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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-09] British Columbia. Supreme Court May 9, 1990

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 25911  Submissions by Mr. Rush  1  2  3  4  THE  REGIS1  5  6  7  THE  COURT  8  MR.  RUSH:  9  THE  COURT  10  11  12  13  14  15  MR.  RUSH:  16  THE  COURT  17  18  19  MR.  RUSH:  20  21  22  23  THE  COURT  24  MR.  RUSH:  25  26  27  THE  COURT  28  MR.  RUSH:  29  30  31  THE  COURT  32  MR.  RUSH:  33  34  THE  COURT  35  MR.  RUSH:  36  THE  COURT  37  MR.  RUSH:  38  39  40  41  42  THE  COURT  43  MR.  RUSH:  44  45  46  47  Vancouver, B.C.  May 9, 1990  PRAR:  Order in court.  The Supreme Court of British  Columbia, this 9th day of May, 1990, Delgamuukw versus  Her Majesty the Queen at bar, my lord.  :  Mr. Rush, is Ms. Mandell going to be back today?  Yes, my lord.  :  There was a matter arising out of something she said  last night that's been troubling me.  And I was going  to ask her about it.  And at the moment I can't place  my hand on just exactly where it was.  Would it be  helpful if I told you what it was so it could be  conveyed to her and she could be thinking about it?  She'll be here in about 45 minutes.  :  Well, why don't I wait until then.  And we can  interrupt what we are doing.  It will just take a  minute.  I can advise you just on the order of our argument  today.  I intend to address your lordship for about 45  minutes on the question of the facts leading up to  union with Canada.  :  Yes.  And Ms. Mandell will then make a submission to your  lordship on the legal effect of the terms of union and  union with Canada.  :  All right.  And she will address your lordship for approximately  three hours on that question.  And that's more or  less --  :  Yes.  And I am making the assumption, my lord, that we have  an evening sitting tonight.  :  Yes.  From 7 to 9.  :  Yes.  And later in the day, depending on when Ms. Mandell  finishes, I will return and make the Plaintiffs'  argument with regard to the post-1871 recognition of  title and the period leading up to and after Ken  McBride.  :  All right.  Thank you.  Now, to begin with, my lord, I am going to hand up  the next portion of the argument dealing with union  with Canada.  And I draw to your lordship's attention  that this simply is placed in your binder, the one  that you have, volume 7. 25912  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Yes.  MR. RUSH:  After that portion.  THE COURT:  Yes.  MR. RUSH:  In some way, my lord, I am picking up the strain of  the historical thread that I left off yesterday, after  which Ms. Mandell made submissions to you.  The eventual union of British Columbia with Canada  to form one nation from the Atlantic to the Pacific  had been anticipated for some years prior to 1871 when  British Columbia finally entered Confederation.  In  1868 a public meeting in Yale had proposed the union  of British Columbia with Canada, the adoption of  Responsible Government in the Colony of British  Columbia, and other matters.  And this occurred during  the period when Frederick Seymour was Governor of  British Columbia.  Seymour advised the Colonial Office  of the so-called "Yale Convention" and adverted to  some of these issues a few months later at the opening  of the next session of the Legislative Council.  And moving to the bottom paragraph, my lord.  Seymour died in office in June 10, 1869.  By despatch  dated 17 June 1869, the Secretary of State for the  Colonies, then Lord Granville, advised Musgrave of his  appointment as Governor of the Colony of British  Columbia.  In the same despatch Granville advised  Musgrave of the interim nature of his appointment  because it was anticipated that British Columbia would  become a province of Canada before long.  Now, under date of 14 August 1869 Granville  reported to Musgrave that terms had been agreed upon  providing for the union of Rupert's Land and the North  West Territories with Canada.  Musgrave was advised  that Her Majesty's Government was in favour of British  Columbia also uniting with Canada and the Governor was  asked to assist in effecting this result.  At the end  of the despatch, there was a reference to Indian  matters.  And I will draw your lordship's attention to  the underscored part beginning with:  "I think it necessary however to observe that  the constitution of British Columbia will  oblige the Governor to enter personally upon  many questions, as the condition of Indian  tribes . " 25913  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Now, my lord, Musgrave by this despatch was  specifically advised to "enter personally upon many  questions", including "the condition of Indian  tribes".  It does not appear that the local  Legislature was intended to have had input.  As noted  below, Musgrave himself determined that the clause  pertaining to Indians would not be placed before the  local Legislature for its approval.  Now, the Province argues, my lord, that the August  14, 1869 despatch "withdrew from the purview of the  local Legislature the question of Indians."  And we  say there is no basis for this conclusion.  We say it  was Musgrave's initiative not to place matters  pertaining to Indians before the Legislature.  Now, Governor Musgrave opened the February 1870  session of the Legislative Council.  And your lordship  will remember this is of the United Colonies.  :  That would be the first one, or was there an earlier  one?  No.  There was an earlier one, my lord.  :  All right.  With an address designed to initiate formal  discussion of terms which might form the basis for  union of British Columbia with Canada.  Musgrave  forwarded a copy of his address to the Governor of  Canada, Governor General of Canada, Sir John Young.  And it contained this explanatory note.  And I will  ask you to look at the bolded portion, my lord.  "I have purposely omitted any reference to this  subject in the terms proposed to the  Legislative Council.  Any arrangements which  may be regarded as proper by Her Majesty's  Government can I think best be settled by the  Secretary of State, or by me under his  direction, with the Government of Canada."  THE COURT:  I'm sorry, let me just read the next part.  That  doesn't look like a sentence which follows.  I don't  want to be unduly critical.  But what is he saying  there?  I don't think it matters.  MR. RUSH:  My lord, I will read directly from the handwritten  minute.  THE COURT  MR. RUSH:  THE COURT  MR. RUSH: 25914  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "But 'Indians, and lands reserved for  Indians' form" --  THE COURT:  There it is, "form".  MR. RUSH:  Yes.  We dropped a word, my lord.  THE COURT:  Yes.  Okay.  MR. RUSH:  Now, my lord, the Executive Council approved terms to  be sent to the Legislative Council for its approval on  February 9 and 12.  These terms were attached to the  letter from Musgrave to the Governor General, Sir John  Young, on February 20, 1870 that I have just referred  to.  Now, the terms themselves did not refer to  Indians.  Musgrave advised that the terms would be  advanced as a government proposal and would be passed  as such.  Now, the Legislative Council in British Columbia  debated the subject of Confederation with Canada and  the proposed terms, between March 9 and April 6, 1870.  Most of the debate centered on Musgrave's proposed  terms, and for the reasons noted above, these terms  did not refer specifically to Indians.  Indians  entered into the discussion primarily in terms of how  they were to be counted in estimating the population  of British Columbia.  Population size was an important  point because the British North America Act provided  for a grant in aid on a per capita basis.  As well,  representation for British Columbia was tied to  population.  Indians were also mentioned tangentially  in a discussion about the applicability of Dominion  fishery regulations to British Columbia.  They were  also mentioned in a discussion of Responsible  Government.  Now, Mr. Holbrook, who was a member of  the assembly or the Council, declared he was against  it, giving as a reason that the Indians needed to be  represented.  Now, my lord, I am directing you to the debate  that occurred on the 25th of March, 1870.  And this  was near the close of the discussions by the  Legislative Council of the Terms of Union.  And Mr.  Holbrook of New Westminster introduced a resolution  regarding policy towards the Indians after  Confederation.  Attorney-General Crease, John Robson,  and Mr. Barnard attempted to abort discussion about  Indians, but Holbrook persisted.  Several members  spoke, including Carrall and Helmcken, who 25915  Submissions by Mr. Rush  1 subsequently were appointed as two of the three  2 British Columbia delegates to Ottawa to negotiate the  3 Terms of Union.  Trutch, the third delegate, was not  4 present on the 25th of March for the debate when that  5 Indian policy debate took place.  Trutch apparently  6 was sick at the time.  But he evidently tried to  7 influence the deliberations from his bed.  8  9 Now, since this appears to be the only public  10 discussion of Indian policy by British Columbia  11 legislators prior to the appearance of Clause 13, we  12 have set out the whole of the debate.  The  13 characterizations of British Columbia Indian policy by  14 Holbrook, Robson and Humphries, as well as by future  15 delegates to Ottawa, Carrall and Helmcken, are  16 important reflections of differing local views about  17 the subject on the eve of Confederation.  18  19 My lord, at the opening of our arguments I made  20 reference to portions of this debate.  I have included  21 all of the debate here.  But for my purposes now, I  22 will just refer you to certain of the passages.  But I  23 would ask you to, again, read all of it.  24  25 "MR. HOLBROOK — I have very great pleasure in  26 bringing this resolution forward with reference  27 to the Indian tribes.  28 ATTORNEY-GENERAL — I ask the indulgence of the  29 Hon. Member whilst I interpose a few words.  On  30 a former occasion a very evil impression was  31 introduced in the Indian mind on the occasion  32 of Sir James Douglas' retirement.  I ask the  33 Hon. gentlemen to be caution, for Indians to  34 get information of what is going on.  35 MR. HOLBROOK — My motion is to ask protection  36 for them under the change of Government.  The  37 Indians number four to one white man, and they  38 ought to be considered.  They should receive  39 protection.  4 0 ATTORNEY-GENERAL — These are words that do  41 harm.  I would ask the Hon. Magisterial Member  42 from New Westminster to consider.  43 MR. HOLBROOK — I say they shall be protected.  44 I speak of Indians of my own neighbourhood on  45 the Lower Fraser.  46 MR. ROBSON — I rise to a point of privilege.  47 I think that the warning of the Hon. 25916  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  Attorney-General is necessary.  This is the  sorts of discussion which does harm.  HON. MR. DeCOSMOS — Don't report it.  Hon. Mr. HOLBROOK — I do not view it in that  way.  I say that the Indians of the Lower  Fraser are intelligent, good settlers.  I ask  that they receive the same protection under  Confederation as now."  Then I ask you, my lord, to look down to the next  section by Mr. Robson.  And to take note of Mr.  Robson's comments during the debate.  After speaking  of the numbers of native people, he says:  "I am inclined to think that we should not pass  this matter over entirely; we ought to point  out our desire that the Indians should be cared  for.  Now, the Canadian Indian policy has been  characterized as good, even by American  statesmen.  Our own policy is not worth the  name.  I consider it to be a blot on the  Government.  I will, therefore, propose as an  amendment the following:  'That the Indian policy of Canada shall be  extended to this Colony immediately upon  its admission into the Dominion, and that  the necessary agencies and applicance for  an efficient administration of Indian  affairs may be at once established."  :  Is that "applicance" the right word there?  I believe so, my lord.  :  All right.  I will check that.  Now, my lord, I am taking you to 251, and to the  Honourable Dr. Carrall.  And if your lordship keeps in  mind that it was Dr. Carrall who was one of the three  B.C. negotiators that went to Ottawa to negotiate the  Terms of Union.  And he said during this debate:  "The Hon. Member for New Westminster has  affirmed how good the Canadian system is.  The  goodness of that system is in itself sufficient  to render the resolution needless.  I shall,  therefore, vote against it and the amendment." 25917  Submissions by Mr. Rush  1 And, my lord, I have just checked the amendment.  And,  2 in fact, the word is "appliance".  3 THE COURT:  Thank you.  4 MR. RUSH:  And I would ask you to look for Mr. Humphries next.  5 And the bolded portion of Mr. Humphries' contribution.  6  7 "I say the Indians are not treated fairly by  8 us, and all they want is a fair dealing with  9 the white population."  10  11 And then at the bottom:  12  13 "I say, send them out to reservations and you  14 destroy trade; and if the Indians are driven  15 out we had all best go too."  16  17 And then Mr. Alston's contribution:  18  19 "I must support the Hon. Member for New  20 Westminster.  I say there is no Indian policy  21 here, and I am sure that the Canadian policy is  22 good."  23  24 And then the Attorney-General says:  25  26 "My esteemed colleague the Hon.  27 Registrar-General says we have no Indian  28 policy.  I say our policy has been, let the  29 Indians alone."  30  31 To which Mr. Alston said:  "No, no!"  32  33 And then Mr. Barnard on 252:  34  35 "The reason I ask for the withdrawal of the  36 resolution is that we cannot keep back from the  37 Indians anything that happens here, and it will  38 have a bad effect."  39  40 And then I ask your lordship to note Dr. Carrall's  41 comments.  42  43 "I say that the Canadian policy has caused them  44 to grow and prosper.  I am at a loss to  45 understand why Honourable Members should be  46 afraid to trust it."  47 2591?  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  THE  COURT  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  THE  COURT  19  MR.  RUSH:  20  21  THE  COURT  22  MR.  RUSH:  23  24  25  26  27  28  THE  COURT  29  30  31  MR.  RUSH:  32  33  34  35  36  THE  COURT  37  MR.  RUSH:  38  THE  COURT  39  40  MR.  RUSH:  41  42  THE  COURT  43  MR.  RUSH:  44  45  46  47  And then Dr. Helmcken.  And again, my lord, to recall  that Dr. Helmcken was the second, or one of the three  negotiators in Ottawa.  He says at the bottom of his  speech:  "I say if the Indians are to be stuck on  Reservations there will be a disturbance.  I  think, Sir, that it will be well that there  should be some opposition."  Robson withdraws the amendment.  Holbrook persists.  And the resolution of the Honourable Mr. Holbrook was  lost by a vote of 20 to 1.  :  Now, the amendment was what?  The amendment is found at page 250.  :  Yes.  And that is Mr. Robson's amendment.  :  And this is an amendment to the terms of union?  No, my lord.  I take this to be an amendment to Mr.  Holbrook's motion.  :  Oh, I see.  And Mr. Holbrook is -- his motion is recorded as the  third contribution on page 249.  "My motion is to ask protection for them under  the change of Government."  :  Yes, all right.  And then the amendment is  specifically, I guess, to add specificity to the  motion?  Yes.  And as I indicate, according to I think  parliamentary procedure, the mover can withdraw.  And  I think he did here.  And the matter passed on to a  division, and the result of 20 to 1 against Mr.  Holbrook's motion.  :  Yes.  Now, I am on 253.  :  That defeated the amendment.  Was the motion  defeated as well?  No.  The amendment was withdrawn.  The motion was  defeated.  :  Yes.  All right.  In the foregoing discussion, it is worth noting that  Mr. Holbrook was apparently concerned that special  Indian laws and the policy of removing Indians to  reserves should not be instituted in British Columbia  after Confederation.  Humphreys and Helmcken agreed 25919  Submissions by Mr. Rush  1 that the Indians should not be removed to or confined  2 to reservations.  3  4 In contrast, Robson, Carrall and Alston thought  5 that Canadian Indian policy should be instituted in  6 British Columbia.  7  8 Robson and Alston denied that British Columbia had  9 an Indian policy worthy of the name.  Attorney-General  10 Crease responded by saying that the British Columbia  11 policy was to leave the Indians alone.  12  13 Now, my lord, the record of this debate I think is  14 significant for several reasons, and they follow:  15 Several members of the assembly did not want Indian  16 policy to be publicly discussed for fear of the  17 reaction it would produce among Indian people;  18  19 Public discussion of the Indian policy, it seems, was  20 sought to be prevented;  21  22 The content of the debate was never publicized within  23 the Indian community, let alone in the public press;  24  25 There is no evidence of communication of this debate  26 in Ottawa, not of the fact of the debate, but of the  27 debate itself;  28  29 There was no unanimity about the character of the  30 Colonial policy regarding Indians, even Helmcken did  31 not consider B.C. Indians should be "stuck on  32 reservations", as he called it;  33  34 There was no serious local discussion of the  35 appropriate policy in respect of Indians and their  36 lands; and,  37  38 No one raised the question of aboriginal title, but I  39 say the implication to be drawn from the debate is  40 they assumed it existed; and, finally;  41  42 There was a distinct lack of understanding of Canadian  43 policy.  44 THE COURT:  Well, Mr. Rush, I had a brief discussion with Ms.  45 Mandell about this question last night.  And what do  46 you say is the evidentiary value of the discussions  47 that went on in the legislature?  Is there a limited 25920  Submissions by Mr. Rush  1  2  MR.  RUSH:  3  4  5  6  7  THE  COURT  8  MR.  RUSH:  9  10  THE  COURT  11  MR.  RUSH:  12  13  14  THE  COURT  15  MR.  RUSH:  16  17  18  19  20  21  22  THE  COURT  23  MR.  RUSH:  24  25  26  27  28  29  THE  COURT  30  MR.  RUSH:  31  32  33  34  35  THE  COURT  36  MR.  RUSH:  37  38  39  40  41  42  43  44  THE  COURT  45  MR.  RUSH:  46  47  use for this evidence?  Well, my lord, when I made submissions to you on the  Royal Proclamation, I expressed the proposition that  legislative debates -- that the authorities were  divided on the question of the utility of legislative  debates --  Yes.  -- to determine the meaning of language in acts and  instrumentalities.  Yes.  And I don't resile from that position.  I think there  is limited, limited evidentiary weight to be placed on  this .  Yes.  But in terms of the historical context, I think your  lordship should know the available historical record  to make what use of it you will.  But my submission is  that it is the language that your lordship should  refer to.  And it is encumbent on your lordship to  interpret that language in ways that are consistent  with the aids and principles of construction.  Yes.  And, my lord, when Ms. Mandell makes her submission,  you will see that she'll refer to Chief Justice  Dickson.  At that time I believe Mr. Justice Dickson  in R. v. Jack, where he himself does an analysis,  contextural and term analysis of Article 13, not  having reference to the preceding debates, et cetera.  Yes.  And my submission is, and I think the Plaintiffs'  submission here, is that there is some value.  But I  think ultimately your lordship must be guided by the  language and the words in the statute and be governed  by that.  All right.  Thank you.  And, my lord, I should point out that much of the  submission that we make here is in some sense  anticipatory.  We, of course, have read the  counter-claim of the Province, and now the response of  the Federal Government to the counter-claim.  And to  some degree, we are responding to the positions  advanced and what they see is significant out of these  various documents.  All right.  And we can't be left in a position of allowing the  documents to stand without some anticipated comment on  these documents.  And that is the reason that I make 25921  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the next following submission in the bottom paragraph  of 254.  In its response to the Province's counter-claim,  Canada draws some significance out of the fact that  Granville forwarded to Musgrave, now this is in April  of 1870.  And I ask your lordship to add that.  THE COURT:  I'm sorry, this is when?  MR. RUSH:  In April of 1870.  THE COURT:  Yes.  MR. RUSH:  And it is after the Confederation debate.  That  Granville forwarded to Governor Musgrave the  correspondence between the Aborigines Protection  Society and the Colonial Office following upon the  Colonial Office having sent Trutch's Memo of January  29, 1870 to them.  And this is the memo spoken of to  you yesterday.  Canada suggests that the  correspondence, made without comment, by Granville had  the implication of approval.  That is approval of  Trutch's comments.  And I say that the documents do  not bear that conclusion at all.  The Minutes that are  ascribed to the transmittal letter made by a Mr.  Herbert is a negative comment about the Aborigines  Protection Society.  There is no comment in his  minutes directed to Trutch's position about aboriginal  title in British Columbia.  The minutes do not  disclose that anyone disagreed that aboriginal title  existed in British Columbia.  Now, my lord, I ask you  to take note of that.  And in some future week a  submission will be made to you on this point.  However, carrying on with the chronology of  events, Musgrave gave written instructions to Trutch  on May 9, 1870, just before he left for the Terms of  Union negotiations.  And he said, in part, at the  beginning of these instructions:  "The administration of Indian affairs is a  matter to which my attention has been called by  Lord Granville."  And then he goes a little further down the underscored  portion.  "But indiscreet change of policy or injustice  on the part of any local administration might  lead to very serious results.  It is for this 25922  Submissions by Mr. Rush  1 reason among others think think it is so highly  2 expedient that the Magistrates who are in fact  3 Government Superintendents in the outer  4 Districts and have to administer so many Laws  5 in which the Indians are interested, should be  6 officers of the Dominion and not of the local  7 government."  8  9 The Minute, my lord, demonstrates Musgrave's  10 opinion, and instructions, on the administration of  11 Indian affairs and in particular, his view that  12 Government Superintendents administering laws should  13 be officers of the Dominion.  Now, this Minute also  14 shows Musgrave's personal involvement.  15  16 Now, the delegation left 11th of May and arrived  17 in Ottawa 3rd of June of 1870.  And discussions of the  18 Terms of Union took place in June and July of 1870.  19 Trutch was the lead negotiator of the British Columbia  20 delegation.  He was delegated to represent Musgrave,  21 and we can assume that he did so.  22  23 No official record of the Terms of Union  24 negotiating sessions is available.  Diary notes of Dr.  25 Helmcken and his reminiscences of the negotiations  26 recorded many years later assert that the Indian  27 clause, as he called it, was "fully discussed" but we  28 do not know what was discussed.  29  30 Helmcken's record for June 28th indicates that the  31 whole of the resolutions were gone over again.  And he  32 states that various clauses were discussed.  And then  33 he said:  34  35 "The clause about Indians was very fully  36 discussed.  The Ministers thought our system  37 better than theirs in some respects, but what  38 system would be adopted remains for the future  39 to determine.  I asked about Indian wars and  40 Sir G. Cartier said that it depended upon the  41 severity, as a rule the expense would have to  42 be borne by the Dominion Government."  43  44 And, my lord, Helmcken is likely referring to  45 Clause 13.  Four days later Clause 13 in its present  46 language is embodied in an Order-in-Council.  As to  47 what "system" was being referred to, he didn't say. 25923  Submissions by Mr. Rush  1 It is likely that Trutch expressed his views on the  2 subject but as we know from the Legislative Council  3 debate of March 25th, Helmcken had other views.  And I  4 should add to that, as I noted just a moment ago, so  5 did Carrall, the third of the negotiators.  Whatever  6 the case, my lord, there was no certainty about the  7 "system" to be adopted and that was left for future  8 determination.  9  10 Trutch, and I add, my lord, and the B.C.  11 delegation -- that should be "the" instead of "a" --  12 certainly assisted in the drafting of Term 13.  They  13 would have to have explained the British Columbia  14 "system" as they thought it was.  It might assume  15 that -- we might assume that Trutch's Indian policy,  16 for the first time expressed in January of 1870, was  17 promoted by him, but we cannot assume that either from  18 Helmcken's diary or from the language of Term 13 that  19 it was accepted by the Dominion negotiators in the  20 same form, or at all.  What is evident from what  21 little is known about the negotiations of Article 13  22 is that the Imperial Government had no involvement in  23 the negotiations.  24  25 There is no support on the historical record for  26 the Province's argument that the language of Article  27 13 "could only have come from London".  Negotiations  28 occurred in Ottawa between Canadian and British  29 Columbian negotiators.  No Imperial representative was  30 present.  And this is in contrast with the  31 negotiations for Rupert's Land in the Northwestern  32 Territories in which the Colonial Secretary was  33 involved.  The lack of Imperial involvement is evident  34 in the Colonial Secretary's letter to the Governor  35 General on August 4, 1870.  This is after the  36 negotiations.  37  38 "I have to acknowledge the receipt of your  39 despatch No. 144 of 5 July, stating that the  40 negotiations between the Ministers of the  41 Dominion of Canada and the Delegates from  42 British Columbia, respecting the Union of that  43 Colony with the Dominion, had terminated  44 satisfactorily and enclosing a minutes of the  45 Privy Council which embodies the terms of the  4 6                     Agreement.  47 I am much gratified to learn that the 25924  Submissions by Mr. Rush  1 negotiations have made so much progress."  2  3 Now, my lord, the Terms of Union as of that date  4 on August 4th when Kimberley wrote to Young, Sir John  5 Young, had been incorporated in a Dominion  6 Order-in-Council, July 1, 1870.  There was no  7 difficulty in obtaining the support of the Imperial  8 Government as to the terms.  The final Terms of Union  9 were put to the Legislative Council in British  10 Columbia.  The Legislative Council debated the Terms  11 of Union on January 18 to 20, 1870.  And, my lord, the  12 next phrase perhaps indicates why the authorities are  13 split on the significance of taking into account  14 legislative discussions.  For as Helmcken reported,  15 "the debate was a poor affair".  16  17 When the British Columbia Terms of Union were  18 discussed in the House of Commons in Ottawa, attention  19 was focused on railway and other matters.  Indian  20 affairs received scant notice in passing.  And during  21 the session, Sir George Cartier said:  22  23 "A certain portion of the public lands had been  24 reserved for the Indians, and the only  25 guarantee that was necessary for the future  26 good treatment of the aborigines was the manner  27 in which they had been treated in the past."  28  29 This statement was preceded by assurance that  30 railway construction would result in no new taxes and  31 was followed by self-congratulatory remarks about the  32 speed in which the Dominion had extended from sea to  33 sea.  34  35 The Terms were approved in Ottawa and on May 16,  36 1871 an Imperial Order-in-Council was passed,  37 incorporating the resolutions of the Legislative  38 Council of B.C. and the House of Commons and Senate,  39 joining British Columbia to Canada on July 20, 1871.  40  41 My lord, from the above historical chronology, it  42 is evident that there is no historical support for the  43 Province's argument in its counter-claim that Trutch  44 had no part in the drafting of Term 13.  It is likely  45 that suggestions came from all of the negotiators,  46 Canada and B.C. alike.  But, nothing can be taken as  47 to the meaning of the words in Article 13 from the 25925  Submissions by Mr. Rush  1 negotiation discussions because nothing has survived  2 which is of assistance.  However, we know that the  3 negotiations were bilateral and did not include the  4 Imperial authorities.  5  6 It is unclear what information was held by the  7 Dominion negotiators about the Indian policy pursued  8 in British Columbia in the Colonial era.  It was  9 claimed, my lord, a few years later by Dominion  10 officials, David Mills, for example, and I will be  11 addressing you on that later today, that the Dominion  12 negotiators in 1870, and that should be 1871.  No,  13 excuse me, 1870.  That's correct.  Would not have  14 known --  15 MR. GOLDIE:  "Could not have known".  16 MR. RUSH:  -- could not have known that aboriginal title in  17 British Columbia was largely unextinguished and that  18 allocation of land for Indian reserves was markedly  19 different from that elsewhere in the Dominion.  20 Now, given Joseph Trutch's role during the Union  21 negotiations, it is likely that either:  22 1.  The Dominion negotiators were seriously deceived  23 about the nature of the pre-1870 Colonial policy in  24 B.C. with regard to the recognition of aboriginal  25 title and the willingness of the Colonies of Vancouver  26 Island and British Columbia to extinguish the title;  27 or,  28 2.  The B.C. negotiators said nothing which would  29 assist them in accurately determining the true nature  30 of the Colonial policy with relation to the  31 recognition of aboriginal title.  32  33 We can assume that Trutch expressed himself during  34 the negotiations as he did in his memo to Musgrave in  35 January of 1870, and his letter to Macdonald, after  36 Confederation, on October 14, 1871.  But that's an  37 assumption.  