referred to it in support of my friend's position as  40 to what colonial law was as of 1763.  By 1763, my  41 lord, the proposition had been completely undermined  42 by subsequent chief justices of England.  And I have  43 set out that, my lord, in -- my point, my lord --  44 THE COURT:  It doesn't seem likely that I will refer to it.  45 MR. JACKSON:  My lord, I was rather amazed that it appeared in  46 my friend's materials since it is so thoroughly  47 discredited. 29272  Submissions by Mr. Jackson        1  MR. GOLDIE:  I don't agree that  it is thoroughly discredited.  I  2 know that it has been commented on.  3 THE COURT:  Yes.  4 MR. GOLDIE:  But if my friend would look at the addendum, he  5 will find the use I made of it and he will find that I  6 didn't rely on it.  7 MR. JACKSON:  Well, my lord, perhaps I can turn to paragraph 17,  8 my lord.  In 1774 Lord Mansfield in Campbell v. Hall  9 in reviewing the rules governing conquests described  10 the views expressed regarding infidel countries in  11 Calvin's case as "wholly groundless, and most  12 deservedly exploded", remarking that Coke's "strange  13 and extrajudicial opinion, as to a conquest from the  14 pagan country, will not make reason not to be reason,  15 and law not to be law. "  16  17 And in paragraph 18, the citation of Calvin's case  18 by the Province therefore is not well calculated to  19 support the proposition of Wheaton that Great Britain  20 "almost entirely disregarded the rights of the native  21 inhabitants".  Its assertion, to paraphrase Lord  22 Mansfield, does not make the consistent state practice  23 of Great Britain not to be state practice and colonial  24 law not to be colonial law.  25  26 My lord, in paragraph 19 I deal with another of  27 the sources referred to by my friends, the opinion of  28 William Fitz-Hugh of Virginia.  And I say, my lord,  29 that that opinion is inconsistent with the on the  30 ground practice in Virginia as reflected in the Treaty  31 of Middle Plantation.  And I will just leave that with  32 your lordship.  33  34 Paragraph 20 and 21, my lord, there is a reference  35 to an opinion of counsel in 1675 which is one of the  36 sources of Chancellor Boyd's statement that the  37 treaties were not legal documents.  The Indians had no  38 right to treaties and the documents reflected prudence  39 and Christian charity.  And I have set out, my lord,  40 the comments of Professor Slattery in relation to that  41 opinion.  And I will leave that with your lordship.  42  43 Paragraph 22, my lord, I want to deal with  44 something which is of more fundamental character.  And  45 it relates to the difference which I have previously  46 adverted to between the settled and conquered or ceded  47 colonies which I have said is one of the essential 29273  Submissions by Mr. Jackson        1 tenants of my friend's  position.  2  3 And in paragraph 7 of the addendum the Province  4 sets out Blackstone's distinction between settled  5 colonies on the one hand and conquered or ceded  6 colonies on the other.  This division the Province  7 asserts in various parts of its submissions is of  8 critical relevance for two reasons.  The first and the  9 one which is dealt with in relation to the Royal  10 Proclamation is that the Crown's prerogative power is  11 more circumscribed in a settled colony.  The  12 Plaintiffs have addressed this issue elsewhere in  13 their submissions and in their reply.  The second  14 asserted distinction, that is the one that I wish to  15 deal with, my lord, between the two kinds of colonies  16 is that in a settled colony English law is  17 automatically introduced whereas in a conquered or  18 ceded colony the laws of the previous sovereign remain  19 in force until changed by competent authority.  the  20 Province maintains that the mainland colony of British  21 Columbia was a settled colony as reflected in the  22 English Law Ordinance of 1858 which introduced the law  23 of England into the colony.  The Province argues that  24 a central feature of the English land law is that all  25 land titles must be derived from the Crown and traced  26 to a Crown grant and that this gives rise to a further  27 principle which is that no aboriginal title can be  28 recognized in a British Columbia court unless it is  29 recognized by the Crown.  The last part of this thesis  30 is that the policy, acts of state and legislation of  31 the colony of British Columbia recognized and  32 protected a limited interest in village site and  33 cultivated fields.  And that is just as it was  34 synthesized that I have summarized before, my lord.  35  36 It is the Plaintiffs' submission that the  37 settled/conquered colony dichotomy was one developed  38 for the purposes of determining what laws governed  39 British subjects in newly acquired territories and  40 that the dichotomy has played no part in the law of  41 aboriginal rights as it has developed in North America  42 and this court should reject the Province's attempt to  43 introduce it.  44  45 My lord, Professor Slattery in his works "The Land  46 Rights of Aboriginal Peoples" has developed a thorough  47 progression and evolution of this dichotomy.  And I 29274  Submissions by Mr. Jackson        1 have taken the liberty  of setting out, my lord, at  2 some length extracts from Professor Slattery's work.  3 And I will just summarize it for your lordship given  4 that it is my position that it has no relevance to the  5 determination of the issues before your court.  What  6 Professor Slattery has done, my lord, is to trace the  7 origin of this doctrine to the case of  8 Blankard v. Galdy in 1693.  And if your lordship will  9 go down to the third paragraph, and this is:  10  11 "The court envisages two modes of acquisition.  12 The first occurs --"  13  14 MR. GOLDIE:  I take it your lordship will hear no objection of  15 hearing new argument which we have never heard of?  My  16 friends had ample opportunity to introduce Professor  17 Slattery which they did before.  18 THE COURT:  I understood this would be a response to your  19 argument on the distinction between settled and  20 conquered colonies.  21 MR. GOLDIE:  That distinction was set out in my summary.  And my  22 recollection is that my friends addressed it.  23 THE COURT:  You say you didn't?  2 4 MR. JACKSON:  No, my lord.  25 THE COURT:  You don't say that, or you do say that?  26 MR. JACKSON:  No, my lord, we did not address the settled  27 colony, conquered colony dichotomy in any way apart  28 from the Royal Proclamation given the difficulty we  29 had, my lord, as I have said, a difficulty which  30 didn't become -- wasn't clarified until well into the  31 Province's position -- submissions as to what exactly  32 the relevance was of the settled colony distinction.  33 It wasn't until after I heard my friend's submissions  34 that I fully understood the way in which the settled  35 colony doctrine was being relied upon, and the  36 critical importance it assumed for my friend's  37 position in relation to the common law of aboriginal  38 title.  And I say, my lord, this is proper reply.  It  39 is not something which we addressed in our principal  40 submissions.  41 MR. GOLDIE:  Well, I simply must have misunderstood my friend  42 then because at volume 316 at page 23730 my friend  43 said at line 36:  44  45 "But more recently, my lord, Professor Kent  46 McNeil, in a thesis originally written as a  47 doctrine of philosophy thesis at Oxford 29275  Submissions by Mr. Jackson        1 University,  submitted that applying principles  2 of common law real property, which would be  3 part of the general laws which would flow into  4 a settled colony, the Indian interest in lands,  5 as a matter of common law property, is a fee  6 simple."  7  8 So I took it from that that my friend is saying, well,  9 it doesn't matter whether it is a settled colony.  I  10 rely upon Professor McNeil whose whole thesis was that  11 upon his analysis you can extract from the common law  12 an Indian title comparable to fee simple.  13 THE COURT:  I gather there is no difference between Professor  14 Slattery and Professor McNeil, is it there?  15 MR. JACKSON:  Yes, my lord, there is.  16 MR. GOLDIE:  Well, Professor McNeil's theory, as I understand  17 it, was that he could take a settled colony and take  18 the principles that flow from that and say:  I can  19 show there is something in an aboriginal interest.  2 0 And I took it that that's what my friends were  21 electing to rely upon.  I don't know what Professor  22 Slattery is saying, but if it is inconsistent with  23 Professor McNeil, and I think it is, then I say there  24 is a new argument.  25 MR. JACKSON:  If I can just take a moment to deal with that, my  26 lord.  Professor McNeil's comments were raised, my  27 lord, in the context in which I had referred -- as I  28 recall the matter, I had referred to some treaty  29 language which referred to the interest being granted  30 by the treaty as a fee simple.  And I made the point  31 that there are some academic commentors who have taken  32 the position that applying the settled colony concept,  33 that's what the Indians get, based upon their  34 pre-existing possession they have a fee simple at  35 common law.  And as I recall, your lordship said that  36 it is easy for professors to assert anything.  And I  37 made the point -- and I understood your lordship to be  38 referring to professor McNeil, not myself.  39 THE COURT:  Oh, of course.  40 MR. JACKSON:  The point I was making, and I specifically then  41 said that is not an argument upon which we are  42 relying.  I don't know that --  43 THE COURT:  Well, I have come to the happy conclusion that I am  44 not in a position to rule on these objections.  I  45 think the objections will have to be taken according  46 to weight.  I have noted the fact that this part is  47 objected to.  And it doesn't seem to me that it is 29276  Submissions by Mr. Jackson        1 something that I can  decisively deal with except in  2 the most arbitrary possible way.  And I think that  3 being so I think we had better go ahead because I know  4 your time is limited.  And I think it would be unfair  5 and counter-productive to use up more time on a matter  6 where there seems to be a genuine disagreement.  And I  7 am acting on the principle that I always accept  8 whatever counsel tell me.  And even though they tell  9 me something different, I think you can go ahead.  10 MR. GOLDIE:  Can your lordship add on the question of weight the  11 reference to Mr. Rush's argument at volume 333  12 beginning at line 43 and going on for several pages.  13 THE COURT:  What page?  14 MR. GOLDIE:  Page 25815 at line 23 where he says:  15  16 "Now, my lord, with regard to this act...",  17  18 that is the Act of 1858,  19  20 "...the province argues that the act deemed the  21 mainland colony of British Columbia to be a  22 settled colony."  23  24 And then he goes on to argue why that shouldn't be so,  25 and in passing makes reference to Blackstone.  And I  26 think it goes on to about page 25818.  If your  27 lordship would be good enough to add that.  2 8 THE COURT:  All right.  Thank you.  29 MR. JACKSON:  And your lordship also will note that that is in  30 relation to the Royal Proclamation.  The comments I am  31 addressing your lordship on are in relation to whether  32 or not the doctrine of aboriginal title exists as a  33 matter of common law and whether or not the  34 distinction between settled and conquered colonies has  35 anything to do with that proposition.  It is an  36 entirely different proposition, my lord.  And it is  37 one whose centrality only became clear during the  38 course of my friend's oral submissions.  Would that be  39 a convenient time to take the break, my lord?  4 0 THE COURT:  Yes.  2 o'clock.  41  42  43  44  45  46  47 29277  Submissions by Mr. Jackson        1  THE REGISTRAR:  Order in court.  This court stands adjourned  2 until 2 o'clock.  3 (PROCEEDINGS ADJOURNED AT 12:30)  4  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 Lisa Franko,  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 29278  Submissions by Mr. Jackson        1 (PROCEEDINGS RESUMED  PURSUANT TO AN ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  Yes, my lord.  I was at paragraph 24, page 11, and  6 I just made the point that Professor Slattery with his  7 work was given a compendious explanation of the  8 development of the distinction between settled and  9 conquered or ceded colony doctrine and that in  10 Blankard v. Galdy the courts envisages two modes of  11 acquisition.  The first occurs where English men  12 discover and settle a previously vacant land.  The  13 second mode is conquest.  In the first instance,  14 English law obtains ipso facto.  By contrast where a  15 country is gained by conquest, although the conquering  16 sovereign may make new laws, the old ones necessarily  17 remain in force until others are supplied.  18 And over the page, my lord, he summarizes  19 Blackstonian classification.  20  21 "The same classification is adopted by  22 Blackstone in his Commentaries on the Laws of  23 England of 1765.  He states that colonies in  24 distant countries are of two sorts:  those  25 where the lands are claimed by right of  26 occupancy only by finding them desert and  27 uncultivated, and peopling them from the mother  28 country, and those which, when already  29 cultivated, have either been gained by conquest  30 or ceded by treaty.  It might be argued from  31 the wording that Blackstone means that a  32 country must actually be cultivated for it to  33 be considered to be inhabited, by which  34 criteria lands held by pastoral or hunting  35 peoples might be deemed vacant.  But this does  36 not seem to be his meaning, for he cites  37 Blankard v. Galdy for the proposition that if  38 an uninhabited country is discovered and  39 planted by English subjects, all the English  40 laws are immediately there in force, and later  41 affirms that the American Colonies are  42 principally of the conquered and ceded  43 variety."  44  45 Professor Slattery refers at this juncture to the  46 remarks of Mr. Justice Blackburn in the Milirrpum case  47 that the words, desert and uncultivated, and this is 29279  Submissions by Mr. Jackson        1 Mr. Justice  Blackburn's view, have always been taken  2 to include territory in which live uncivilized  3 inhabitants in a primitive state of society.  As  4 Professor Slattery comments Mr. Justice Blackburn  5 cites no authority for this interpretation and it is  6 hardly consistent with Blackstone's own remarks  7 regarding America.  8 Professor Slattery continues with his analysis:  9  10 "All of these authorities..."  11  12 and this is my comment, my lord:  13  14 "...(with the exception of Milirrpum) limit the  15 category of colonies acquired by settlement to  16 instances where the territory was initially  17 uninhabited."  18  19 And if I could take you over the page and I commend  20 this whole passage to your lordship.  21 THE COURT:  Well, I find it not as helpful as it might be  22 because it doesn't seem to me to capture the problem  2 3 we have.  24 MR. JACKSON:  I think the next passage perhaps does.  25 THE COURT:  It seems everything is yes or no and never  26 recognizes, it seems to me, as so many of these never  27 recognize the possibility in between.  28 MR. JACKSON:  That's my next point, my lord, or Professor  29 Slattery's next point I should say.  30 The standard classification of colonial  31 territories originating with Blankard v. Galdy was  32 indeed --  33 THE COURT:  Sorry, where are you now?  34 MR. JACKSON:  Middle of page 13, my lord, as if Professor  35 Slattery was anticipating your lordship's question,  36 was indeed inadequate to cope with the remarkable  37 diversity of colonial situations encountered in  38 practise.  That classification in effect envisages two  39 opposed cases:  On the one hand, settlements planted  40 in vacant lands by British subjects, and on the other,  41 conquered or ceded countries inhabited principally by  42 people of alien origins.  The formula doesn't allow  43 for the common Hybrid case where British settlers  44 examined with particular regard to the original  45 inhabitants establish autonomous communities in  46 already inhabited lands held by the Crown.  Looked at  47 from the point of view of the settlers, these colonies 29280  Submissions by Mr. Jackson        1 present many features  in common with those founded in  2 uninhabited places.  Examined with particular regard  3 to the original inhabitants, they bear more similarity  4 to conquest.  In the absence of explicit provisions,  5 what laws should be viewed as applying within the  6 settler communities, and what laws among the local  7 peoples?  These questions were considered in a number  8 of 19th century authorities concerning the British  9 possessions in India.  And Professor Slattery deals  10 with Freeman v. Fairlie, my lord, as an example of one  11 of a number of cases.  And if your lordship would go  12 over to page 14, in the middle of the page there is a  13 quotation from Freeman v. Fairlie to this effect:  14  15 "And the course actually taken seems to have  16 been, to treat the case, in a great measure,  17 like that of a new - discovered country, for  18 the Government of the Company's servants..."  19  20 This is the British East India Company:  21  22 "...and other British or Christian settlers  23 using the laws of the mother country, as far as  24 they were capable of being applied for that  25 purpose, and leaving the Mohomedan Gentoo  26 inhabitants to their own laws and customs, but  27 with some particular exceptions that were  28 called for by commercial policy, or the  29 convenience of mutual intercourse...."  30  31 And Professor Slattery later on that page in the  32 passage underlined, having dealt with some more of the  33 British India cases says:  34  35 "There is no suggestion in these authorities  36 that settlement, acting as a vehicle of  37 English law in an already inhabited territory,  38 has the effect of depriving the countries  39 original residents of their proper laws.  40 Rather, they generally acknowledge that the  41 original laws of a place remain in force as  42 regards to the local people, until altered by  43 competent authority.  The reception of English  44 law envisaged takes effect principally as  45 regards the settler communities and persons  46 incorporated within them.  