On both occasions he distorted the facts  38 about the pre-Union Indian policy with regard to the  39 recognition of aboriginal title.  40  41 If the B.C. negotiators had been forthcoming, as  42 suggested by the Province in their argument, there  43 seems little reason for Macdonald to have written --  44 this is Sir John A. -- to have written later to  45 Trutch, privately, on October 30, 1872, well after  46 union, requesting, as he said, "some information as to  47 what system you have hitherto pursued with respect to 25926  Submissions by Mr. Rush  1 Indian matters".  There is no support for the  2 Province's suggestion that Clause 13 was settled on  3 "direct instructions from Musgrave", or by the  4 Colonial Office.  5  6 The evidence does not support the conclusion that  7 the federal negotiators accepted any particular  8 version, or any version for that matter, of the policy  9 relating to Indians in the pre-Union colonies.  In  10 fact, the suggestion of Helmcken is that no "system"  11 was adopted as that remained for the future.  12  13 And, my lord, our position is stated on 262.  The  14 Indian land policy as it had developed throughout the  15 colonial years remained untouched by the language of  16 Article 13 of the Terms.  That policy required the  17 recognition of aboriginal title and the purchase of  18 the Indian interest in the soil to be made by the  19 Crown through a treaty of land cession.  And as part  20 of this policy, reserves were set aside for the  21 protection and security of the Indian people.  As  22 such, the aboriginal title of the Indians of the  23 Province of British Columbia was and continued to be a  24 burden on the underlying title on the lands of the  25 Province.  26  27 And, my lord, I am going to address one further  2 8 point and then turn our argument over to Ms. Mandell.  29 And it is the point of the significance of Article 1  30 of the Terms of Union.  And here, this is responsive  31 to the Province's argument which is set out in the  32 middle of 262 that "if on the day of Union the lands  33 of British Columbia were burdened by unextinguished  34 Indian title", which I didn't put in, but they don't  35 admit that, "that burden was a liability assumed by  36 Canada under Term 1 of the Terms of Union".  37  38 Now, Article 1 of the Terms provides:  39  40 "Canada shall be liable for the debts and  41 liabilities of British Columbia existing at the  42 time of the Union."  43  44 The question obviously is: what are the "debts and  45 liabilities" of the Province?  On no reasonable  46 interpretation of Article 1 can it be said that the  47 aboriginal title which stands as a burden on the 25927  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  Provincial title is a debt or liability of the  Province.  The language, the context and equivalent  provisions for other provinces on pre-Confederation  financial debts and liabilities make it clear that  Article 1 was not intended to include the aboriginal  title on Provincial Crown lands of the Indian people  of the Province.  Sections 91(24) and 109 of the  Constitution Act of 1867 and Article 13 of the  Terms of Union expressly dealt with the question on  aboriginal title on Provincial lands and resources.  Our interpretation of these provisions will follow  later in the argument.  Now, the negotiations for the Terms of Union  proceeded on the basis that Canada would assume a  fixed amount as a debt or liability of the Province.  The documentary record discloses that the first  two clauses of the terms proposed by Governor Musgrave  were ones which called for Canada to be liable for the  debts and liabilities of the Province, and that for  the purposes of the financial arrangements between the  Governments a population of 120,000 would be the base.  You can see the Provincial position of inflating the  Provincial population statistics.  :  Sounds like the Lubicon dispute.  Well, my lord, it wouldn't be surprising that they  would enhance theirs, and the federal government would  try to decrease the numbers.  It would appear that the  Provincial government, at least in this respect, were  more successful.  Attached as a Schedule to the proposed terms was a  detailed financial statement setting out the affects  of Union on the basis of the proposed terms.  The  headings on this Schedule were, and it is to be found  in that exhibit reference, "What the Local Government  Provided For" and "Charges Which the Dominion Relieves  Us".  Specific sums were set out beside specific  categories.  Musgrave sent his February 15 speech to  the Legislative Council to the Governor General on  February 20, 1870 and included the Schedule on B.C. 's  assets and liabilities.  And Musgrave summarized the  financial considerations in this way in paragraph 8:  "I should add that the financial statement  which accompanies the resolution has been made 2592?  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  MR. GOLDIE  THE COURT  MR. RUSH:  up from the actual figures of our estimates for  the current year, for the purpose of  illustrating the affect of the arrangement."  Now, the question of financial arrangements between  the Governments of Canada and British Columbia were  discussed in the Confederation debates and the  Legislative Assembly in March of 1870.  The question  of the financial debt to be assumed by Canada was  raised in the debate.  Now, my lord, I should pause here and say that  this argument is taken from an account of the debate  which I understand the Federal Government has  submitted as a new document and is not an exhibit.  And there may be a debate over that.  But to the  extent that that debate may or may not happen, I  simply say that this precedes the presence of that  particular document in the record.  In these debates one of the members specifically  asked the Attorney General if Clause 1 "intended to  mean financial abilities?"  And to this the Attorney  General replied "financial liabilities".  And I have  just extracted a portion of this.  But I take from it  the debate and exchanges between the Honourable  Members indicate that it was financial obligations of  British Columbia which they assumed to be borne by  Canada.  And, my lord --  :  When you say "In these debates one of the members  specifically asked the Attorney General", that is a  debate in the British Columbia Legislature?  Yes.  At that time the Legislative Council, they  called it, or Legislative Assembly they call it.  Your lordship will appreciate that the financial  statements to which my friend refers to are those  which Mr. -- the Governor submitted to the Legislative  Council before the Terms of Union were debated.  The  reference my friend is making here was after the Terms  of Union had been agreed upon.  All right.  Thank you for that clarification.  The documentary record, my lord, can not support  the Province's argument in this regard.  We say the  "debts and liabilities" in Article 1 does not refer to  the aboriginal title of the Indian people of British 25929  Submissions by Mr. Rush  1 Columbia as a burden on the Crown's underlying title.  2  3 Now, my lord, that concludes this portion of our  4 argument.  And I will ask Ms. Mandell if she would now  5 take up the argument from this point.  6 MR. GOLDIE:  I take it -- before my friend sits down, I take it  7 that the submission on page 264 dealing with the  8 debates and the questions asked of the Attorney  9 General, that is my friend's historical context.  And  10 it is not submitted as an aid in the construction of  11 Article 1 of the Terms of Union?  12 MR. RUSH:  My lord, it is evident that the whole of my argument  13 is the context for Article 1.  I add those in aid  14 of -- to the extent that your lordship has reference  15 to those debates, I ask you to take that into account  16 in relation to our whole submission regarding what you  17 should take into -- how you should interpret Article 1  18 in the Terms of Union.  We will have other submissions  19 to make on that.  20 THE COURT:  You are saying that it is to the limited extent  21 available?  It is put forward to that limited extent  22 for the purpose of aiding the interpretation?  23 MR. RUSH:  Oh, yes.  But not to be limited to that.  2 4 THE COURT:  Yes.  25 MR. RUSH:  I think there is a whole history in the Colony that  26 one would have to look at as well.  And I don't ask  27 that you should be unmindful of that history.  And Ms.  28 Mandell will have a further submission about Article  29 1.  30 THE COURT:  All right.  Thank you.  31 MR. RUSH:  If your lordship will just allow us a moment to  32 change counsel.  33 THE COURT:  Yes.  34 Ms. Mandell, before you start, I find very often that  35 one makes assumptions, and one is usually wrong.  And  36 when one jumps to conclusions, one is usually wrong.  37 But it seemed to me that your argument last night was,  38 or I assumed it was premised on the basis that if  39 there was extinguishment it had to be prior to  40 Canada's -- British Columbia's union with Canada.  And  41 I think that I have more or less assumed that all  42 along without giving the matter any greater detailed  43 attention.  44  45 But yesterday you said, or last evening, you said  46 somewhere in your submissions, and I haven't been able  47 to put my hand on it.  But it is around 190 or in 25930  Submissions by Ms. Mandell  1 there somewhere, that if the Province had actually  2 Crown granted some of the claimed territory prior to  3 union with Canada that that might be a stronger case  4 for extinguishment than just the ordinance themselves.  5 MS. MANDELL:  Yes.  6 THE COURT:  And I had been wondering overnight whether, if that  7 is so, why wouldn't a Crown grant after Confederation  8 have the same effect?  9 MS. MANDELL:  My lord, you have walked into my argument today.  10 THE COURT:  Well, if you want to leave it to that.  11 MS. MANDELL:  No.  I will answer it briefly and proceed to  12 develop it over the course of the day.  It all turns  13 on vires.  You will recall that we said if the Crown  14 grant dispossessed somebody, and Indian person in the  15 claimed area before Confederation, there would be two  16 arguments that could be then raised.  One would be by  17 the defendants that there had been an extinguishment  18 of title, and they draw some support from the Smith  19 case.  And the other would be that the -- there was no  20 legislative -- no authority within the Province to  21 affect extinguishment, bearing in mind Douglas'  22 instructions.  Which we say limited the ability of him  23 to pass grants or do anything, for that matter, in  24 contravention of the Royal Proclamation and the common  25 law without there being first some expressed  26 extinguishment to the Royal Proclamation, if you will.  27 So the argument about vires could be raised at that  28 time.  But it wasn't before your lordship in the  29 ordinances.  30 After Confederation the argument in vires looms  31 larger because it is our position, and we will be  32 arguing it today, that the Provincial Government has  33 no legislative access after Confederation to issue  34 grants which have the effect of dispossessing the  35 Indian people of their title.  So it boils down both  36 before and after Confederation to a question of  37 legislative competence.  38 THE COURT:  All right.  Well, I will be happy to reserve on all  39 of this until I've heard your submission.  And it is  40 just another loose end that is whirling around that I  41 am trying to get a handle on.  42 MS. MANDELL:  I hope that by the end of the day I will have  43 helped you.  It is just that we would have a harder  44 time -- in my view, the plaintiffs will have a harder  45 time if after Confederation the Federal Crown, who  46 will argue has the ability to extinguish title,  47 actually issued, did issue Crown grants to third 25931  Submissions by Ms. Mandell  1 parties who dispossessed Indians.  And at that point,  2 in my view, we would be walking into Simon.  That is  3 extinguishment can't be lightly applied and has to be  4 founded on the bedrock of specific lands.  And the  5 Smith case that argues that once possession has been  6 taken over by a third party, there is a stronger  7 argument that the adverse possession has dispossessed  8 the Indian people, provided, of course, that the  9 legislation which did it was clear and express.  10  11 And I think that had it been after Confederation  12 Federal grants we would certainly be in a different  13 argument than we are today where we will argue that  14 the Provincial Crown has, after Confederation, no  15 authority to issue Crown grants and degradation of  16 aboriginal title.  17 THE COURT:  All right.  Well, your argument last night has  18 raised this question in my mind.  And which, as is so  19 often the case, leads to yet another question.  Which  20 would be that if the Province has jurisdiction to deal  21 with lands after Confederation, and I take it -- and I  22 am speaking here again very generally and not wanting  23 to make assumptions, that Confederation gave British  24 Columbia jurisdiction over land in the Province --  25 MS. MANDELL:  I will walk into that one, too.  26 THE COURT:  — that that could inconsistent legislation.  That  27 is inconsistent with aboriginal rights after  28 Confederation might also have a -- have the effect,  29 without actually being intended for that purpose, of  30 extinguishing an aboriginal title.  And you will deal  31 with that?  32 MS. MANDELL:  I will.  That is the subject I will be talking  33 about for the main today.  34 THE COURT:  Well, you have started me down a path that I would  35 be glad if you --  36 MS. MANDELL:  Lead you through.  37 THE COURT:  — lead me to the right destination.  38 MS. MANDELL:  Thank you.  3 9 THE COURT:  Thank you.  40 MS. MANDELL:  My lord —  41 MR. GOLDIE:  I will be surprised if it is the same destination I  42 have in mind.  43 MS. MANDELL:  I am sure we will all start at the same point.  44 THE COURT:  We will all be surprised.  You are on page 266?  45 MS. MANDELL:  Yes, I am.  My lord, I am just going to explain to  4 6 you what you can expect over the next few hours.  The  47              material which I have handed up to you attempts to 25932  Submissions by Ms. Mandell  1 explain the distribution of legislative authority over  2 Indians and Indian land before and at Confederation.  3 And I will then address the Terms of Union, and submit  4 to you as to what we say is its legal effect.  5  6 This afternoon I will address you on the questions  7 which you've raised, although you'll soon see that all  8 issues seem to tie into one big ball, that after  9 Confederation the Province has no legislative  10 capability of extinguishing aboriginal title directly,  11 or either indirectly.  And if I can make haste, make  12 haste and paste, I would like to be finished this part  13 of the argument by whenever we break this afternoon or  14 earlier.  And Mr. Rush will pick up at that point and  15 address you on the post-Confederation --  16 THE COURT:  Yes.  17 MS. MANDELL:  — affirmation of aboriginal rights.  18 THE COURT:  Well, my schedule shows that we are going to sit  19 until 5:30 this afternoon.  20 MS. MANDELL:  I am sure I can talk slow and be finished.  21 THE COURT:  Yes, all right.  I take it Mr. Rush won't start  22 before 7 o'clock?  23 MS. MANDELL:  Well, that is what he is expecting.  But I suppose  24 he could start earlier if I finish.  2 5 THE COURT:  Yes.  26 MS. MANDELL:  I would like to review for you the position of  27 aboriginal title and federalism.  And I want to start  28 with the period before Confederation.  We have already  29 submitted that aboriginal title at common law is a  30 burden on the Crown's underlying title.  And I am not  31 going to take you through all the very many quotes  32 that Mr. Jackson did.  But I have repeated them there  33 to the end of page 267 to remind your lordship of the  34 various ways of which aboriginal title and Crown title  35 before Confederation has been described by the  36 authorities.  37 And if I could take you to 268.  Before  38 Confederation, we submit the following, that Crown  39 title was subject to the control of both the colonial  40 government and the Imperial government, while  41 aboriginal title was a pre-existing legal right in the  42 Indian Nations, who had occupied their homelands  43 before the arrival of the non-Indians.  44  45 That legislative responsibility and authority for  46 Indians and Indian lands was also in both the Colonial  47 government and the Imperial parliament as these 25933  Submissions by Ms. Mandell  1 governments were responsible for the honour of the  2 Crown in its dealings with the Indians.  3  4 The two governments had authority and did pass  5 laws respecting Indians and Indians lands, to enter  6 into treaties with the Indians on behalf of the Crown,  7 and to otherwise protect the Indians in their dealings  8 with non-treaty -- it should be in their dealings with  9 non-Indian people.  10 MR. GOLDIE:  Non-Indians?  11 MS. MANDELL:  Yes.  12 MR. GOLDIE:  What Colonial government are you referring to in  13 paragraph 3, the two governments?  14 MS. MANDELL:  Both the Colonial government and the Imperial  15 parliament.  16 MR. GOLDIE:  I am not aware that the government of the mainland  17 entered into any treaties.  18 MS. MANDELL:  I said they had the authority to.  19 MR. GOLDIE:  I see.  20 MS. MANDELL:  And it was together because the Colony is still  21 very much a Colony.  And we say that with respect to  22 the issue of lands and also in respect of the issue of  23 Indians that both of those two parliaments or  24 governments were responsible in these areas.  25  26 The exercise of jurisdiction by both governments  27 over Indians and Indian land was contained by the  28 common law principles recognizing aboriginal title and  29 the Royal Proclamation of 1763 which we have argued  30 applied to the Colonial proprio vigore.  31  32 Lord Denning in R. v. Foreiegn Secretary in State  33 held that at the time of the formation of the Colony,  34 the Crown was single and indivisible.  The Indian  35 title, he noted:  36  37 "Was a title superior to all others save in so  38 far as the Indians themselves surrendered or  39 ceded it to the Crown.  That title was  4 0                     guaranteed to them by the Crown."  41  42 Now, at Confederation we first deal with the  43 Provincial interest.  And I will deal with this in  44 more detail this afternoon.  But I did want to get out  45 some of the basic points here.  Crown title was  46 subject to the control of the Provincial government by  47 Section 109.  By Section 109 Crown title was expressly 25934  Submissions by Ms. Mandell  1 subject to aboriginal title.  And I have repeated 109  2 there.  And I draw to your attention that:  3  4 "All Lands, Mines, Minerals, and Royalties  5 belonging to the Provinces ..."  6  7 And then at the bottom are:  8  9 "...subject to any Trusts existing in respect  10 thereof, and to any Interest other than that of  11 the Province in the same."  12  13 THE COURT:  You say that aboriginal title is a trust?  14 MS. MANDELL:  Well, St. Catherine's Milling held that it was an  15 interest other than that of the Province within the  16 meaning of Section 109.  17 THE COURT:  You say an interest?  18 MS. MANDELL:  An interest.  19 THE COURT:  You don't say it is a trust?  20 MS. MANDELL:  An interest other than that of the Province.  21 THE COURT:  Yes.  22 MS. MANDELL:  In the case of the Province of Ontario v. the  23 Dominion of Canada, Mr. Justice Idington described the  24 Provincial Crown's interest, before Treaty as an  25 interest in the limited legal sense.  He said:  26  27 "Indeed, the province has not yet got any  28 actual, but only in a limited legal sense,  29 possession of much of the land over which the  30 Indian roams in his hunting and fishing as he  31 had done before."  32  33 Now, once the land has been disencumbered by the  34 Indian interests, the Provincial rights in the land  35 are plenary.  36  37 Now, I would like to deal with the Federal  38 interest and responsible.  Legislative responsibility  39 for Indians and lands reserved for Indians became the  40 exclusive legislative domain of the Federal Government  41 under Section 91(24).  42 THE COURT:  Is that 91(24)?  43 MS. MANDELL:  It should be 91(24).  Which gave the Federal  44 government legislative control over the "Indians and  45 lands reserved for Indians."  46  47 The cases clearly established that section 91(24) 25935  Submissions by Ms. Mandell  1 did not vest in the Federal government any proprietory  2 rights in lands burdened by aboriginal title or any  3 power to appropriate by legislation land which by  4 surrender of Indian title had become the free public  5 land of the Province, as such would be an infringement  6 of the proprietary rights of the Province.  The law  7 was recently stated by the Alberta Court of Appeal in  8 Re Stoney Plain Indian Reserve:  9  10 "The St. Catherine's Milling case was followed  11 in the Seybold case, and the Star Chrome case.  12 In the Seybold case, the issue was whether the  13 full beneficial interest in land surrendered by  14 the Indians passed, upon surrender, to the  15 federal government or the Province of Ontario.  16 In following the principle set down in St.  17 Catherine's case, the Privy Council held that,  18 upon surrender of the Indian interest, the  19 title to the lands affected by the surrender  20 became vested in the Crown in right of the  21 Province, freed from the burden of that  22 interest.  In delivering the decision of the  23 Privy Council, Lord Davey stated:  24  25 'By Section 91 of the British North America  26 Act, 1867, the Parliament of Canada has  27 exclusive legislative authority over  28 "Indians and lands reserved for the  29 Indians."  But this did not vest in the  30 Government of the Dominion any proprietary  31 rights in such lands, or any power by  32 legislation to appropriate lands which by  33 the surrender of the Indian title had  34 become the free public lands of the  35 province as an Indian reserve, in  36 infringement of the proprietary rights of  37 the province."  38  39 And they repeat the fishery case where you can have  40 jurisdiction and province separately divided.  41  42 The jurisdiction is assumed by the Federal  43 Government under section 91(24) included the  44 jurisdiction to include treaties, and we will submit  45 to you more later on, and to protect Indians and  46 Indians land according to the policy expressed in the  47 Royal Proclamation. 25936  Submissions by Ms. Mandell  1  2 In the case of Lord Denning's decision in the case  3 of Secretary of State, he described 91(24) powers in  4 these terms:  5  6 Section 91(24) gave the Dominion Parliament the  7 exclusive power to legislate for "Indians, and  8 the lands reserved for the Indians."  The Act  9 contained nothing specific about the executive  10 power, but I think it mirrored the legislative  11 division so that the executive power in regard  12 to the "Indians, and the lands reserved for the  13 Indians" was vested in the Governor-General of  14 the Dominion, acting through his  15 representative: and he in turn represented the  16 Queen of England, that is the Crown -- which,  17 as I have said, was in our constitutional law  18 at that time was regarded as one and  19 indivisible.  20 Save for that reference in section 91(24) the  21 Act of 1867 was silent on Indian affairs.  22 Nothing was said to the title to property in  23 the "lands reserved for the Indians", nor the  24 revenue therefrom, nor the rights and  25 obligations of the Crown or the Indians  26 thenceforward in regard thereto.  But I have no  27 doubt that all concerned regarded the Royal  28 Proclamation of 1763 as still of binding force.  29 It was an unwritten provision which went  30 without saying.  It was binding on the  31 legislatures of the Dominion and the provinces  32 just as if there had been included in the  33 statute a sentence:  "The aboriginal peoples of  34 Canada shall continue to have all the rights  35 and freedoms as recognized by the Royal  36 Proclamation of 1763."  37  38 THE COURT:  Ms. Mandell, I have to stop and ask you what your  39 position is on authority over Indians and lands  40 reserved for Indians.  41 MS. MANDELL:  We are going to come to that.  42 THE COURT:  You are?  43 MS. MANDELL:  Right now.  You are springing ahead of me.  44 THE COURT:  Yes.  All right.  45 MS. MANDELL:  This jurisdiction to conclude treaties was in the  46 federal Crown notwithstanding that it did not have  47 title in the lands which may be required to fulfill 25937  Submissions by Ms. Mandell  1 the terms of the treaty or to generate revenue to buy  2 out the Indian interest.  Judge Idington decided this  3 point in the Royalties case.  In that case the Federal  4 government argued that the Province had fiscal  5 responsible in fullfilling the terms of Treaty 3.  The  6 court refused to grant relief to the Federal  7 Government, and said:  8  9 "The case as it presents itself to my mind is  10 that the Dominion was assigned by the "British  11 North America Act," 91(24), the high,  12 honourable, and onerous duties of the guardians  13 of the many races of Indians then within or  14 that might at any future time fall within the  15 borders of Canada."  16  17 I just want to pause and draw you into an argument of  18 about 10 weeks ago where the language there is  19 consistent with the perspective application of the  20 Proclamation where he is speaking about Indians then  21 within or which might at a future time fall within the  22 borders of Canada.  23  24 "...that these duties were to be discharged as  25 occasion called for, having in mind always the  26 peace, order and good government of Canada and,  27 as part and parcel thereof and not the least  28 factor in promoting all implied therein, the  29 due observance of those duties towards the  30 Indians, which the policy of the British Crown  31 had rendered of paramount importance; that the  32 discharging, in a statesmanlike way, when the  33 several occasions I have recited called for,  34 these high duties of national importance they  35 were ... discharging ... all the better by" --  36  37 THE COURT:  "They were discharged".  38 MS. MANDELL:  39 "...they were discharged all the better by  40 being freed from the tammels of being..."  41  42 It should be trammels.  43  44 "...of being confined within the narrow views  45 that the provincial range of vision might have  46 restricted action to, if the needs and wishes  47 of a single province were to be considered, or 2593?  Submissions by Ms. Mandell  1 even the dominant factor used as a guide,  2 perhaps to the detriment of national  3 interests."  4  5 I might pause here and say that although it is a point  6 I am going to be returning to when the select  7 committee in 1837 decided to put the legislative  8 authority over Indians and lands reserved for Indians  9 beyond the reach of the province and into the federal  10 domain they, too, cited the same concern that if the  11 Province had the legislative authority over Indians  12 there is, in effect, a conflict of interest possible  13 where the interests of the province and the interests  14 of the Indians may not permit the fullfilling of the  15 obligations to the Indians in the national interest  16 where there is other considerations which the province  17 may be compelled to.  18  19 Anyways, and further he goes:  20  21 "...and that there arose on the part of Ontario  22 no contractual or equitable obligation  23 enforceable in a suit at law to make good any  24 monies expended in the way claimed.  Nay, more,  25 I am unable to see how far" --  26  27    THE COURT:  "How short".  2 8    MS. MANDELL:  29 "...how short of an express understanding there  30 ever could have arisen from the discharge by  31 the Dominion of its responsibilities under  32 sub-section 24 any such legal liability on the  33 part of the province."  34  35 So here you have it, at Confederation the province got  36 their lands, mines, minerals and royalties subject to  37 existing aboriginal title.  And the federal government  38 got the jurisdiction to legislate for Indians and land  39 reserved for Indians, constrained as it was by Crown's  40 obligations and its lack of title to land in the  41 province.  42  43 Now, I would like to deal with the Indian  44 interest.  "Lands reserved for Indians" within the  45 meaning of Section 91(24) includes both Indians rights  46 to and in respect of lands by reason of aboriginal  47 title and reserves set aside and placed under the 25939  Submissions by Ms. Mandell  1 statutory regime of the Indian Act.  2  3 This was the holding of the Privy Council in the  4 St. Catherine's Milling case where that issue was  5 raised.  And it was argued that "lands reserved for  6 Indians" included only restricted Indian Act reserves.  7 And the Privy Council rejected that argument and said:  8  9 "The argument might have deserved consideration  10 if the expression had been adopted by the  11 British Parliament in 1867, but it does not  12 occur in section 91(24), and the words actually  13 used are, according to their natural meaning,  14 sufficient to include all lands reserved, upon  15 any terms or conditions, for Indian  16 occupation."  17  18 And you will recall that the St. Catherine's Milling  19 case founded aboriginal title on a reading of the  20 Royal Proclamation.  And so here when the Privy  21 Council is referring to "all lands reserved", they  22 could, in our submission, properly be referring to  23 lands the aboriginal title of which had not been  24 extinguished and which was reserved for the Indians as  25 stated in the Royal Proclamation.  26  27 "It appears to be the plain policy of the Act  28 that, in order to ensure uniformity of  29 administration, all such lands and Indian  30 affairs generally, shall be under the  31 legislative control of one central authority."  32  33 THE COURT:  Ms. Mandell, it may appear, and if it does, tell me,  34 but does your argument that lands reserved for Indians  35 include burdened lands depend upon the application of  36 the Royal Proclamation of British Columbia?  37 MS. MANDELL:  No.  38 THE COURT:  Okay.  39 MS. MANDELL:  We say that lands reserved for Indians under  40 Section 91(24) includes both lands which are burdened  41 by aboriginal title and lands within the Indian Act.  42 And we rely upon the Privy Council case in its  43 refusal --  44 THE COURT:  You mean St. Catherine's?  45 MS. MANDELL:  Yes.  