As we will see, a  47 similar view point was eventually adopted in 29281  Submissions by Mr. Jackson        1 the American  Colonies.  2  3 One concluding point may be made.  The  4 diversity of situations in which English law  5 has been held to have been introduced into  6 colonies, and the variety of reasons advanced  7 to explain or justify its introduction, renders  8 this branch of colonial law a remarkable  9 complex one, not easily reduced to formulas.  10 As the Commissioner appointed to enquire into  11 the administration of justice in the West  12 Indies stated in his report of 1826, the  13 principle, upon which certain laws of the  14 mother country are operative and held binding  15 in their colonies, far from being clear and  16 involved in considerable..."  17  18 That should be considerable:  19  20 "...obscurity, and often found very difficult of  21 application."  22  23 Now, what Professor Slattery does, my lord, when you  24 see the passage in its fullness --  25 MR. GOLDIE:  My lord, I think this is a very unfair way of going  26 about things.  This does not address my submission on  27 this point.  It is not reply.  It is just taking two  28 bites of the cherry, to take the ordinary phrase.  The  29 reason I say that -- I didn't suggest it was a settled  30 colony because of any of these analyses; it is because  31 it was settled, it was determined by the preamble to  32 the 1858 Act.  That was my submission.  Now, all of  33 this is simply a regurgitation of submissions that  34 have been made by my friend earlier, and I think it is  35 a very unfair way of treating the Plaintiffs' right to  36 a reply.  37 THE COURT:  Just a moment please.  Preamble to the 1858 Act?  38 MR. GOLDIE:  Yes.  That's what my entire submission was founded  39 upon.  40 THE COURT:  That was the act establishing the colony.  41 MR. GOLDIE:  Exactly.  42 THE COURT:  The Imperial Act.  43 MR. GOLDIE:  The Imperial Act.  That was my submission, that  44 there wasn't any room for ambiguity; that there wasn't  45 any room for this kind of analysis.  It had been  4 6 determined by the Imperial Parliament and I don't  47 think even my friend questions the authority of the 29282  Submissions by Mr. Jackson        1 Imperial Parliament at  that stage of the existence to  2 say what it wanted to say even if it was totally at  3 odds with the facts, and I pointed out, my lord, that  4 the Imperial Parliament knew what the facts were in  5 British Columbia because in 1857 there had been a  6 Select Committee delving into the affairs of the  7 Hudson's Bay Company.  That was my submission.  This  8 is not a reply to it.  9 MR. JACKSON:  My lord, my friends at some length in their oral  10 submissions went to Mr. Justice Blackburn's decision  11 in Milirrpum.  My friends in their written submissions  12 and their oral submissions went to read to your  13 lordship Blackburn's commentaries.  If those are  14 entirely irrelevant to my friend's argument, then my  15 question is:  Why are they in his materials?  Why does  16 he refer to them?  My position, my lord, is that my  17 friend's argument that their case entirely depends  18 upon the English Law Ordinance is in fact not a fair  19 way of characterizing their case.  20 MR. GOLDIE:  I am sorry, I didn't say the English Law Ordinance.  21 I said the Act of 1858 settled the question of whether  22 British Columbia was a settled colony.  The English  23 Law Ordinance confirmed the introduction of English  24 law by I wasn't talking about that.  25 MR. JACKSON:  The thrust of my proposition, my lord, the reason  26 why I am taking you through this material, is at the  27 end of the day the position which emerges is that the  28 classification of the colony, whatever relevance it  29 has, and I am not suggesting it has no relevance, so  30 far as it concerns the introduction of English law as  31 it affects the settlers has no legal relevance for the  32 determination of the rights of the aboriginal peoples.  33 That is the central proposition I am arriving at, my  34 lord.  My friend says it does.  The determination for  35 whatever reason, whether it is Blackstone or whether  36 it is the legislation he relies upon somehow as a  37 matter of law, is legally relevant in determining the  38 rights of the plaintiffs and we say that is wrong and  39 it is a fundamental error in the defendant's position.  40 And I say that is entirely proper reply.  41 THE COURT:  I don't know who is right on this and it will take a  42 lot of analysis for me to go back and review the  43 submissions and that's why again I don't like reply  44 and I don't usually pay as much attention to it as I  45 do to the initial arguments, but I don't feel that I  46 am in a position where I can stop you because I am not  47 sufficiently confident of my ground to rule on that 29283  Submissions by Mr. Jackson        1 arbitrarily, and I  think that being so, I think you  2 should use up your time the way you want to do it.  I  3 have made a note that Mr. Goldie has objected and on  4 the grounds upon which he has objected and we will  5 have to take that into consideration in due course.  6 MR. JACKSON:  Thank you, my lord, and I will get to that point I  7 just made, my lord, having gone through what I say  8 ultimately is not legally relevant for your  9 determination, the classification of whether it is  10 settled and conquered, even though even making that  11 determination if it were relevant would be a very  12 difficult thing to do in the context of all of the  13 law, but we say, my lord, at paragraph 28, that the  14 fundamental error in the Provincial Defendant's  15 arguments that the characterization of British  16 Columbia colony as a settled colony for whatever  17 reason precludes any aboriginal rights except those  18 that the Crown chooses to recognize is its failure to  19 appreciate that the principles determining the  20 relationship between the British Crown and aboriginal  21 peoples in North America developed or crystalized into  22 a special branch of British common law applicable to  23 the Colonies distinct from and not dependent upon the  24 various rules relating to settled and conquered or  25 ceded colonies.  26 My lord, at paragraph 30, I refer you to an  27 article your lordship may have already looked at,  28 Professor Slattery's article Understanding Aboriginal  29 Rights in Canada, parts of which were cited with  30 approval by the Supreme Court of Canada in Sparrow as  31 to the correct approach to section 35.  I am referring  32 your lordship here to other provisions of that which I  33 say deal with this very question of the relevance of  34 the settled colony dichotomy to the issues upon which  35 your lordship is called to adjudicate.  Professor  36 Slattery says:  37  38 "The legal principles concerning aboriginal  39 peoples developed at the same time as other  40 basic doctrines of colonial law and shared  41 essentially the same juridical character.  Many  42 of their basic tenets can be discerned as early  43 as the 17th century in British practise in the  44 American colonies.  They emerge more fully  45 developed during the next century and are  46 reflected, if only partially, in the major  47 Indian document of this era, the Royal 29284  Submissions by Mr. Jackson        1 Proclamation of  1763.  Just as 18th century  2 colonial law harbored rules governing such  3 matters as the constitutional status of  4 colonies, the relative powers of the Imperial  5 Parliament and local assemblies, and the  6 reception of English law, it also contained  7 rules concerning the status of native peoples  8 living under the Crown protection, and the  9 position of their lands, customary laws, and  10 political institutions.  These rules form a  11 body of unwritten law known collectively as the  12 doctrine of aboriginal rights.  The part  13 dealing specifically with native lands is  14 called the doctrine of aboriginal title.  15 Other parts deal with such matters as Indian  16 treaties, customary law, powers of  17 self-government, and the fiduciary role of the  18 Crown.  19 The doctrine of aboriginal rights, like other  20 doctrines of colonial law, applied  21 automatically to a new colony..."  22  23 THE COURT:  This hasn't been adopted by the Supreme Court of  24 Canada?  25 MR. JACKSON:  No, this has not been adopted by the Supreme Court  26 of Canada.  This was another passage.  27 THE COURT:  I have never heard this doctrine of aboriginal  28 rights in this case up until now.  It may be a  29 convenient collection or a convenient classification  30 but is it necessary for me to trouble myself with a  31 theory that has been published this way and which  32 hasn't been adopted?  33 MR. JACKSON:  Well, my lord, Professor Slattery sought to as it  34 were provide a general statement.  35 THE COURT:  Well, I know, but he wasn't operating under any  36 disciplines of any kind so he could say what he  37 wanted.  38 MR. JACKSON:  I am not asking your lordship to adopt Professor  39 Slattery's article as the answer to your lordship's --  40 THE COURT:  Well, trial judges are notoriously cautious about  41 this sort of thing.  The Supreme Court of Canada can  42 adopt anything they want.  We don't have any idea  43 whether a particular writing of this kind is going to  44 find favour with the Supreme Court of Canada and  45 therefore we leave it to them to decide which of the  46 learned writers they want to adopt and which ones they  47 don't, but it seems to me you are asking me here to 29285  Submissions by Mr. Jackson        1 now consider whether I  should pronounce on a whole new  2 doctrine of common law that seems to me to be  3 unnecessary to the case.  4 MR. JACKSON:  My lord, the point I want to take your lordship to  5 is the passage underlined.  6 THE COURT:  All right.  7 MR. JACKSON:  8  9 "Although the doctrine..."  10  11 He is talking about the doctrine of aboriginal rights  12 in terms of pre-existing rights of aboriginal peoples:  13  14 "Although the doctrine was a species of  15 unwritten British law..."  16  17 And in saying that, my lord, is saying nothing more  18 than what Mr. Justice Dickson said in Guerin and Mr.  19 Justice Strong said in Saint Catherine's Milling:  20  21 " was not part of English common law in the  22 narrow sense, and its application to a colony  23 did not depend on whether or not English common  24 law was introduced there."  25  26 My lord, that is the essential point.  27 THE COURT:  You made a stronger submission, didn't you, Mr.  28 Jackson, that these things had developed into a  29 recognized part of the common law of England?  30 MR. JACKSON:  My lord, what Professor Slattery is saying there  31 is that English common law as my friend would apply it  32 is the English common law in relation to real  33 property, the title has to be traced to the Crown.  34 What Professor Slattery is saying, and it has been the  35 Plaintiffs' submissions, that when we talk about the  36 development of aboriginal rights as a branch of the  37 common law it is a branch of special colonial common  38 law which is applicable to the colonies, and our  39 point, my lord, is that it is applicable to the  40 colonies irrespective of their mode of acquisition.  41 And I am referring your lordship to what Professor  42 Slattery says here both in terms of academic  43 commentary in support of that but more important, my  44 lord, our principal submissions have been that the  45 courts in applying the doctrine of aboriginal rights  46 as a matter of common law have never had regard to the  47 supposed dichotomy between settled and conquered 29286  Submissions by Mr. Jackson        1 colonies with the  exception of Mr. Justice Blackburn  2 in Milirrpum and our argument, my lord, is that that  3 category says -- is not legally relevant to your  4 lordship.  And I refer your lordship to Professor  5 Slattery's view there which we say do no more than  6 reflect the law as it has been stated in some cases,  7 particularly in Canadian cases, and as it has been  8 stated by the courts of United States.  And you will  9 see, my lord, at page 18, Professor Slattery makes the  10 point that the Marshall decisions can be viewed as it  11 were to serve the function for aboriginal rights, the  12 colonial common law of aboriginal rights what  13 Campbell v. Hall did for the common law in relation to  14 colonies and the introduction of English law and to  15 the settlers, and that's my point, my lord.  It is  16 that there are a number of strands of Canadian -- of  17 colonial law and the strand your lordship is being  18 asked to rule on is the common law as it relates to  19 aboriginal rights and that is not dependent upon the  20 settled, conquered colony dichotomy, and that's the  21 point I would leave your lordship with.  22 My lord, starting at paragraph 32, I refer to my  23 friend's reliance upon Vattel, an 18th century  24 international lawyer, who propounded the principle  25 that the only rights of aboriginal peoples were in  26 fact those which they had cultivated and applied  27 labour to.  28 And at page 19, my lord, I make the point and  29 refer your lordship to the way in which that argument  30 has appeared as part of the legal discourse in a  31 number of cases, how it was raised by John Quincy  32 Adams in Fletcher v. Peck, and most importantly, my  33 lord, the way in which in the Mitchel case it was  34 rejected by a unanimous Supreme Court of the United  35 States.  And I have referred your lordship at the  36 bottom of page 19 to the statement of the Supreme  37 Court rejecting that idea.  38 Starting at paragraph 38, my lord, I deal with  39 certain propositions which my friends rely upon drawn  40 from Chancellor Kent's commentaries, and I point out  41 in paragraph 38 that these are the same commentaries  42 which were referred to by Mr. Justice Strong in the  43 Saint Catherine's case.  And I say to the extent that  44 there are differences between the way my friends have  45 used Kent's commentaries in this addendum your  46 lordship should prefer the manner in which they were  47 used by Mr. Justice Strong in Saint Catherine's 29287  Submissions by Mr. Jackson        1 Milling, and what I  have done, my lord, in those  2 paragraphs and up to paragraph 46, I have addressed  3 what my friends say Kent's commentaries support in  4 terms of colonial law, and I have attempted to refute  5 what they say Kent says, and my position is that what  6 they say is much more accurately reflected in the  7 decision of Mr. Justice Strong.  8 I would in particular, my lord, at page 23, the  9 very bottom, my friend's extract from Kent's  10 commentaries end at 522, and the material after  11 page -- at page 516, I am sorry.  Page 517 to 522  12 Chancellor Kent, and I will be providing your lordship  13 with this, details the consistent state practise of  14 the American colonies up to 1763 in a manner which the  15 Plaintiffs say, my lord, is entirely consistent and in  16 some ways constitutes a summary of the more extensive  17 analysis which we provided your lordship at the  18 opening of our submissions in Smithers.  And I will in  19 fact be providing your lordship with that.  20 At paragraph 46, my lord, to the extent my friends  21 say that the pre-colonial -- the pre-Proclamation law  22 and the post-Proclamation law in terms of colonial law  23 did reflect a view of aboriginal rights which was  24 limited to cultivated fields, I say that Mitchel  25 refutes that, Chancellor Kent in fact recites the  26 Mitchel case.  27 Paragraph 47, my lord, my friends, referring to  28 the Symonds case, and your lordship will recall I  29 spent some time on the Symonds case, the decision of  30 the New Zealand Supreme Court rendered on the eve of  31 the foundation as it were or two years before the  32 foundation of the colony of Vancouver Island, and my  33 friend says that if you look at the case you will see  34 that Chief Justice Martin and Mr. Justice Chapman in  35 fact drew different conclusions from that case.  And I  36 say in reply, my lord, that my friends are wrong.  And  37 I -- in paragraphs 47 through to paragraphs 50, I have  38 sought to provide your lordship with the best evidence  39 of why they are wrong through an analysis of the  40 propositions that the two judges rely upon, and I say  41 they are complimentary and in no way different.  42 My lord, paragraph 51, my friends note that Mr.  43 Justice Chapman in Symonds referred to the judgments  44 of colonial courts.  And indeed they were principally  45 the judgments of the Marshall court.  My friend says  46 that another judgment of the colonial court, this is  47 not a judgment relied upon by Mr. Justice Chapman, but 29288  Submissions by Mr. Jackson        1 another judgment of  the colonial courts is that of the  2 Supreme Court of Louisiana in Martin v. Johnson, and,  3 my lord, my friends say that this was decided in 1818  4 and it was referred to in the address of Sir George  5 Gibbs.  Now, the address of Sir George Gibbs is  6 important because it too in turn was referred to by  7 the report of the Select Committee on New Zealand  8 which of course in turn is relied upon by my friends  9 as articulating fundamental principles of colonial  10 law.  And they say that this case supports the  11 proposition that British colonial law limited the  12 recognition of aboriginal title to cultivated fields  13 and village sites, and my friends also referred to  14 another Louisiana case relied upon by Mr. Justice  15 Taschereau in Saint Catherine's Milling which they say  16 recognized an even more limited proposition that  17 aboriginal rights were limited to actual occupancy of  18 village sites.  19 And, my lord, at paragraph 52 I say that a reading  20 of these two cases makes it clear that the central  21 issue involved in both of them was what rights existed  22 as a matter of Spanish law prior to the sale of  23 Louisiana to the United States.  And, my lord, I have  24 set out the facts in Martin v. Johnson; in fact they  25 concern lands upon which the particular Indians were  26 located, they were not their aboriginal lands at all,  27 and the judgment makes it very clear that the case was  28 decided under the laws of the Indies, not under  29 British colonial law.  The case is very clear on that.  30 In the Breaux v. Jones case, my lord, again the court  31 looks for the relevant rules to determine the dispute  32 in the laws of Spain.  The court contrasts the  33 different way in which Spain interpreted the doctrine  34 of discovery on the rights of original inhabitants.  35 It sites Johnson v. Mcintosh, Worcester v. Georgia,  36 Fletcher v. Peck for the proposition that while the  37 different nations of Europe respected the rights of  38 natives as occupants, they all asserted the ultimate  39 dominion and title to be in themselves.  But the court  40 then goes on to describe how Spain, based not only  41 upon the right of discovery but also the higher  42 sanction of apostolic dispensation, claimed absolute  43 ownership of all lands discovered, whether or not they  44 were appropriated or occupied by the natives.  The  45 court then goes on to define the nature of the enquiry  46 in the case in this way:  it is to ascertain whether  47 the laws of Spain, not British colonial law, the laws 29289  Submissions by Mr. Jackson        1 of Spain, after the  discovery of America, restored the  2 Natives to the absolute ownership of the lands  3 allotted to them, and it goes on to recite the policy  4 of Queen Isabella and how in fact in the laws of the  5 Indies it was the law that the Indies should be  6 compelled to live in villages where they would be more  7 conveniently instructed in the Catholic faith and the  8 arts of civilized life.  And if you read that passage,  9 my lord, you will see that -- and I say this at  10 paragraph 54, you will see that the case dealt with a  11 Spanish regime of the forced concentration of Indians  12 into reductiones or reserves.  This the Province  13 asserts is an appropriate reference point for  14 determining British colonial law as it existed at the  15 time of the establishment of the colony of British  16 Columbia.  It is surely ironic I say, my lord, that  17 the Province which in its introduction to its  18 submissions on May 7th, chided the Plaintiffs for  19 referring in their historical review of aboriginal  20 rights to the early Spanish regime which led up to the  21 great debate at Valladolid, should in its final  22 submissions on British colonial law fall back on cases  23 referring to Spanish colonial policy as reflected in  24 the laws of the Indies for its narrow meager and  25 minimalist view of the nature of aboriginal rights.  26 My lord, I would turn now to tab 5 and, my lord,  27 tab 5 picks up as it were where tab 4 leaves off in  28 terms of the New Zealand connection.  And I say, my  29 lord, in paragraph 1 that Mr. Goldie, and, your  30 lordship, the reason for the different type is that  31 our offices don't operate on simultaneous translation  32 but they are operating on simultaneous typing.  Mr.  33 Goldie, in his introduction to the Plaintiffs'  34 argument referred your lordship to the report of the  35 Select Committee on New Zealand in support of his  36 argument that this provided your lordship with a  37 source of relevant fundamental principles of colonial  38 law more relevant than the sources relied upon by the  39 Plaintiffs.  Mr. Goldie cited extensively from the  40 Committee's Report principally to demonstrate that one  41 of those principles was that aboriginal rights, to the  42 extent that they were recognized by the Crown, were  43 limited to lands which were occupied or cultivated and  44 that the Committee's Report was the basis upon which  45 the Secretary of the Hudson's Bay Company, Mr.  46 Barclay, instructed James Douglas, as the Chief Factor  47 of the Hudson's Bay Company on Vancouver Island to the 29290  Submissions by Mr. Jackson        1 effect that the  natives were the rightful possessors  2 of such lands only as they occupied by cultivation or  3 had houses built on.  And through this historical  4 chain the Province asserts that the policy adopted in  5 British Columbia reflected in the Land Ordinances and  6 Proclamations of creating and protecting an Indian  7 interest in Indian Reverse was a liberal and  8 enlightened policy consistent with principles of  9 colonial law.  10 And, my lord, in paragraph 2, I say that the  11 reliance on the Select Committee as a source of the  12 principles of colonial law limiting aboriginal rights  13 to village sites and cultivated fields is misleading.  14 This, for the reason I identified before, because Mr.  15 Goldie later argued that colonial law did not  16 recognize any native rights, and the only thing native  17 people had in relation to their settled village sites  18 and cultivated fields was a claim on the grace and  19 liberality of the Crown.  And I have already referred  20 your lordship to the transcript reference.  Again,  21 with that in mind, the Plaintiffs would make the  22 following submissions by way of reply to my friend's  23 reliance upon the Select Committee Report.  24 The Report of the Select Committee does not  25 accurately state the fundamental principles of  26 colonial law, either as they applied to New Zealand or  27 to other British colonies.  28 The Select Committee's Report and its  29 interpretation of principles of colonial law is quite  30 inconsistent with the specific instructions given by  31 Lord Normanby at the foundation of the Colony of New  32 Zealand in 1839, and inconsistent with the actual  33 policies carried out both before and after the Select  34 Committee's Report.  35 And we say that the Committee's Report is  36 inconsistent with the principles of colonial law  37 respecting the recognition of aboriginal rights as  38 articulated in the decisions of Mitchel by the U.S.  39 Supreme Court and the decisions of Symonds, the  40 decision of the New Zealand Supreme Court.  And we say  41 that both these decisions, decisions of the highest  42 courts, at the time are more accurate as well as more  43 objective statements of the relevant principles of  44 colonial law than the report of the Select Committee.  45 And I want to develop those points a little bit, my  46 lord  47 Down to paragraph 6, the bottom of the page.  The 29291  Submissions by Mr. Jackson 1            Select Committee  stated its conception of relevant  2 principles of colonial law and policy in the following  3 terms.  And this is the principle, my lord, my friends  4 rely upon as I understand it:  5  6 "Your Committee has already mentioned, that it  7 is one of the fundamental principles of  8 colonial law and policy which they believe to  9 have been correctly laid down by Sir George  10 Gibbs that..."  11  12 And this is the principle:  13  14 "The uncivilized inhabitantsof any country have  15 but a qualified dominion over it or a right of  16 occupancy only; and that until they establish  17 amongst themselves a settled form of  18 government, and subjugate the ground to their  19 own uses by the cultivation of it, they cannot  20 grant to individuals not of their own tribe a  21 portion of it, for the simple reason that they  22 have not themselves any individual property in  23 it."  24  25 The committee then, my lord, went on to describe  26 the circumstances surrounding the establishment of New  27 Zealand and the Treaty of Waitangi and they said:  28  29 "Your Committee have observed the terms of the  30 treaty are ambiguous and in the sense in which  31 they have been understood, have been highly  32 inconvenient, in this we refer principally to  33 the stipulations it contains with respect to  34 the right of property in land.  35  36 Unfortunately the originalinstructions given to  37 Captain Hobson, when he was sent out for the  38 purpose of establishing British dominion in New  39 Zealand, were not sufficiently precise on this  40 most important point; they contained directions  41 as to the manner in which he was to proceed in  42 purchasing land from the natives, and they did  43 not (as your Committee think that they ought to  44 have done) clearly laid down the rule that  45 sovereignty being established, all unoccupied  46 lands would forthwith vest in the Crown..."  47 29292  Submissions by Mr. Jackson        1 And, my lord, if  you go over to page 5 to the very  2 bottom of the page, Mr. Goldie read large extracts  3 from this to you and I won't repeat them, but if you  4 go -- I have set most of them out.  If you go over to  5 the bottom of page 5, the very last one sentence:  6  7 "If native rights to the ownership of land had  8 only been admitted when arising from  9 occupation, there would have been no difficulty  10 in securing it once to the settlers..."  11  12 THE COURT:  "In giving".  13 MR. JACKSON:  14  15 " giving at once to the settlers secure and  16 quiet possession of the land they required..."  17  18 And then to the last paragraph:  19  20 "To have proceeded in this manner, and to have  21 assumed at once all unoccupied land to belong  22 to the Crown as a right inherent in the  23 sovereignty, would have been attended with no  24 sort of injustice to the natives, and would  25 have been conducive to their real interests.  26 The unoccupied land, previously to European  27 settlement, was of no value to them, they were  28 neither a pastoral people, nor one living, like  29 the North American Indians, by the chase, and  30 therefore requiring a great extent of country  31 for their support; they derived their chief  32 subsistence from the produce of the soil and  33 agriculture, rude as it was, and, according to  34 the witnesses who have been examined by Your  35 Committee, hardly a thousandth part of the  36 available land was thus made use of by them."  37  38 My lord, in light of the Select Committee's  39 comments on the directions given to Captain Hobson, it  40 is instructive to read the precise Instructions given  41 to him by 1839 by Lord Normanby, the Colonial  42 Secretary, in 1839.  And I have set them out, they are  43 very long, and they are an exhibit in the proceedings.  44 I am just going to refer your lordship to several  45 extracts.  Turning to page 8 of my submission, my  46 lord, at paragraph 6.  47 THE COURT:  Do you have a citation? 29293  Submissions by Mr. Jackson        1  MR. JACKSON:  The exhibit is at  the end of page 11, my lord, you  2 will see the exhibit number.  Paragraph 6, and this is  3 the Colonial Secretary:  4  5 "I have already stated that we acknowledge New  6 Zealand as a Sovereign and independent State,  7 so far at least as it is possible to make that  8 acknowledgement in favour of a people composed  9 of numerous, dispersed, and petty Tribes, who  10 possess few political relations to each other,  11 and are incompetent to act, or even deliberate,  12 in concert.  But the admission of their rights,  13 though inevitably qualified by this  14 consideration, is binding on the faith of the  15 British Crown.  The Queen, in common with Her  16 Majesty's immediate Predecessor, disclaims for  17 herself and for her Subjects, every pretention  18 to seize on the Islands of the New Zealand, or  19 to govern them as a part of the Dominion of  20 Great Britain, unless the free intelligent  21 consent of the Natives, expressed according to  22 their established usages, shall be first  23 obtained."  24  25 And, my lord, if you would go to page 10, the bottom,  26 paragraph 11:  27  28 "All dealings with the aborigines for their  29 Lands must be conducted on the same principles  30 of sincerity, justice, and good faith as must  31 govern your transactions with them for the  32 recognition of Her Majesty's sovereignty in the  33 Islands.  Nor is this all.  They must not be  34 permitted to enter into any contracts in which  35 they might be ignorant and unintentional  36 authors of injuries to themselves.  You will  37 not, for example, purchase from them any  38 Territory the retention of which by them would  39 be essential, or highly conducive, to their own  40 comfort, safety or subsistence.  The  41 acquisition of Land by the Crown for the future  42 settlement of British subjects must be confined  43 to such districts as the natives can alienate  44 without distress or serious inconvenience to  45 themselves.  To secure the observance of this  46 rule will be one of the first duties of their  47 official protector..." 29294  Submissions by Mr. Jackson        1  2 My lord, in paragraph 9, I refer your lordship to  3 the Report on the Orakei Claim, report of the Waitangi  4 Tribunal, which commented on these instructions in  5 terms which have direct relevance to the statements in  6 the report of the Select Committee that --  7 MR. GOLDIE:  Is this an exhibit?  8 MR. JACKSON:  This, my lord, was introduced in the argument of  9 the Plaintiffs as part of the submissions on the  10 Treaty of Waitangi.  11 THE COURT:  I think I have seen this before.  12 MR. JACKSON:  Yes, my lord.  Not this particular passage but you  13 have seen parts of this.  14 THE COURT:  I have seen the report on the —  15 MR. JACKSON:  On the Orakei Claim, yes, my lord.  16 THE COURT:  Yes.  17 MR. JACKSON:  And I say it has direct relevance to the  18 statements in the report of the Select Committee that  19 under colonial law lands which were not occupied and  20 cultivated by the Natives were not recognized as  21 belonging to them and passed to the Crown as  22 wastelands subject to no aboriginal interest and were  23 available for grants.  24 And, my lord, I will refer you to page 12,  25 paragraph 11.4.3:  26  27 "Although the Colonial Secretary refers to  28 'waste lands' it should not be inferred that  29 these were not owned by the Maori people.  30 Hobson was authorized to purchase waste lands  31 which the Maoris did not need or wish to  32 retain; it necessarily follows from this the  33 Colonial Secretary acknowledged that the Maori  34 owned all such land."  35  36 Next paragraph:  37  38 "It is indeed well established that..."  39  40 and it should be "in 1840":  41  42 "the Maori claimed ownership of the whole of the  43 islands of New Zealand.  In support of this  44 claim Adams cites:"  45  46 And there was a number of references there, my lord,  47 and I just refer you to some of them.  The last 29295  Submissions by Mr. Jackson 1            paragraph of that  page:  2  3 "The Maoris claim and exercise ownership over  4 the whole surface of the country; and there is  5 no part of it, however lonely, of which they do  6 not know the owners.  Forests in the wildest  7 part of the country have their claimants.  8 Land, apparently waste, is highly valued by  9 them.  Forests are preserved for birds; swamps  10 and streams for eel-weirs and fisheries.  11 Trees, rocks and stones are used to define the  12 well-known boundaries.  13 The value of its land, therefore, not only for  14 its produce, but also for dignity and rank that  15 was attached to its ownership, was very great,  16 and its possession was coveted beyond all other  17 things....  18 It is well to recall that the Maori people by  19 no means relied only on their cultivated land  20 for their food.  For them the distinction  21 between 'cultivated' and 'waste' land in the  22 European sense did not exist.  This in part,  23 because the Maori followed a practice of  24 'shifting agriculture' but far more  25 importantly, because they resorted to the  26 produce that lived and grew naturally upon it,  27 or in the streams, lakes and swamps."  28  29 And, my lord, the last paragraph on that page:  30  31 "While the Colonial Government may not have been  32 fully aware of the effect the nature of Maori  33 occupation of the land the Colonial Secretary's  34 instructions, as we have seen, recognized Maori  35 ownership of the land.  This was known to and  36 acknowledged by the first two Governors of New  37 Zealand, by Shortland who acted as Governor  38 after Hobson's death pending FitzRoy's arrival  39 and by George Clarke..."  40  41 And, my lord, most significantly on the next page  42 and the paragraph 11.4.6, the Waitangi Tribunal refers  43 to the comments by the president of the New Zealand  44 Court of Appeal, President Cooke in the New Zealand  45 Maori Council case where his lordship said:  46  47 "The view generally accepted by historians and 29296  Submissions by Mr. Jackson        1 lawyers at the  present day is that expressed  2 as long ago as 1846..."  3  4 And this is the date of the New Zealand Select  5 Committee Report:  6  7 " Sir William Martin, the first Chief  8 Justice.  As he put it, before the Treaty of  9 Waitangi the whole of New Zealand 'or as much  10 of it as is of any value to man' was divided  11 among the Maori tribes and subtribes.  12 Communal ownership was not confined to areas  13 in actual occupation."  14  15 And also of some significance, my lord, hence the  16 underlining in the next paragraph:  17  18 "The Colonial Office, albeit reluctantly,  19 accepted in the first five years of the Colony  20 that the Treaty recognized the Maori ownership  21 of the whole of New Zealand."  22  23 And remember, my lord, the treaty did not create, it  24 recognized the Maori ownership, and that's been our  25 submissions, that the Treaty of Waitangi is like the  26 Royal Proclamation, an affirmation, not the source of  27 the rights.  28  29 "But constant pressure by the New Zealand  30 Company for the adoption of a narrower view  31 and persistent misgivings among some British  32 politicians led Earl Grey in his despatch of  33 23 December 1846 to Governor Grey to adopt a  34 more aggressive approach to the acquisition of  35 Maori island.  He held that Maori owned only  36 occupied and cultivated land and that all  37 unoccupied land was waste land and the  38 property of the Crown.  Governor Grey however,  39 with support from Bishop Selwyn and Chief  40 Justice Martin, refused to accept this narrow  41 view and continued to recognize Maori ownership  42 of the whole of the country."  43  44 And, my lord, in paragraph 10, I have referred  45 your lordship to material I have already directed your  46 lordship to how in fact this asserted principle of  47 limiting aboriginal rights to cultivated land and 29297  Submissions by Mr. Jackson        1 village sites is  inconsistent with the authorities.  2 Paragraph 11.  I say, my lord, the Select  3 Committee itself acknowledged that whatever may be the  4 position in New Zealand regarding the rights of the  5 Maoris to uncultivated lands, different principles  6 operated in North America.  