The Privy Council case in St. Catherine's.  4 6 THE COURT:  Yes.  47 MS. MANDELL:  In its refusal to accept the limited meaning and 25940  Submissions by Ms. Mandell  1 it's acceptance of the fact that lands reserved will  2 include lands whose title have not been extinguished.  3 That common law we say was recognized in the Royal  4 Proclamation.  And it was certainly the ruling of the  5 Privy Council in St. Catherine's Milling that  6 aboriginal title there was the source.  But I will be  7 referring you to other cases, as well, and other  8 statutes where, in our submission, we say there is no  9 doubt that lands reserved for Indians include both  10 categories of land, whether or not the Proclamation  11 was in mind.  12  13 "The fact that the power of legislating for  14 Indians, and for lands which are reserved for  15 their use, has been entrusted to the Parliament  16 of the Dominion is not in the least degree  17 inconsistent with the right of the Provinces to  18 a beneficial interest in these lands, available  19 to them as a source of revenue whenever the  20 estate of the Crown is disencumbered of the  21 aboriginal title."  22  23 And that's what we submitted to you last night that  24 the interest can certainly co-exist.  25  26 "The treaty leaves the Indians no right  27 whatever to the timber growing upon the lands  28 which they gave up, which is now fully vested  2 9 in the Crown."  30  31 And that's the point I made earlier, once treaty in  32 the province does take their rights fully vested.  33  34 "...all revenues derivable from the sale of  35 such portions of it as as are situate within  36 the boundaries of Ontario being the property of  37 the Province."  38  39 And as the Privy Council said, they can now take their  40 revenues derivable from the sale of the timber.  41  42 "The fact, that it still possesses exclusive  43 power to regulate the Indians' privilege of  44 hunting and fishing, cannot confer upon the  45 Dominion power to dispose, by issuing permits  46 or otherwise, of that beneficial interest in  47 the timber which has now passed to Ontario." 25941  Submissions by Ms. Mandell  1  2 And here the Privy Council has recognized that with  3 the treaty the Federal Government still retains power  4 to regulate the privilege of hunting and fishing.  But  5 the Province now, because of the treaty, has full  6 rights to the timber to receive benefits from it.  And  7 the Provincial interest can't be limited merely  8 because the Federal Government has a legislative right  9 with respect to the protection of the hunting and  10 fishing rights.  11  12 In the case of Surrey v. Peace Arch, this is a  13 decision by our B.C. Court of Appeal, which no matter  14 who is dissenting at the Supreme Court of Canada, this  15 case has always been cited as a leading authority for  16 the proposition which was contained in it.  The  17 Cardinal case, I don't think anybody could agree on  18 anything except that Surrey v. Peace Arch applied.  In  19 the case of Surrey v. Peace Arch, the court was asked  20 to determine whether municipal zoning and other  21 building code by-laws applied to an amusement park  22 constructed on conditionally surrendered land.  23 MR. GOLDIE:  That's from reserve?  24 MS. MANDELL:  The land was at one point reserved.  25 MR. GOLDIE:  Yes.  26 MS. MANDELL:  It was then conditionally surrendered.  The court  27 held that, while the status of the land did not meet  28 the definition of a "reserve" in the Indian Act, it  29 still met the definition of lands reserved for Indians  30 within Section 91(24) of the B.N.A. Act.  The court  31 concluded that, as the Indians maintained a  32 reversionary interest, the land remained under the  33 exclusive legislative jurisdiction of Parliament and  34 provincial legislation could not apply to the use of  35 the land.  36 THE COURT:  What was the condition of the release?  37 MS. MANDELL:  It was a -- they were building an amusement park  38 so the land was conditionally surrendered for the  39 Federal Crown for the purposes of leasing it to an  40 amusement park which was then constructed on the land.  41 And the issue in Surrey arose whether municipal zoning  42 by-laws and building code permits ought to be applied  43 to the construction.  And so it involved a definition  44 of:  Well, what is the nature of the land?  If it is  45 Federal then Provincial zoning by-laws can't apply.  46 And if at that time -- there has been an amendment to  47 the Indian Act since that.  But at that time the 25942  Submissions by Ms. Mandell  1 conditionally surrendered lands were not considered to  2 be lands reserved for Indian lands within the  3 Indian Act.  And the court said:  There is still land  4 reserves because there is still an Indian interest  5 here, a reversionary interest, that although no right  6 of possession because it is now being held by  7 non-Indian people, but the reversionary interest is  8 still protected under 91(24).  9 THE COURT:  Well, the lease would have a term of years?  10 MS. MANDELL:  Oh, it was conditionally surrendered, that's  11 right.  There was the ability of the Indians to resume  12 the land in the future.  13 THE COURT:  When the lease expired?  14 MS. MANDELL:  That's right.  15 THE COURT:  Yes.  16 MR. GOLDIE:  When my friend says the Indians resumed possession,  17 it would become part of the reserve.  18 THE COURT:  Well, would it become automatically part of the  19 reserve, or would it be reverted to Canada under some  20 trust relation?  21 MS. MANDELL:  Well, there is two types of surrenders.  There is  22 a conditional surrender and an absolute surrender.  23 And when the land is surrendered absolutely, the court  24 in Smith has held that until the land is disposed of  25 the Federal Government still maintains an interest --  26 it still falls within Federal jurisdiction because  27 there is something more which can be done.  Although I  28 might say that Smith was a case where there was  29 legislation in the Province dealing with Indian  30 reserves.  And I will be getting to that later.  Which  31 may make the Smith decision somewhat different for the  32 rest of Canada.  33  34 I think a proper reading of St. Catherine's  35 Milling is that when the land is conditionally  36 surrendered it returns back to the Indians on  37 whichever conditions the surrender requires.  But it  38 is up to the trustee to do that.  When the land is  39 surrendered absolutely, I think the proper reading of  40 the law is that it should revert to the Province.  41 THE COURT:  All right.  42 MS. MANDELL:  The early Indian Acts, enacted after  43 Confederation, reflect the Federal government's  44 legislative jurisdiction over reserves and over lands  45 where there existed aboriginal title.  46  47 I am taking you now out of cases and looking at 25943  Submissions by Ms. Mandell  1 the early statutes where, after Confederation, it was  2 by the Federal government defined what they mean by  3 lands reserved for Indians.  Section 6 of the 1868  4 Indian Act provided:  5  6 "All lands reserved for Indians or for any  7 tribe, band or body of Indians, or held in  8 trust for their benefit, shall be deemed to be  9 reserved and held for the same purposes as  10 before the passing of this Act, but subject to  11 its provisions."  12  13 And then the surrender clause in the same Act:  14  15 "No release or surrender of lands reserved for  16 the use of the Indians or of any tribe, band,  17 or body of Indians, or of any individual  18 Indian, shall be valid or binding, except on  19 the following conditions."  20  21 And then there is a surrender machinery put in place.  22 Mr. Justice Davies who --  23 THE COURT:  Which case is this?  24 MS. MANDELL:  This is the Royalties case.  It is found at —  25 THE COURT:  That is the Supreme Court of Canada?  2 6 MS. MANDELL:  Yes, it is.  It is found at volume 1, tab 6.  And  27 it is 1909 decision of the Supreme Court of Canada.  2 8 THE COURT:  Yes.  Thank you.  29 MS. MANDELL:  I have referred to it earlier.  3 0 THE COURT:  Yes.  31 MS. MANDELL:  And Mr. Justice Davies, who dissented on the  32 question of the power of the federal government to  33 bind the province to an obligation to make treaty  34 payments, in the Royalties case, referred to the above  35 section, and this is the surrender section, as  36 enabling a surrender of land, a surrender of  37 non-reserved lands when Treaty 3 was concluded.  He  38 says:  39  40 "The Dominion Parliament by its legislation of  41 1868, prescribed the manner in which the  42 aboriginal title to lands might be surrendered  43 up or ceded.  I take it that after this  44 exercise of legislative power, the Dominion and  45 the Dominion alone could act so as to  46 extinguish the aboriginal title to any lands  47 within the Dominion. 25944  Submissions by Ms. Mandell  1 The right and duty of determining when and the  2 terms on which such title ought to be  3 extinguished rests with the Dominion and with  4 it alone.  Considerations arising out of and  5 affecting the peace, order and good government  6 of Canada and other considerations affecting  7 the best interests of the Indians may well have  8 entered into the minds of that government when  9 determining the times and seasons at which it  10 was desirable or necessary to make such a  11 treaty as the one made in the case before us."  12  13 And I might, and I did add, that later Indian Acts  14 defined the reserves and the surrender provisions to  15 encompass only lands specifically set aside under the  16 authority of the Indian Act.  17  18 We say it is important to note that the  19 administrative regime is different with respect to  20 Indian reserves and land over which aboriginal title  21 exists.  Indians Reserves, in the narrow sense, are  22 governed by the provisions of the Indian Act;  23 generally lands over which Indian title exists are  24 excluded from that Act.  I say generally because there  25 are some exceptions which I will be getting into  26 later.  27 Further --  28 MR. GOLDIE:  I wonder if my friend could assist me.  Does she  29 say those lands which are referred to in the last  30 clause are Section 91(24) lands?  31 MS. MANDELL:  The last clause of what?  32 MR. GOLDIE:  The last paragraph you just finished reading,  33 "generally lands over which aboriginal title exists  34 are excluded from the Act".  35 MS. MANDELL:  Yes, Section 91(24) lands.  I am here stating that  36 when you look at reserve lands, the administrative  37 regime governing those lands is different.  Indian  38 reserves in the narrow sense are governed by the  39 Indian Act generally, but not always.  There isn't  40 legislation comparable governing the Indian interest  41 in off reserve lands.  And we say that they are  42 different, too, because in some provinces, and that is  43 including British Columbia, by agreement the province  44 has passed part of its underlying title in reserve  45 lands to the federal government.  46  47 However, in spite of the fact that there is 25945  Submissions by Ms. Mandell  1 differences in administrative regime, and often  2 differences in how the underlying title is held and in  3 which government, it has been stated for over a  4 century in the courts, and most recently in Guerin,  5 that whether the land is reserved or lands over which  6 Indian people exercise their aboriginal title, the  7 Indian interest in the land is the same in both cases.  8 And that's when Mr. Justice Dickson stated when he  9 said in Guerin:  10  11 "It does not matter, in my opinion, that the  12 present case is concerned with the interest of  13 an Indian band in a reserve rather than with  14 unrecognized aboriginal title in traditional  15 tribal lands.  The Indian interest in the land  16 is the same in both cases."  17  18 And then he cites the Star Chrome case.  And he says:  19  20 "It is worth noting, however, that the reserve  21 in question here was created out of the ancient  22 tribal territory of the Musqueam Band by the  23 unilateral action of the Colony of British  24 Columbia, prior to Confederation."  25  26 So now let's try and see what that Indian interest in  27 land looks like according to the statutes and in  28 cases.  29  30 The various Indians Acts and cases have defined  31 the interest of Indians and reserve lands.  And we say  32 that because the Indian interest is the same in both  33 cases, the definition of Indians in reserve lands  34 provides a framework to identify the scope of Indian  35 interests both on and off reserve.  36  37 And I refer to the 1879 Indian Act which defined  38 Indian interest in the reserve in these terms:  39  40 "The term "reserve" means any tract or tracts  41 of land set apart by treaty or otherwise for  42 the use or benefit of or granted to a  43 particular band of Indians, of which the legal  44 title is in the Crown, but which is  45 unsurrendered, and includes all the trees,  46 wood, timber, soil, stone, minerals, metals, or  47 whatever valuables thereon or therein." 25946  Submissions by Ms. Mandell  1  2 The same Act protected the Indians in their right of  3 possession.  And this clause which is found in the  4 1879 Act, while it's been changed from time to time  5 over the years, a similar provision continues to exist  6 in the present-day Indian Act where it is made an  7 offence for non-Indian people to settle, reside, hunt  8 upon, occupy or use any lands which are part of the  9 Indian reserve.  And I should advise that the wording,  10 as I said, has changed.  But it was under a provision  11 which is a parallel provision to this that the Smith  12 case, which we've been referring to over the last few  13 days, was decided.  14  15 In the case of Derrickson, Mr. Justice Chouinard  16 held at page 296:  17  18 "The right to possession of lands on an Indian  19 reserve is manifestly of the very essence of  20 the federal legislative power under section  21 91(24) of the Constitution Act."  22  23 In Surrey v. Peace Arch the court held that even if  24 the Indians had surrendered conditionally their right  25 of possession, the Band still had a reversionary  26 interest which would enable possession in the future.  27  28 And finally, in the Paul case the court said at  29 page 678:  30  31 "The inescapable conclusion from the Court's  32 analysis of Indian title up to this point is  33 that the Indian interest in land is truly sui  34 generis.  It is more than the right to  35 enjoyment and occupation, although as Mr.  36 Justice Dickson pointed out in Guerin, it is  37 difficult to describe what more in traditional  38 property law terminology."  39  40 The Plaintiffs have urged on this Court that property  41 defined by the evidence, the Plaintiffs' sui generis  42 aboriginal right is characterized by ownship and  43 jurisdiction.  It is this Indian interest which is a  44 burden on the Crown (Provincial) title and which is  45 under the legislative authority of the Federal  4 6 Government entrusted with the Crown's honour under  47 Section 91(24) of the Constitution Act. 25947  Submissions by Ms. Mandell  1  2 Now, I would like to see what happened at terms --  3 when are we breaking?  4 THE COURT:  At 11, if that's convenient.  5 MS. MANDELL:  Yes, that's fine.  So British Columbia joined  6 Confederation on 1871.  Clause 13 of the Terms of  7 Union contains the language regarding Indians and  8 Indian lands.  And I am going to read it to you again,  9 although you've probably heard it.  10 THE COURT:  I thought that Mr. Rush argued that a few minutes  11 ago.  I thought he argued that we see joined  12 Confederation on July 20, 1871.  13 MS. MANDELL:  You know, at this point either one of us is right.  14 THE COURT:  All right.  15 MS. MANDELL:  I would normally defer to him, but I am going to  16 have to check it for you.  17 THE COURT:  All right.  18 MS. MANDELL:  July 20th, I'm wrong.  19 THE COURT:  It is July 20th, right?  2 0 MS. MANDELL:  Yes.  21 THE COURT:  Do you agree, Mr. Goldie?  22 MR. GOLDIE:  I think that's the date of the Order-in-Council, my  23 lord.  24 THE COURT:  All right.  25 MS. MANDELL:  Something may have happened in the spring.  And  26 I'll try to find out what it was.  27 THE COURT:  I'm sure lots of things.  What date did you have?  28 MS. MANDELL:  May 16th.  29 THE COURT:  That was the date it was approved in the House of  3 0 Commons.  31 MS. MANDELL:  What do they say, some rhyme to my reason.  32 THE COURT:  Yes.  33 MS. MANDELL:  Clause 13 of the Terms of Union regarding Indians  34 and Indian lands.  There are two paragraphs both of  35 which are important:  36  37 "The charge of the Indians, and the trusteeship  38 and management of the lands reserved for their  39 use and benefit, shall be assumed by the  40 Dominion Government, and a policy as  41 liberal..."  42  43 And you've heard a lot of discussion about liberal  44 this morning.  45  46 "...as that hitherto pursued by the British  47 Columbia Government shall be continued by the 2594?  Submissions by Ms. Mandell  1 Dominion Government after the Union.  2 To carry out the policy, tracts of land of  3 such extent as it has hitherto been the  4 practice of the British Columbia Government  5 appropriate for that purpose, shall from time  6 to time be conveyed by the local government to  7 the Dominion Government in trust for the use  8 and benefit of the Indians on applications of  9 the Dominion Government; and in case of  10 disagreement between the two governments  11 respecting the quantity of such tracts of land  12 to be so granted, the matter shall be referred  13 for the decision of the Secretary of State for  14 the Colonies."  15  16 Now, as I understand the Provincial defendant's  17 argument, they argue that Clause 13 has the legal  18 effect of extinguishing aboriginal title except for  19 those lands which are or will be reserved for the  20 Indians.  21 MR. GOLDIE:  I don't think that's our position, my lord.  But  22 you carry on, I'm sorry.  23 MS. MANDELL:  Well, I should actually get correct the position  24 that I am rebutting.  I believe that the Province does  25 state in a much more elaborate way that there was no  26 title by this time.  But I believe that their  27 alternative argument was that if there was title that  28 it was extinguished by Clause 13, and the reserve  29 provision clauses are the preservation of the Indian  30 title for the Indian people.  31  32 It is submitted that such an argument runs  33 contrary to the Constitution and violates fundamental  34 principles of the common law.  My lord, I am  35 proceeding with this argument on the basis that title  36 has survived to Confederation.  37 THE COURT:  Yes.  38 MS. MANDELL:  I hope I persuaded you last night.  And I am now  39 at the door of -- I am at the door of the terms.  And  40 we are saying on the basis that title is here, we are  41 saying:  What did the terms of Union do?  42 THE COURT:  Yes.  43 MS. MANDELL:  B.C. entered Confederation through the vehicle of  44 Section 146 of the Constitution Act which provided,  45 and you can read it.  You've probably read it a lot.  46 But I only wanted to draw to your attention the  47 underscored provisions which is that they enter 25949  Submissions by Ms. Mandell  1 subject to the Provisions of this Act, which is the  2 B.N.A. Act.  3 THE COURT:  Yes.  4 MS. MANDELL:  And we say that it is to be noted that B.C.'s  5 entry into Confederation was subject to the provisions  6 of the Act, including Section 91(24) and 109, wherein  7 aboriginal title was recognized as a burden on  8 Provincial Crown title, and under the legislative  9 authority of the Federal government.  10  11 The courts have held that Section 109 applies to  12 British Columbia.  In the case of the Precious Metals  13 case, A.G.B.C. v. A.G. Canada, the Privy Council held  14 at page 304:  15  16 "Their Lordships do not think it admits of  17 doubt, and it was not disputed at bar, that  18 Section 109 of the British North America Act  19 must now be read as if British Columbia was one  20 of the provinces therein enumerated.  With that  21 alteration, it enacts that "all lands, mines,  22 minerals and royalties," which belonged to the  23 the Province at the time of the union, shall in  24 the future belong to the Province and not to  25 the Dominion."  26  27 And in the case of R. v. White & Bob, Justice  28 Norris stated:  29  30 "Section 109 of the British North America Act,  31 which became applicable to include in its terms  32 British Columbia when the province entered  33 Confederation in 1871, reads as follows."  34  35 And then he cited it.  36  37 And in the case of R. v. Mercer, M-E-R-C-E-R, a  38 cite which I have got for your lordship, holds the  39 same thing.  4 0    THE COURT:  Finish your thought.  41 MS. MANDELL:  I can start where I'm going again.  42 THE COURT:  We will take the morning adjournment then.  43  44  45  46  47 25950  Submissions by Ms. Mandell  1 THE REGISTRAR:  Order in court.  Court stands adjourned for a  2 short recess.  3 (PROCEEDINGS ADJOURNED AT 11:00)  4  5 I hereby certify the foregoing to  6 be a true and accurate transcript  7 of the proceedings transcribed to  8 the best of my skill and ability.  9  10  11  12    13 Lisa Franko,  14 Official Reporter,  15 UNITED REPORTING SERVICE LTD.  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 25951  Proceedings  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Miss Mandell.  4 MR. GOLDIE:  My lord, I'm going to retract something I said.  I  5 said that the date of the Order in Council was the  6 20th of July.  The date of the Order in Council is the  7 16th of May, 1871.  8 THE COURT:  Ms. Mandell was right.  9 MR. GOLDIE:  But the entry of British Columbia into the union,  10 which shall be admitted and become part of the  11 dominion, is from and after the 18th of July, 1871.  12 THE COURT:  That's a requirement for the Imperial Order In  13 Council as well.  14 MR. GOLDIE:  It's in the Imperial Order in Council.  15 THE COURT:  So it's effective of that date.  16 MR. GOLDIE:  The Imperial Order in Council is the 16th of May,  17 but the entry of British Columbia takes effect from  18 and after the 18th of July, 1871.  19 THE COURT:  The only thing I have of that is I think that Mr.  2 0 Rush told me this morning that the dominion was  21 approved by the House of Commons on the 16th of May.  22 They may be the same date.  23 MR. GOLDIE:  I doubt it, my lord.  The —  24 THE COURT:  I'm not sure that we should be —  25 MS. KOENIGSBERG:  I understood — if I can help you, it's on  26 page 75 of the argument of the Attorney General of  27 Canada to the Province's counterclaim.  It says:  28  2 9 "The terms were approved in Ottawa and  30 Trutch went out to London to get final  31 approval.  On May 16th, 1871, an Imperial  32 Order in Council was passed (incorporating  33 the resolutions of the B.C. legislative  34 council and the Canadian House of Commons  35 and Senate) joining British Columbia to  36 Canada on July 20, 1871."  37  38 And that's Exhibits 1038, 1200 and 1201 and those  39 particular tabs.  40 THE COURT:  All right.  Thank you.  Well, let's — let's push  41 on.  42 MS. MANDELL:  Thank you.  I was going to thank my friend for  43 assistance.  44 My lord, I was at page 282.  45 THE COURT:  Yes.  Oh, here we have it on page 258.  No.  I'm  46 sorry.  It's not.  Terms of the Union incorporated in  47 the Dominion Order in Council in July 1st, 1878 on 25952  Submissions by Ms. Mandell  1 page 258.  I suppose that could be -- that could also  2 be it, could it?  3 MS. MANDELL:  This sounds like the beginning of a domestic  4 dispute.  5 THE COURT:  Yes, it does.  6 MR. GOLDIE:  The Dominion Order in Council is dated the 1st of  7 July, 1878.  8 THE COURT:  All right.  Yes.  All right.  Thank you.  2 82.  The  9 trouble with this sort of thing is the academics will  10 quarrel over it for years after we've forgotten about  11 it.  They'll correct us.  12 MS. MANDELL:  Unless you correct them.  Thank you.  I'm at 282.  13 I'm in the middle of demonstrating that the Provincial  14 Government, when they entered Confederation through  15 the vehicle of Section 146 of the Constitution Act,  16 were subject to the limitations on Crown title imposed  17 by Section 109 and that Article 13 did not have the  18 effect of making the Terms of Union paramount over  19 Section 109 as British Columbia entered Confederation.  20 And I at the bottom of page 282 state:  Had  21 British Columbia wished to make the application of  22 Section 109 and 91(24) subject to the Terms of Union  23 and not the other way around, it could have done so  24 expressly.  And I refer to your lordship Section 1 of  25 the 1930 B.N.A. Act, which is the reflection of the  26 transfer agreements between Alberta and the Federal  27 Government.  But the section appears in all three of  28 the Provincial transfer agreements, and it reads:  29  30 "In order that the Province may be in the  31 same position as the original Provinces of  32 Confederation are in virtue of Section 109  33 of the B.N.A. Act, the interest of the Crown  34 in all Crown lands, mines, minerals  35 (precious and base) and royalties derived  36 therefrom within the Province, and all sums  37 due and payable for such lands, mines,  38 minerals and royalties shall from and after  39 the coming into force of this agreement and  40 subject as therein otherwise provided,  41 belong to the Province subject to any trusts  42 existing in respect thereof."  43  44 And one of the internal clauses to the transfer  45 agreement was Section 12, which provided that:  46  47 "In order to secure to the Indians of the 25953  Submissions by Ms. Mandell  1 Province for continuance of the supply of  2 game and fish for their support and  3 subsistence, Canada agrees that the laws  4 respecting game in force in the Province  5 from time to time shall apply to the Indians  6 within the boundaries thereof, provided,  7 however, that the said Indians shall have  8 the right, which the Province hereby assures  9 to them, of hunting, trapping and fishing  10 game and fish for food at all seasons of the  11 year on all unoccupied Crown lands and on  12 any other lands to which the said Indians  13 may have a right of access."  14  15 And that's a different arrangement than would be  16 provided for under 109 and 91(24).  17 And in the case of Cardinal, the Court considered  18 the effect of Section 12 of the Natural Resource  19 Transfer Agreement on a charge of selling meat on an  20 Indian reserve.  The Court reviewed the effect of  21 Section 1 and concluded at page 699 that "Sections  22 10" -- which is the reserve clause.  I'll refer you to  23 that later -- "and 12 of the Agreement were given the  24 force of law notwithstanding anything in the B.N.A.  25 Act".  Further, at page 708:  26  27 "In my opinion, the meaning of Section 12 is  28 that Canada, clothed as it was with  29 legislative jurisdiction over 'Indians and  30 lands reserved for the Indians', in order to  31 achieve the purpose of the section, agreed  32 to the imposition of provincial controls  33 over hunting and fishing, which previously  34 the Province might not have had the power to  35 impose.  By its express wording, it provides  36 that the game laws of the Province shall  37 apply 'to the Indians within the boundaries  38 thereof.  To me this must contemplate their  39 application to all Indians within the  40 Province without restriction as to where  41 within the Province that may."  42  43 So we say that at the signing of the Terms of Union  44 had B.C. wished to override the burden on Crown title  45 imposed by Section 109 and extinguished aboriginal  46 title at that time and substituted rights to the  47 Indians to reserve lands alone, this could have been 25954  Submissions by Ms. Mandell  1 done expressly, and we say it was not.  2 THE COURT:  When was the date of the transfer agreements?  3 MS. MANDELL:  1930.  4 THE COURT:  Right.  5 MS. MANDELL:  I should just tell you one other thing about the  6 transfer agreements before we pass on, because it  7 relates to 109.  There's an express clause in the --  8 the land is federal.  The Provinces didn't have their  9 lands, mines, and minerals and royalties until 1930.  10 And when the land was transferred from the Hudson's  11 Bay Company to Canada through the Orders in Council,  12 there was an express clause put in which required that  13 settlement -- before settlement take place, the  14 treaties be made with the Indians.  And I know the  15 Federal Crown refers to that in its counterclaim, but  16 the reason that that clause was required was to  17 protect the Indian interests in the absence of 109,  18 which wouldn't have applied being that the land at  19 that time was federal alone.  20 Now, when there was the transfer agreement, the  21 land became provincial land, you see what went on.  22 There had been treaties made with many, but not all,  23 of the Indians in the interim period, and we've just  24 seen the arrangement whereby Section 1 there were --  25 the transfer agreement was intended to place the  26 Provinces in the same position as everybody else, and  27 arrangements which had been made with the Indians were  28 specified in Sections 10 and 12, involving hunting  29 rights and the reserve.  30 But this particular constitutional history, as I  31 see it, is quite supportive of the overall attention  32 paid by the Imperial Government during the  33 constitutional development of the country that  34 aboriginal title be protected by some means as the  35 territories are folded into the Confederation.  36 I'm at page 284.  The constitutional arrangements  37 settled by Clause 13, we say, addressed a problem  38 created at Confederation by the division of Provincial  39 property interests and Federal legislative authority  40 already discussed above.  41 Your lordship will recall without my repeating it  42 in detail that here you've got the Federal Government  43 who has before treaty and after no property interests  44 in the land.  If the Federal Government wants to go  45 and make treaty with the Indians, it runs the risk,  46 according to the royalties case, of going out and  47 promising the world but not being able to deliver any 25955  Submissions by Ms. Mandell  1 land at all because the land is within the provincial  2 domain once it's been surrendered pursuant to the  3 treaty.  Before treaty you've got the Federal  4 Government still having the responsibilities over  5 Indians and lands reserved for Indians, but to the  6 extent that there is a reversionary interest or the  7 Crown title remaining in the Province, it becomes  8 quite difficult for the Federal Government to manage  9 the lands or conditionally surrender them or surrender  10 them to third parties, in fact deal with the land for  11 the benefit of the Indians.  