And you have there the  7 extract from the Committee that the Committee said the  8 Maoris were different from the North American Indians  9 who required large areas of land for their hunting  10 grounds, acknowledging the principles of colonial law  11 in North America were different.  12 But it is the Plaintiffs' submission, my lord,  13 that in fact and in law no different principle applied  14 in New Zealand.  And this is not only reflected in the  15 passages previously cited from the Waitangi Tribunal  16 Report but even more significantly in the decision of  17 the New Zealand Supreme Court decision in Symonds,  18 delivered three years after the Select Committee's  19 Report.  This is not only the decision of the highest  20 court in New Zealand, but it is a decision, your  21 lordship's words, rendered so to speak on the ground  22 and not ten thousand miles away in Parliamentary  23 Committee Room and influenced by pressure from the New  24 Zealand Company.  25 And I have, my lord, at pages 17 and 18 set out  26 passages from Mr. Justice Chapman's judgment which we  27 say make it very clear that his lordship, applying  28 universal principles, principles of universal  29 application, drawn from the Marshall cases, drawn from  30 his understanding of colonial law, did not limit the  31 rights to unoccupied lands, cultivated lands and  32 village sites.  And we say that that case is wholly  33 inconsistent with the Select Committee's Report.  34 My lord, in paragraph 16, in advancing the report  35 of the Select Committee as more relevant source from  36 which to identify fundamental principles of colonial  37 law than those the Plaintiffs have advanced, the  38 Provincial Defendant did not -- not only fails to  39 mention that the colonial office did not act upon the  40 Select Committee's recommendation but also fails to  41 note that the Committee itself was far from unanimous.  42 And thus, my lord, a draft report was prepared by some  43 members of the Committee which reflected the evidence  44 of three of the five witnesses who testified before  45 the Committee and three of those witnesses claimed --  46 MR. GOLDIE:  Well, my lord, this was dealt with by Mr. Rush, the  47 parliamentary debates on this Select Committee Report. 29298  Submissions by Mr. Jackson        1 And if your lordship  would please note volume 333,  2 page 25790 where he is dealing with the Select  3 Committee's Report and, my lord, the Plaintiffs  4 introduced the Select Committee's Report, I didn't,  5 and he talks about the parliamentary debate, the wide  6 range of views expressed about the nature and extent  7 of the Indian title of the soil, et cetera, the  8 debates were set out in Exhibit 1256-25 to 29.  I ask  9 your lordship to note that please.  10 MR. JACKSON:  My lord, there are some particular passages I want  11 to refer your lordship to which I say refute the  12 proposition relied upon by my friend and, as I  13 understand Mr. Rush's introduction of that material,  14 it was not directed in a specific way to a particular  15 proposition which my --  16 THE COURT:  Does it encompass the rules of reply?  17 MR. JACKSON:  My lord —  18 THE COURT:  Is that your response to the objection?  19 MR. JACKSON:  My response to the objection, my lord, is that the  20 point to which I am directing my comments in relation  21 to the Parliamentary Report are different from those  22 which Mr. Rush introduced it for and are responsive to  23 the way in which my friends have used the Select  24 Committee Report which is as a reliable index of  25 fundamental principles of colonial law.  That was not  26 the point which my friend, Mr. Rush, introduced the  27 report in the first place, nor was it the point to  28 which he addressed his submissions.  29 MR. GOLDIE:  Well, my friend, Mr. Rush, concluded his submission  30 by sayings:  31  32 "The point however is, my lord, that after all  33 of that debate and the various views expressed  34 by the Parliamentaries there the colonial  35 office did not act in the recommendations of  36 the Select Committee."  37  38 And that is precisely the point that my friend is  39 about to make.  4 0 MR. JACKSON:  Well —  41 THE COURT:  What is the reference?  42 MR. GOLDIE:  That reference is still page 25790, volume 333, and  43 that is part of the extended reference to the Select  44 Committee.  45 MR. JACKSON:  My lord, to the extent my friend's point is that  46 we have addressed the question of non-reliance, I am  47 prepared not to rely upon my submissions here, but my 29299  Submissions by Mr. Jackson        1 other reliance, my  lord, is not simply for the point  2 that the report was not implemented; it is to bring  3 your lordship's attention to statements made by  4 Committee members as to what the relevant principles  5 of colonial law were.  But I don't have to press this  6 point, my lord.  7 THE COURT:  Well, it will help me if you don't because I have no  8 idea what I should do with a situation like this.  It  9 is impossible to make any decision.  10 MR. JACKSON:  My lord, it may assist your lordship to — what I  11 have done here is to point out particular passages in  12 statements made during the Parliamentary Report which  13 addressed the issue of the manner in which the  14 parliamentary debate may have been influenced by the  15 New Zealand Company the way in which certain members  16 saw the asserted principle which the Committee was  17 seeking to have, part of its report was not consistent  18 with colonial practice, nor with colonial law as  19 members understood it elsewhere.  20 THE COURT:  Perhaps the convenient way to deal with it is for  21 you to leave with me the thought that there is much  22 useful information in the documents which have been  23 mentioned by Mr. Rush and by Mr. Goldie and if I am  24 troubled by this point that perhaps I should read the  2 5 whole document.  26 MR. JACKSON:  I am quite content to leave that with your  27 lordship on exactly that basis.  2 8 THE COURT:  Thank you.  29 MR. JACKSON:  My lord, if I can go to the page 24, paragraph 21,  30 where I say, my lord:  The juxtaposition of justice  31 and convenience is one which is reflected in the  32 report of the Select Committee.  At various points in  33 the Report the Committee refers to the Treaty of  34 Waitangi as having given rise to consequences that are  35 characterized as highly inconvenient.  And I say, my  36 lord, by way of my final submission on this that in  37 identifying fundamental principles of the common law  38 relevant to the respective rights of aboriginal  39 peoples and the Crown it is submitted that the  40 convenience of a particular principle viewed from the  41 perspective of the Crown is neither a hallmark nor the  42 litmus test of those fundamental principles.  The  43 comments of the members of House of Commons in 1845  44 reflects comments made a century later by Lord Atkin  45 that "convenience and justice are often not on  46 speaking terms".  And, my lord, that particular  47 comment was my understanding most recently relied upon 29300  Submissions by Mr. Jackson        1 by Mr. Justice  MacGuigan in the case of the Howard v.  2 Presiding Officer.  3 THE COURT:  Every judge has used that.  4 MR. JACKSON:  Yes, my lord.  5 THE COURT:  I am looking for some support from --  6 MR. JACKSON:  We say it is particularly appropriate when looking  7 at the material in the New Zealand connection.  8 THE COURT:  Mr. Justice Rattan at one time used it on an  9 application to adjourn a trial.  10 MR. JACKSON:  My lord, the next material I am going to — my  11 understanding that closure descends on me in six  12 minutes -- it's going to be very brief, and I am just  13 going to do no more than refer your lordship to what  14 it is in the balance of the tabs.  15 Tab 6 deals with a point relating to the relevance  16 of pre and post revolutionary experience in the  17 American Colonies.  My friends' assertion that it's  18 irrelevant and our position that that is most  19 definitely not the case, and the Supreme Court of  20 Canada in Sioui is of the same opinion.  21 Tab 7, my lord, deals with some points we have to  22 make by way of reply to my friend's position in terms  23 of Saint Catherine's Milling case and Treaty No. 3,  24 and what my friend says about the dismissal of Mr.  25 Justice Strong's judgment or the rejection of Mr.  26 Justice Strong's judgment in the Privy Council and we  27 say, my lord, that the rejection of the arguments in  28 the Privy Council were not a rejection of Mr. Justice  29 Strong's views, only a rejection of the result he came  30 to in that case, and we say, my lord, more  31 significantly that Mr. Justice Strong's analysis that  32 aboriginal rights are based upon common law principles  33 and that they are paralleled by the Proclamation, they  34 are pre-existing rights, is now the dominant position  35 and in fact is the orthodox position accepted by the  36 Supreme Court of Canada.  37 And I say, my lord, in paragraph 3 and 4 that my  38 friend's position on aboriginal rights reflects an  39 outdated conception of rights as being rights which  40 are derived from a Crown grant as opposed to the  41 prevailing legal philosophy which is now that those  42 rights are pre-existing, and I refer your lordship to  43 a comment by Professor Sanders to that effect again in  44 an article which was cited and relied upon by the  45 Supreme Court of Canada in Sparrow.  46 Section 8 deals with a point relating to the Royal  47 Proclamation and the assertion of my friend that under 29301  Submissions by Mr. Jackson        1 the terms of the  Proclamation even the right to  2 continued possession of the land is limited, and this  3 is said to come from the use of the words "for the  4 present and until our further pleasure be known" and  5 my friend -- and this is the point of the reply,  6 refers to Dr. Stagg's treaties for implied support of  7 that proposition.  I have set out in this material, my  8 lord, some passages from Dr. Stagg's learned treaties  9 which we say contradict completely my friend's  10 position that the terms -- the words "for the present  11 and until our further pleasure be known" relate to the  12 nature of the Indian interest.  We say they don't.  13 Dr. Stagg says they don't.  And I just bring that to  14 your lordship's attention.  It relates to our  15 proposition, my lord, that the Privy Council in using  16 the words "until our further pleasure be known", to  17 the extent that they were seeking to characterize the  18 nature of the Indian interest misapprehended the terms  19 of the Royal Proclamation.  20 Tab 9 is a reply, my lord, directed to my friend's  21 submissions on the American jurisprudence relating to  22 aboriginal title and the right to self-government, and  23 I don't have time to go through it with your lordship  24 but it is something to which I would bring your  25 lordship's particular attention and I will limit my  26 comments to several points.  The principal point I  27 would make, my lord, is that the way my friends have  28 used Johnson v. Mcintosh indelibly underlines the  29 point I made to your lordship in Smithers that you  30 cannot read Johnson v. Mcintosh without regard to the  31 subsequent decisions by the Marshall Court.  And my  32 friends have done exactly that.  And in various parts  33 of this reply, my lord, I go through why that is in  34 error and why in fact when you do that you in fact  35 come up with statements out of context which do not  36 reflect an accurate statement, not so much of American  37 law but an accurate statement of what the fundamental  38 principles were of colonial law as it was applied in  39 the American colonies both pre-revolution and as it  40 was applied in the United States after the revolution.  41 And I give a number of examples of that.  42 The other thing I would bring your lordship's  43 particular attention is that my friends -- and this is  44 at paragraph 27 on page 9.  My friends would have your  45 lordship give very short shrift to what we say is the  46 centrepiece of the American jurisprudence, again a  47 centrepiece which we say is a centrepiece of British 29302  Submissions by Mr. Jackson        1 Colonial law, not  simply American law.  They would  2 have you give short shrift to the statements of the  3 Chief Justice on the ground that the case was decided  4 on the basis of the specific treaties made between the  5 Cherokees and the United States after the revolution.  6 And on this point my friends are in agreement, the  7 Federal Defendant makes the same point, and we say  8 that such a cavalier dismissal does not hold up to  9 analysis, and an objective reading of the Chief  10 Justice's judgment reveals that his discussion of  11 those particular treaties, the Treaty of Hopewell and  12 the Treaty of Holston, were placed in the context of  13 the pre-revolutionary English law and policy regarding  14 the relationship with Indian Nations and that the  15 treaties were particular examples of what he  16 identified as the general principles flowing from the  17 law and policy of the British Crown.  The Cherokee  18 Treaties therefore in affirming the territorial rights  19 of the Cherokees and their continuing right to  20 self-government did not introduce or assert any new  21 principles.  22 And paragraph 28, my lord, again I refer your  23 lordship to the passage in Johnson and -- sorry, in  24 Worcester v. Georgia, which was cited by the Supreme  25 Court of Canada in Sioui, affirming, we say, the  26 proposition that the treaties were the product, not  27 the source, of Indian rights in the pre-revolutionary  28 and we say in the post-revolutionary period.  The  29 other point I wish to make in relation to this and, my  30 lord, if we would go to five past three I would be  31 able to finish.  32 THE COURT:  Yes, certainly.  33 MR. JACKSON:  If that's convenient to madam reporter.  And my  34 friends seek, and I would refer your lordship to  35 paragraph 31, page 11 of my submissions.  Perhaps  36 before we -- perhaps if we can go to paragraph 10, my  37 lord, first of all, page 3.  38 THE COURT:  I am sorry, paragraph 10.  39 MR. JACKSON:  Paragraph 10, page 3.  Mr. Goldie — Mr. Plant I  40 think in his submissions maintains that Tee-Hit-Ton  41 still reflects the law of the United States that there  42 is no aboriginal title recognized except that which is  43 recognized by the state in terms of a treaty or some  44 executive order, the American version of the  45 recognition doctrine.  And we say of course, my lord,  46 in our submissions that the Oneida case has undermined  47 the foundations of that proposition, and we say in 29303  Submissions by Mr. Jackson        1 paragraph 10, in many  ways the Oneida cases have done  2 to Tee-Hit-Ton and its recognition principle what  3 Calder and Guerin have done to the Provinces  4 recognition principle asserted in Calder and again in  5 this case in the sheep's clothing of the settled  6 colony, which we say is not an altogether  7 inappropriate metaphor given the reliance by the  8 Provincial Defendant on the Select Committee on New  9 Zealand.  10 And now, my lord, if I can go to paragraph 31 on  11 page 11, my friends sought to maintain their position  12 that notwithstanding the Oneida case and particularly  13 Oneida II, Tee-Hit-Ton remains good law insofar as in  14 the Oneida case the action was brought against the  15 state counties and municipal level of government, and  16 my friends say that that distinguishes Tee-Hit-Ton  17 which says that you cannot bring an action against the  18 sovereign unless the sovereign has recognized  19 aboriginal title in some way.  And we say first of all  20 the point I have just made that the recognition  21 principle has in fact been undermined by Oneida, but  22 the second point we made, my lord, is that that  23 attempted point of distinction we say is entirely  24 without merit and what I have done, my lord, paragraph  25 32, I have restated the position of the Oneida court,  26 majority of the Supreme Court of United States in  27 Oneida, and I have written in what my friends would  28 say the case really means.  And if you read that  29 passage, my lord, and I won't take you through it but  30 you will see there is a refrain except against the  31 Federal Government, and if you read that passage, my  32 lord, you will see what a mockery it would make of the  33 Oneida case.  And perhaps I can come to the very last  34 passage in that on page 12, this is what the court  35 said:  36  37 "In keeping with this well-established  38 principles..."  39  40 And this is referring to the Marshall case, including  41 Worcester v. Georgia:  42  43 "...we hold that the Oneidas can maintain this  44 action for violation of their possessory rights  45 based on Federal Common law..."  46  4 7 And my friends would add: 29304  Submissions by Mr. Jackson        1  2 "...except as against the Federal Government."  3  4 And we say, my lord, to read the rights protected by  5 Federal Common law to exclude a right of action  6 against the Federal Government is to turn Oneida on  7 its head.  The Provincial Defendants attempt to  8 distinguish Oneida and suggest that it is quite  9 consistent with Tee-Hit-Ton ranks with the Provincial  10 Defendant's argument that the six judges who dealt  11 with the merits in Calder did not hold that the  12 doctrine of aboriginal title exists at common law.  13 And the last thing I want to say --  14 THE COURT:  I haven't grasped what you have done to this  15 quotation to Oneida.  What have you written in?  16 MR. JACKSON:  I have written in —  17 THE COURT:  Is it in square brackets?  18 MR. JACKSON:  No, my lord, it is in Italics.  Thus if you go to  19 the second sentence from the first Indian claims  20 presented this court recognized the aboriginal rights  21 of the Indians to their lands, that's what the court  22 said.  My friends say what it means is "except as  23 against the Federal Government".  2 4 THE COURT:  Right.  25 MR. JACKSON:  And each other proposition they asserted, my lord,  26 I have put in the refrain which my friends suggest  27 Oneida requires.  28 The last point I would make about the Oneida case,  29 my lord, and it is a way of just correcting a  30 misunderstanding my friends have.  Mr. Plant sought to  31 correct Mr. Goldie who said that Oneida was dealt with  32 on the merits.  Mr. Plant said that in fact it wasn't  33 and that the merits were dealt with in a subsequent  34 case.  The subsequent case, my lord, is a completely  35 different litigation.  Oneida II was a case which  36 dealt with the case on the merits.  If you look at --  37 my friend is shaking his head, my lord, but I read the  38 case very, very carefully this morning and if my  39 friend does the same I am sure he will agree with me  40 that the Oneida case --  41 THE COURT:  I doubt that.  42 MR. JACKSON:  Well, my lord, I read it very carefully and —  43 MR. GOLDIE:  So did I.  44 MR. JACKSON:  — and the first Oneida case dealt with a treaty  45 signed in the 1790s, after the pronouncement of the  46 U.S. Constitution, after the American state was  47 formed.  The Oneida litigation my friend subsequently 29305  Submissions by Mr. Jackson        1 referred to was  brought in relation to an action by  2 the Oneida against the State of New York, not against  3 the counties, against the state of New York on the  4 basis of a treaty signed in what's called the  5 Confederal period between the Declaration of  6 Independence and the Promulgation of the Constitution.  7 And what the court then says, it was a different  8 treaty involving a much vaster area, and what the  9 court said was during that brief interregnum, the  10 state of New York did in fact have power to enter into  11 a treaty with the Oneidas and therefore it was a valid  12 cession of land.  It was a different treaty, it's  13 different litigation, but the implication --  14 THE COURT:  It is different land.  15 MR. JACKSON:  Different land.  The action was against the state  16 of New York at a time when, on the basis of the  17 court's decision, the state of New York was sovereign  18 in terms of entering into a treaty with the Oneidas.  19 The court did not dismiss the action on the basis that  20 this was an action against the sovereign.  It  21 dismissed the action on the basis that the sovereign  22 had the power to extinguish the right.  So it is a  23 different case, my lord.  If anything, it supports the  24 Plaintiffs' position and certainly doesn't support the  25 Defendant's.  26 THE COURT:  Do I have both decisions?  27 MR. JACKSON:  Yes, my lord.  In fact I have your lordship's  28 copy.  It's -- of course I haven't marked it, my lord,  29 I just read it, and I am delighted to give it back to  30 madam registrar.  31 THE COURT:  Mr. Jackson, I think we should take the adjournment.  32 MR. JACKSON:  I will be 30 seconds when we come back.  33 THE COURT:  Well, we will take the adjournment now.  34 THE REGISTRAR:  Order in court.  Court stands adjourned for a  35 short recess.  36  37 (PROCEEDINGS ADJOURNED AT 3:10 p.m.)  38  39 I hereby certify the foregoing to  40 be a true and accurate transcript  41 of the proceedings transcribed to  42 the best of my skill and ability.  43  44  45 Tannis DeFoe,  46 Official Reporter,  47 UNITED REPORTING SERVICE LTD. 29306  Submissions by Mr. Jackson        1 (PROCEEDINGS RESUMED  PURSUANT SHORT RECESS)  2  3 THE COURT:  Mr. Jackson.  4 MR. JACKSON:  My last point is in relation to tab 10, which is  5 under the heading of Requirements of Proof.  And this  6 is limited to some of the propositions my friends have  7 made in relation to the Indian Claims Commission  8 material.  And I'm not going to go through it except  9 to bring to your attention one point which is found on  10 paragraph 7 on page three.  And your lordship in  11 relation to the fourth element of the Baker Lake test  12 what time must the plaintiff's possession be proved,  13 found or ground in aboriginal title.  And your  14 lordship will recall that Mr. Justice Mahoney said  15 that possession must be established at the time of the  16 assertion of sovereignty.  The Indian Claims  17 Commission test is that you have to show actual  18 exclusive and continual use and occupancy for a long  19 time up to the point where the land is taken.  20 And what my friends have done, my lord, in  21 paragraph -- I say in paragraph 8 is both the  22 provincial defendant, and the federal defendant, no  23 doubt imbued with the spirit of Nowegijick, seeks to  24 combine these two tests and to require long time  25 possession prior to the assertion of sovereignty.  In  26 other words an even more restrictive test and more  27 onerous test than that put forward by Mr. Justice  2 8 Mahoney.  29 THE COURT:  What do you say about Ms. Koenigsberg's submission  30 that really what you're talking about is an aboriginal  31 way of life, therefore you should relate it in that  32 way.  33 MR. JACKSON:  My lord, I will be addressing Ms. Koenigsberg's  34 submission on that tomorrow morning.  35 THE COURT:  All right.  Tomorrow.  36 MR. JACKSON:  I say here, my lord, the plaintiffs have  37 maintained that they have been in exclusive possession  38 of their territories for millennia and prior to the  39 assertion of sovereignty.  On that basis they can meet  40 the Mahoney test, or my friends' more burdensome test.  41 But we submit in light of the evidentiary burden of  42 adducing proof for other aboriginal groups your  43 lordship should not add to that burden by combining  44 the tests in this way.  45 And those are my submissions on the provincial  46 case.  4 7 THE COURT:  Thank you. 29307  Submissions by Mr. Rush        1  MR. RUSH:  My lord, I'll be  addressing you on the Royal  Proclamation.  :  Thank you.  I've handed up to your lordship two volumes.  :  Thank you.  One is the argument.  It's the thinner of the two.  :  Okay.  The other is the supporting authorities and  references by paragraph reference to the argument.  In  view of the time I will be making few references to  the authorities.  I can tell you that the major  difficulty with the authorities is that some of  them -- many of the maps are not reproduced there so  there are -- there will be references to maps and they  are not contained in that.  I'm also handing up to your lordship -- this is  not a presentation, my lord, but it's something we  think you should have had a long time ago.  And that  is the full copy of the Historical Atlas of Canada.  I'm not by doing so suggesting that everything in the  book is something that the plaintiffs adopt.  It  isn't.  I'll be making reference to specific plates  and the reason for handing this to your lordship is  because of the colouring and the inability of, at  least our side, and I think the defendants, to  accurately reproduce the colouring that's contained on  the maps in this volume -- this atlas.  :  And are you going to leave this with me?  Yes, my lord.  :  And I'll return it to you in due course.  Yes.  Or if your lordship pleases you may have it as  part of the record.  :  We are not allowed to take gifts.  This isn't a gift, my lord.  :  I could borrow and return it to you when you ask for  it.  Yes.  I'll be referring to specific plates.  My lord, beginning with paragraph 1 on page one on  the Plaintiffs' Reply to the Royal Proclamation of  1763, we have two points we wish to make as a matter  of introduction.  And the first of these is this:  The  province responded to the plaintiffs' interpretation  of the meaning and intent of the Proclamation with a  theory of their own.  The province has led a  considerable body of documentary material to colour  the interpretation of the Proclamation urged by the  plaintiffs on the court or to set up contesting  2  3  THE  COURT  4  MR.  RUSH:  5  THE  COURT  6  MR.  RUSH:  7  THE  COURT  8  MR.  RUSH:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  THE  COURT  29  MR.  RUSH:  30  THE  COURT  31  MR.  RUSH:  32  33  THE  COURT  34  MR.  RUSH:  35  THE  COURT  36  37  MR.  RUSH:  38  39  40  41  42  43  44  45  46  47 29308  Submissions by Mr. Rush        1 hypotheses to the  plaintiffs' argument.  At best we  2 say this documentary history raises ambiguities about  3 the intended meaning and affect of the Proclamation as  4 it relates to the Indian people of British Columbia.  5 To the extent that the court finds two reasonable  6 interpretations possible, we ask the court to find  7 that in light of the presumption in Nowegijick, the  8 Proclamation should be interpreted liberally and any  9 ambiguity resolved in favour of the Indians.  10 In Nowegijick the Supreme Court set out the  11 principle that should govern the interpretation of  12 Indian treaties and statutes.  In brief it said:  13  14 "...Treaties and statutes relating to Indians  15 should be liberally construed and doubtful  16 expressions resolved in favour of the Indians."  17  18 In Agawa Mr. Justice Blair stated that that  19 principle should apply to the interpretation of  20 Section 35.  21 The court in Sparrow approved and adopted the  22 principles of interpretation enunciated in Nowegijick.  23 And at page 23 of the judgment the court said this:  24  25 "The nature of Section 35(1) itself suggests  26 that it be construed in a purposive way.  When  27 the purposes of the affirmation of aboriginal  28 rights are considered, it is clear that a  29 generous, liberal interpretation of the words  30 in the constitutional provision is demanded."  31  32 The court cited with approval the application of  33 the Nowegijick principles in the Court of Appeal.  34 These principles apply, we say, with equal force to  35 the Royal Proclamation of 1763.  And we say the  36 Proclamation should be liberally construed and any  37 doubtful expressions resolved in the favour of the  38 Indians.  39 It is not, therefore, necessary to embark on a  40 narrow or highly technical consideration of the  41 different documentary records placed before this  42 court.  Questions of ambiguity should be resolved in  43 favour of the Indians.  44 The second general point I wish to make, my lord,  45 is at paragraph 8 on page three.  And we say it is not  46 necessary to the plaintiffs' case whether the Indian  47 reserve in Part IV, paragraph 2 -- and here my lord 29309  Submissions by Mr. Rush        1 I'll just pause to say  that I've passed up another  2 copy of the Royal Proclamation provisions in Part IV  3 for your convenient reference.  And it is at the  4 beginning of the argument.  And I say, my lord, in  5 reference to that that it is not necessary to our  6 argument that the Indian reserve that's mentioned in  7 paragraph 2 includes British Columbia as at 1763 or  8 any time thereafter.  It is helpful -- it is helpful  9 if such a finding were made, and of course we urge it  10 upon the court so far as the Proclamation applies  11 prospectively.  And a good deal of the plaintiffs'  12 argument was aimed at convincing your lordship to  13 accept that proposition.  But we say that the same  14 finding may be arrived at by an alternative and more  15 direct route.  16 And we say to the court that you ought to make the  17 following findings:  18 The Proclamation prohibited a Governor in a  19 British colony either for the present and until our  20 further pleasure be known to make land grants upon any  21 land whatever not having been ceded to or purchased by  22 us as our reserve to the Indians.  That's paragraph 1.  23 This prohibits governors or colonies -- excuse me.  24 This prohibits governors of colonies prospectively  25 making land grants on any land whatever not ceded by  2 6 the Crown.  2 7  THE COURT:  Ceded to the Crown.  28 MR. RUSH:  Ceded to the Crown.  There are no qualifications on  29 the ceded lands.  The prohibition is not confined to  30 Indians lands.  It refers back to the preamble, Part  31 IV, and I've cited the material passage.  32 The restrictions on settlement, about which so  33 much the province makes, in Part IV, paragraph 2,  34 refers only to the Indian reserve.  And this we say is  35 a separate category, not linked to the unceded or  36 unpurchased lands category in paragraph 1.  37 MR. GOLDIE:  I wonder, my lord -- excuse me for a minute.  I  38 wonder, my lord, if my friend could assist me in  39 advising me if this is a restatement of his former  40 position or if this is a new position.  I'm not  41 raising an objection at this point I just wish to know  42 whether this is a restatement of his submission  43 earlier or whether this is a new submission.  44 MR. RUSH:  My lord, this is a restatement of the position that  45 is advanced in the plaintiffs' case, but is here  46 stated in a succinct way in order to be responsive to  47 what the defendant has said globally is the case with 29310  Submissions by Mr. Rush        1 regard to the application  of paragraph 2.  And what we  2 say here, my lord, is the findings which we ask the  3 court to make in a way that does not require the court  4 to go through the laborious process of resolving the  5 differences that are inherent in the two  6 interpretations that are advanced by the plaintiffs  7 and by the defendant province especially in respect to  8 paragraph 2.  And I say that, my lord, because there  9 is no serious case made by the plaintiffs or by the  10 defendants so far as I see it in respect of paragraph  11 1 except insofar as to say that as I understand their  12 argument it would be subsumed within paragraph 2.  And  13 I say, my lord, that the interpretation that we urge  14 upon your lordship is, firstly, supported in paragraph  15 3 where there are mentioned in paragraph 3 the two  16 categories of Indian reserve lands and lands not  17 having been ceded to or purchased by the Crown.  And  18 that's evident by the fourth line, my lord, in  19 paragraph 3 in which it says:  20  21 "...or upon any other Lands, which, not having  22 been ceded to, or purchased by us."  23  24 Now, insofar as the Royal Proclamation lays down  25 general principles applying to the British colonies in  26 North America it will be read, we say, like all other  27 constitutional instruments as applying prospectively.  28 Such instruments are always speaking like the charter  29 and the Criminal Code.  I'm at the top of paragraph 4,  30 page five.  31 MR. GOLDIE:  I ask your lordship -- I know your lordship has  32 laid down a ruling that any objections will be noted.  33 I ask your lordship to note that this is precisely the  34 submission made by my friend at volume 317, page  35 23867.  3 6 THE COURT:  Volume?  37 MR. GOLDIE:  317, page 23867.  And the particular one with  38 respect to prospective operation of the Proclamation  39 is lines 8 to 14.  And my friend is summarizing his  40 position there.  41 THE COURT:  All right.  Thank you.  42 MR. RUSH:  My lord, what we say at paragraph (f), which wasn't  43 submitted to your lordship before succinctly or  44 otherwise, that the land ordinances and proclamations  45 issued in the Colony of British Columbia cannot affect  46 Indian lands as protected by paragraph 1 of the  47 Proclamation.  Those acts, we say, should be 29311  Submissions by Mr. Rush        1 interpreted in a way that  is consistent with the  2 Proclamation unless there are clear and plain words to  3 the contrary.  And we say there must be a clear and  4 plain intention to extinguish Indian title to land.  5 And we rely on Sparrow at page 16 for that  6 proposition.  7 That part of the Proclamation which prohibits  8 governors from making grants of unceded land, we say,  9 bound the colonial government in British Columbia.  10 Prior to 1865 the general principles of constitutional  11 law applied prohibiting repugnant and inconsistent  12 colonial laws.  Just to add to that, my lord, colonial  13 laws could not override the Crown prerogative or  14 statutes.  After 1865, the Colonial Laws Validity Act  15 restricted colonial laws from being in effect which  16 would be repugnant to the terms of the royal  17 Proclamation.  18 Now, we say, my lord, there was no intention on  19 the part of the imperial parliament to empower the  20 governor of British Columbia to override an imperial  21 statute or any statute with like effect.  And the  22 general words of Douglas' commission and instructions  23 would not be such as to override the Royal  24 Proclamation even in the absence of the reservation of  25 the prerogative power.  26 And I'll be coming to the issue of reservation of  27 that prerogative power in Douglas' instructions.  28 The land ordinances and Proclamations in the  29 Colony of British Columbia and the United Colonies up  30 to 1871, we say, are inconsistent with the  31 restrictions on land grants in paragraph 1 of the  32 Proclamation.  33 Now, my lord, in the historical argument that's  34 advanced by the province, and I'm on page seven,  35 paragraph 10, the defendant endeavors to limit the  36 application of a public legal statute, the Royal  37 Proclamation, by reference to the contingent  38 historical knowledge of particular people, which  39 knowledge could only be discovered by looking at their  40 books and maps and what they knew of the geographical  41 bounds of the colonies, plantations, territories and  42 unceded and unpurchased lands referred to in the  43 Proclamation.  44 We say where boundaries are in question they are  45 to be decided as a matter of law, not on the basis of  46 the private opinions or geographic misconceptions of  47 the officials or cartographers in Britain. 29312  Submissions by Mr. Rush        1 There are no bounds  to the parts of our dominions  2 and territories, as not having been ceded or purchased  3 by us, as indicated in the preamble on paragraph 1.  4 There is no reference in the Proclamation to the  5 Mississippi.  The only territorial reference is to the  6 limits of the territory granted to the Hudson's Bay,  7 and that is located solely in paragraph 2.  And that's  8 a point I wish to emphasize, my lord, because the  9 province's submission would lead you to suggest that  10 that limitation applied throughout the Proclamation.  11 It does not.  Where Rupert's Land is located in fact  12 does not depend on a line on a map.  And Rupert's Land  13 was treated in 1763 as quite limited in geographic  14 scope.  15 The province's argument about --  16 MR. GOLDIE:  My lord, excuse me for a minute.  Rather than  17 interrupting my friend I ask leave to file with your  18 lordship a reference to all of these matters that my  19 friend has referred to beforehand, including  20 Nowegijick and the principles of the statutory  21 construction, and so on, and then I won't have to  22 interrupt my friend again.  23 MR. RUSH:  Well, my lord, I say if my friend has got his  24 objections he should make them now, because I don't  25 accept the fact that these are matters not appropriate  26 to reply and --  27 THE COURT:  Well, it seems to me when you're getting to an  28 analysis of the Royal Proclamation are you not  2 9 covering the grounds you covered in your argument?  