12 And this constitutional dilemma has been addressed  13 by virtually all the Provinces in one way or another  14 in making separate agreements in terms of how the  15 Provincial and Federal Governments will deal with the  16 issue of reserve lands, and the agreements like Clause  17 13 usually involve some kind of formula where the  18 Provincial Government yields up to the Federal  19 Government some or all of its reversionary interest in  2 0 order that the Federal Government can deal with  21 reserve lands in a more full way for the benefit of  22 the Indians.  And we say this is what Clause 13 is  23 about and it's certainly not about extinguishment of  24 title.  25 And at the bottom of 284 I begin to illustrate  26 this aspect of the argument.  Clause 13 was one of the  27 many agreements made between the Federal and  28 Provincial Governments across the country, which  29 provided a mechanism to establish reserves bearing in  30 mind the constitutional arrangement.  While the terms  31 of the Agreements do vary in each case, sufficient  32 interest or control in reserve lands are transferred  33 from the Province to the Federal Government to enable  34 the Federal Government to fulfil its mandate under  35 92(24) regarding both the conclusion of treaties or  36 the establishment of reserves.  37 I direct here your lordship's attention to the  38 case of Ontario Mining and Seybold.  And the dilemma  39 and the solution of Ontario was there discussed:  40  41 "By Section 91 of the British North America  42 Act, the Parliament of Canada has exclusive  43 legislative authority over 'Indians and lands  44 reserved for the Indians.'  But this did not  45 vest in the Government of the Dominion any  46 proprietary rights in such lands or any power  47 by legislation to appropriate lands which by 25956  Submissions by Ms. Mandell  1 the surrender of the Indian title had become  2 the free public lands of the province in an  3 Indian reserve, in infringement of the  4 proprietary rights of the Province... Let it be  5 assumed that the Government of the province,  6 taking advantage of the surrender of 1873, came  7 at least under an honourable engagement to  8 fulfil the terms on the faith of which the  9 surrender was made and, therefore, to concur  10 with the Dominion Government in appropriating  11 certain undefined portions of the surrendered  12 lands as Indian reserves.  The result, however,  13 is that the choice and location of the lands to  14 be so appropriated could only be effectively  15 made by the joint action of the two  16 governments."  17  18 This is presuming they agree.  If they didn't agree,  19 we'd be in a worse position.  20  21 "It is unnecessary to say more on this point,  22 for as between the two governments the question  23 has been set at rest by an agreement  24 incorporated in two identical acts of the  25 Parliament of Canada."  26  27 And these acts are in our next series, which you  28 should get by Friday.  But if you'd like to see them,  29 I have copies of them here, although I do think that  30 Mr. Justice Davies summarizes them effectively.  31  32 "In this statutory agreement it is recited that  33 since the Treaty of 1873 the true boundaries of  34 Ontario had been ascertained and declared to  35 include part of the territory surrendered by  36 the treaty, and that before the true boundaries  37 had been ascertained, the Government of Canada  38 had selected and set aside certain reserves for  39 the Indians in intended pursuance of the  40 treaty, and that the Government of Ontario was  41 no party to the selection and had not yet  42 concurred therein; and it is agreed by Article  43 1 (amongst other things) that the concurrence  44 of the Province of Ontario is required in the  45 selection.  By subsequent articles provision is  46 made, 'in order to avoid dissatisfaction or  47 discontent among the Indians' for full inquiry 25957  Submissions by Ms. Mandell  1 being made by the Government of Ontario as to  2 the reserves, and in case of dissatisfaction by  3 the last-named government with any of the  4 reserves already selected, or in case of the  5 selection of reserves --  6  7 MR. GOLDIE:  Other reserves.  8 MS. MANDELL:  I'm sorry.  That's right.  9  10 "... or in case of the selection of other  11 reserves, for the appointment of a joint  12 commission to settle and determine all  13 questions relating thereto."  14  15  16 And there was an accompanying Federal Act which  17 appointed the commission.  You'll see the formula is  18 not unlike British Columbia where the two governments  19 agree to what they're going to do and there's an  20 arbitration provision put in as to the selection or  21 the location of reserves.  And in British Columbia the  22 arbitration is with reference to the secretary and  23 state of the colonies in case of dispute and here the  24 dispute is to this commission which has been set up.  25 MR. GOLDIE:  Of course, your lordship will bear in mind that  26 they're two very different circumstances.  Clause 13  27 was entered into before St. Catherine's Milling had  28 been decided.  2 9    THE COURT:  Yes.  30 MR. GOLDIE:  These statutes have been entered into after St.  31 Catherine's Milling.  32 MS. MANDELL:  That's true.  I say that the constitution  33 arrangement though was settled and clear and it was  34 clarified to this extent:  That it was -- that the  35 British Columbia Government and the Federal Government  36 each knew that they needed each other to resolve the  37 Indian question -- or Indian land questions and  38 reserves.  39 Now, the extent to which all that panned out in  40 the courts has clarified the situation for other  41 provinces, including British Columbia, in the future.  42 But I say that the -- the division of power at  43 Confederation and Clause 13 is consistent with the  44 problems which we saw set in place by 1867, which was  45 that both governments needed each other in order to  46 resolve the questions involving Indian lands.  47 THE COURT:  Why do I have to worry about the Ontario regions? 2595?  Submissions by Ms. Mandell  1 MS. MANDELL:  Well, you don't.  I'm drawing your attention to  2 Ontario.  Then I'm going to do Quebec where there is  3 no treaties.  It's more similar to British Columbia  4 and New Brunswick, no treaty.  Only to illustrate that  5 the proposition that we assert, and that is that  6 Clause 13 was about figuring out a way to deal with  7 the conveyance of reserve lands so that the Federal  8 Government could fulfil its mandate, is the purpose of  9 Clause 13, and it's not single-handedly something  10 which the Province of British Columbia itself had to  11 contend with.  It was a general province because of  12 the nature of the constitutional arrangements  13 throughout the country.  And all of the other  14 legislation is just illustrative that each Province  15 dealt with the same problem in their own way, but in  16 each province there was an agreement made like Clause  17 13 which helped to settle the issues.  18 THE COURT:  All right.  19 MS. MANDELL:  I'll just draw to your attention some of the other  20 agreements.  There was both the Quebec and Ontario  21 Boundary Extension Act of 1912.  Quebec, like British  22 Columbia, was a province where treaties had not been  23 concluded before the passage of this Act.  And I draw  24 to your attention by agreement Sections 2(c), (d) and  25 (e):  26  27 "That the province of Quebec will recognize the  28 rights of the Indian inhabitants in the  29 territory, will obtain surrenders", and so on.  30  31 That no such surrender shall be made of or  32 obtained except with the approval of the  33 Governor in Council."  34  35 And, finally:  36  37 "That the trusteeship of the Indians in the  38 said territory and the management of any lands  39 now or hereinafter reserved for their use,  4 0 shall remain in the Government of Canada  41 subject to the control of Parliament."  42  43 We say other such agreements have been concluded,  44 some of which clarify the provincial interest which  45 remains in reserve lands.  46 There was an Act for the Settlement of Certain  47 Questions Between the Governments of Canada and 25959  Submissions by Ms. Mandell  1 Ontario Respecting Indian Reserve Lands in 1924, and  2 by it the Province and the Federal Government  3 clarified from among resources of the reserves of  4 minerals and water adjacent a division between the two  5 Provinces -- or the two governments as to who will be  6 responsible for which interests and to what extent.  7 I draw to your attention to Section 10 of the  8 Natural Resources Transfer Agreement, one of the  9 agreements which I had earlier referred to.  10  11 "All lands included in Indian reserves within  12 the Province, including those selected and  13 surveyed but not yet confirmed, as well as  14 those confirmed, shall continue to be vested in  15 the Crown and administered by the Government of  16 Canada for the purposes of Canada, and the  17 Province will from time to time upon the  18 request of the Superintendent General of Indian  19 Affairs set aside out of the unoccupied Crown  20 lands hereby transferred to its administration  21 such further areas as the said Superintendent  22 General may in agreement with the appropriate  23 Minister of the Province select, as necessary,  24 to enable Canada to fulfil its obligations  25 under the treaties with the Indians of the  26 Province, and such areas shall thereafter be  27 administered by Canada in the same way in all  28 respects as if they had never passed to the  29 Province under the provisions hereof."  30  31 And the last paragraph shouldn't be part of Section  32 10.  It's part of a text of the -- of the submission,  33 and it refers to agreements in New Brunswick where  34 there was reserve lands sold under Federal Crown grant  35 and settlers -- because of the obvious incapacity of  36 the Federal Government to grant such lands, there were  37 settlers with imperfect titles and so there were  38 agreements concluded between Canada and New Brunswick  39 between the Province and the Feds to surrender to each  40 other the requisite interest in order that the Crown  41 grants could be perfected, which they were.  And a  42 discussion of that legislation is in Regina v. Smith.  43 Clause 13 confirmed the Federal trust  44 responsibilities for Indians and lands reserved for  45 Indians and provided for a formal conveyance of  4 6 some --  47    THE COURT:  Sorry.  Formal or form of? 25960  Submissions by Ms. Mandell  1 MS. MANDELL:  Should be formal.  Of some of the Provincial  2 Government's interests in lands reserved and to be  3 reserved to the Federal Government.  After 67 years of  4 debate as to what the provincial interest in fact was  5 to be conveyed by Order in Council.  It should be --  6 THE COURT:  O.I.C.  7 MS. MANDELL:  No.  I thought it was 1036.  Oh, that's right.  8 Order in Council 1036 passed in 1928.  I just didn't  9 write it.  10 THE COURT:  1036.  11 MS. MANDELL:  Yes.  It should be 1036.  Passed in 1928 (which  12 conveyed the Indian reserves outside the railway belt  13 and Peace River Block from British Columbia to Canada)  14 the lands were transferred but the Province reserved  15 certain rights.  And I've set them out.  16 Canada was given the right to deal with Indian  17 reserves, including the right to sell.  However,  18 Canada was obligated to reconvey Indian reserves to  19 the Province when a band became extinct.  But this  20 provision regarding reconveying of land was revoked by  21 Order in Council in May, 1969.  And I've included in  22 the material, which you'll get in series four, the  23 various Orders in Council.  24 So what you see happening in British Columbia is  25 that the Province conveyed to the Federal Government  26 some but not all of its reversionary interest, which  27 would enable the Federal Government to manage Indian  28 reserve lands in a way which was conducive to the best  29 interests of the Indians.  And by this prolonged  30 negotiation, which took 67 years, the two governments  31 wrestled with how much of the provincial reversionary  32 interests would be maintained by the Province and, as  33 far as I know, to this date there still hasn't been a  34 complete agreement on all aspects of that.  35 THE COURT:  I thought Mr. Goldie told me at one time in his  36 opening subsequently that there was an Order in  37 Council that confirmed that the process was complete.  38 MS. MANDELL:  Well, Mr. Goldie will be referring to the fact  39 that, according to his argument, when the lands were  40 finally surrendered up according to this long -- this  41 process which conveyed certain of the provincial  42 interest in land to be Federal Government in trust for  43 the Indian people, that the Province had fulfilled all  44 of its obligations which he said were defined in the  45 Terms of Union and which now were complete.  46 THE COURT:  That's not the Order in Council you're talking about  47 in 1928? 25961  Submissions by Ms. Mandell  1 MS. MANDELL:  No.  No.  It's another — it's part of this  2 process, but it's not this conveyance.  3 THE COURT:  All right.  4 MS. MANDELL:  5 Q   In summary, we say Clause 13 -- this is basically the  6 second paragraph of Clause 13 -- addressed a Federal  7 Provincial problem regarding the setting up of  8 reserves and did not address the existence of  9 aboriginal title which by Section 109 as part of the  10 scheme of Confederation is a burden on the title of  11 the provincial Crown.  12 Now, if you look at the Indian Acts after  13 Confederation -- and this is enacted by the Federal  14 Government -- we say that it provides support for the  15 position that aboriginal title in British Columbia was  16 not extinguished by the Terms of Union.  17 We noted above at page 276 of the argument that  18 the 1868 Indian Act provided for the surrender of  19 lands reserved for the use of the Indians where that  20 definition of surrender -- that definition of reserves  21 was broadly defined to include lands over which Indian  22 people had an aboriginal title.  23 And if I could ask your lordship when you consider  24 this to go back to 276 and look at the definition of  25 reserve there, which was considered by the Court of  26 the royalties case.  And it seems without question  27 as -- as the definition of reserve is therein  28 provided, that it includes lands outside of the  29 reserve and was, according to Mr. Justice Idington,  30 the framework for the completion of Treaty -- the  31 surrender of Treaty 3.  32 Now, in a later Act, an Act to Amend Certain Laws  33 Respecting Indians and to Extend Certain Laws Relating  34 to Matters Connected with Indians to the Provinces of  35 Manitoba and British Columbia -- and this is in  36 1874 -- a section of the 1868 Act was repealed, but  37 the section involving reserves and the surrender of  38 lands was applied to British Columbia by way of the  39 following provision:  40  41 "Upon, from and after the passing of this Act,  42 the Acts and portions of Act hereinafter  43 mentioned of the Parliament of Canada shall be  44 and are hereby extended to and shall be in  45 force in the Province of Manitoba and of  46 British Columbia; and all enactments and laws  47 theretofore in force in the said Provinces, 25962  Submissions by Ms. Mandell  1 inconsistent with the said Acts, or making any  2 provision in any matter provided for by the  3 said Acts, other than such as is made by the  4 said Acts, shall be repealed on and after the  5 passing of this Act."  6  7 And the sections which were expressly brought into  8 force in British Columbia included the surrender  9 provisions over reserves, which were then defined as  10 off reserve lands.  This was done through the  11 operation of the extension of Section 6 to 25 of the  12 named 1868 Act.  13 Now, we say that this legislative history raises  14 the question:  Why would the Federal Crown expressly  15 extend to British Columbia and Manitoba -- that  16 there's two Provinces.  Why would they expressly  17 extend to British Columbia provisions of an Act  18 requiring the surrender of lands not reserved but  19 burdened by aboriginal title if the title had been  20 extinguished at union?  21 Article 13 -- this is -- this is now dealing with  22 the first paragraph of Article 13 and it's the one  23 where Mr. Rush's submissions this morning were  24 primarily addressed.  This is the charge of the  25 Indians shall be assumed by the Dominion and a policy  26 as liberal as.  27 THE COURT:  It should be charged, not changed?  28 MS. MANDELL:  It should be charged.  When we give you your disc,  29 all these spelling mistakes will be corrected.  30 Article 13 provided that the charge of the Indians and  31 the management of lands reserved for their use and  32 benefit shall be assumed by the dominion and a policy  33 as liberal ... shall continue.  And this is separate  34 from the reserve making clause, we argue.  This clause  35 deals with the jurisdiction to administer lands and  36 Indians by the Federal Government after Confederation.  37 We say it's noteworthy that the word 'assumed' is  38 used, suggesting that the administration of the Crown  39 honour towards Indians and Indian lands had been in  40 the colony before the Terms of Union.  41 In the context of the general obligations toward  42 Indians "assumed" by the dominion, namely "the charge  43 of the Indians", and "the trusteeship and management  44 of the lands reserved for their use and benefit",  45 "policy", we say, takes on a broad meaning.  It is not  46 to be confined to the narrow definition in paragraph 2  47 dealing with the appropriation of reserve land by 25963  Submissions by Ms. Mandell  1 British Columbia.  2 Support for this proposition is found in the  3 judgment of Mr. Justice Dickson J. (as he then was) in  4 Jack.  And your lordship will recall that the Jack  5 Case was a case which raised -- the only case that I'm  6 aware of where the Terms of Union were expressly  7 before the Court.  And in that case the argument was  8 that policy -- the policy clause of the Terms of Union  9 provided a constitutional limitation on the capability  10 of the Federal Government to regulate Indian fishing  11 rights, and the majority of the case didn't contend  12 with the broad definition of policy in Article 13  13 because they ruled that Indian fishing rights are  14 subject to Parliamentary supremacy and relied upon the  15 Derrickson Case, which had decided that for a long  16 time.  But Mr. Justice Dickson dissenting on the main  17 issue, that is whether or not there is support for  18 there being a constitutional limitation imposed by  19 Article 13, was the only judge who attempted a -- an  20 interpretation of Clause 13 itself.  And in it he  21 stated --  22 THE COURT:  This is a dissenting judgment?  23 MS. MANDELL:  This is a dissenting judgment on the main issue.  24 And it's the -- this part of the judgment is part of  25 Mr. Justice Dickson's common -- his reasoning to get  26 to the point which he was finally dissenting on.  27 THE COURT:  So it's obiter dictum a dissenting judgment.  28 MS. MANDELL:  It's obiter dictum and although we say it's gotten  29 new support, but I want you to appreciate it because  30 it's the only judgment which I'm aware of where Clause  31 13 was expressly reviewed.  And we say, and I will  32 later argue, that the Sparrow Case has given its  33 greater support than it earlier might have -- might  34 have attracted.  35  36 "As a simple matter of statutory  37 interpretation, the reference to 'policy' in  38 the first paragraph in Article 13 refers back  39 to the first term of the article, to 'the  40 charge of the Indians, and 'the trusteeship and  41 management of the lands reserved for their use  42 and benefit', and not merely to the 'tracts of  43 land' to be set aside for reserves.  That view  44 is only reinforced by Walkem's report to the  45 Executive Council of British Columbia.  I  46 conclude, therefore, as a matter of statutory  47 interpretation and historical evidence that the 25964  Submissions by Ms. Mandell  1 reference to 'policy' in Article 13 extends  2 beyond the narrower question of reserve lands  3 dealt with in the second paragraph."  4  5 And later he says:  6  7 "The word 'policy' in the first paragraph  8 refers, in my view, to a broad general policy  9 as affecting Indians and lands reserved for  10 their use... I am further of the view that if  11 the article can be said to be ambiguous, it  12 should be so interpreted as to assure the  13 Indians rather than to deny to them any  14 liberality which the policy of the British  15 Columbia government may have evinced prior to  16 union."  17  18 And I urge that interpretation on you as being sound  19 and in keeping with the principles of statutory  20 interpretation articulated by the Supreme Court of  21 Canada in Nowegijick.  22 THE COURT:  But surely aboriginal title is not a matter of  23 policy.  24 MS. MANDELL:  No.  The question though is whether or not the  25 word 'policy' in Clause 1 of Article 13 should refer  26 to the policy as setting aside reserves or whether it  27 should be referred more broadly to be interpreted as  28 the broader policy of the government in dealing with  29 Indian people.  And in this case we've argued that  30 it's been a policy of reserve making, which has been  31 prevalent throughout the land for several centuries.  32 THE COURT:  Well, I have been understanding throughout your  33 argument that you've been saying that aboriginal title  34 is a matter of --  35 MS. MANDELL:  Law.  3 6 THE COURT:  — common law.  37 MS. MANDELL:  It's law.  38 THE COURT:  Well, then if that is so, is it appropriate to  39 include it within the broad rubric, as Chief Justice  40 Dickson is so fond of saying, of policy?  41 MS. MANDELL:  Well, I think that the — the argument which we've  42 advanced is that the --  43 THE COURT:  It seems to me what you're saying is that the  44 government as a matter of policy -- using this  45 language as a matter of policy, the government should  46 recognize aboriginal rights.  But surely that begs the  47 question do aboriginal rights exist.  If they don't 25965  Submissions by Ms. Mandell  1 exist, it wouldn't be a matter for policy at all.  If  2 they do exist, it wouldn't be a matter for policy at  3 all.  4 MS. MANDELL:  I think that your question breaks up into two  5 separate areas.  One is do aboriginal -- does  6 aboriginal title exist?  We say as a matter of law  7 aboriginal title exists through the common law.  It is  8 recognized by the proclamation.  It was brought into  9 the colony and it exists.  Policy can't change that.  10 But what policy is concerned with is the manner in  11 which aboriginal title will be dealt with and will  12 that be through treaty, through the sword, through the  13 setting aside of reserves or otherwise?  How will --  14 what is the policy by which aboriginal title will be  15 dealt with by the Crown?  Now, we've argued that the  16 policy, which we say as well has been reflected in the  17 law and the royal proclamation, has been to do  18 treaties.  That's been the policy.  But as I  19 understand the argument of the Provincial Crown,  20 they're saying that the policy here is restricted to  21 setting aside Indian reserves.  Well, we say that that  22 is both inconsistent with the existence of aboriginal  23 title -- and I've argued for that earlier -- and it's  24 also too restrictive in terms of a liberal meaning to  25 be placed to the words in Article 13.  26 THE COURT:  Well, it is — it's almost semantical, I think.  I  27 have a little difficulty, as you'll understand, in  28 relating a matter of law to a matter of policy, and  29 I've -- I don't think I need to repeat what I just  30 said.  It seems to me that if an aboriginal right is  31 one that should be dealt with -- I'm sorry.  If there  32 is a legal right to deal with an aboriginal right,  33 that is say to extinguish it, if there is a right to  34 extinguish it, then policy can't interfere with that  35 right either.  36 MS. MANDELL:  That's right.  But you'll recall —  37 THE COURT:  Whether people should do things or shouldn't do  38 things, it seems to me is something different from  39 policy.  40 MS. MANDELL:  That's true.  But you'll recall what was said in  41 Lipan Apache that we urged upon your lordship last  42 night where it wasn't a question whether or not the  43 Crown -- it wasn't a question whether the right  44 existed.  It did, so said the Court.  Nor was it a  45 question whether or not the Crown could extinguish  46 aboriginal rights.  It could, so said the Court.  47 That's Santa Fe.  But the question is by what manner 25966  Submissions by Ms. Mandell  1 was it obligated to extinguish rights?  And there the  2 Court said at the very least clear and expressed.  And  3 we say that the third question, that is by what  4 manner, is more a question of policy if the other two  5 are not in any respect a question of policy but  6 certainly are questions of law.  7 And, you see, the reason this starts to have any  8 significance at all is that the Provincial Crown  9 argues that you are to look -- as I understand their  10 argument, and I'm sure they'll phrase it up better  11 than I'm going to do, but what they argue is you're to  12 look at the word 'policy' in Article 13 and read into  13 it the fact that all aboriginal title is to be reduced  14 to the setting aside of reserves, which are so set out  15 in paragraph 2.  And we say that that is not the way  16 to read Article 13 nor is it in keeping with the law  17 that aboriginal title is recognized and that there is  18 in the Crown the ability to extinguish it.  But how  19 they extinguish it is the policy which is being  20 referred to and we argue has been for 200 years in  21 Canada a policy of treaty making.  22 THE COURT:  I can see policy relating to setting up of reserves.  23 MS. MANDELL:  Well, there's no question that that's part of it.  24 THE COURT:  I have no difficulty with that part of it.  But at  25 the moment I'm having trouble getting out of law and  26 into policy where we're talking about legal rights, as  27 you have been for several weeks now.  28 MS. MANDELL:  Weeks.  29 THE COURT:  But, anyway, let's push on and see where it takes  30 us.  31 MS. MANDELL:  Well, if I could just say one more thing before I  32 take this further, and that is that we say that the  33 word 'policy' in Article 13 at its very least does not  34 derogate from the legal rights which the aboriginal  35 people --  36 THE COURT:  Well, you say Article 13 doesn't — doesn't touch  37 aboriginal rights, don't you?  38 MS. MANDELL:  Well, our first point is that aboriginal title to  39 the land is --  40 THE COURT:  Is separate from that.  41 MS. MANDELL:  — is protected separately under Section 109.  42 THE COURT:  Oh, yes.  You say that aboriginal rights are  43 included in Section 13.  Did the colony set up  44 reserves?  It did, didn't it?  45 MS. MANDELL:  Did the colony set up reserves?  46 MR. GOLDIE:  Yes.  47 MS. MANDELL:  There was reserves set up by the colony, yes. 25967  Submissions by Ms. Mandell  1 THE COURT:  Both colonies or the united colony?  2 MR. GOLDIE:  The reserves were set up in the mainland both when  3 the colony was a single colony and when it was a  4 united colony.  5 MS. MANDELL:  And reserves were also cut back during the same  6 period too.  There was the Douglas reserves, which  7 were quite expansive, and the cutbacks by Trutch,  8 which radically diminished the size of reserves,  9 especially by the mainland.  10 THE COURT:  I have a question mark in my mind about what that,  11 word 'policy' means and thank you.  I wouldn't presume  12 to pronounce on what it means at the moment, but I  13 have some difficulty with it.  I'll be surprised if  14 there isn't some jurisprudence on it, but maybe there  15 isn't.  16 MS. MANDELL:  Unfortunately, you're looking at it.  Jack is the  17 only case I know where this particular word has been  18 interpreted by a Court in the context of Article 13.  19 THE COURT:  All right.  20 MS. MANDELL:  If I could — if we don't resolve it to your  21 satisfaction before the day's done, then I'd like to  22 know.  23 THE COURT:  Well, I can assure you now that I'm not going to be  24 satisfied or dissatisfied with any of these things by  25 the end of the day or the end of the argument.  These  26 are matters that are going to be given much careful  27 and, I hope, detailed consideration.  But I certainly  28 think I understand your submission.  2 9 MS. MANDELL:  You do?  30 THE COURT:  Oh, I think so.  This one I don't have any trouble  31 with.  32 MS. MANDELL:  I'm sorry?  33 THE COURT:  I don't have any trouble understanding this  34 submission.  35 MS. MANDELL:  Okay.  If I can go to page 292.  36 The aboriginal rights which we say were part of  37 the fundamental legal principles binding on the  38 colonial governments may be read as affirmed.  This is  39 the answer to you on this point.  We say that they may  40 be read as affirmed, not created, but affirmed by the  41 language "charge of the Indians" and "trusteeship and  42 management of the lands reserved for their use and  43 benefit".  Such rights are necessarily embodied in  44 this language.  And again we rely upon what Dickson  45 says in Jack.  4 6 THE COURT:  That's not the same — no.  Thank you.  47 MS. MANDELL: 2596?  Submissions by Ms. Mandell  1 "It is apparent from the foregoing that Indian  2 fishing was an essential element of both 'the  3 charge of the Indians' and 'the trusteeship and  4 management of the lands reserved for their use  5 and benefit'.  It is extremely difficult to  6 separate out the fishery from either Indians or  7 the lands to be reserved for Indians.  In the  8 latter case, lands were to be reserved to  9 Indians for the purpose of permitting them to  10 continue their river fishery at the customary  11 stations.  In the former case, the Indians were  12 to be encouraged to exploit the fishery, both  13 for their own benefit and that of the incoming  14 white settlers, as a means of avoiding the  15 Indians becoming a charge upon the colonial  16 finances.  However one wishes to view the  17 preconfederation 'policy', it undoubtedly  18 includes some elements of Indian fishing."  19  20 So here he's saying that don't restrict the words  21 'charge of the Indians' and 'trusteeship and  22 management to the lands reserved for their use and  23 benefit' to reserves alone.  It has to include at  24 least an element of Indian fishing.  Now, he didn't  25 say it includes the full doctrine of consent and the  26 right to make treaties and so on, which we say could  27 also be included in the words.  But at least it goes,  28 he says, beyond the issue of setting aside reserves.  2 9    THE COURT:  Or does it mean be sure when you set up your  30 reserves to include some fishing opportunities?  31 MS. MANDELL:  We say that if he wanted to say that, he could.  32 And certainly not all the reserves do set up fishing  33 opportunities, as we saw in the case of Sparrow.  And  34 what happened in that case, as your lordship is  35 probably now well aware, is that Mr. Sparrow was  36 fishing off reserve.  He was fishing within the  37 traditional waters but not on the reserve of the  38 Musqueam Band.  And the court of appeal, as you're  39 aware, held that he had an existing aboriginal right  40 to fish.  And we say that the Sparrow Case both gives  41 support to the interpretation of Clause 13, which Mr.  42 Justice Dickson said in Jack, and also refutes the  43 proposition asserted by the Province that at union  44 aboriginal rights were extinguished and replaced  45 with -- either extinguished or didn't exist and  46 replaced with the reserve policy alone.  We say how  47 could this be the case if fishing rights, which were 25969  Submissions by Ms. Mandell  1 not part of the reserve, survived the union and have  2 been held by the Court to be existing aboriginal  3 rights?  4 At page 293, the words contained in Article 13,  5 given their plain meaning, do not address either the  6 existence of aboriginal title or its extinguishment.  7 Since the words used are capable of more than one  8 meaning, it is the duty of the Court to arrive at a  9 legal meaning of this enactment by the application of  10 the rules of statutory interpretation.  We say there's  11 two alternative arguments which have been presented,  12 or we say will be presented to you, that might be made  13 as to the legal meaning of Article 13.  Either it  14 establishes a constitutional mechanism necessary for  15 setting aside reserve lands in the Province and  16 aboriginal title is extinguished or Article 13  17 establishes a constitutional mechanism necessary for  18 setting aside reserve lands in the Province and  19 aboriginal title continues until lawfully  20 extinguished.  The plaintiffs submit that it is the  21 second alternative which accords not only with the  22 critical historical facts but also with the applicable  23 principles of statutory interpretations and canons of  24 construction.  25 It is appropriate to invoke presumptions in aid of  26 statutory constructions and in particular the  27 presumptions against interference with vested rights  28 and against encroachment on property rights in the  29 absence of clear, express language.  There is nothing  30 clear or express in the language of Article 13 to  31 rebut these presumptions.  In addition, these  32 presumptions are buttressed by the rules of statutory  33 interpretation applicable to statutes relating to  34 Indians as enunciated by the Supreme Court of Canada.  35 Such statutes are to be given a liberal construction  36 and doubtful expressions resolved in favour of the  37 Indians.  As Mr. Justice La Forest (as he then was)  38 stated, these common law presumptions "must apply with  39 additional force to the taking of Indian lands because  40 this affects the honour and good faith of the Crown".  41 Whether aboriginal rights were intended to be  42 recognized and affirmed in the Terms of Union or  43 untouched as principles of the common law and the  44 proclamation, the law as we have described as existing  45 prior to union continued in full force and effect.  It  46 was not altered by the terms.  To the contrary, we  47 have argued that the Terms of Union was not an 25970  Submissions by Ms. Mandell  1 extinguishing instrument - for it to have extinguished  2 any of the title of the plaintiffs or their ancestors,  3 it would have required plain and direct language on  4 its face.  5 The Province argues that "Indian title was never  6 acknowledged in the British and Canadian territories  7 west of the Rockies".  This statement is directly  8 controverted by the Douglas Treaty, the Begbie Legal  9 Opinion, the Colonial Office Directions acknowledging  10 title and the efforts by the Colonial government to  11 deal with aboriginal title in the Cowichan Valley.  12 The Province continues "if it existed, it was provided  13 for by the setting aside of reserves protecting  14 settlements".  15 THE COURT:  It refers to aboriginal title, doesn't it?  16 MS. MANDELL:  Aboriginal title existed and then it should be it  17 was provided for.  There is absolutely no evidence or  18 any suggestion in the evidence that the reason  19 reserves were established was in order to provide for  20 aboriginal title.  The principle of recognition of  21 aboriginal title was always seen as separate from the  22 practice of establishing reserves.  The reserve  23 establishment policy was one expediently adopted by  24 the Colonial Governments to deal with settlement  25 proceeding on Indian occupied land.  The Province  26 states "if some aspect of native title existed in  27 British Columbia at the time of Confederation, any  28 responsibility for it on the part of the Province  29 disappeared with the Terms of Union.  It just  30 disappeared.  The Province does not say how or when,  31 but it is just not there.  There is no explanation in  32 the Province's argument as to how Provincial land was  33 released from the pre-existing title which was imposed  34 upon it.  35 And I -- I just wanted to address briefly Section  36 1 of the Terms of Union Mr. Rush did this morning.  37 And I only wanted to add to what he said.  And that is  38 that aboriginal title is definitely part of the  39 Confederation.  It's not included in Section 1, which  40 is part of the section concerning liabilities.  But we  41 argue that it's a burden on Crown title under Section  42 109, and that's where it was properly placed, and not  43 as a matter of Section 1.  44 And I do say that -- it was sort of an  45 afterthought and I don't know whether or not it's -- I  46 was trying to figure out how aboriginal title would  47 fit into Section 1, and the only way that I could see 25971  Submissions by Ms. Mandell  1 it is if there had been a treaty before Confederation  2 and the Crown had incurred a responsibility for  3 annuities or payment to the Indians before  4 Confederation and then there had been Confederation  5 and the Indian people hadn't been paid, then I could  6 see that there would be an argument that there was a  7 liability which was assumed by the Dominion Government  8 respecting Indians.  But in the absence of such an  9 arrangement where there is an actual debt, which is  10 part of a proper legal process where title was  11 extinguished, then aboriginal title is a burden on  12 Crown title under 109 and Section 1 would have no  13 application.  14 THE COURT:  Well, I've never given this a fibre of thought until  15 this moment, but what's the big difference between a  16 liability and a burden?  17 MS. MANDELL:  I don't know.  I really don't know.  I've given it  18 a little bit more thought and I really don't know.  19 I'm sure that the Province will say something about  20 that.  21 THE COURT:  I'm just thinking out loud.  That if A gives B land  22 and then says and as part of that deal I'm assuming  23 all your liabilities and that land is burdened by an  24 obligation --  25 MS. MANDELL:  Oh, I see where you're going.  26 THE COURT:  Why is the burden not a liability?  27 MS. MANDELL:  Oh, I see what you're saying.  Well, because B has  28 only what it's got.  So here you've got land which  29 is -- the Crown only has the interest in land which  30 according to the constitution it possesses.  Land is  31 in the Crown and the Province has the rights to obtain  32 royalties and do what -- get the benefit of it  33 according to the constitution.  There's nothing else  34 which gives it its right.  And if the land, which it  35 has the ability to derive benefit from, is not ever  36 fully in its court until the underlying title of the  37 Indian people is discharged, it's not -- it's not a  38 liability.  It's -- it's a description of the nature  39 of Provincial Crown land.  40 THE COURT:  My analogy is not a true one because Canada didn't  41 give British Columbia this land.  British Columbia had  42 it already.  So that part of my analogy is not sound.  43 MS. MANDELL:  That's right.  44 THE COURT:  But if A and B are making a comprehensive deal and  45 one says I'm taking on this obligation and you're  46 keeping that asset, which in this case is the land of  47 the Province, and I'm taking on your liabilities, I 25972  Submissions by Ms. Mandell  1 just --  2 MS. MANDELL:  There's a third party here.  I mean that's what I  3 was explaining this morning.  There's the Federal and  4 the Provincial Government that can do what they're  5 going to do, but there's also an interest in the land  6 which is in the Indian people.  7 THE COURT:  Yes.  And that's a separate question entirely,  8 whether that -- that interest can be dealt with at  9 all.  But if it can be dealt with as between A and  10 B --  11 MS. MANDELL:  Yes.  12 THE COURT:  -- is there any language reason why burden doesn't  13 equal liability, particularly in a constitution  14 document where words always have a much broader  15 signification than they do in commercial documents,  16 for example?  That's not really your problem though.  17 MS. MANDELL:  They're going to argue about it.  I'll think about  18 it.  19 THE COURT:  I'm not sure why you're so anxious to persuade me,  20 or Mr. Rush, that Section 1 doesn't apply because, as  21 you say, there's a third party involved here.  You're  22 that third party.  23 MS. MANDELL:  I only want you to avoid the interpretation that  24 aboriginal title somehow rather than it being a burden  25 on the Crown title as decided upon by 109 can somehow  26 be converted to a financial liability which is payable  27 by the Federal Government to the Province because of  28 some magic in Section 1.  29 THE COURT:  All right.  Well, if there was an agreement after  30 Confederation between all three parties --  31 MS. MANDELL:  Indian people too.  32 THE COURT:  Indian people, Province, Canada, that X -- X acre  33 is -- is going to be discharged of any aboriginal  34 title, but there's a fight between the Province and  35 Canada who pays the consideration for the  36 extinguishment, who do you say would have to pay?  You  37 say the Province would pay or Canada would pay?  38 MS. MANDELL:  I think that under the royalties case the Federal  39 Government's going to have to pay because --  40 THE COURT:  And British Columbia gets the land.  41 MS. MANDELL:  And British Columbia gets the land.  That's what  42 the royalties case said, and I don't see any case that  43 would say to the contrary.  44 THE COURT:  Yes.  All right.  45 MS. MANDELL:  Now, they may want to make an arrangement between  46 them.  Other provinces have.  And we saw some of them.  47 And what happened in Ontario was that there was -- one 25973  Submissions by Ms. Mandell  1 of the clauses of the agreements which I referred your  2 lordship to, Section 6 of it in the 1881 Act provided  3 that the Province would concur in any treaties.  And I  4 know that there is a separate agreement, which is part  5 of that, where there's a sharing with respect to some  6 of the burden.  And that's been set forward too in one  7 of the schedules.  Other arrangements can be made.  8 But I think -- and equity would require it, because  9 what happened in the royalties case in one of the --  10 there was an argument made in the royalties case that  11 the -- in a sense the Province was receiving a benefit  12 from the discharge when there's some equitable charge  13 which should accrue to the benefit of the Federal  14 Government in that case.  And I referred your lordship  15 to that passage where at that time Mr. Justice  16 Idington said the Province -- you know, it's before  17 the surrender.  The Province hasn't had very much  18 here.  They've got a legal burden.  They haven't had  19 much benefit.  So I don't see where your argument  20 about equitable charge comes from.  But I think that  21 now we have the Province having benefit for so many,  22 many years that there would presumably be some reason  23 for there being a separate arrangement made in a  24 different kind of factual situation than what was  25 presented to the Court in the royalties case.  26 MR. GOLDIE:  Well, your lordship will recall that there's a  27 claim for damages for every benefit we've received.  28 Now, if that isn't reliability, I don't know what it  29 is.  30 THE COURT:  Unless the liabilities could be fixed as of the date  31 of the —  32 MR. GOLDIE:  Well, my friends take the position that for every  33 benefit we have received from the claims area, they  34 are entitled to damages.  35 THE COURT:  All right.  Well, that's food for thought.  36 MS. MANDELL:  My lord, do you want to go on to something, to the  37 next section?  38 THE COURT:  Yes.  I think we should if it's convenient.  39 MS. MANDELL:  My lord, I want to spend the remainder of my  40 portion of the argument today dealing with the  41 question which your lordship posed at the beginning of  42 the day, and that is what is the Provincial power to  43 extinguish or impair aboriginal rights, either by way  44 of statute or grant, which would dispossess the Indian  45 people after Confederation?  And I here should start  46 you with my assumption, as I've done with Terms of  47 Union.  I assume that aboriginal title has survived 25974  Submissions by Ms. Mandell  1 Confederation.  I also assumed that it survived union.  2 And we're now after union and after Confederation.  3 And it's our proposition that aboriginal title is not  4 capable of being either extinguished or impaired by  5 the Provincial Crown and that the extinguishment of  6 aboriginal title is fully within the domain of the  7 Federal Government.  8 And here I believe, but I'm not certain, that  9 between the Federal and Provincial Governments on  10 their counterclaim, that the Province would agree with  11 us that the Federal Government has the obligation to  12 extinguish and that the Federal Government would agree  13 with us that the Provincial Government's title is  14 burden.  So we've got some support from both people  15 and not full support from either party.  16 MR. GOLDIE:  One of the problems of anticipatory argument is  17 that assumptions are made about the positions that  18 your lordship is yet to hear from.  19 MS. MANDELL:  Well, I'll take that back.  I don't mean to  20 overstate or mischaracterize.  21 THE COURT:  All right.  22 MS. MANDELL:  I'd like though to begin with the — well, you'll  23 see that the problem with the proposition is that the  24 Provincial Government has after Confederation issued a  25 great many interests in land to third parties and what  26 you're faced with is whether or not that whole process  27 is legal bearing in mind the Confederation of  2 8 everybody.  And I felt compelled when I was  29 approaching your point of view to address you to the  30 quote by Madam Justice Wilson in Turnpin where she  31 said the argument that Section 15 is not --  32 THE COURT:  What is Section 15 now?  33 MS. MANDELL:  This is the — 15 of the Charter.  It's the  34 equality.  35 THE COURT:  Equality section of the Charter.  All right.  36 MS. MANDELL:  The argument — this is all — the argument that  37 Section 15 is not violated because departures from its  38 principles have been widely condoned in the past and  39 that the consequences of finding a violation would be  40 novel and disturbing is not, in my respectful view, an  41 acceptable approach to the interpretation of Charter  42 provisions.  43 THE COURT:  But she's talking there about equality rights  44 between individuals, isn't she?  45 MS. MANDELL:  She is talking about changing the system of being  46 tried by judge or judge and jury in various provinces  47 across the country. 25975  Submissions by Ms. Mandell  1 THE COURT:  But hasn't it been determined that Section 15 —  2 well, I don't want to speak too broadly, but are there  3 authorities that deal with Charter -- with Section 15  4 as between corporations or groups of people or  5 governments?  I know Mr. Goldie got a judgment that  6 said that -- well, I'm sorry -- the right to trial by  7 a jury wasn't available to a corporation, but I  8 believe that was before Section 15 came in.  9 MR. GOLDIE:  Yes, it was.  10 THE COURT:  Before Section 15?  11 MR. GOLDIE:  It was before Section 15, yes.  It was based on  12 Section 7.  13 THE COURT:  Yes.  All right.  Well, this is a matter again of  14 first -- it's not even first impression.  It's first  15 immediate reaction.  Is Section 15 a reasonable basis  16 for a determination of rights between Indian peoples  17 and/or Indian chiefs and governments?  18 MS. MANDELL:  No.  We don't rely on Section 15 at all.  What I  19 wanted to draw to your lordship's attention is Madam  20 Justice Wilson's --  21 THE COURT:  Then we shouldn't be concerned about consequences.  22 MS. MANDELL:  Don't worry about consequences.  If it's wrong,  23 it's wrong.  24 THE COURT:  Yes.  All right.  25 MS. MANDELL:  26 Q   The plaintiffs submit that following British  27 Columbia's entry into Confederation, only the Federal  28 Government was competent to extinguish aboriginal  29 title.  Extinguishment of aboriginal title could only  30 be effected by purchase of the plaintiff's territory  31 with their consent.  Alternatively, extinguishment  32 might be effected by express federal legislation  33 demonstrating a clear and plain intention to  34 extinguish the plaintiff's title to their lands.  35 After 1871 neither the Crown in right of British  36 Columbia nor express Provincial legislation could  37 extinguish aboriginal title.  Federal legislation did  38 not.  39 In Calder the parties agreed that if  40 extinguishment was accomplished, it occurred between  41 1858 and when British Columbia joined Confederation in  42 1871 and that nothing had been done since  43 Confederation to extinguish title.  That's not the  44 position apparently of the parties in this case.  45 MR. GOLDIE:  Well, I hope my friend isn't suggesting that there  46 is any contradiction.  In Calder the question was the  47 declaration sought by the plaintiff has the Indian 25976  Submissions by Ms. Mandell  1 title been extinguished?  Canada wasn't even involved.  2 MS. MANDELL:  Canada declined to be a party.  There was  3 constitutional notice served.  4 MR. GOLDIE:  Yes, because there was no question about Canada's  5 interest.  It was a -- there were several admissions  6 for the purposes of that action alone.  One of them  7 was, for instance, that the Nishga territory was as  8 depicted on a map.  Another was that they -- they  9 occupied that in the way their forefathers had.  The  10 whole issue in that case was to obtain the answer to  11 the question had there been extinguishment by British  12 Columbia.  13 THE COURT:  Yes.  But there's nothing inconsistent with what  14 you've just said, Mr. Goldie, with Miss Mandell's  15 bottom paragraph on page 1.  16 MR. GOLDIE:  Well, no.  I was taking issue with my friend's  17 observation that that's not the position that's been  18 taken here.  19 THE COURT:  I see.  20 MS. MANDELL:  The constitutional impediments upon the Province's  21 power not only constrained and continued to constrain  22 its ability to extinguish, but also to impair or  23 otherwise interfere with aboriginal title or the  24 exercise of aboriginal rights.  25 Now, I'm going to refer your lordship in more  26 detail to the nature of the Provincial interest I  27 referred to this morning in general terms as to the  28 burden on the Provincial interests, but I'd like to  29 take you into more cases and in more depth as to the  30 imperfect title which we say the cases establish as  31 belonging to the Provincial Crown.  32 While the underlying legal title to lands subject  33 to what extinguished aboriginal title lies in the  34 Province, that Provincial interest carries with it no  35 right to the use or the benefit of the land prior to  36 becoming unencumbered of the aboriginal interest.  37 The privy council in St. Catherine's Milling made  38 it clear that the interest of the Province in lands  39 subject to unextinguished and aboriginal title -- and  40 this is their language -- was "available to them as a  41 source of revenue whenever the estate of the Crown is  42 disencumbered of the aboriginal title".  43 In Ontario Mining v. Seybold, which followed St.  44 Catherine's Milling, the case concerned the validity  45 of reserve allocations made out of the surrendered  46 territory.  Lord Davey noted at page 79 that St.  47 Catherine's Milling decided: 25977  Submissions by Ms. Mandell  1  2 "... that prior to the surrender the province  3 of Ontario had a proprietary interest in the  4 land, under the provisions of Section 109 of  5 the British North America Act, subject to the  6 burden of the Indian usufructuary title and  7 upon the extinguishment of that title by the  8 surrender the province acquired the full  9 beneficial interest in the land subject only to  10 such qualified privilege of hunting and fishing  11 as was reserved to the Indians in the treaty."  12  13 And again I notice and underscore the phrase 'upon the  14 extinguishment of that title'.  15 In Caldwell v. Fraser, which is a case reported in  16 The Law of Mines in Canada, Mr. Justice Rose said:  17  18 "... by the British North America Act, there  19 was not, I think, vested in the Province the  20 right to sell these lands or interfere with the  21 Indians until after a formal surrender of the  22 lands to the Crown."  23  24 No right to sell or interfere.  25  26 "I do not now consider the right of the  27 Province to sell its interest in the land so as  28 to vest in the purchaser the lands subject to  29 the right of the Indians.  30  31 ... it seems to me that any surrender or  32 cession by the Indians of their lands or their  33 rights left the power of sale exactly where it  34 was prior to such surrender or cession.  That  35 power, I think, was in the Province, subject to  36 the surrender or other extinguishment of the  37 aboriginal title  38  39 ... if the lands in question are ...  40 unsurrendered, the grants from the Province  41 are, if valid at all, only valid to the extent  42 of conveying the right of the Province to such  43 lands subject to the aboriginal title..."  44  45 And that was cited with approval in the Ontario  46 Seybold Case.  47 Now, in Re Stony Plain Indians, the court of 2597?  Submissions by Ms. Mandell  1 appeal considered the effect of a surrender of reserve  2 lands in fee simple to be held in trust by a person  3 other than the Crown for the use and benefit of the  4 band.  And this is a very good example of the  5 Provincial title being burdened by Indian title.  This  6 is a case where the -- it was a reference to the court  7 of appeal.  Certain questions were being referred to  8 because the band wanted to develop some of its land  9 and it didn't want to do so in a manner which would  10 subject it to the operation of Provincial law.  And  11 one of the questions which was raised was what if we  12 surrendered the land in fee simple to a corporation or  13 a person who would hold it in trust for our benefit?  14 And the Court said with respect to that option":  15  16 "... The band has not ceded an iota of these  17 benefits usufructs appurtenant to a reserve; it  18 has been at specific pains to state its  19 retention of them.  The change in title of the  20 land from Her Majesty to the grantee cannot  21 affect the scope and operation of the trust...  22 We are left with no alternative to the  23 conclusion that the land falls within Section  24 36"...  25  26 That's of the Indian Act.  27  28 "... and remains a reserve for the purposes of  2 9 the Act."  30  31 Where the "surrender" is not absolute, the aboriginal  32 title remains and the land remains as "lands reserved  33 for the Indians" apart entirely from any provisions of  34 the Indian Act.  35 Considering the effect of the Natural Resources,  36 the Court in Stony Plain held:  37  38 "Here we find a clearly expressed intention to  39 transfer to the province of Alberta 'the  40 interest of the Crown in all Crown lands'.  In  41 our view, the interest transferred included the  42 right of reversion which arises on surrender by  43 a band of 'land reserved for the Indians'.  The  44 underlying title to the Indians lands was  45 thereby transferred to the province in order to  46 place Alberta in the same position as the  47 provinces referred to in Section 109 of the 25979  Submissions by Ms. Mandell  1 B.N.A. Act which entered Confederation in 1867.  2 We are here not referring to 'lands reserved  3 for the Indians' but rather the underlying  4 title to such lands."  5  6 And then in Calder Mr. Justice Hall cites the majority  7 judgment of Mr. Justice Ritchie citing the St.  8 Catherine's Milling Case:  9  10 "I am of opinion that all ungranted lands in  11 the province of Ontario belong to the Crown as  12 part of the public domain."  13  14 Again, I stress:  15  16 "... subject to the Indian right of occupancy  17 in cases in which the same has not been  18 lawfully extinguished, and when such right of  19 occupancy has been lawfully extinguished  20 absolutely to the Crown, and as a consequence  21 to the Province Of Ontario."  22  23 And I'll just draw to your lordship's attention the  24 underscored portion of the judgment in Guerin where  25 Mr. Justice Dickson concurs with the Court in Smith  26 where it said that:  27  28 "... upon unconditional surrender the Indians'  29 right in the land disappears."  30  31 And so you have the courts within all these decisions  32 confirming that aboriginal title is a burden on Crown  33 title; that Crown title is subject to it and it's not  34 until there's an unconditional surrender where the  35 Indian's right in the land disappears, and at that  36 point the Crown has full rights.  And I would here say  37 that I don't think that in Guerin Mr. Justice Dickson  38 was intending to comment upon whether or not  39 aboriginal title would or could disappear through an  40 express enactment either, but he's saying it's an  41 absolute thing and not a conditional surrender such as  42 we saw in Surrey Peace Arch, which would affect the  43 ability of the Provincial Crown to receive its lands  44 unburdened by aboriginal title.  45 That's, I think, as far as we can go.  4 6    THE COURT:  All right.  We'll adjourn until two o'clock.  Thank  4 7 you. 25980  adj  ourned until  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  1    THE REGISTRAR:  Order in court.  Court stands  two o'clock.  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings transcribed to the best  of my skill and ability.  Kathie Tanaka, Official Reporter  UNITED REPORTING SERVICE LTD. 25981  Submissions by Ms. Mandell  1 (PROCEEDINGS RECONVENED AT 2:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  Thank you, my lord.  I am at page 5.  6 THE COURT:  Yes, thank you.  7 MS. MANDELL:  To conclude that, on the nature of the Provincial  8 Crown title, at the bottom of page 5 we state that the  9 full beneficial interest is not vested until after  10 extinguishment and that alienations prior to this we  11 say are ultra vires.  12 MR. GOLDIE:  Well —  13 MS. MANDELL:  The Provincial Crown's interest in lands, subject  14 to aboriginal title, is a contingent and pending one  15 which includes no right to the use or benefit of the  16 land prior to the surrender of the Indian interest.  17 In Stony Plain the court said:  18  19 The underlying legal title to land in an Indian  20 reserve is vested in the Crown in right of the  21 province, subject to the interest of the  22 Indians; once that interest is surrendered,  23 the estate of the Crown is disencumbered of  24 the aboriginal title, so that the land becomes  25 indistinguishable from other Crown lands in the  26 province; the federal government possesses a  27 legislative and administrative right in respect  28 of "land reserved for the Indians".  29  30 In St. Catherines', the court said and it was  31 relied upon in Stony Plain that the beneficial  32 interest in Indian lands passed to the province  33 "whenever the estate of the Crown is disencumbered of  34 the aboriginal title".  35 And similarly, the Privy Council held in Seybold  36 that the province acquired the beneficial interest in  37 the land "upon the extinguishment of that [aboriginal]  38 title" and only to the extent of such extinguishment.  39 Finally, Mr. Justice Hall in Calder also relied  40 upon St. Catherine's Milling where Lord Watson said:  41  42 ...there has been all along vested in the Crown  43 a substantial and paramount estate, underlying  44 the aboriginal title, which became a plenum  45 dominion whenever that title was surrendered or  46 otherwise extinguished.  47 25982  Submissions by Ms. Mandell  1 Now, I would like to here develop in more detail  2 the federal interest.  And we say the obligation which  3 falls to the federal government, that it alone has the  4 power to extinguish title.  It was empowered to accept  5 surrender of aboriginal title and assume a corollary  6 burden of a financial burden to deal with surrendered  7 lands in the interests of the Indians.  8 From the earliest times, the exercise of powers  9 in relation to Indians has been concerned with  10 affording protection to them and to their lands.  11 And I draw to your lordship's attention the  12 wording of the Royal Proclamation.  I am not going to  13 read it but I did want to here ask you to note that  14 when the court in Guerin analyzed the nature of the  15 fiduciary obligation, Mr. Justice Dickson and also  16 Madam Justice Wilson's decision both were of the view  17 that the fiduciary obligation which was finally the  18 ratio of the case, did not have its origins in the  19 Indian Act in Section 18(1) but, rather, in the trust  20 obligations which go back, according to Mr. Justice  21 Dickson, and were reflected in the Royal Proclamation  22 of 1763.  