30 You say, for example, in paragraph 12 that the only  31 territorial records is to the limits of the territory  32 granted to the Hudson's Bay Company and this is  33 located solely in paragraph 2.  That's partly true in  34 your analysis of Royal Proclamation.  I'm not sure if  35 there's anything wrong with your friend giving me a  36 list of the references if you've covered the same  37 ground before.  I'm not sure what particular good it  38 is going to do except to confirm or otherwise show  39 that you're repeating yourself and you've stepped over  40 the line of proper reply.  But I decided that in the  41 circumstances which we find ourselves that the best  42 way to proceed is to use up the time that has been  43 allowed for this purpose as you think best.  But there  44 seems to me there ought to be a price if you go beyond  45 proper reply.  And the price suggested of giving me a  46 list of the places where it's said rather than  47 seriatim objections over step proper reply is not much 29313  would be  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  a useful way to  proceed  MR. RUSH:  THE COURT:  Rush  of a price.  I think that  MR. RUSH:  MR.  MR  MR  MR  Well, as long --  Save me having to deal with these things on an  arbitrary and I think probably unsatisfactory basis.  Well, my lord, so long as I have the right of saying  something about this list.  GOLDIE:  Well, what -- what I am concerned with, my lord, is  my friend has one crack at this, and he talks about  the proper -- the interpretive -- interpretive canons  of construction.  And he gives one, two, three, four,  five of them.  Any ambiguity in wording should be  interpreted against the drafters and should not be  interpreted to the prejudice of the Indians.  And he  takes this out of -- and then he said this follows  upon Nowegijick.  Well, now, why -- why am I going to  be confronted with the same thing said twice?  RUSH:  Because Sparrow confirms it, that's why.  GOLDIE:  Well, I made my argument before Sparrow.  RUSH:  And that's the answer.  THE COURT:  Excuse me.  MR. GOLDIE:  Excuse me, my lord.  I made my submissions before  Sparrow.  Sparrow wasn't any part of my argument on  the Royal Proclamation.  But the fact of the matter is  that that is not an excuse in itself to go over the  same ground twice, and to leave with your lordship --  and my friend doesn't make any reference to Sparrow as  far --  Well, my lord, I don't want to prolong this because  I've only got another half hour.  I'll do whatever  your lordship thinks is the best thing here.  I think that Mr. Goldie should give me a list of the  areas of the reply which he says are repititious.  And  I will look at it and I will invite you, Mr. Rush, to  make a response if I think one will fairly be  required, or you would fairly be entitled to make a  response.  I take it Mr. Goldie is only going to give  me a number of page references and not an argument.  Well, that's the way I understand it, my lord. But  I'm at page eight, and I would assume that that will  happen.  All right.  Paragraph 13.  The province's argument about the  extent of the British possessions as at the Treaty of  Paris, 1763, proceeds on the mistaken assumption that  there had to be definite bounds to the north and west  of British North America.  And there's the citation  MR. RUSH:  THE COURT:  MR. RUSH:  THE COURT  MR. RUSH: 29314  Submissions by Mr. Rush        1 from my learned friend.  2 Now, my lord, our submission in response to this  3 is that emerging from the Seven Years War and many  4 decades of hostility with France, the British sought  5 and received a definitive settlement.  The Treaty of  6 Paris settled this conflict once and for all and by it  7 the French ceded all of its interest in North America  8 to the west indefinitely.  But the settlement  9 contained no line of demarcation between the  10 possessions of France and the Britain in the  11 northwest.  And that reference, my lord, is to the  12 Treaty of Paris.  The British did not know the nature  13 or full extent of their newly acquired lands in the  14 northwest at time of the treaty.  15 Now, going to 15.  There was, therefore, we say,  16 no need for the British to forclose their sovereignty  17 claims, resulting from the cession, in the area west  18 and northwest of the Mississippi.  For obvious  19 reasons, the British were distrustful of Vaudreuil's  20 map, and that's set out at 1165.  And it is clear from  21 the "Memoire on the Delimitation of Louisiana and  22 Canada" sent to Bussy, that the French considered  23 Louisiana as including all from the Mississippi River  24 to the most distant parts of the upper country.  And  25 Dr. Greenwood agreed that the upper country included  26 the posts of the western sea in the area west of Lake  27 Winnipeg.  28 In October of 1763, Britain knew there was  29 territory beyond the Hudson's Bay perimeter which was  30 not possessed by Britain.  Britain could not trust the  31 Hudson's Bay Company to protect its territory as part  32 of its cession from France because the bay was not  33 there.  Nor would Britain deliberately defined Canada  34 with definite boundaries in a manner which excluded  35 the area within which the French could then return and  36 undermine the British and Hudson's Bay Company land in  37 the west at present day Canada.  38 My lord, we say, the province assumes in its  39 argument that what is described in the Proclamation  40 are bounds of a contained territory.  This is not the  41 way the Proclamation is framed.  The drafters  42 established a residual category for the Indian  43 reserve.  And that's in paragraph 2.  This was  44 negatively described by excluding the three widely  45 separated colonies of Quebec, East and West Florida,  46 Rupert's Land and the lands lying to the east of the  47 watershed.  All other lands were in the Indian 29315  Submissions by Mr. Rush        1 reserve.  Over and above  this category, all unceded  2 and unpurchased land in the British dominions and  3 territories were subject to the land grant  4 restrictions.  The framers of the Royal Proclamation  5 did not want to clearly state where the residual  6 Indian territory was located.  And that's our  7 submission.  8 We say, my lord, in paragraph 18 that the framers  9 did not wish to close off the boundaries.  They didn't  10 want to give any ammunition to the French and, they  11 didn't know where the boundaries were.  The concern of  12 the framers was whether the Indian lands were part of  13 the cessions or part of the old or newly-created  14 British colonies or plantations.  15 MR. GOLDIE:  My lord, that's not a reply to any of my argument.  16 MR. RUSH:  Well, my lord, with respect it is a reply to his  17 argument in terms of the underlying assumptions that  18 there are bounds to the Indian reserves contained in  19 paragraph 2.  What I am submitting to your lordship is  20 why your lordship should reject that as a matter of  21 knowledge of the history that led to the Royal  22 Proclamation.  23 THE COURT:  Well, I certainly took that to be your submission.  24 Except I don't remember this further part of it where  25 you say that they -- what was motivating them in their  26 negotiations.  But you certainly dwelt on the question  27 of what the territorial reach of the Royal  28 Proclamation was.  29 MR. RUSH:  Oh, yes.  I quite agree, my lord.  But nowhere did I  30 make the argument as I'm now making it in a responsive  31 way to the issue of why it would have been absurd to  32 think that the British would want to have closed off  33 the northwest.  And that's what this argument is  34 directed to.  35 THE COURT:  If we were in any other kind of lawsuit I would say  36 that would not be proper reply, Mr. Rush.  I would  37 said you dealt at great length with the Royal  38 Proclamation and its territorial reach and you would  39 not be permitted in conventional litigation to  40 supplement that argument, but merely to respond to  41 specific matters that your friend brings up.  And I  42 reply to your argument by fresh and de novo for the  43 first time.  I think you're beyond reply, but I'm not  44 going to stop you.  45 MR. RUSH:  Thank you, my lord.  46 If you'll turn to page 14, and there's an argument  47 there on Mercantilism/Expansion:  A False Dichotomy 29316  Submissions by Mr. Rush        1 raised by the defendant.  It was their issue on  2 mercantilism, not ours.  And, my lord, I don't intend  3 to direct you to it.  Our argument is set out there at  4 pages 14 through to page 21.  And it's fully canvassed  5 as to why this is a false issue.  6 I move to page 22 and paragraph 44.  The province  7 argues that the posts of the western sea were located  8 in the territory of the Hudson's Bay Company.  That's  9 located in their argument at paragraph 12, reference  10 V/4.  That the French were interlopers in that  11 territory.  That's their word and their argument at  12 paragraph 14.  And as a result northwestern Canada was  13 not ceded to the British in the Treaty of Paris  14 because it was already part of Rupert's Land.  15 Now, my lord, what we say in response is that the  16 historical reality is that the French discovered and  17 claimed the Canadian northwest prior to 1763.  They  18 did so -- when they did so the area discovered was not  19 part of Rupert's Land.  It was not known to be in  20 Rupert's Land.  It was French Canada.  The land area  21 included the posts of the western sea.  And that, my  22 lord, is illustrated on Bellin's map of 1751.  And I  23 would just add to your reference there, my lord,  24 Exhibit 1027-29A.  25 Now, Rupert's Land for the British, my lord, was  26 only a narrow strip around James Bay and Hudson's Bay.  27 The Hudson's Bay Company charter defined in broad  28 terms a geographic area the extent to which was not  2 9 then known to the Hudson's Bay Company nor to the  30 British.  What was known in the north and west was  31 known because of the French exploration and  32 possessions of the western posts of Canada.  33 THE COURT:  That should be western posts?  34 MR. RUSH:  Excuse me.  Possession of the western part of Canada.  35 THE COURT:  Yes.  36 MR. RUSH:  Then, my lord, I say that the province's theory about  37 what was Rupert's Land is not in accord with the facts  38 that follow.  And I there set out a number of facts  39 dealing particularly with the French claim and the  40 French knowledge with regard to the western posts, the  41 posts of the western sea, and as well dealing with  42 French knowledge of western -- what is today western  43 Canada.  44 My point, my lord, is made on page 24.  The French  45 were in actual possession of the posts of the western  46 sea and the British were not.  And this, I say, is  47 evident in two places in plate 40 of the Historical 29317  Submissions by Mr. Rush        1 Atlas of Canada submitted  by my friends, and as well  2 in plate 61 of the Historical Atlas of Canada which I  3 now direct your attention to.  4 And if your lordship will simply turn to plate 40.  5 And if you look on the left-hand side of this plate  6 under France Secures the Interior 1740 to 1755, my  7 point, my lord, is made by reference to this plate in  8 the upper left-hand corner which demonstrates the red  9 line is the British maritime movement to the posts on  10 James Bay and in Hudson's Bay.  The posts of the  11 British are located on the bay, and they are indicated  12 by red circles on the shoreline where the red errors  13 end.  The other trade, my lord, the other arrows  14 indicate trade that is coming to the British who are  15 at the posts on the sea.  16 The French, on the other hand, are represented by  17 the blue arrows and the blue circles indicating the  18 posts of the French.  And they are the explorers and  19 the traders with the Indian people on the ground west  20 of Lake Winnipeg out along lake -- or the Saskatchewan  21 River.  22 The same point is made in a slightly different way  23 with regard to the competition and consolidation on  24 plate 61.  And if your lordship will turn to that.  25 And, my lord, the critical part here is in the upper  26 left-hand corner in a series of diagrams that are  27 prepared by Moody, Litwin, Kay and Dr. Arthur Ray,  28 scholars in the field of the Hudson's Bay Company.  29 And the point I wish to make, my lord, is that the red  30 line again demonstrates the evolving character of the  31 movement of the trade.  The red line indicates the  32 trade is coming in from the sea from England, and the  33 British or the Hudson's Bay Company trade is located  34 on the edge of Hudson's Bay or James Bay.  In respect  35 of that 1760 to 1773 map the St. Lawrence traders are  36 the traders who are in the inland.  37 And, my lord, you see that by 1774 to 1789 the  38 trade from Montreal or the French based or Quebec  39 based fur trade is itself expanding into the far west  40 and northwest.  And then from 1790 to 1805 there is an  41 intermingling of the trade as the Hudson's Bay Company  42 becomes more competitive and challenges the Montreal  43 trade on the inland.  44 But the point that I wish to leave your lordship  45 with is as between in the period 1760 to 1773 the  46 Hudson's Bay Company were located on the shores of the  47 bay, Hudson's Bay and James Bay.  And they were, my 29318  Submissions by Mr. Rush 1            lord, I say because of a  very specific policy which  2 they had, which I refer you to on page 25, and that is  3 a policy that was described as the sleep by the frozen  4 sea policy referenced in Mr. Rich's book.  And the  5 particular reference, my lord, I've given you a span  6 there, but the page reference you should refer to is  7 589.  8 And I say, my lord, in response to my friend's  9 position here about the extent of the Hudson's Bay  10 Company knowledge of Rupert's Land, I say at paragraph  11 48, that the fact is that the Hudson's Bay Company did  12 not know the boundary or the extent of Rupert's Land,  13 nor was it fixed.  The company's claim to the 49th  14 parallel after the Treaty of Utrecht was a mere  15 pretension not based on knowledge of the extent of its  16 boundary on possession or on settlement.  17 Now on 49, my lord, I say that the French were in  18 possession of the northwest of Canada up to 1763 on  19 the provincial defendant's own definition of  20 possession.  Mr. Goldie agreed that possession means  21 settlement, people on the ground.  And on this  22 definition the French consummated their possession  23 with their people on the ground and the Hudson's Bay  24 Company had not.  And I make the reference to Johnson  25 and Mcintosh and the language consummated by  26 possession in the references found there.  27 THE COURT:  Mr. Rush, I think we'll take a short adjournment.  28 We'll divide the time up in reasonable equality.  2 9 Thank you.  30  THE REGISTRAR:  Order in court.  Court stands adjourned.  31  32 (PROCEEDINGS ADJOURNED)  33 I hereby certify the foregoing to  34 be a true and accurate transcript  35 of the proceedings transcribed to  36 the best of my skill and ability.  37  38  39  40  41  42 Peri McHale,  43 Official Reporter,  44 UNITED REPORTING SERVICE LTD.  45  46  47 29319  Submissions by Mr. Rush 1        (PROCEEDINGS RESUMED PURSUANT  TO AFTERNOON ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  In paragraph 51, my lord, the proposition that I  6 wanted to give you is really the last sentence is that  7 lands in possession of the French or its dependencies,  8 the posts of the western sea, were lands not in  9 Rupert's Land and were ceded to the British on the  10 signing of the Treaty of Paris in 1763.  11  12 Paragraph 52 is the Plaintiffs' response to the  13 Province's interpretation of some language in the  14 Treaty of Utrecth.  And we there set out our response  15 paragraphs 53 and 54.  16  17 Paragraph 55 on page 29, the Plaintiffs respond to  18 the argument advanced by the Province, and I quote, it  19 is "almost invariable that the British maps of the day  20 showed the 49th parallel as a southern limit".  We  21 reject that proposition.  And the evidence that goes  22 to refuting that proposition follows in 56, 57 through  23 to 60.  24  25 And, my lord, there are -- on paragraph 61 we deal  26 with an argument with regard to the application, in  27 effect, of the Montreal fur licensed traders.  And we  28 there set that out.  And that follows through with a  29 further reference to Nowegijick.  And the principles  30 reaffirmed in Sioui on paragraph 67, in 68.  31  32 And then over to page 35 we make a response to the  33 Province's argument with regard to the maps and what  34 they show.  And a proposition is advanced in paragraph  35 69 to the effect that it is likely "to the point of  36 near certainty", how that was deduced is anyone's  37 apostrope guess, "that the Board of Trade, the  38 Secretary of State and the King referred to the Popple  39 Map of 1733 and the Mitchell Map of 1755 in their  40 deliberations leading up to the Royal Proclamation".  41 And I say there is not a shred of evidence to support  42 the proposition that in 1763 those maps referred to at  43 all, or were referred to to the exclusion of many  44 other equally up-to-date contemporaneous maps.  45  46 I draw your attention to one of those maps,  47 Jeffreys' map of 1762.  And I ask your Lordship to 29320  Submissions by Mr. Rush        1 particularily note the  reference that I make here that  2 on that Jeffreys' map there is an area located to the  3 west of Hudson's Bay, but to the east of what is drawn  4 on there as a height of land called "New South Wales".  5 And New South Wales, according to Oldmixen, a  6 historian in the field, was an area claimed by  7 Hudson's Bay, the Hudson's Bay Company.  8 THE COURT:  Is Jeffreys' map Exhibit 154-18?  Oh, I'm sorry,  9 just by that --  10 MR. RUSH:  Yes, it is.  Yes, that's right.  Then my lord, I move  11 to page 36 and paragraph 71.  12 MR. GOLDIE:  Sorry, is Oldmixen in your material?  13 MR. RUSH:  Yes, at page 378.  I am responding here, my lord, to  14 a document that was placed before your lordship in the  15 Province's argument which is Plate 42.  16 THE COURT:  Where are you now?  17 MR. RUSH:  I am at paragraph 71 on page 36.  18 THE COURT:  Yes, all right.  19 MR. RUSH:  And I say that the Province takes unwarranted comfort  20 in its hypothesis about an intersection of the  21 Mississippi and Rupert's Land from Plate 42 found in  22 the Historical Atlas of Canada.  And the Province  23 places a great deal of reliance on this as if it has  24 some particular significance.  And you will note, if  25 you will, on Plate 42 the documents in the lower  26 right-hand corner.  And no doubt the reason that it  27 was intended to be placed before your lordship is to  28 show that there are discrete boundary lines between  29 the Rupert's Land and Louisiana.  There is absolutely  30 no reference to support the impression that is created  31 by Plate 42.  And none is referred to by the authors  32 authorizes.  33  34 In my submission in respect of this plate at  35 paragraph 71 is that this is the only map that the  36 Province could find which depicted the Indian  37 territory in this way.  Plate 42 was prepared by W.J.  38 Eccles and Susan L. Laskin.  The notes for Plate 42,  39 which are at paragraph 190, show no evidentiary basis  40 for the impressions conveyed in the drawing.  Except  41 for two sources, none of the large number of documents  42 and maps, including the Royal Proclamation itself  43 referred to in this case, are referred to by the  44 authors.  Neither Eccles or Laskin is recognized as a  45 scholar with acknowledged expertise on the Royal  46 Proclamation by anything that is discernible in this  47 Historical Atlas. 29321  Submissions by Mr. Rush        1 The map is really a  contemporary schematic  2 representation based on present-day knowledge of the  3 topography and unfounded suppositions about what was  4 known of the southern boundaries of Rupert's Land and  5 the indefinite description of the Indian territory.  6 It is singularly of no assistance in determining the  7 intention of the makers of the Proclamation.  8  9 Now, my lord, the point that I wish to draw  10 particularily to your attention is to the proposition  11 that this map is really based from somebody with their  12 knowledge today looking back on the present-day  13 knowledge on Plate 42 which is a representation of the  14 watershed which was not known to be the watershed in  15 1763.  And the same -- you'll notice, my lord, if  16 you'll look over here to the drainage map that I have  17 referred to, if you can see it.  18 THE COURT:  Oh, yes, I can.  19 MR. RUSH:  Well, the same point is made for us by Dr. Farley.  2 0  THE COURT:  Yes.  21 MR. RUSH:  Where he, on his contemporary hydrological knowledge,  22 shows the same dip here.  That wasn't known in 1763.  23 The point is that this map on Plate 42 is of no help  24 at all to your lordship in determining the issue as to  25 what the nature was or what the language was intended  26 to mean in the Royal Proclamation in terms of the  27 extent of the lands described as being -- not having  28 been ceded to or purchased by us for the great Indian  29 reserve as referred to in the Royal Proclamation.  30  31 Then, my lord, I move to page 38, paragraph 74 is  32 a response to the Province's argument with regard to  33 an anonymous document that they referred to about the  34 time of the passing of the Quebec Act in 1774.  And we  35 make our points with respect to that.  36  37 We respond to the Province's argument regarding  38 the significance of the Quebec Act at paragraph 75.  39 And really what the province is doing here in its  40 argument is to say that you can deduce from 1774 what  41 was intended in 1763.  And we respond to that argument  42 in saying that the Quebec Act again is singularly  43 unhelpful for that determination.  44  45 At paragraph 76 on page 41 the Plaintiffs respond  46 to the Province's arguments with regard to the  47 licensing of the fur trade in the northwest.  A number 29322  Submissions by Mr. Rush        1 of arguments are there,  and we respond seriatum to  2 those.  3  4 My lord, I will take you now to page 44.  The  5 Province makes an argument with regard to the  6 significance of the absence of a "hereafter clause" in  7 the Royal Proclamation as indicative of an absence of  8 intention of the Proclamation to apply respectively.  9 We say there is no substance to that proposition.  10  11 And what follows at page 45 in paragraphs 83  12 through to really, my lord, I suppose it is to 87 are  13 the arguments that we ask your lordship to direct your  14 attention to.  And I particularily ask you to note  15 Doctor Slattery's observations with regard to a  16 definition by an author of -- concerning the  17 institutions of -- colonial institutions.  And that is  18 set out at the bottom of page 46.  References to  19 Slattery's thesis are at the top of 47.  20  21 We then make responses with regard to the  22 application of the Royal Proclamation in response to  23 specific arguments raised by the Province.  24  25 I will ask you to turn to page 53.  And this is  26 the Plaintiffs' response to the argument that the  27 Royal Proclamation cannot in law apply to British  2 8 Columbia.  And I set out where that is.  And I  29 summarize the position in paragraph 94.  The  30 Defendants' argument proceeds on the erroneous  31 assumption that there are limits on the Royal  32 prerogative power because of the two classifications  33 of colonies: settled, or conquered and ceded.  Mr.  34 Jackson addressed you on this question so far as the  35 establishment of the colony of British Columbia goes.  36 This argument is particularily addressed to the  37 question of the characterization of a settled or  38 conquered and ceded colony and the relevance of that  39 characterization as it applies to the Royal  40 Proclamation.  And we say that it has no relevance  41 whatsoever.  And we say that the cases support us in  42 that proposition.  43  44 And the argument, my lord, in response to the  45 Province's proposition about the significance of that  46 distinction are set out beginning at paragraph 95.  47 And it follows through, my lord, basically through to 29323  Submissions by Mr. Rush        1 page 62.  2  3 And I draw your attention in particular, my lord,  4 to our argument at the top of page 56, paragraph 98.  5 And we say that Douglas could not make laws which  6 would interfere with the prerogative power as  7 exercised in the case of the Royal Proclamation of  8 1763 and to be exercised in futuro.  The intent of the  9 restriction was to guarantee -- that is to say the  10 restriction in paragraph 1 of the Proclamation, was to  11 guarantee Crown authority and vested rights in the  12 Colony.  The restriction was as to the exercise of  13 Prerogative Power as compress expressed by the  14 sovereign.  There would be no need to protect the  15 Crown prerogative itself, as a constitutional power,  16 because Douglas had no constitutional jurisdiction to  17 affect it, we say.  The Royal Proclamation of 1763 was  18 a constitutional instrument having affect in the  19 colony as a reserved statute made under the Royal  20 Prerogative.  21  22 Then, my lord, I ask you -- we make a number of  23 further submissions with regard to the settled, ceded,  24 conquered distinction through to page 65.  25  26 And then at the beginning of paragraph 112 at page  27 66 the Plaintiffs' argument is with regard to the  28 Defendant's addenda and supplement to submission of  29 the Province contained in part 5 of its written  30 summary.  The proposition is advanced here by the  31 Province in paragraph 112 that:  32  33 "The said Indians referred to..."  34  35 and these are my parenthetic  additions,  36  37 "[referred to paragraph 4(b) of Part IV of the  38 Proclamation] do not include those of Rupert's  39 Land and this provision [Paragraph 4(b)] does  40 not apply to that colony."  41  42 And we argue that both paragraphs 4(a) and 4(b) of  43 Part IV of the proclamation apply to Rupert's Land.  44 And we say that the proclamation specified that only  45 paragraph 2, restrictions on settlement, does not  46 apply within the limits of the territory granted to  47 the Hudson's Bay Company. 29324  Submissions by Mr. Rush        1 And we say that this  results from the trade  2 monopoly character of the Hudson's Bay Company  3 Charter.  There were Indians located in Rupert's Land  4 in 1763, to the extent that it was known by the  5 framer -- framers.  On the face of the Proclamation  6 the provisions dealing with the protection of Indians  7 and fair purchase, and the provisions dealing with  8 trade apply to the territory granted to the Hudson's  9 Bay Company.  10  11 Then we reply specifically to the argument raised  12 about the affect of the Jurisdiction Act of 1803, and  13 that's found at paragraph 115.  We reply, my lord,  14 paragraph 116 to the Province's argument that:  15  16 "The constitutional aspect of the Royal  17 Proclamation does not include the Indian  18 parts."  19  20 That is set out there through -- well, we reply to a  21 number of specific propositions by paragraph reference  22 number, my lord.  And I ask you to read those  23 specifically.  Some of these arguments are arguments  24 that were raised in other parts of the Defendant's  25 argument and were re-raised and emphasized at  26 different points.  27  28 For example, if you turn to page 70 at paragraph  29 121 you note that the Province raises again the  30 proposition that the Bowen and Mitchell maps were the  31 maps used by the Board.  And in the former case that  32 which was sent to the King with the Board of Trade's  33 Report of July 8, 1763.  And we say that only the  34 concluding clause of the statement is correct.  There  35 is no evidence that the Board of Trade used the Bowen  36 and Mitchell maps at the time of the drafting of the  37 language of the Royal Proclamation.  And there is no  38 evidence that the Mitchell map was even before the  39 Board.  40  41 We respond, my lord, to the Province's argument  42 with regard to the Mohegan Tribe v. Connecticut case.  43 They make a reply that warrants response.  And we make  44 a further points with regard to Campbell v. Hall.  And  45 those are set out in the following paragraphs.  46  47 And then on page 76 your lordship posed certain 29325  Submissions by Mr. Rush        1 questions to the  Province.  And this is a response to  2 the Province's response, as they call it the  3 "Conclusion on the Role of the Royal Proclamation in  4 Canada and response to the Court's Question", and the  5 transcript citation reference.  And their response  6 that:  7  8 "The Great Reserve or Hunting Reserve created  9 in "V"...they call it...of the Royal  10 Proclamation excluded old Quebec that is, the  11 Quebec as defined in the Royal Proclamation."  12  13 And we make the point, my lord, that the colony of  14 Quebec was created in the Royal Proclamation of 1763.  15 And a useful contemporary depiction of the boundaries  16 of Quebec is found in John Gibson's map.  And we say  17 that the only provision of the Proclamation about  18 which it could be said did not apply to the old colony  19 of Quebec is that dealing with the restriction on  20 settlement.  21  22 And then, my lord, we make our arguments with  23 regard to the fact that we say that the Proclamation  24 in fact in respect of its other parts did apply to old  25 Quebec.  And we answer the Province's positions there.  26 We make reference to a number of documents that  27 indicate how in fact it was applied in paragraph 132.  28 And then we pose certain arguments with regard to the  29 nature of the boundary that was described by the  30 Quebec Act and what -- the fact that it does not  31 constitute the certain boundary that my learned  32 friends make it out to be.  33  34 I ask you to turn to page 80, my lord -- or,  35 rather, 79.  I simply draw your attention to the fact  36 that Canada was a term used at the time to refer to  37 old "New France".  And it comprised of Quebec and the  38 land area of the Great Indian Reserve in 1763.  And I  39 draw your attention to a memorandum of the Honourable  40 Joseph Cauchon who commented on this.  41  42 And I want to draw your attention to the fact the  43 reference on the top of page 80 is to 1256-1-19 and  44 the particular pages references are 21 to 25.  And  45 there is a second reference to that exhibit number.  I  46 again draw your attention to the fact that it should  47 be 21 to page 25. 29326  Submissions by Mr. Rush        1 And then I set out,  my lord, 139 to 140 our  2 arguments to the land provisions of the Royal  3 Proclamation.  I draw your attention to McNeil's  4 article, and this is at paragraph 141, as to the  5 significance of the northern boundary of Canada in  6 terms of the findings of the Ontario Boundary Dispute  7 Arbitration Award.  8  9 Now, my lord, I ask you, if you will, and I make  10 further arguments in response to the propositions  11 advanced by the Province.  I ask you to turn to page  12 84.  And here I respond to the Province's argument  13 that Hewitt Bernard in 1866 was the only person to  14 comment on the application of the Royal Proclamation.  15 MR. GOLDIE:  I'm sorry, where are you, please?  16 MR. RUSH:  Page 84 on paragraph 148.  17 MR. GOLDIE:  Thank you.  18 MR. RUSH:  And, my lord, I believe that you were left with the  19 misleading impression that Mr. Bernard in what was  20 then Canada west in 1866 prior to confederation was  21 the only person to comment about the application of  22 the Royal Proclamation.  And I there set out  23 statements made in 1794, 1824.  And I don't have a  24 date with the next statement.  25 THE COURT:  That's Exhibit 1029.  26 MR. RUSH:  It's 1029-37.  And I believe it is 1848.  But I may  27 be mistaken, and I direct your lordship's attention to  28 that.  29  30 My lord, at the bottom of page 86 is our  31 conclusion with respect to this particular argument  32 advanced by the Province.  And what we say is that in  33 sum the Plaintiffs say that the categories set up by  34 the Proclamation would continue.  Subsequently-created  35 colonies were subject to the Proclamation's provisions  36 as a British dominion or territory.  And I would just  37 add consistently with paragraph 1 in the preamble of  38 the proclamation, if the lands subsequently became  39 British, then the Proclamation applied.  And there was  40 no sense, we say, for a colonial administrator on the  41 ground to have a team of historians around the  42 Proclamation to determine if the Proclamation applied  43 to lands in his territory.  Factual conflicts over  44 status of the land could not affect the legal status  45 of the territories if they were not ceded or purchased  46 by the British Crown as lands reserved to the Indians.  47 MR. GOLDIE:  My lord, may I correct the misapprehension on the 29327  Submissions by Mr. Rush        1 part of my friend.  He  states on page 84, paragraph  2 148 that:  3  4 "The Province argues as though Hewitt Bernard  5 in 1866, prior to Confederation, and 1875, was  6 the only person to comment on the application  7 of the Royal Proclamation."  8  9 My submission was with respect to British Columbia.  10 MR. RUSH:  And what, my lord, is —  11 MR. GOLDIE:  And, excuse me, I with great deference say that  12 Governor Simcoe could not have been referring to  13 British Columbia in 1794, nor Sir John Johnson in  14 1824.  15 MR. RUSH:  And I say that the Royal Proclamation didn't drop  16 from the sky in 1876 or in 1875.  That in respect of  17 colonial officers and in respect of officers of the  18 Crown in Canada west and in upper Canada that it was a  19 matter of knowledge and application in those  20 territories.  And, of course, I don't say that they  21 were then -- obviously they weren't speaking from the  22 vantage point of upper Canada about British Columbia,  23 especially in 1794 and 1824 because obviously the  24 geopolitical reality of British Columbia wasn't known.  25 We say, however, that in respect of the Indian  26 territory language in the Jurisdiction Act that that's  27 in fact the means by which the Royal Proclamation  28 found its way into British Columbia as well.  29 MR. GOLDIE:  My reference to Bernard was in 1875 he applied the  30 Proclamation specifically to British Columbia.  31 THE COURT:  Yes.  32 MR. GOLDIE:  And so far as I'm aware that was the first.  33 MR. RUSH:  Those are my submissions on the Proclamation.  34 THE COURT:  Well, before you sit down, Mr. Rush, if you — if  35 the Plaintiffs were to succeed on all their claims  36 relating to ownership and occupation, what if anything  37 do you say the Royal Proclamation in those  38 circumstances would add to your case?  39 MR. RUSH:  Well, your lordship is predicating that question upon  40 the existence of ownership and jurisdiction as a  41 pre-existing or sui generis right.  Because in our  42 submission, my lord, the Royal Proclamation is merely  43 confirmatory in recognizing of pre-existing rights.  44 And to the extent that your lordship would find that  45 those rights are pre-existing independent of the  46 Proclamation it wouldn't add anything to it.  47 THE COURT:  All right. 29328  Submissions by Mr. Rush        1  MR. RUSH:  On the other hand, we  say that the Royal Proclamation  2 defines, if you will, what is pre-existing.  And,  3 furthermore, found the basis by which -- by which the  4 means of ceding that right can occur.  Because the  5 Proclamation, in my submission, establishes the  6 protocol or the instrumentality, if you will, by which  7 proprietary rights would be ceded to the Crown.  It  8 pre-supposes that the Indian aboriginal ownership and  9 jurisdiction rights are inalienable except to the  10 Crown.  And in my submission, my lord, that protocol  11 would be applicable.  And I suppose to the extent that  12 the aboriginal rights are defined in a way such as not  13 to include that protocol, the proclamation is an  14 essential element to allow for that protocol to exist.  15 But in either case, my lord, it is our submission  16 that the protocol requiring cession to the Crown by  17 purchase with consent is a protocol that defines the  18 rights independent of the Proclamation, and the  19 Proclamation is confirmatory of those rights.  20 THE COURT:  If I were to conclude that aboriginal rights  21 recognized by common law falls short of ownership and  22 jurisdiction, or the equivalence of ownership and  23 jurisdiction but that occupation and use for a long,  24 long time had been established, what do you say the  25 Proclamation adds to your case other than the  26 protocol?  