23 I had earlier made reference to the Select  24 Committee Report.  This is an exhibit and I've  25 neglected to give you the exhibit number, but I will.  26 This is the case where -- this is -- there was a  27 Select Committee on aborigines in Britain which was,  28 in 1837, directing its mind to how Indian Affairs  29 should be governed.  And the committee report stated:  30  31 The protection of the Aborigines should be  32 considered as a duty peculiarly belonging and  33 appropriate to the Executive Government, as  34 administered either in this colony or by the  35 Governors of the respective Colonies.  This is  36 not a trust which could conveniently be  37 confided to the local Legislatures.  In  38 proportion as those bodies are qualified for  39 the right discharge of their proper functions,  40 they will be unfit for the performance of this  41 office.  For a local Legislature, if properly  42 constituted, should partake largely in the  43 interests, and represent the feelings or the  44 settled opinions of the great mass of the  45 people for whom they act.  But the settlers in  46 almost every Colony, having either disputes to  47 adjust with the native tribes, or claims to 25983  Submissions by Ms. Mandell  1 urge against them, the representative body is  2 virtually a party, and therefore ought not to  3 be the judge in such controversies.  4  5 And it was recommended then that while there is a  6 trust which has to be included in the constitutions  7 applicable to the colonies respecting Indians, it  8 wasn't a trust which, as the Select Committee stated,  9 "could conveniently be confided to the local  10 Legislatures."  11 The view that control over Indian affairs should  12 be centralized for the protection of the Indian  13 interest was reflected in the 1844 "Report on the  14 Affairs of the Indians in Canada" -- again, I'll have  15 to provide to you the exhibit number -- which recited  16 portions of the above quotation and recommended:  17  18 That as long as the Indian tribes continue to  19 require the special protection and guidance of  2 0 the government they should remain under the  21 immediate control of the Representative of the  22 Crown within the province, and not under that  23 of the Provincial Authorities.  24  25 The rationale for federal control was adopted in  26 the Royalties case, and I've already read to you the  27 passage by Mr. Justice Idington.  28 The 1836 Select Committee Report identified the  29 danger of a local Legislature being called upon to  30 resolve the dispute concerning Indian lands to which  31 it was a virtual party.  This danger was clearly not  32 overlooked by the drafters of the Constitution Act,  33 1867, who allocated Crown interests in land to the  34 province, made those interests subject to the Indian  35 interests by s. 109 and, finally, delegated to Canada  36 and withheld from the province the power to extinguish  37 aboriginal title.  38 We argue that to construe the Constitution Act,  39 1867 as permitting provincial extinguishment of  40 aboriginal title, either directly or indirectly, is to  41 infer a power not expressly granted, and apparently  42 negatived by Section 91(24), which power would be  43 contrary to prevailing Imperial policy over the  44 previous century.  Such a construction is subversive  45 to the entire scheme of powers in relation to Crown  46 lands and Indian lands.  47 And I might here pause to say that the British 25984  Submissions by Ms. Mandell  1 Crown retained the amending formula and so this --  2 these two provisions where strategically the federal  3 government would maintain legislative control with  4 respect to Indians and the province would have its  5 lands burdened and the federal government could  6 extinguish Indian title and the province receive the  7 benefit.  This balancing of legislative authority and  8 property interests couldn't be altered by either the  9 federal or provincial governments acting together  10 without the consent of Britain.  And we say that it's  11 that framework of protection and vested rights which  12 afforded the Indian people their unique place in the  13 Constitution and which gave to Britain, up until 1982,  14 the final control over any redistribution which might  15 occur.  And I'll be speaking about that more when I  16 talk about the effect of Section 35 of the  17 Constitution Act.  18 THE COURT:  Why wouldn't aboriginal rights be civil rights in  19 the province?  20 MS. MANDELL:  Because it's a burden on Crown title.  21 THE COURT:  And Crown title is in the province.  22 MS. MANDELL:  To the extent that Crown title is — to the extent  23 of its scope.  But we've argued that the aboriginal  24 title burdens it and that it is, in a sense, title  25 which becomes full and fulsome in the ability of the  26 province to legislate in relation to it, once  27 aboriginal title has been disencumbered.  28 THE COURT:  Do any of the authorities that have dealt with this  29 question ever mention civil rights within the  30 province?  31 MS. MANDELL:  Well —  32 THE COURT:  Or matters of a local or private nature?  33 MS. MANDELL:  The — there isn't a pitting in any of the  34 authorities, to my knowledge, between civil rights in  35 the province and that being capable of subsuming the  36 burden on Provincial Crown title.  All the cases that  37 I know of refer to the distribution of powers in the  38 manner that I've asserted to your lordship.  39 THE COURT:  Well, I've never given the matter any thought.  40 MS. MANDELL:  This is the relationship between Indian title and  41 Crown title.  There has been many cases, which  42 everybody is familiar with, where various questions as  43 to who owns resources as between the federal and  44 provincial government have gone up through the courts  45 without reference to the Indian interest.  And so, for  46 example, the case I cited to you this morning, where  47 the mineral -- what was it called?  The A.G. Dominion 25985  Submissions by Ms. Mandell  1 v. -- sorry -- yeah, it was the precious metals case.  2 I can't remember its citation.  That was a case  3 where -- without -- as I -- I used the case to say  4 that 109 applies to British Columbia, that's the  5 purpose for which I cited it to you.  But the case did  6 not involve a discussion of the Indian interest, as  7 most of the cases do not, unless the Indian people are  8 there asserting it.  9 And it's -- there are many cases which will hold  10 that the federal or the provincial government or one  11 or the other of them will have rights to lands, mines  12 and minerals.  But where the Indian interest is asked  13 to feature, you have a discussion, as I've been  14 asserting to you, between the burden on the Crown  15 title and the legislative authority of the federal  16 government.  But your lordship will be aware that  17 there are not a great many cases involving aboriginal  18 title in the Constitution.  There was St. Catherines'  19 Milling, and then there was --  2 0 THE COURT:  Yes.  21 MS. MANDELL:  I'm not speaking about incidental cases involving  22 hunting and fishing rights, I'm talking about title  23 cases.  You had earlier St. Catherines' Milling, it  24 was basically a dispute between the province and the  25 federal government.  The Indians weren't there but an  26 Indian interest had been surrendered, and so you had  27 some discussion of it.  And then you had --  28 MR. GOLDIE:  Well, excuse me, I really can't let that go by.  29 The Indian interest was argued at great length by  30 counsel for --  31 THE COURT:  They weren't parties.  32 MS. MANDELL:  They weren't parties to the case.  33 MR. GOLDIE:  They weren't parties but Canada asserted the Indian  34 interest.  35 THE COURT:  Yes.  36 MS. MANDELL:  I'm not saying that the Indian interest wasn't  37 argued in St. Catherines' Milling; it's the starting  38 point of discussion.  But I am saying that you do not  39 have a large number of constitutional decisions which  40 are asked to address the relationship between the  41 provincial interest, the Indian interest and the  42 federal interest.  And I say that in Canada, you could  43 on one hand name them, and you went from the St.  44 Catherines' Milling case and, in my submission, you  45 probably -- the next major case was Calder, some  46 100 — almost 100 years later.  47 THE COURT:  Well, this is the danger of a fresh mind coming to 25986  Submissions by Ms. Mandell  1 these things, and I'm just tossing these ideas out.  I  2 have some question marks in my mind about St.  3 Catherines', simply because that was a case where the  4 Indian right had been surrendered.  5 MS. MANDELL:  That's right.  6 THE COURT:  And in addition, it was a case where the Royal  7 Proclamation clearly applied.  8 MS. MANDELL:  Um-hmm.  9 THE COURT:  Assuming that for the purpose of the argument the  10 Royal Proclamation doesn't apply to British Columbia,  11 and we have a case where the Indian right has not been  12 surrendered --  13 MS. MANDELL:  Um-hmm.  14 THE COURT:  — you've got a totally different factual situation  15 from what their lordships were dealing with in the  16 St. Catherines' Milling case.  And far be it for me to  17 cast any doubt or question on a case of such ancient  18 vintage, but is it really an applicable authority?  19 Then when I come to the question, "Well, what  20 about" -- you make a bald statement here that, "to  21 infer a power not expressly granted" -- I'm sorry.  22 "To construe the Constitution as permitting provincial  23 extinguishment of aboriginal title, either directly or  24 indirectly, is to infer a power not expressly  25 granted."  And I say what is wrong with Section 92?  26 What is it?  27 MR. GOLDIE:  35.  28 THE COURT:  Civil rights within the province?  What's more  29 closer to civil rights in the province than an  30 aboriginal title?  31 MS. MANDELL:  Well —  32 THE COURT:  Title in fee simple is clearly a matter of  33 provincial rights, civil rights within the province.  34 MS. MANDELL:  Could I speak to this on — you've raised two  35 separate questions.  The question about St.  36 Catherines' Milling, while it's true that the Royal  37 Proclamation -- aboriginal title in that case was  38 founded on the Royal Proclamation and its application.  3 9 THE COURT:  Yes.  40 MS. MANDELL:  Your lordship has been directed to cases since  41 that, Calder and Guerin, for example, where the courts  42 have held that in St. Catherines' Milling they were  43 wrong, that the Royal Proclamation is not the source  44 of aboriginal title.  And cases which are questioning  45 the existence of aboriginal title don't need to start  46 with that foundation.  It's a pre-existing right and  47 so they have adopted, however -- 25987  Submissions by Ms. Mandell  1 THE COURT:  Guerin itself is a case that is so different from  2 this.  3 MS. MANDELL:  Sorry?  4 THE COURT:  Guerin is a case which is so different from this.  I  5 know what they said in Guerin but they were dealing  6 with a reserve.  7 MS. MANDELL:  Well —  8 THE COURT:  Everything else is obiter dicta.  Mind you, I'm  9 supposed to follow obiter dicta of the Supreme Court  10 of Canada, so to that extent it's a troublesome  11 pronouncement.  I mean I just don't see how it could  12 be argued otherwise in Guerin.  As a matter of fact,  13 it could have been decided as Mr. Justice Estey  14 decided on grounds of agency, when they are talking  15 about the failure of the Indian agent to see that they  16 were -- the Indians were properly advised with respect  17 to reserve lands.  Far, far cry from what we are  18 dealing with here.  19 MS. MANDELL:  Except for the long-standing and long-held  20 proposition which I've asserted to your lordship this  21 morning, which started in St. Catherines', and the  22 Seybold case and the Star Chrome case which follow  23 decisions of the Privy Council directly on point, that  24 the Indian interest in the land, whether it be on  25 reserve or off reserve, that interest is the same in  26 both cases.  And that allows your lordship to take  27 what decisions you have which assist you, in  28 determining what is the nature of the Indian interest.  29 Now, I will -- you know, I am not here to urge you  30 to accept necessarily as obiter that which is beyond  31 the pale.  But what Guerin -- Mr. Justice Dickson was  32 talking about and Madam Justice Wilson in their  33 decisions, was they were pulling together the various  34 strains of decided authority on aboriginal title in a  35 way which allowed them to spring into their decision.  36 THE COURT:  They weren't talking about the problem that we are  37 talking about here, at least I don't think they were.  38 MS. MANDELL:  Well, in the sense that — Mr. Justice Dickson  39 canvassed two lines of authority to get into the  40 question of legal obligation.  The first was the  41 fiduciary obligation; where does it come from, how  42 does it finally feature into the Indian Act, and what  43 can we say flows from it?  And the second is the  44 nature of the Indian title, where does it come from,  45 what's its description, how does it feed into the  46 Indian Act, and what can we say finally flows from it?  47 Now, if you accept their ratio, that is, their 259?  Submissions by Ms. Mandell  1 analysis leads to the conclusion that there is, upon  2 surrender, a fiduciary obligation with respect to  3 Indian reserve lands, which is what the Supreme Court  4 of Canada decided, and they got there by finding a  5 fiduciary obligation and an Indian interest in land on  6 the basis of the cases historically, your lordship can  7 take something from their analysis.  8 THE COURT:  Well, I'm just saying to myself, "Why is everybody  9 assuming that that is -- that this is not a civil  10 right within the province?"  And you say there is no  11 authority that deals with that question.  12 MS. MANDELL:  Well, we say that the — it's a question of  13 paramountcy, and I'll be arguing that to you as we  14 proceed.  But the 92 -- Section 92 excepts matters  15 assigned to Parliament under Section 91, and that the  16 proposition that civil rights means Indian rights and  17 Indian land rights, we say that proposition is one  18 which is contained within the jurisdiction of 91(24) .  19 THE COURT:  You say it takes out of 92?  20 MS. MANDELL:  It's definitely out of 92.  So then the question  21 is, is it into 109?  And we say that's where the  22 inquiry is to be made.  23 THE COURT:  Yes, all right.  Forgive me for raising these —  24 MS. MANDELL:  I'm happy —  25 THE COURT:  — these heretical ideas.  26 MS. MANDELL:  I'm really glad you are because in the absence of  27 your raising them, I don't know where to attempt to  2 8              direct the argument.  2 9 THE COURT:  All right.  30 MS. MANDELL:  I would like to deal with the exclusive power on  31 the part of the federal government to surrender or  32 extinguish aboriginal title.  33 If I could repeat, my lord, that we are at this  34 point dealing with paramountcy in respect of property  35 and civil rights as your lordship raised.  36 Apart from the trial level decision in the Bear  37 Island case, which we will deal with later, there is  38 no -- no court has held that a province has a right to  39 extinguish aboriginal title.  In Bear Island, the  40 holding was obiter.  41 A long line of authority, from St. Catherines'  42 Milling to the present, has held or assumed the  43 federal power to extinguish or accept surrender of  44 aboriginal title.  Several cases have gone further and  45 held, expressly or implicitly, that the provinces lack  46 such power.  47 In the Royalties case, Mr. Justice Duff, in 25989  Submissions by Ms. Mandell  1 considering the question whether or not the federal  2 government in extinguishing a treaty was acting as a  3 constitutional agent for the province said:  4  5 It is, I think, true -- as Mr. Newcombe  6 argues -- that the Dominion alone was competent  7 to authorize the treaty in question.  8  9 This view was supported in that same decision by  10 Mr. Justice Davies which would make a majority on  11 point.  He said:  12  13 ...the Dominion and the Dominion alone could  14 act so as to extinguish the aboriginal title to  15 any lands within the Dominion.  16  17 The right and duty of determining when and the  18 terms on which such title ought to be  19 extinguished rests with the Dominion and with  20 it alone.  Consideration arising out of and  21 affecting the peace, order and good government  22 of Canada and other considerations affecting  23 the best interests of the Indians may well have  24 entered into the minds of that government when  25 determining the times and seasons at which it  26 was desirable or necessary to make such a  27 treaty as the one made in the case before us.  28  29 In Calder, Mr. Justice Hall appeared to accept  30 that provincial grants of lands subject to  31 unextinguished aboriginal title did not remove the  32 burden of such title, but rather were themselves  33 ultra vires.  34 In Derrickson, the court held:  35  36 The right to possession of lands on an Indian  37 reserve is manifestly of the very essence of  38 the federal exclusive legislative power under  39 s. 91(24).  It follows that provincial  40 legislation cannot apply to the right of  41 possession of Indian reserve lands.  42  43 And I might here ask your lordship to note that  44 in Re Stony Plain -- and I think you have got that tab  45 number.  4 6    THE COURT:  Well, we had it a minute ago.  47    MS. MANDELL:  We had it earlier.  It's at Volume 8, tab 19, at 25990  Submissions by Ms. Mandell  1 page 322, the Court of Appeal there reviews various  2 provincial legislation, including the Expropriation  3 Act and other acts which would go to the root of  4 disturbing possession.  And there follows the  5 reasoning of Derrickson, and says that "provincial  6 legislation cannot apply to the right of possession of  7 Indian reserve lands".  8 THE COURT:  That's a pretty good statement to exclude Section  9 92.  10 MS. MANDELL:  It's pretty full.  11 THE COURT:  That last two lines of your quotation of  12 Derrickson --  13 MS. MANDELL:  Yes.  14 THE COURT:  — would seem to exclude Section 92.  15 MS. MANDELL:  It would.  And if you read it with Stony Plain I  16 think that you will see the range of it.  17 THE COURT:  All right.  Thank you.  18 MS. MANDELL:  In Regina v. Batisse, the court said:  19  20 In my view, the Province had no constitutional  21 right to negotiate an Indian treaty as an  22 independent party.  Its sole right, in view of  23 the legislation, was to concur in a treaty  24 entered into between the Indians and the  25 federal government.  Although the Province  26 could perhaps veto a treaty by refusing to  27 concur [with decisions setting out the size and  28 locations of reserves], the legislation did not  29 purport to give it any more extensive powers  30 over this area of exclusive federal  31 jurisdiction.  32  33 And I can just --  34 THE COURT:  What authority would there be for that, for the  35 provincial veto?  36 MS. MANDELL:  Well, what happened is -- I was just going to draw  37 to your attention, there was an agreement between the  38 two governments that the province sought to rely upon  39 and I made reference to it this morning.  40 THE COURT:  By contract I can understand it.  41 MS. MANDELL:  And there was a clause in it where — I'll just  42 read it to you.  43 Clause six, and it's "The Agreement of an Act for  44 the Settlement of Questions between the Governments of  45 Canada and Ontario Respecting Indians Lands in 1891".  46 And the last clause says:  47 25991  Submissions by Ms. Mandell  1 That any future treaties with the Indians in  2 respect of territory in Ontario to which they  3 have not hitherto surrendered their claim  4 aforesaid shall be deemed to require the  5 concurrence of the Government of Ontario.  6  7 And in Batisse it was just a regular hunting  8 charge and what the -- the treaty was the right to  9 hunt over the unoccupied Crown lands and subject to  10 the regulations.  And the province argued that because  11 it had the right to concur on the treaty -- and it  12 relied upon Section 6 -- that it also could apply  13 provincial hunting laws as part of the regulations  14 that the treaty anticipated.  And the court, even in  15 the face of expression and statute where the province  16 was a party to the treaty, said that the legislation  17 did not purport to give it any more extensive powers  18 over this area of exclusive federal jurisdiction.  19 We argue that it's incomprehensible that the  20 province, which cannot be a party to a treaty wherein  21 lands are surrendered to the Crown in Right of the  22 Province, could unilaterally and without compensation  23 extinguish existing rights to those same lands.  24 THE COURT:  Well, you go further than that, don't you?  You  25 would take out the words "without compensation",  2 6 wouldn't you?  27    MS. MANDELL:  Oh yes.  2 8    THE COURT:  You don't need those words?  2 9    MS. MANDELL:  I didn't mean to underplay it.  We don't need  30 those words.  31 THE COURT:  No.  32 MS. MANDELL:  No.  33 Now, we argue that, in fact, Parliament has  34 legislated with respect to the surrender requirements  35 for non-reserve Indian lands, which we say is a proper  36 indicator of the scope of the federal legislative  37 jurisdiction in this respect.  38 And I've already drawn to your lordship's  39 attention the Royalties case and the provisions of the  40 Indian Acts, and their application to British  41 Columbia.  42 And if I could just only ask you now to turn to  43 page 14, there is a further legislative provision  44 which is applicable to which I haven't referred you  45 to, and this is the Dominion Lands Act, 1871, Section  46 42, which provides:  47 25992  Submissions by Ms. Mandell  1 42.  None of the provisions of this Act  2 respecting the settlement of Agricultural  3 lands, or the lease of Timber lands, or the  4 purchase and sale of Mineral lands, shall be  5 held to apply to territory the aboriginal title  6 to which shall not at the time have been  7 extinguished.  8  9 And it is submitted that Parliament has evidenced  10 through statutes its exclusive jurisdiction to  11 legislate with respect to the federal power to accept  12 surrenders.  It is beyond the constitutional  13 competence of the Province to otherwise extinguish  14 Indian title.  The constitutional constraint can be  15 demonstrated by posing the question of whether the  16 province could competently accept a surrender of an  17 Indian Reserve.  The answer is clearly no.  Equally,  18 the province has no competence to extinguish title for  19 lands not formerly designated as Reserves.  20 Now, I've already submitted to you on the federal  21 powers which extend beyond the reserve with respect to  22 lands and lands reserved for Indians.  But I would ask  23 you at page 15 to note the significance.  24 The significance of this is obvious in respect of  25 numerous judicial considerations of reserve land and  26 surrender requirements.  Just as Inuit and probably  27 Metis are "Indians" within the meaning of 91(24), but  28 are not subject to the regulatory regime of the  29 Indian Act, so, too, many Indian lands may be outside  30 the reserve regulatory scheme.  This does not  31 diminish, according to Mr. Justice Dickson, the Indian  32 interest in those lands, nor does it diminish the  33 surrender requirement as the precondition for the  34 creation of valid third party interests in the land or  35 for freeing the provincial lands of the "burden" of  36 aboriginal title.  37 And I just wanted to there draw to your attention  38 that the case of Re Eskimos, which is a case I  39 referred to, it was a case where it was questioned  40 whether or not the Eskimo people could be part of  41 91(24) when, by the Indian Act, they were expressly  42 excluded as being Indians included in the Act, and the  43 courts said yes.  44 At page 16:  Three conclusions may be derived  45 from the above.  First, Indians may possess rights  46 over non-reserve lands no less comprehensive than  47 their rights to reserve lands.  Second, federal 25993  Submissions by Ms. Mandell  1 exclusive legislative power under Section 91(24) of  2 the Constitution Act, extends beyond Indian reserves  3 to include Crown lands still subject to aboriginal  4 title.  Third, "reserve" status has practical  5 significance under the statutory regime of the Indian  6 Act, but has no constitutional significance by way of  7 varying the powers of the respective governments with  8 respect to Indian lands.  The power of the Provincial  9 Crown begins where aboriginal title and jurisdiction  10 end, and, for the purpose of that inquiry, it is  11 irrelevant whether or not such lands are "Reserves".  12 The exclusive federal jurisdiction also includes  13 administrative powers and functions.  The federal  14 power over Indian lands extends beyond the power to  15 extinguish title and accept surrender, even where the  16 lands in question are otherwise vested in the  17 Provincial Crown.  It has been held that the  18 legislative jurisdiction includes a corresponding  19 administrative jurisdiction.  20 And we cite the Mowat case, where it was held  21 following A.G. Canada v. A.G. Ontario, that the  22 distribution of powers set out in 91, 92 "applies to  23 the administerial powers and functions of the  24 different Governments as well as to the legislative  25 authority of the Parliament of Canada and of the  26 Provincial legislatures" and "entrusts the Government  27 of the Dominion with the administration and control of  28 the affairs and of the lands and property of the  29 Indians".  30 In that case it was determined that the federal  31 Crown had the right to administer Indian lands in the  32 Province of Quebec.  Rents obtained in respect of  33 certain lands in that province held by the Provincial  34 Crown for the Indians was to be collected by the  35 Dominion.  Although the bare title was in the  36 Provincial Crown, the administration of Indian lands  37 and monies was a federal matter.  38 MR. GOLDIE:  That had been set aside as a reserve, had it not?  39 MS. MANDELL:  Yes.  Again, it is to be borne in mind that the  40 province and the federal defendant in the case at bar  41 pleads extinguishment of aboriginal title through  42 administrative actions pursuant to legislation.  The  43 first point -- and we will be making more later -- the  44 first point to be made is that if the legislation is  45 incapable of rendering that result, certainly actions  46 under such legislation cannot do more.  Secondly, even  47 administrative actions may be rendered 25994  Submissions by Ms. Mandell  1 unconstitutional if the actions are, in effect,  2 trenching upon an area of exclusive federal  3 jurisdiction.  4 Now the next section, my lord, is a section which  5 deals with the large body of Canadian Indian  6 jurisprudence since confederation which describes the  7 power that the province has to interfere with or  8 impair a matter falling under a head of exclusive  9 federal jurisdiction and will take in the matters  10 involving Indians.  And if I could state the broad  11 proposition, although the details of which will be  12 more finally rendered, the province does have the  13 power, if it enacts laws within its competence, to  14 interfere with or to affect Indians, but it does not  15 have the power to impair or interfere with, in pith  16 and substance, Indians or Indian lands.  And so where  17 the provincial law necessarily affects Indians or, for  18 that matter, to a degree necessarily affects Indian  19 lands, provincial law will apply.  But to the extent  20 that it moves to the pith and substance of either  21 Indians or Indian lands, provincial law won't apply.  22 We say that it is untenable to suggest that the  23 province may unilaterally terminate rights subject to  24 exclusive federal jurisdiction.  Such would provide  25 the province with powers in respect of Indians affairs  26 and Indian lands that it may exercise in no other area  27 of federal jurisdiction.  No rationale has been  28 suggested for such a radical departure from the norm  29 of constitutional construction.  30 While provincial legislation may to a very  31 limited extent incidentally affect matters under  32 federal jurisdiction, such legislation may not destroy  33 the subject matter of the federal jurisdiction.  The  34 province may not extinguish aboriginal title by  35 collateral act any more than it may seize national  36 parks or military bases.  Indeed, such a suggestion,  37 when applied to other than Indian lands, would be  38 dismissed as fairly ridiculous.  39 Extinguishment of title, like the extinguishment  40 of property rights by the Crown requires the finding  41 of an "intent" to extinguish title.  We have already  42 argued extensively that extinguishment by legislation  43 cannot occur absent clear expression of such intent.  44 It may be sufficient to add here a reference to  45 Spooner Oils, which decided that provincial  46 legislation of general application could not "affect"  47 a lease of lands from the general Crown granted prior 25995  Submissions by Ms. Mandell  1 to the Natural Resources Transfer Act.  2 THE COURT:  What do you mean by the "general Crown"?  You mean  3 federal Crown, correct?  4 MS. MANDELL:  Federal.  Federal Crown.  5 Mr. Justice Duff, speaking for the court, said:  6  7 A legislative enactment is not to be read as  8 prejudicially affecting accrued rights, or "an  9 existing status" unless the language in which  10 it is expressed requires such a construction...  11 the underlying assumption being that, when  12 Parliament intends prejudicially to affect such  13 rights or such a status, it declares its  14 intention expressly, unless, at all events,  15 that intention is plainly manifested by  16 unfavourable inference.  17  18 We would reiterate the passage from Calder which  19 we referred your lordship to last night from Lipan  2 0 Apache:  21  22 aboriginal title based on aboriginal possession  23 does not depend on sovereign recognition or  24 affirmative acceptance for its survival... In  25 the absence of a "clear and plain indication"  26 in the public record that the sovereign  27 "intended to extinguish all of the [claimants']  28 rights" in their property, aboriginal title  29 continues.  30  31 If provincial legislation fails to expressly  32 extinguish aboriginal title or disclose "that  33 intention plainly manifested" or a "clear and plain  34 indication" that it "intended to extinguish" title,  35 then the title will not have been extinguished by such  36 provincial legislation, as a matter of statutory  37 interpretation.  38 If the legislation does disclose the  39 aforementioned "intention", the legislation is  40 colourable intrusion into an area of exclusive federal  41 jurisdiction.  Such an "intention", whether express or  42 implied, would make the legislation an enactment "in  43 relation to" a federal matter and, accordingly, ultra  44 vires.  45 Now, the only case which doesn't support us is the  46 conclusion of Mr. Justice Steele in Bear Island.  And  47 what Mr. Justice Steele says is that the provinces may 25996  Submissions by Ms. Mandell  1 extinguish aboriginal title, and he rests this on  2 three premises:  First, he says, once title is  3 surrendered the title is absolutely in the Provincial  4 Crown.  The lands are lands of the province.  5 Secondly, he says, the only limit on the province's  6 ability to enact general legislation that extinguished  7 aboriginal title is that such legislation must fall  8 under a head of general provincial legislative power  9 and competence such as 92(5) or 92(13).  Thirdly, he  10 says, that a provincial law extinguishing aboriginal  11 title could be referentially incorporated by Section  12 88 of the Indian Act.  13 As to the first of these premises, this has been  14 addressed above.  The fallacy in the reasoning is that  15 the provincial interest is perfected only after the  16 surrender of aboriginal title.  Prior to such  17 surrender the province's interest is still subject to  18 aboriginal title.  Mr. Justice Steele's reasoning  19 would render meaningless the "subject" provision of  20 Section 109 of the Constitution Act and would reverse  21 the lengthy line of jurisprudence concerning that  22 section which holds that the province's beneficial  23 interest in the use of such lands commences only after  24 the extinguishment of aboriginal title.  If aboriginal  25 title is subject to the ability of the province to  26 unilaterally extinguish it, then the province's title  27 is not "subject" to the Indian interest and its  28 interest must, of necessity, precede (legally, not  29 temporally) the Indian interest.  The cases hold the  30 contrary on both points.  31 As argued above, the provincial interest in lands  32 subject to aboriginal title carries with it no right  33 to use or benefit of the lands before unencumbered of  34 the aboriginal interest.  35 And I want to move to the next paragraph.  With  36 respect to Mr. Justice Steele's second premise, this  37 will be examined in detail below.  At this point it is  38 sufficient to note that it has never been held that a  39 province could expropriate federal lands, destroy the  40 subject matter of exclusive federal jurisdiction or  41 exercise incidental powers so as to render those  42 paramount over existing federal law.  43 THE COURT:  Court of Appeal in Ontario didn't deal with this,  44 did they?  45 MS. MANDELL:  No.  46 With respect to the third premise, this also will  47 be examined in detail below.  In summary, Mr. Justice 25997  Submissions by Ms. Mandell  1 Steele does not consider that a provincial law which  2 intended the extinguishment of aboriginal title would  3 be ultra vires on its face, and could not be  4 incorporated by Section 88.  We have already argued  5 that absent such an intention, extinguishment could  6 not be inferred.  In the presence of such an  7 intention, the law would be an invalid intrusion into  8 an area of exclusive federal jurisdiction.  Further, a  9 law which extinguished aboriginal title by implication  10 would not be a law of general application to which  11 Section 88 could apply.  Finally, Section 88, on its  12 face, and as interpreted in the case law, does not  13 apply to Indian lands.  14 It is submitted that the Bear Island judgment on  15 this point, upon which no comment was made by the  16 Ontario Court of Appeal (leave has been granted to the  17 Supreme Court of Canada) cannot survive the subsequent  18 decision of the Supreme Court in Derrickson, and must  19 be seen as having been overruled.  20 Now, as to the permissible reach of provincial  21 legislation, we assert the following principles:  22  23 - provincial legislation that can be applied to  24 Indians without touching upon their  25 "Indianness" that is, legislation that does not  26 affect Indians qua Indians, can apply [of their  27 own force];  28 - provincial legislation, otherwise intra  29 vires, that extends to affect or impair a  30 matter within exclusive federal jurisdiction,  31 [such as] (Indians and lands reserved for  32 Indians) must be read down to avoid that  33 result, even in the absence of any federal  34 legislation in the field;  35 - the doctrine of paramountcy dictates that if  36 provincial legislation is in conflict with  37 existing federal legislation, or with federal  38 common law (which includes the fundamental  39 principles relating to aboriginal title and  40 rights as outlined earlier), then the federal  41 law must prevail.  42  43 And I'll be developing each of these points in  44 turn with reference to the cases which have been  45 decided affecting Indians.  46 The first is the broad proposition that  47 "provincial legislation that can be applied to Indians 2599?  Submissions by Ms. Mandell  1 without touching their 'Indianness', applies of their  2 own force."  And this is really the decision of the  3 Supreme Court in Four B Manufacturing.  The issue was  4 whether or not provincial law could apply to a  5 business which was being carried out on a reserve, but  6 which essentially was, in pith and substance, a  7 business such that it could be carried out anywhere in  8 the province and could be governed by ordinary  9 legislation.  It was as if a shoe business was on the  10 reserve as opposed to off reserve.  And in that case,  11 the -- while there were band members employed, the  12 court still held that provincial law could apply to  13 such an enterprise.  14  15 With respect to labour relations, exclusive  16 provincial legislative competence is the rule,  17 exclusive federal competence is the exception.  18 The exception comprises, in the main, labour  19 relations in undertakings, services and  20 businesses which, having regard to the  21 functional test of the nature of their  22 operations and their normal activities, can be  23 characterized as federal undertakings, services  24 or businesses.  25  26 The functional test is a particular method of  27 applying a more general rule, namely, that  28 exclusive federal jurisdiction over labour  29 relations arises only if it can be shown that  30 such jurisdiction forms an integral part of  31 primary federal jurisdiction over some other  32 federal object.  33  34 And then this is the crucial point:  35  36 ...neither Indian status is at stake nor rights  37 so closely connected with Indian status that  38 they should be regarded as necessary incidents  39 of status such for instance as registrability,  40 membership in a band, the right to participate  41 in the election of chiefs and band councils,  42 reserve privileges, etc.  For this reason, I  43 come to the conclusion that the power to  44 regulate the labour relations in issue does not  45 form an integral part of primary federal  46 jurisdiction over Indians or lands reserved for  47 the Indians.  Whether Parliament could regulate 25999  Submissions by Ms. Mandell  1 them in the exercise of its ancillary powers is  2 a question we do not have to resolve any more  3 than it is desirable to determine in the  4 abstract the ultimate reach of potential  5 federal paramountcy.  6  7 So, I think that's about the best statement we  8 could find of that first proposition.  9 The second proposition is that provincial  10 legislation, while otherwise intra vires, that does  11 extend to affect other matters such as Indians or  12 Indian lands, should be read down.  And this is the  13 decision of the Supreme Court of Canada in Derrickson.  14 Derrickson, my lord, the facts -- so you had a  15 validly enacted provincial Labour Relations -- or  16 Family Relations Act, and you had a woman and a man  17 who held their house on a reserve by way of  18 Certificate of Possession which is a particular  19 instrumentality under the Indian Act where individuals  20 can maintain possession of parts of the reserve land.  21 The family breaks up and the question before the court  22 was whether or not the provincial Family Relations Act  23 which could grant an order entitling one or the other  24 of them to retain possession of the house, could apply  25 on an Indian reserve.  And the court said that the  26 Family Relations Act, while valid in every respect,  27 cannot apply to an Indian reserve because it -- it is,  28 in pith and substance, in relationship to the  29 possession of land, and that's an area within the  30 exclusive federal domain.  31 The bottom of page 25, Mr. Justice Chouinard  32 recited the principle.  He cited from an article  33 written by Mr. Justice Lysyk before he then was  34 called, called "Constitutional Developments Relating  35 to Indians and Indian Lands: an Overview", and he  36 says:  37  38 As to what is embraced within provincial "land  39 law" in this sense, Mr. Justice Laskin observed  40 in Morgan that:  "The power of a provincial  41 legislature to regulate the way in which land  42 in the province may be held, how it may be  43 transferred, how it may be used (and this,  44 whether the land be privately owned or be land  45 held by the Crown in right of the province) is  46 not contested."  By analogy, presumably the  47 matters contained within exclusive federal 26000  Submissions by Ms. Mandell  1 authority over Indian reserve lands include  2 regulation of the manner of landholding,  3 disposition of interests in reserve lands and  4 how reserve lands may be used.  5  6 I cannot but agree with the Attorney General of  7 Canada who writes in his factum:  8  9 In essence, Part 3 of the Family Relations Act  10 is legislation which regulates who may own or  11 possess land or other property.  Its true  12 nature and character is to regulate the right  13 to the beneficial use of property and its  14 revenues and the disposition thereof.  15  16 And then the passage I referred you to earlier:  17  18 The right to possession of lands on an Indian  19 reserve is manifestly of the very essence of  20 federal exclusive legislative power under  21 Section 91(24) of the Constitution Act.  It  22 follows that provincial legislation cannot  23 apply to the right of possession of Indian  24 reserve lands.  25  26 When otherwise valid provincial legislation,  27 given the generality of its terms, extends  28 beyond the matter over which the legislature  29 has jurisdiction and over a matter of federal  30 exclusive jurisdiction, it must, in order to  31 preserve its constitutionality, be read down  32 and given the limited meaning which will  33 confine it within the limits of the provincial  34 jurisdiction.  35  36 MR. GOLDIE:  My lord, I don't know of any provincial Act which  37 purports to apply to reserve lands that is an issue  38 that is in this case.  39 THE COURT:  Well, Derrickson was one, wasn't it?  4 0    MS. MANDELL:  Yes.  41 MR. GOLDIE:  That was — but in this case I'm talking about.  42 THE COURT:  Well, I take it, Miss Mandell, that you are  43 advancing this as an example of the limited authority  44 of the legislature to pass laws relating to matters  45 falling within federal jurisdiction, and you say that  46 aboriginal -- unrecognized aboriginal title is a  47 matter of federal jurisdiction, whether it's on an 26001  Submissions by Ms. Mandell  1 Indian reserve or it's on land burdened by Indian  2 title.  3 MS. MANDELL:  Yes, that's right.  4 THE COURT:  All right.  5 What is your point, Mr. Goldie?  That there are no  6 laws in question in this action that are -- that  7 anyone contends have any operation on reserves?  8 MR. GOLDIE:  Well, the laws which the province refers to are not  9 intended to apply to reserves.  10 THE COURT:  All right.  The laws you refer to, you mean the ones  11 that you rely upon as --  12 MR. GOLDIE:  As particular —  13 THE COURT:  As extinguishing?  14 MR. GOLDIE:  Yes.  We were asked particulars of the provincial  15 legislation which apply to affect the possessory  16 interest --  17 THE COURT:  Yes.  18 MR. GOLDIE:  — of the plaintiffs outside the reserve.  19 THE COURT:  All right.  20 MS. MANDELL:  I think you have our point.  Those we are saying  21 the possessory interest -- of interest in the land is  22 the same in both cases and that the reach of  23 provincial law, as it's been described to be held on  24 reserve, we say is applicable to lands off reserve.  25 THE COURT:  Yes, I see a problem, but I think it's one we  26 needn't be troubled with.  Go ahead.  27 MS. MANDELL:  My lord, you will recall that I referred you to  28 the Four B Manufacturing case as one where the  29 operation was, in pith and substance, not in relation  30 to a federal entity.  31 The Whitebear case was another Family Relations --  32 Labour Relations case, but the decision went the other  33 way.  And the reason it did was that the Indian -- the  34 Labour Relations Act was being asked -- was being  35 applied to the employees of the Band Council, who are  36 clearly a federal entity.  And in that case, the  37 decision of Four B was followed, but concerned the  38 effect of provincial labour legislation on employees  39 hired and directed by the elected Band Council.  And  40 it was held that provincial labour legislation in that  41 case did not apply to those persons.  42 The court applied the "functional" test:  "Having  43 regard for the nature of the service, business, work  44 or undertaking involved and its operations and normal  45 activities, can it be characterized as federal?  Only  46 if the answer is positive will federal jurisdiction  47 prevail". 26002  Submissions by Ms. Mandell  1 The Band Council was found to have a federal  2 function.  The power to regulate its labour relations  3 was, accordingly, "an integral part of primary federal  4 jurisdiction in relation to "Indians, and Lands  5 reserved for the Indians" and provincial legislation  6 could have no application.  7 The court proceeded to hold that the regulation  8 of labour relations herein was not only beyond  9 provincial jurisdiction, but was immune from  10 provincial law, whether or not Parliament has  11 legislated.  12 The significance of this decision is that  13 provincial legislation, intra vires in respect of  14 matters subject to provincial jurisdiction, cannot  15 operate to impair matters under federal jurisdiction,  16 even in the absence of conflicting federal  17 legislation.  18 And I just wanted to here point out -- and it's  19 partly in response to Mr. Goldie -- but the cases  20 don't ever turn on what's the meaning of the Indian  21 Act.  It's always an analysis of the division of  22 constitutional powers between the federal government  23 on one hand and the reach of Section 91(24), and the  24 intrusive or the permissive power of the provincial  25 law validly enacted under Section 92.  26 I'm reading at page 28.  27 Application of federal labour legislation to  28 employees of Indian Band Councils was also confirmed  29 in the St. Regis case.  30 THE COURT:  Well, that's no different from the law that says  31 that the Labour Relations Act in British Columbia, as  32 it used to be called, wouldn't apply to longshoremen.  33 MS. MANDELL:  I'm sorry, what's that?  34 THE COURT:  Same thing as saying the Labour Relations Act  35 wouldn't apply to longshoremen or to deep-sea fishing.  36 MS. MANDELL:  That's right.  37 THE COURT:  Yes.  38 MS. MANDELL:  Because it's essentially — that's right.  39 THE COURT:  In pith and substance it's a federal matter —  40 federal project.  41 MS. MANDELL:  There are a number of other cases which have  42 considered the application of otherwise valid  43 provincial laws to Indians and their lands.  And I  44 cite the Cardinal case, which is a little different,  45 but it affirms the Surrey v. Peace Arch case which  46 makes the point.  47 What happened in Cardinal -- I think I've 26003  Submissions by Ms. Mandell  1 explained it -- it was selling game on an Indian  2 reserve, and the ratio of the case is that provincial  3 laws related to wildlife are applicable through  4 Section 12 of the Natural Resource Transfer Agreement,  5 which the majority admitted may have given to the  6 province something otherwise not within its sphere.  7 But in coming to the conclusion which it did, the  8 court reviewed the general constitutionality of  9 statutes, and both the majority and the dissent cited  10 with approval the Surrey v. Peace Arch case where the  11 rule was stated as follows:  12  13 The issue was as to whether the lands were  14 subject, in their use by the lessees, who were  15 non-Indians, to certain municipal bylaws and to  16 regulations under the Provincial Health Act.  17  18 And then we rely on these words:  19  2 0 Once it was determined that the lands remained  21 lands reserved for the Indians, Provincial  22 legislation relating to their use was not  23 applicable.  24  25 In Natural Parents v. Superintendent of Child  26 Welfare, Mr. Justice Laskin -- this is a case where  27 the -- an Indian child was adopted by a non-Indian  28 person under the Provincial Adoption Act.  And in the  29 Provincial Adoption Act, there was a provision which  30 stated that the child wouldn't lose their status under  31 the Indian Act, but the question before the court was  32 whether or not the Adoption Act which permitted the  33 adoption of a non-Indian child to -- an Indian child  34 to a non-Indian family, was violative of their Indian  35 status.  I'll be referring to the case again, but this  36 is the quote from that case which bears on this  37 discussion:  38  39 There was no challenge in this Court to the  40 general and long-established proposition found  41 in Union Colliery that "the abstinence of the  42 Dominion Parliament from legislating to the  43 full limit of its powers could not have the  44 effect of transferring to any provincial  45 Legislature the legislative power which had  46 been assigned to the Dominion by Section 91 of  47 the Act".  It cannot be said therefore that 26004  Submissions by Ms. Mandell  1 because a provincial statute is general in its  2 operation in the sense that its terms are not  3 expressly restricted to matters within  4 provincial competence, it may embrace matters  5 within exclusive federal competence.  6  7 And the various examples are spelled out which  8 really only reflect the paramountcy doctrine that your  9 lordship is well aware of.  10 And then in the middle paragraph:  11  12 ...The Adoption Act did not purport to extend  13 to areas of exclusive federal competence, e.g.  14 Indians.  It could only embrace them if the  15 operation of the Act did not deal with what was  16 integral to that head of federal legislative  17 power, there being no express federal  18 legislation respecting adoption of Indians.  It  19 appears to me to be unquestionable that for the  20 provincial Adoption Act to apply to the  21 adoption of Indian children of registered  22 Indians, who could be compelled thereunder to  23 surrender them to adopting non-Indian parents,  24 would be to touch "Indianness", to strike at a  25 relationship integral to a matter outside of  26 provincial competence.  27  28  29  30 The fallacy in the position of the respondents  31 in this case and, indeed, in that of all the  32 intervenors, including the Attorney General of  33 Canada, is in the attribution of some special  34 force or special effect to a provincial law by  35 calling it a "provincial law of general  36 application", as if this phrase was self-  37 fulfilling if not also self-revealing.  38 Nothing, however, accretes to provincial  39 legislative power by the generalization of the  40 language of provincial legislation if it does  41 not constitutionally belong there.  42  43 And this was agreed to by Mr. Justice Martin and  44 Mr. Justice Ritchey.  45 THE COURT:  Does that mean an Indian child couldn't be adopted?  46 MS. MANDELL:  Well, actually, what they did — I'll come back to  47 it.  What the court finally did, was say that the 26005  Submissions by Ms. Mandell  1 Adoption Act doesn't apply of its own force to Indians  2 just because somebody called it an Act of General  3 Application.  But what the majority did, speaking  4 through Mr. Justice Laskin, is incorporated it through  5 Section 88 by an incorporated -- incorporation by  6 reference, and then applied an analysis which read the  7 Adoption Act consistently with the Indian Act, and not  8 all judges agreed on that approach.  This  9 incorporation through Section 88, I'll deal with that  10 later, but at this stage of the analysis, they were  11 questioning whether or not provincial law, because  12 it's an Act of General Application, can intrude upon  13 the federal subject domain.  And in that part of the  14 analysis, this is what was stated.  15 THE COURT:  I haven't read that case but what you've stated  16 sounds to me like a remarkable proposition.  17 MS. MANDELL:  Well, the whole case is remarkable.  I'll get to  18 Section 88 which —  19 THE COURT:  All right.  Because it seems to me if you can do  20 that, well then you can read the right of  21 extinguishment into Section 88, and I don't think  22 anybody would suggest that, but maybe they do.  I  23 haven't read Mr. Goldie's argument, maybe he does.  24 MS. MANDELL:  I don't think he does, but I think the Federal  25 Crown goes further into that direction.  26 THE COURT:  Does it?  All right.  I don't have any trouble with  27 everything you've read from page 29, it sounds  28 sensible, but then you went on to say in the end the  29 adoption was valid.  30 MS. MANDELL:  Yes.  31 THE COURT:  All right.  32 MS. MANDELL:  I'll get you there.  33 THE COURT:  Thank you.  34 MS. MANDELL:  I might say the question in the court was not  35 whether or not the Adoption Act would apply, but  36 whether or not an Indian child could lose their status  37 through the adoption.  And I don't know if that  38 separates things for you.  39 THE COURT:  I see.  Well, that does separate it out a little  40 bit, yes.  41 MS. MANDELL:  Yes.  42 THE COURT:  All right.  43 MS. MANDELL:  In Campbell-Bennett, a case that held that the  44 Mechanics' Lien Act of British Columbia "is a law of  45 general application and no work or undertaking under  46 Parliament's jurisdiction is singled out".  However,  47 the result of its application could be to "to break up 26006  Submissions by Ms. Mandell  1 and sell the pipe line piecemeal, and a provincial  2 legislature may not legally authorize such a result".  3 Mr. Justice Rand, speaking for four of the seven  4 judges summarized this by stating that:  5  6 ...The mutilation by a province of a federal  7 undertaking is obviously not to be tolerated in  8 our scheme of federalism, and this from the  9 beginning has been the view taken of provincial  10 legislation of the nature of that before us.  11  12 And they quote Spooner Oil:  13  14 held that provincial legislation of general  15 application could not "affect" a lease of lands  16 from the federal Crown.  17  18 Mr. Justice LeDain in The Queen v. Smith said:  19  20 The right to possession of land that forms part  21 of a reserve or surrendered lands within the  22 meaning of the Indian Act falls in my opinion  23 within exclusive federal legislative  24 jurisdiction with respect to lands reserved for  25 the Indians under section 91(24) of the B.N.A.  26 Act.  It is of the very essence of this  27 jurisdiction.  The so-called aboriginal title  28 or right of occupation is really a right of  29 possession.  30  31 On this view of the matter, I am of the opinion  32 that the provincial law respecting the  33 limitation of actions for the recovery of land  34 could not constitutionally apply so as to give  35 the respondent or his predecessors in  36 occupation a possessory title good against  37 either the Indian right of occupation or the  38 right of the federal Crown to claim possession  39 for the protection of the Indian interest.  40  41 What is really involved is the existence of  42 land as part of a reserve or surrendered lands  43 within the meaning of the Indian Act.  If  44 provincial law respecting the limitation of  45 actions could apply so as to have the effect of  46 extinguishing the aboriginal title or the right  47 of the federal Crown to recover possession of 26007  Submissions by Ms. Mandell  1 land for the protection of the Indian interest,  2 it could have a dismembering effect analogous  3 to that which was held in the Campbell-Bennett  4 case to be beyond provincial legislative  5 competence.  It would have the effect of  6 destroying or eliminating a part of the very  7 subjectmatter of federal jurisdiction.  If  8 provincial legislation of general application  9 cannot constitutionally apply to restrict the  10 use of land reserved for the Indians within the  11 meaning of section 91(24), as was held in the  12 Peace Arch case (a conclusion that appears to  13 have been impliedly approved by the Supreme  14 Court in the Cardinal case) then a fortiori  15 must this be true of legislation that would  16 have the effect of extinguishing the right to  17 possession of such land.  18  19 And this passage appears to have been adopted by  20 the Supreme Court in CP v. Paul.  21 In answer to an argument that title to Indian  22 lands had been acquired by CP by prescription under a  23 provincial limitation statute, the Court says:  24  25 Finally, it seems that as a constitutional  26 matter provincial prescriptive legislation  27 would not apply to Indian lands.  28  29 And the court relied on Smith and Derrickson.  30 In Bell Canada, Mr. Justice Beetz, for the Court,  31 considered the application to federal works and  32 undertakings of provincial workers' compensation or  33 related legislation regulating safety in the  34 workplace.  It was held, at p. 169, that the federal  35 workplace is immune from such provincial regulation:  36  37 ...works, such as federal railways, things,  38 such as land reserved for Indians, and persons,  39 such as Indians, who are within the special and  40 exclusive jurisdiction of Parliament, are still  41 subject to provincial statutes that are general  42 in their application, whether municipal  43 legislation, legislation on adoption, hunting  44 or the distribution of family property;  45 provided, however, that the application of  46 these provincial laws does not bear upon those  47 subjects in what makes them specifically of 2600?  Submissions by Ms. Mandell  1 federal jurisdiction.  2  3  4  5 The double aspect theory is neither an  6 exception nor even a qualification to the rule  7 of exclusive legislative jurisdiction.  Its  8 effect must not be to create concurrent fields  9 of jurisdiction, such as agriculture,  10 immigration and old age pensions and  11 supplementary benefits, in which Parliament and  12 the legislatures may legislate on the same  13 aspect.  On the contrary, the double aspect  14 theory can only be invoked when it gives effect  15 to the rule of exclusive fields of  16 jurisdiction.  As its name indicates, it can  17 only be applied in clear cases where the  18 multiplicity of aspects is real and not merely  19 nominal.  20  21 The court held that the statutes in question were  22 in relation to working conditions, labour relations  23 and the management of a federal undertaking.  24 The court considered whether Parliament's power  25 to regulate labour relations was part of its primary  26 jurisdiction over federal undertakings, or merely  27 incidental and ancillary to its primary jurisdiction.  28 If the former, provincial legislation would be  29 inapplicable, even in the absence of federal  30 legislation.  31 It is submitted that this decision, considered  32 with the decisions in Derrickson and Paul, precludes  33 the application of any provincial law where such would  34 have the effect of extinguishing aboriginal title or  35 interfering with the exercise of aboriginal title.  36 My lord, I am not pursuing the paramountcy under  37 federal legislation, those two paragraphs, and in the  38 tape that -- or the disk that we will give you we will  39 delete it.  I had --  4 0    THE COURT:  Both paragraphs?  41 MS. MANDELL:  No.  I am going to pursue federal common law but  42 not legislative -- federal legislation.  I am at the  43 bottom of page 33.  44 THE COURT:  I was given a list, I don't know if you were, that  45 suggests we would adjourn at 3:15.  46 MS. MANDELL:  For the break?  4 7    THE COURT:  Yes.  And then resume and go from 3:30 to 5:00.  I 26009  Submissions by Ms. Mandell  1 thought we were going to 5:30?  2 MS. MANDELL:  I will be finished by 5:00.  3 THE COURT:  All right, we will adjourn at 5:00.  All right, go  4 ahead.  Is this it for today?  5 MS. MANDELL:  No.  That's it for me.  6 THE COURT:  Yes, all right.  7 MS. MANDELL:  And then Mr. Rush will finish.  8 Federal common law:  9 Apart from the existence -- sorry, it is submitted  10 that federal common law is also paramount over  11 provincial legislation.  Mr. -- Madam Justice Wilson  12 in Guerin stated:  13  14 The [fiduciary] obligation [of the Crown with  15 respect to Indian reserves] has its roots in  16 the aboriginal title of Canada's Indians as  17 discussed in Calder.  18  19 In the case of Roberts v. Canada, the Supreme  20 Court of Canada determined that the law of aboriginal  21 title, from which flows both the entitlement of the  22 Indians and the fiduciary duty of the Crown, is a  23 matter of federal common law.  24 This determination complements the findings of  25 Mr. Justice Dickson in Guerin, that the rights of  26 Indians to reserve lands did not differ from their  27 rights to lands held by reason of aboriginal title.  28 The significance of the recent Supreme Court of  29 Canada decision in Roberts can be seen by the  30 following results which, it is submitted, must flow  31 from such a finding.  I'll be developing each of these  32 points in turn.  33  34 a.  Lands, the aboriginal title to which was  35 not extinguished prior to Confederation are  36 "lands reserved for Indians" within the meaning  37 of s. 91(24) of the Constitution Act, except to  38 the extent that such Indian interest was  39 formally surrendered to or expropriated by the  40 federal Crown;  41 b.  