27 MR. RUSH:  Well, I say, my lord, that it recognizes a historic  28 relationship of the Crown to the Indian people.  And I  2 9 think that was confirmed in the judgment of the  30 Supreme Court in Sparrow.  31 THE COURT:  Historical relationship between Crown and --  32 MR. RUSH:  The Indian people.  33 THE COURT:  Yes.  34 MR. RUSH:  And in our submission that relationship encompasses  35 the requirement that Indian title be purchased with  36 Indian consent in the manner that is set out and  37 described in the Proclamation, that is that that is a  38 protocol which itself has now found its way into, if  39 you will, the common law.  4 0 THE COURT:  You see it seemed to me that Sparrow, and I don't  41 need to go beyond Sparrow, I go through Guerin and  42 other cases, seem to suggest that there are aboriginal  43 rights, for example, of fishing.  Now, it doesn't take  44 a great leap of fate to go from fishing to hunting.  45 And they seem to suggest that those can arise  46 certainly in the context of Sparrow.  Although by the  47 use an occupation alone while their lordships 29329  Submissions by Mr. Rush        1 mentioned the Royal  Proclamation in Sparrow, it is not  2 a big part of the judgment.  3  4 And I just wonder if Sparrow were given that  5 construction, that is that these aboriginal rights  6 arise pre-existing confederation, which is an  7 assumption I'll make for the purpose of this, that I'm  8 searching to see if there is anything that the Royal  9 Proclamation adds to that other than this protocol.  10 And I'm not sure that we have a problem with cession  11 anyways.  And the rights are now protected by Section  12 35.  13  14 And I am wondering, and I am not asking you to  15 give anything away, but I am just wondering what  16 your -- whether you can suggest anything that in that  17 scenario what the Royal Proclamation would add to your  18 case.  19 MR. RUSH:  Well, I want to emphasize a point that we say that  20 either under the confirmatory and recognition  21 principles of the proclamation or independently at  22 common law that the nature and scope of the rights is  23 far beyond the use and occupation.  24 THE COURT:  Oh, yes.  Yes.  25 MR. RUSH:  And we say that we have urged that on you from our  26 interpretation of the Marshall decisions and so on.  27 But so far as your lordship would find that there is  28 the historic and I say unique relationship  29 intertwining the Crown and the Indian people, and so  30 far as you find that as an independent -- as having an  31 independent existence which I say is the affect of  32 Sparrow, then the proclamation does little more than  33 confirm what is in the law, we say.  34 THE COURT:  Yes.  All right.  35 MR. RUSH:  And I say, my lord, that had the proclamation not  36 occurred in 1763, I say we would make the same  37 argument, in my submission, because we would say that  38 it reflects the historical reality of the existence of  39 those fundamental principles by which and through  40 which Indian people must be dealt with.  41 THE COURT:  Well, that's a convenient way to put it.  Are you  42 saying that if the Royal Proclamation were cancelled  43 in 1764 that you would be making precisely the same  44 arguments here today as you made absent the Royal  45 Proclamation?  46 MR. RUSH:  Well, it is difficult to put it that way, my lord,  47 because of course we say that following the Royal 29330  conduct o  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. Rush        1 Proclamation that the  f the Crown and the  events that unfolded both in respect of the making of  treaties and as well in terms of the westward movement  of the fur trade and the licensed traders that that  conduct, it too was not only confirmatory of the  principles that the Royal Proclamation itself  confirmed, but also confirmed the continuum that we  say is the historic -- the historical portrayal of the  principles that embody aboriginal title.  So it is --  I think it wouldn't be fair to say if the Proclamation  occurred and then was repealed in some manner or  form --  THE COURT:  Well, let's say it was never passed.  MR. RUSH:  Or never passed.  THE COURT:  Yes.  MR. RUSH: And the historic process continued, which assuming  that it had in the same way, then we would make the  same argument.  THE COURT:  All right.  Thank you.  MR. GOLDIE:  My lord, while Mr. Grant is coming up I will  endeavour to file this memorandum of previous argument  by 5 o'clock tomorrow.  And I will include in it my  references to Mitchell, my lord, because that case was  decided after I made my argument on this.  And I would  make my reference only in relation to the principles  that my friend refers to with respect to the  interpretation of the Royal Proclamation.  All right.  Mr. Grant.  Thank you, my lord.  Excuse me, I just want to point out that I made no  submissions with regard to Mitchell and its  interpretation of the Royal Proclamation.  GOLDIE:  I know, my lord, it was conspicuously left out.  RUSH:  And wholly affirms it.  And if my learned friend  wants an argument on it, I am prepared to speak to it  now.  GOLDIE:  And the views of Chief Justice Dickson were  rejected on that.  RUSH:  That is not so.  GOLDIE:  Well, I will let the reasons for judgment speak to  that.  MR. RUSH:  And they do, loud and clear.  THE COURT:  Okay.  Mr. Grant.  MR. GRANT:  Thank you, my lord.  My lord, I wish to deal in my  submissions in reply this evening given the time to  the issue of the proper parties.  And tomorrow I will  deal with other matters.  The Provincial Defendant in  THE COURT:  MR. GRANT:  MR. RUSH:  MR.  MR.  MR.  MR.  MR. 29331  Submissions by Mr.  have cited at the top of  Grant  1  their argument which I  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  THE COURT  MR. GRANT  section VI.  What does that VI refer to -- is that a continuation  from Mr. --  It is supposed to be a continuum of the listing of  the topics that have been canvassed by your lordship.  It is not necessarily of significance because I am not  sure if my colleagues used a Roman numeral lettering.  Well, for example, are you assuming that Mr. Rush's  is --  Is Roman numeral V, yes, that's right.  I understand that, thank you.  Now, the Provincial Defendant, my lord, argued that  the Plaintiffs have separate claims of ownership and  jurisdiction and a claim to aboriginal title.  And  they go so far as to state that:  "There are no facts alleged to support a claim  of aboriginal title."  In the course of argument they refer to "aboriginal  title in the Calder sense".  Now, in the second paragraph, my lord, I refer to  the fact that counsel for the Plaintiffs have stated  on numerous occasions that the essence of the case is  the nature of the aboriginal rights of the Plaintiffs.  The Plaintiffs have described and delineated those  aboriginal rights by use of the terminology of  ownership and jurisdiction.  However, it has always  been made clear to the court, in our submission, that  the nature of the rights are as defined by the  evidence of the Plaintiffs, which, we say, is  equivalent to the concept of ownership and  jurisdiction.  And I have given you there the citation  where I spoke to that matter because it was -- this  point has been raised on numerous occasions by my  friends.  Now, the Defendants refer to aboriginal title "in  the Calder sense".  However, they fail to distinguish  between the decision of Judson and Hall.  Now, my  colleague Ms. Mandell dealt with Sparrow.  And I just  refer you to that reference on that paragraph there.  I would like to focus at this juncture on the  pleadings and identity of the Plaintiffs.  At the end 29332  Submissions by Mr. Grant        1 of part 2 of my friend's  argument they had a listing  2 of the Plaintiffs and the change of Plaintiffs.  And  3 they used that listing to say that:  4  5 "No fact is more revealing of the radical  6 uncertainty which underlines the claims  7 supposedly based on custom and usage from time  8 immemorial."  9  10 Now, that listing, my lord, is extremely misleading,  11 in my submission.  The Defendants intermingle  12 amendments to Gitksan and Wet'suwet'en Plaintiffs.  13 They list every potential amendment including the  14 replacement of deceased Chiefs.  For example, if you  15 look at the list you would see the amendment from  16 Albert Tait to Ken Muldoe.  Which on the list, on a  17 quick view, suggests six amendments because Albert  18 Tait, at the time of his death, was representing three  19 Houses.  20  21 Now, what I have done in paragraph 4 is list for  22 your lordship those Chiefs on the list who have died  23 since the commencement of this action and the  24 successor Chief on the Statement of Claim.  The death  25 of these 15 chiefs of course all led to amendments.  26 And I refer you to that.  27  28 Now, that doesn't of course deal with all the  29 amendments that my friends raise as suggesting  30 "radical uncertainty".  You may recall at the opening  31 of the case, my lord, the Plaintiffs' counsel stated:  32  33 "This hearing the evidence which  34 will be presented in this case will be faced  35 with a series of legal and intellectual  36 challenges and opportunities of a nature not  37 normally found in matters that come before the  38 bench.  These are challenges and opportunities  39 which we as counsel also have had to face and  40 with which we continue to grapple."  41  42 Now, my lord, one of the most complex challenges  43 we have had to deal with is the nature of the  44 wilnadahl among the Gitksan.  This has been formally  45 explained in our argument at that reference I have  4 6 given you.  Although this has led to amendments as to  47 the Houses which are Plaintiffs, we say the 29333  Submissions by Mr. Grant        1 difficulties of counsel  in assessing which Houses are  2 separately delineated at the time this litigation  3 commenced should not be utilized as a defence against  4 the validity of the Plaintiffs' claims.  5  6 Now, on paragraph 6 I deal with son side of the  7 wilnadahl.  The principal changes by the addition of  8 Houses which were not initially in the action has  9 occurred with respect to the Gitksan.  The changes  10 with the Wet'suwet'en are minor.  And, of course, this  11 is because the wilnadahl concept is so prevalent among  12 the Gitksan and the larger House groups.  By reference  13 to the Defendant's schedule, in the context of the  14 wilnadahl, it can be understood why the following  15 Houses were later added.  16  17 And what I have done there is, for example, take  18 the House of Haak'w, part of the wilnadahl of Lelt,  19 and given you the evidence reference of Olive Ryan on  20 her cross-examination where it was explained that was  21 part of that wilnadahl.  And so these Houses on the  22 left-hand column are all later additions and are part  23 of wilnadahl, which if you look at this were named  24 Plaintiffs before they were added.  25  26 Now, in paragraph 7, my lord, I refer to the  27 number of Houses referred to by Defendants in argument  28 which were referred to at some time during the  2 9 amendment to the pleadings and were subsequently  30 deleted.  Now, this is because it became apparent that  31 these Houses presently form part of a separately named  32 House which is a Plaintiff, although they were  33 formerly , that is not at the time of the litigation,  34 but at some previous time, a separate House.  And I  35 name these Houses.  And I'm sorry that the column is  36 at the bottom of the page.  But the name of the House,  37 the House with which it was joined, and the source of  38 evidence.  39  40 And, for example, I refer to Hage, a House that  41 was added and then deleted.  And it is part of the  42 wilnadahl of Delgamuukw.  And that was described in  43 the evidence of Ken Muldoe and also in the evidence of  44 Heather Harris.  And I have provided you there with  45 that listing.  This, my lord, when you take these  46 three lists together, encompasses all of the  47 amendments referred to on my friend's list. 29334  Submissions by Mr. Grant        1 Now, I don't believe  I don't need to refer you to  2 paragraph 8 where I say there are minor errors on the  3 amendments.  If you look at Wigetimschol to Namox --  4 or from Namox to Wigetimschol, Dan Mitchell should  5 have been named as Wigetimschol.  He was always  6 referred to as the Chief running that House.  Again  7 you'll see an amendment that is referred to on my  8 friend's list as an amendment and change which is in  9 fact a change in the spelling of Sarah Layton's name.  10  11 Now, the Provincial Defendant suggests that the  12 named Chiefs are not all the Hereditary Gitksan and  13 Wet'suwet'en Chiefs.  In fact, the named Chiefs are  14 the Head Chiefs of the Houses or in a very few cases,  15 those Chiefs within the House authorized to represent  16 the House.  Now, my lord, within the Gitksan and  17 Wet'suwet'en system, these named Chiefs can represent  18 all members of the House, including persons holding a  19 sub-Chiefs' names.  20  21 The Provincial Defendant stated in argument:  22  23 "Whether the others, whether they are called  24 'wing Chiefs' or 'sub-Chiefs' makes no  25 difference: they are still Hereditary Chiefs.  26 The evidence does not support the pleading."  27  28 Well, my lord, this point may be debated between  29 the parties as to whether or not the wing Chiefs and  30 sub-Chiefs should be included in the rubric of  31 "Hereditary Chiefs".  They are Hereditary Chiefs at a  32 level subordinate to the leading Chief of the House.  33 The point of this proposition is: so what?  The issue  34 for the Court is that all of the Gitksan and  35 Wet'suwet'en persons from the House, whether they are  36 sub-Chiefs or not, are represented by the named Chief  37 or on behalf of the members of his House.  Among the  38 Gitksan and Wet'suwet'en, they would not agree that  39 these other persons are Simgigyet for the Gitksan or  40 Dinizee for the Wet'suwet'en.  Unfortunately, my lord,  41 because the Plaintiffs have utilized English to refer  42 to the named Plaintiffs as Chiefs, the ambiguity  43 raised by the Defendants is there in the English term.  44 But no such ambiguity exists in the Wet'suwet'en and  45 Gitksan terms for Head Chiefs and sub-Chiefs or Wing  46 Chiefs.  47 29335  Submissions by Mr. Grant 1                Now, I say that the  Provincial Defendant further  2 obfuscates the issues in the case by suggesting  3 improper representation, or by suggesting ambiguous  4 representation and ambiguous statements of rights.  5 The Plaintiffs, in evidence and in oral argument, have  6 demonstrated that the claim for ownership over each  7 territory is a claim on behalf of the House.  The  8 stewardship over the territory is in the Head Chief.  9  10 The Provincial Defendants suggest an argument that  11 the Houses are not Plaintiffs.  We say, my lord, that  12 the Houses, as unincorporated associations represented  13 by the named Hereditary Chiefs, are Plaintiffs.  The  14 Houses consist of their members.  The declarations of  15 ownership over specific House territory is claimed by  16 the House as represented by a Head Chief.  17  18 Now, my friends say that the Statement of Claim  19 does not say that every Gitksan and Wet'suwet'en  20 person must belong to a House.  I say that the  21 evidence given by the lay witnesses and the expert  22 witnesses is that to be Gitksan or to be Wet'suwet'en  23 you must belong to a House.  24  25 The Provincial Defendant further submitted that  26 aboriginal title is held communally and the Court  27 questioned that proposition.  And I am responding to  28 your lordship's question here.  29  30 In the Plaintiffs' submission the House is the  31 owner of the specific territories.  In legal terms it  32 is an unincorporated association.  Among the Gitksan  33 and Wet'suwet'en the communal right of ownership as an  34 incident of aboriginal title is held by the members of  35 the House.  The Head Chief is the guardian or  36 protector of the territory on behalf of the members of  37 the House.  38  39 MR. PLANT:  My lord, there is just something that I confess I am  40 uncertain about.  In the second sentence there in  41 paragraph 15, I am not sure how that copes with the  42 situation of a House that has no members.  The House  43 of Mool'xan, M-O-O-L, apostrophe, X A N is one that  44 occurs to me there.  And I am sure there are others.  45 THE COURT:  That's a vacant house.  46 MR. GRANT:  It is a vacant house.  And the evidence established  47 that Mool'xan's territory, that is in the Gitksan the 29336  Submissions by Mr. Grant  effectively that Mool'xan is part  1  wilnadahl works so  2  3  4  5  THE  COURT  6  MR.  GRANT  7  THE  COURT  8  9  MR.  GRANT  10  11  12  THE  COURT  45  THE  COURT  46  MR.  GRANT  47  of a larger wilnadahl of Frog Houses at Kitsegukla.  And they have taken care and taken charge of the  territory today.  All right.  Is it convenient to adjourn now?  My lord, I am in your hands.  Yes, I think we should.  What time do you want to  start tomorrow?  My lord, we would prefer, if possible, to start at 9  a.m.  And the hope is that we all might be better off  earlier in the morning than later in the afternoon.  Allre others.  That's a vacant house.  It is a vacant house.  And the evidence established  that Mool'xan's territory, that is in the Gitksan the 29336  effective  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. Grant        1 wilnadahl works so  ly that Mool'xan is part  of a larger wilnadahl of Frog Houses at Kitsegukla.  And they have taken care and taken charge of the  territory today.  All right.  Is it convenient to adjourn now?  My lord, I am in your hands.  Yes, I think we should.  What time do you want to  start tomorrow?  My lord, we would prefer, if possible, to start at 9  a.m.  And the hope is that we all might be better off  earlier in the morning than later in the afternoon.  THE COURT:  All right.  Well, I think 9 o'clock would be  convenient then.  MR. GRANT:  Thank you, my lord.  THE REGISTRAR:  Order in court,  a.m. tomorrow morning.  (PROCEEDINGS ADJOURNED TO JUNE 30, 1990 AT 9  THE COURT  MR. GRANT  THE COURT  MR. GRANT:  Court stands adjourned until 9  00 a.m.)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Lisa Franko,  Official Reporter,  UNITED REPORTING SERVICE LTD.


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