Federal common law of aboriginal title  42 "occupies the field" of law concerning,  43 protecting, asserting, interfering with or  44 extinguishing aboriginal title, subject only to  45 being altered, amended or repealed by  46 Parliament;  47 c.  Section 88 of the Indian Act, does not 26010  Submissions by Ms. Mandell  1 referentially incorporate province laws  2 otherwise of general application which are  3 inconsistent with the common law of aboriginal  4 title.  5  6 And I should take you to the Roberts case which  7 is the foundation of this argument.  8 The Roberts case was, in its relevant facts, an  9 action in trespass or ejectment by one Indian band  10 against another, brought in Federal Court.  The  11 trespass was alleged to have occurred on an Indian  12 reserve registered in the name of the Defendant band,  13 which reserve the Plaintiffs claimed ought to have  14 been allocated to them by reason of their aboriginal  15 title.  The jurisdiction of the Federal Court was  16 challenged on the basis, among other things, that a  17 civil trespass action was simply a matter of the  18 common law of the province, notwithstanding that the  19 federal government had jurisdiction to legislate in  20 respect of trespass on Indian reserves if it so chose.  21 The Defendant Band argued that there was no body of  22 federal law underpinning the claim to support the  23 jurisdiction of the Federal Court.  24 Madam Justice Wilson for the court said:  25  26 Professor Evans may be right that Quebec North  27 Shore and McNamara Construction deny the  28 existence of a federal body of common law  29 co-extensive with the federal legislature's  30 unexercised legislative jurisdiction over the  31 subject matters assigned to it.  However, I  32 think that the existence of "federal common  33 law" in some areas is expressly recognized by  34 Mr. Justice Laskin and the question for us,  35 therefore, is whether the law of aboriginal  36 title is federal common law.  37  38 I believe that it is.  In Calder, this Court  39 recognized aboriginal title as a legal right  40 derived from the Indians' historic occupation  41 and possession of their tribal lands.  As Mr.  42 Justice Dickson pointed out in Guerin,  43 aboriginal title pre-dated colonization by the  44 British and survived British claims of  45 sovereignty....  46  47 I would conclude therefore that "laws of 26011  Submissions by Ms. Mandell  1 Canada" are exclusively required for the  2 disposition of this appeal, namely the relevant  3 provisions of the Indian Act, and the act of  4 the federal executive pursuant to the Indian  5 Act in setting aside the reserve in issue for  6 the use and occupancy of one or other of the  7 two claimant Bands, and the common law of  8 aboriginal title which underlies the fiduciary  9 obligations of the Crown to both Bands."  10  11 Madam Justice Wilson did not, in that decision,  12 address the substantive implications of a  13 determination that the law of aboriginal title was  14 federal common law.  This, of course, was not required  15 in a case concerning jurisdiction of the Federal  16 Court.  This has, however, been examined in other  17 recent decisions.  18 And I would like to, before I get into the cases,  19 ask your lordship to note -- and I'm going to find in  20 the materials where we have it -- Section 129 of the  21 Constitution Act which is the foundation for the  22 finding and also the governing provision with respect  23 to the application of federal common law.  And I think  24 I should put that before you before I get into the  25 cases.  2 6    THE COURT:  Do you want to adjourn now?  27 MS. MANDELL:  Sure.  28 THE REGISTRAR:  Order in court.  Court stands adjourned for a  29 brief recess.  30  31 (PROCEEDINGS ADJOURNED AT 3:10 P.M.)  32  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 Toni Kerekes, O.R.  43 UNITED REPORTING SERVICE LTD.  44  45  46  47 26012  Submissions by Ms. Mandell  1 (PROCEEDINGS RECONVENED AT 3:30 P.M.)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  Thank you.  My lord, I am at page 36.  6 THE COURT:  Yes.  7 MS. MANDELL:  The Supreme Court of Canada has repeatedly held  8 that federal common law is not simply the common law  9 applied within areas of unexercised federal  10 legislative competence.  This was clarified in the  11 three cases that are there cited.  12 My lord, I've put before you the Associated Metals  13 case, and there Mr. Justice -- if my friends wanted  14 it, it's in the materials at volume 1, tab 17.  I am  15 doing -- I'm at the bottom of page 36.  16 THE COURT:  Yes.  17 MS. MANDELL:  In the Associated Metal case Mr. Justice Jackett  18 discussed the nature of federal common law and  19 determined that common law was federal where that law,  20 continued by Section 129 of the Constitution Act,  21 1867, could be repealed, abolished or altered by the  22 Parliament of Canada.  23 And I placed the Associated Metals case before you  24 at page 7134, for your lordship to remind yourself of  25 the wording of Section 129.  2 6 THE COURT: Yes.  27 MS. MANDELL:  We say that what the Associated Metal case says  28 and others is that federal common law is a -- applies  29 even in the absence of federal statute where  30 provincial statute and common law can't apply.  It's a  31 matter which can only be repealed, abolished or  32 altered by the Parliament of Canada.  33 It must follow, and I'm reading -- I'm urging you  34 to read -- I am not going to read it to you, between  35 pages 713 to 716 to get a fairly comprehensive  36 discussion of the nature of federal common law and the  37 recent authorities thereunder.  I think that the  38 quotation or the summary at the top of page 37,  39 though, of our materials, properly summarizes the  40 result.  41 THE COURT: Yes.  42 MS. MANDELL:  It must follow that if the common law of  43 aboriginal title can be repealed, abolished or altered  44 only by Parliament, the same must apply to rights  45 created under or recognized by such federal common  46 law.  47 This view was cited with apparent approval by the 26013  Submissions by Ms. Mandell  1 Supreme Court of Canada in the ITO case, Section 129.  2  3 "Section 129 does not, in my opinion, support an  4 argument for referential incorporation of  5 provincial law.  The effect of the section is  6 to preserve in force after the Union the laws  7 which existed in the various provinces before  8 the Union, but as to future repeal or amendment  9 of such laws after the Union, the s. 91 and s.  10 92 division of powers was to apply.  This  11 section has rather an opposite effect from that  12 contended for.  It separates the laws into the  13 separate spheres of legislative competence  14 created by the Union, rather than causing any  15 federal incorporation."  16  17 And they direct us to the Associated Metals case.  18  19 "Section 42 cannot be considered a referential  20 incorporation of provincial or a re-enactment  21 of provincial law.  It is clearly only a  22 continuation of law provision."  23  24 While Section 129 has rarely been the subject of  25 the litigation, its infrequent citations support the  26 view above.  And refer you to the Hellens case and the  27 C. V. C. case and others.  28 The Bisaillon v. Keable case clarified that the  29 principles of paramountcy apply not only to statutes,  30 but as well to federal common law.  In that case, Mr.  31 Justice Beetz said for the court:  32  33 "Moreover, if provincial legislation having the  34 effects which the Court of Appeal attributed to  35 art.  308 of the Code of Civil Procedure were  36 constitutionally possible on the assumption  37 that the field was not occupied, the position  38 would be different when it is occupied by legal  39 rules falling under federal jurisdiction, with  40 which such legislation would be in conflict, as  41 I indicated above, in terms of the indivisible  42 nature of the rule regarding police informers.  43 In my view, these conflicts suffice to make  44 such legislation inoperative, as they go to the  45 root of the policy on which the rule is based.  46 It is true that the federal Parliament has  47 not given legislative form to the secrecy rule 26014  Submissions by Ms. Mandell  1 regarding police informers' identity.  Section  2 41 of the Federal Court Act, in force at the  3 relevant time, in my view, has no bearing on  4 this rule.  To the best of my recollection, I  5 recall no case where the non-legislative  6 federal law has been given paramountcy over  7 provincial laws.  However, I do not see why the  8 federal Parliament is under an obligation to  9 codify legal rules if it wishes to ensure that  10 they have paramountcy over provincial laws, at  11 least when some of those legal rules fall under  12 its exclusive jurisdiction, as for example do  13 rules of evidence in criminal proceedings."  14  15 While these comments are admittedly obiter, they  16 were approved by all seven members of the court.  17 We say at page 39 the clear and inescapable  18 significance of the Roberts determination that the  19 common law of aboriginal title is federal law is that  20 such federal law is paramount and prevails over  21 inconsistent provincial law.  22 Put differently, aboriginal title and rights,  23 protected by federal common law, are no more  24 vulnerable to provincial statutory extinguishment,  25 impairment, diminishment or reduction by provincial  26 legislation than are statutory reserve lands.  27 I would like to next address Section 88.  Section  28 88 I have set out the terms of it on page 39.  29  30 "Subject to the terms of any treaty and any  31 other act of the Parliament of Canada, all laws  32 of general application from time to time in  33 force in any province are applicable to and in  34 respect of Indians in the province, except to  35 the extent that such laws are inconsistent with  36 this Act or any order, rule, regulation or  37 by-law made thereunder, and except to the  38 extent that such laws make provision for any  39 matter for which provision is made by or under  4 0 this Act."  41  42 And I just wanted to draw to your attention two  43 important features about the wording.  First is that  44 you will recall that the legislative jurisdiction is  45 for Indians and lands reserved for Indians under  46 91(24), and this Section 88 makes all laws of general  47 application applicable to in respect of Indians, and 26015  Submissions by Ms. Mandell  1 it doesn't state in respect of Indian lands.  2 The second point, which is more editorial, is that  3 Section 88, formally Section 87, was designed as a  4 protective measure with respect to Indian treaties,  5 and that was at the time of its enactment the stated  6 legislative purpose for it being included in the  7 Indian Act.  8 Section 88 of the Indian Act has been considered  9 in numerous decisions of the Supreme Court.  The  10 object of the section is to make applicability to  11 Indians' provincial laws which, in the absence of  12 Section 88, would not so apply.  This is what has  13 happened.  The object of the section is to make  14 applicable to Indians provincial laws which, in the  15 absence of Section 88, would not so apply.  16 This is what the cases have done, is in effect  17 incorporated -- this is what you are going to find  18 with the adoption case that we earlier talked about,  19 where the law was of its own force in relation to  20 matters which touched upon Indianness, but it could be  21 incorporated through the operation of Section 88 to be  22 applicable to Indians.  However, there are rules and  23 limits and tests to the applicability of provincial  24 law through the vehicle of Section 88, and we will  25 begin now with the discussion of its scope.  26 We say first this section could not operate so as  27 to enable provincial laws which would, once so  28 enabled, act to extinguish or impair aboriginal title  29 or rights.  30 Mr. Justice Laskin speaking for four of the nine  31 judges in Natural Parents, back to the adoption case,  32 considered that the Adoption Act could not operate of  33 its own force to the adoption of an Indian by a  34 non-Indian, as this would be an intrusion into the  35 family affairs of Indians.  He concluded that the  36 purpose of Section 88 was to referentially incorporate  37 legislation which would not of its own force because  38 it intruded into areas of federal competence.  39 Treating the Adoption Act as referentially  40 incorporated, Mr. Justice Laskin then construed the  41 statute so as to avoid the possibility of a provincial  42 interference in the federal determination under the  43 Indian Act as to whether an adopted person has status  44 as an Indian.  45 The Natural Parents decision indicates that there  46 will be referential incorporation of legislation which  47 interferes with Indians to a degree that would be 26016  Submissions by Ms. Mandell  1 impermissible without incorporation.  There will not  2 be incorporation of legislation which impairs Indian  3 status, and thereby goes to the very root of federal  4 constitutional jurisdiction.  5 The Supreme Court adopted Mr. Justice Laskin's  6 analysis of referential incorporation of legislation  7 which affected the Indianness of a person in Regina  8 versus Dick.  In Dick the Court assumed that the  9 operation of the B.C. Wildlife, if applied to Indians,  10 would impair their Indianness.  11 With respect to the general constitutional  12 principles arising from the division of powers, and  13 with respect to the application of Section 88, the  14 Court stated:  15  16 "I believe that a distinction should be drawn  17 between two categories of provincial laws.  18 There are, on the one hand, provincial laws  19 which can be applied to Indians without  20 touching their Indianness, like traffic  21 legislation; there are on the other hand,  22 provincial laws which cannot apply to Indians  23 without regulating them qua Indians.  24 Laws of the first category, in my opinion,  25 continue to apply to Indians ex proprio vigore  26 as they always did before the enactment of S.  27 88 ... and quite apart from Section 88 where an  28 Indian was convicted of unlawful practice of  29 medicine contrary to a provincial medical act,  30 and R. v. Martin, where an Indian convicted of  31 unlawful possession of intoxicating liquor,  32 contrary to a provincial temperance act.  33 I have come to the view that it is to the laws  34 of the section category ..."  35  36 That is to apply to Indians which regulate qua  37 Indian.  38  39 "... that Section 88 refers."  40  41 However, in dealing with the application of Dick  42 to the case at bar, it is of the utmost importance to  43 examine the issues that the Supreme Court reserved  44 from its consideration; that is, issues of aboriginal  45 title or rights.  The Court said:  46  47 "One issue that does not arise is that of 26017  Submissions by Ms. Mandell  1 aboriginal title or rights.  In its factum, the  2 appellant expressly states that he has 'not  3 sought to prove or rely on Aboriginal Title or  4 Rights in the case at bar'.  As in the Kruger  5 and Manuel case, the issue will accordingly not  6 be dealt with ..."  7  8 And whether the right to hunt was a personal right  9 or an interest in land, the Court assumed in its  10 decision that the right was personal, that it was  11 dealing with not an interest in land, but a personal  12 right to hunt:  13  14 "... the issue will accordingly not be dealt  15 with any more than the related or included  16 question whether the Indians' right to hunt is  17 a personal right or, as has been suggested by  18 some learned authors, is a right in the nature  19 of a profit a prendre or some other interest in  20 land covered by the expression 'Lands reserved  21 for the Indians', rather than the word  22 'Indians' in s. 91(24) of the Constitution  23 Act."  24  25 Refers to Kenneth Lysyk's article again.  26  27 "No submission was made on this last point and  28 in this court, as well as apparently as in the  29 courts below, the case has been argued as if  30 the Indians' right to hunt were a personal  31 one."  32  33 These interrelated issues reserved are of course  34 squarely raised in this case.  35 Dick was a case where Mr. Dick was hunting and was  36 charged under a provincial law, and the issue before  37 the Court was that the application of the provincial  38 law to him affected him as an Indian person, and he  39 suggested all the various ways that he as an Indian  40 was prejudicially affected, and the Court accepted the  41 fact that it wasn't an assertion of aboriginal title  42 or based on rights arising of land, it wasn't a  43 collective -- it wasn't a right in the communal sense  44 which was being asserted, but he said as an Indian  45 this act prejudices me to continue to function as an  46 Indian.  And that's why Mr. Justice Beetz' exclusions  47 in our submission were expressly stated and are 2601?  Submissions by Ms. Mandell  1 relevant.  2 It has never been held that Section 88 applies to  3 lands reserved for Indians.  4 And this is the point that I began drawing to your  5 lordship's attention earlier.  6 Section 91(24) involves two grants of  7 jurisdiciton - Indians and lands reserved for Indians.  8 Section 88 of the Indian Act provides for  9 incorporation of provincial legislation with respect  10 to Indians and not to lands reserved for Indians, as  11 the distinction is made in Section 91(24).  And I cite  12 the Smith case again.  13  14 "It has been observed that in its terms this  15 provision applies to Indians  ..."  16  17 He is talking about Section 88.  18  19 "It has been observed that in its terms this  20 provision Section 88 applies to Indians and not  21 to lands reserved for the Indians."  22  23 And the reference was to Mr. Justice Laskin in the  24 Cardinal case, Judge Lysyk, before he then was, and in  25 the case of Regina v. Isaac, all support for that  26 proposition.  27  28 "Since the issue in this case is the right to  29 possession of land governed by the Indian Act,  30 it relates to lands reserved for the Indians  31 within the meaning of Section 19(24) rather  32 than to Indians, as such, and Section 88 need  33 not, therefore, be considered."  34  35 I refer to the Pasco case of this court to draw  36 your attention to the fact that in Dick it was assumed  37 that the right was personal, while as in Pasco the  38 collective nature of aboriginal title, as we are  39 asserting in this case, was determined not to be  40 personal in its full sense.  41  42 "It is a mistake in my view to conclude that  43 aboriginal rights vest in an entity which  44 clearly does not exist and to ignore the  45 historical fact that the rights are communal,  46 and that they are possessed today by the  47 descendants of the persons who originally held 26019  Submissions by Ms. Mandell  1 them.  They are not personal rights in the  2 sense that they exist independently of the  3 community, but are personal in the sense that a  4 violation of the communal rights affect the  5 individual members enjoyment of those  6 rights..."  7  8 In fact the courts in Pasco treated aboriginal  9 rights in the very sense reserved for later  10 consideration by the court in Dick; that is, as  11 interests analagous to profits a prendre.  And we cite  12 those portions from the judgment in Pasco at the Court  13 of Appeal.  14 MR. GOLDIE:  There are so many judgments in Pasco that I lost  15 track of them.  Is that the one that was reversed in  16 the Supreme Court of Canada?  17 MS. MANDELL:  Reversed.  It was affirmed.  18 THE COURT:  Affirmed and varied.  19 MR. GOLDIE:  Affirmed and varied.  20 MS. MANDELL:  That's right.  21 THE COURT:  That is the one that was affirmed and varied.  22 MS. MANDELL:  Affirmed and varied, that's right.  But not on  23 this point.  2 4 THE COURT:  No.  25 MR. GOLDIE:  Well, isn't that — I hope it will help me in this  26 one too.  Wasn't there an application for a rehearing?  27 THE COURT:  Yes.  That's where the variance took place.  28 MR. GOLDIE:  And wasn't it — well, all right.  I'll look it up.  29 THE COURT:  The Court of Appeal reversed Mr. Justice Meredith,  30 and that was upheld by the Supreme Court of Canada,  31 and then heard it again and cut out all the obiter.  32 MS. MANDELL:  That's right.  33 THE COURT:  It seems a useful thing to do most of the time.  34 MS. MANDELL:  Exactly.  It would be nice if we could put all of  35 our cases into a -- if I was Mr. Grant, I would just  36 continue.  37 THE COURT:  Madam Reporter has a hard time taking down the sound  38 of water.  But she can do it.  39 MS. MANDELL:  At page 44.  Authorities other than Guerin support  40 such propositions.  The decision of the Privy Council  41 in Ontario Mining Company v. Seybold et al -- this  42 should be authorities other than Pasco, not Guerin.  43 THE COURT:  Other than Pasco?  44 MS. MANDELL:  Yes.  Clearly implies an aboriginal hunting right  45 when it notes that a surrender of lands by certain  46 Indians was:  47 26020  Submissions by Ms. Mandell  1 "... subject only to such qualified privilege of  2 hunting and fishing as was reserved to the  3 Indians in the treaty."  4  5 Similarly, St. Catherine's Milling noted an  6 exception from the surrender of the right of the  7 Indians to pursue their avocations of the hunting and  8 fishing through the surrendered territories.  It was  9 held that the Indians had been -- held by the Crown  10 to -- it was held that the lands had been held by the  11 Crown to be reserved for the use of the Indians as  12 their hunting grounds under his King's protection and  13 Dominion.  And I cite Simon for the same proposition  14 and Calder.  15 And I draw to your -- I'm just going to -- I'm  16 going to ask your lordship to take yourself through  17 the next few pages.  It's all more of the same point,  18 and that is that the right to hunt and fish is  19 communal and is an interest in land, and that it --  20 these cases distinguish the personal right which was  21 before the court in Dick.  22 THE COURT:  All right.  To where?  23 MS. MANDELL:  Go down to page 47 to the end of the first quote.  24 THE COURT:  All right.  25 MS. MANDELL:  And then I'll begin at the first full paragraph  26 after it on page 47.  27 It is submitted, then, that Section 88 has no  28 application to such uses of Indian lands as may be  29 considered integral to the aboriginal title to such  30 lands.  It is worth repetition here to note again that  31 most of the statutes -- sorry, I take out that too.  I  32 at one point worked out an argument on this, and I  33 deleted it.  34 In Corporation of Surrey v. Peace Arch it was held  35 that where lands were leased pursuant to a conditional  36 surrender, the lands remained "lands reserved for the  37 Indians" within the meaning of 91(24) and subject to  38 the exclusive legislative jurisdiction of Parliament.  39 The critical issue is that the legislation  4 0 governed the manner in which the land can and cannot  41 be used, and that provincial or municipal legislation  42 purporting to regulate the use of these lands reserved  43 for the Indians is an unwarranted invasion of the  44 exclusive legislative jurisdiction of Parliament to  45 legislate with lands reserved for Indians.  46 The Court in Stoney Plain doubted whether Surrey  47 v. Peace Arch is correct in holding that the leasehold 26021  Submissions by Ms. Mandell  1 interest is subject to exclusive federal jurisdiction,  2 but states that:  3  4 "Insofar as the Peace Arch decision recognized  5 that provincial legislation relating to use  6 could be inapplicable as inconsistent with the  7 reversionary interest, we express no  8 disagreement."  9  10 And in Stoney Plain they refer to Section 88 in  11 the following manner, and I'm reading at page 48.  12  13 "As to Indians themselves, as distinct from land  14 reserved for Indians, s. 88 of the act  15 provides:"  16  17 And so on.  18  19 "... The distinction between Indians and land  20 reserved for Indians has not been observed in  21 the questions put to the Court in the stated  22 case, which have only surrenders in view.  23 Section 88 is not related to the surrenders.  24 We accept the general proposition that  25 provincial legislation relating to use of  26 reserve lands is inapplicable to lands that are  27 found to be reserved for Indians."  28  29 And they cited Cardinal.  30  31 "Moreover, if the land is surrendered for the  32 purpose of leasing, the reversion still remains  33 reserved for Indians, and any provincial law  34 impairing the full enjoyment of the reversion  35 will be inapplicable.  Finally, even if  36 surrendered lands no longer remain part of a  37 reserve as defined by the Indian Act, they  38 remain, until finally disposed of, 'lands  39 reserved for the Indians'."  40  41 The court in Whitebear said:  42  43 " ... S.  91(24) ... grants exclusive authority  44 not only in relation to Indian persons, but in  45 addition to lands reserved for Indians,  46 physical things.  There are thus distinct  47 sources of legislative competence under this 26022  Submissions by Ms. Mandell  1 head of jurisdiction."  2  3 Western Industrial Contractors v. Sarcee case held  4 that a provincial lien could be attached to the  5 leasehold interest of conditionally surrendered  6 reserve lands.  The court found that the lien would  7 only affect the leasehold interest, and would in no  8 way affect the beneficial or residual interest of the  9 band.  The court distinguished Peace Arch on the basis  10 that the legislation there concerned the use of the  11 land, and the court does note that Peace Arch appears  12 to have been approved in Cardinal.  13  14 "I would take from the above language that it  15 would be easier to find that provincial  16 legislation concerned with the general  17 behaviour of people was applicable to Indians  18 and on reserves, where by its very nature it is  19 not directed at Indians or reserves as such,  20 than to find provincial legislation which  21 purports to affect interest in lands which  22 might be reserved for Indians, the latter being  23 specifically assigned to the federal  2 4 government.  25 ...unless the actual interest given under the  26 lease to Saracee Developments and which would  27 be affected by the purported lien can be shown  28 to be divorced from and separate from the land  29 itself, the provincial statute, namely, the  30 Builders' Lien Act, cannot apply."  31  32 It would appear that even the limited provincial  33 interference with non-Indian rights to Indian lands  34 sanctioned in Stoney Plain, which is the registration  35 of the lien against the non-Indian interest and  36 Sarcee, cannot survive Derrickson, where at page 21  37 the Supreme Court rejected the proposition that the  38 interest of an Indian band in reserve lands was  39 limited to its reversion.  40 In the Palm Dairy case, which is a companion case  41 to the Sarcee, the case concerned an attempt to file  42 on the Indian Land Registry a lien under provincial  43 legislation on conditionally surrendered lands.  44 There is an Indian Land Registry which registers  45 reserve lands.  It isn't pursuant to a federal  46 statute, but it is governed under the federal  47 government, and may be there is regulations which 26023  Submissions by Ms. Mandell  1 bring in its operation.  I don't know that.  It was  2 held that where the lands are reserved to Indians  3 within the meaning of the B.N.A. Act, even though  4 leased to non-Indians, exclusive legislative  5 jurisdiction remains in the Parliament of Canada so  6 that provincial legislation is inapplicable.  A  7 provincial mechanics lien cannot apply to lands  8 reserved for Indians.  The Court says that Section 88  9 applies to make provincial laws applicable to Indians,  10 which was the position taken by Martland in the  11 Cardinal case, but the section does not purport to  12 deal with the situation where Indian lands are in  13 question.  The Court expressly left open the  14 possibility that a different result might be obtained  15 if the lien was sought to be registered against the  16 leasehold interest in the provincial system.  And this  17 is of course what happened in Sarcee.  18 And I am going to ask your lordship to take  19 yourself through the variety of cases which have been  20 stated on pages 51 and 52, all of which are to the  21 same end, and that's to demonstrate that as the courts  22 are considering the application of provincial law on  23 reserve lands, where the issue is the law affecting  24 the use of the lands, the courts have not permitted to  25 be referentially incorporated through Section 88.  2 6    THE COURT:  All right.  27 MS. MANDELL:  At page 52 at the bottom, Regina v. Isaac, Mr.  28 Justice MacKeigan said:  29  30 "Section 88 merely declares that valid  31 provincial laws of general application to  32 residents of a province apply also to Indians  33 in the province.  It does not make applicable  34 to Indians reserve land a provincial game law  35 which would have the effect of regulating use  36 of that land by Indians.  It does not enlarge  37 the constitutional scope of the provincial law  38 which is limited by the federal exclusivity of  39 power respecting sufficient lands."  40  41 "... Indians have a special relationship with  42 the lands they occupy, not merely a quaint  43 tradition, but rather a right recognized in  44 law.  Hunting by Indians is and has always been  45 a use of land legally integral to the land  46 itself.  A provincial law purporting to  47 regulate that use on a reserve must be 26024  Submissions by Ms. Mandell  1 therefore pro tanto constitutionally  2 ineffective."  3  4 And we just contrast that to the Dick case, where  5 the interest in land was not raised.  6 I wanted to ask you to read, but I am not going to  7 argue it, an argument which was made by the Attorney  8 General of Ontario in Derrickson from page 53 to page  9 55, where it was suggested that there is an open  10 question still to be determined with respect to  11 Section 88, and the use which land laws might be able  12 to be made as incorporated through its application.  13 It's the only countervailing argument I have ever come  14 across, other than the long line of authorities which  15 we have cited.  It wasn't accepted by the Supreme  16 Court, but we set it up and deal with it in any event.  17 And I would like to turn you to page 55.  18 THE COURT: Yes.  19 MS. MANDELL:  Another way which Section 88 has been analyzed is  20 with respect to whether or not the provincial  21 legislation, which is referentially incorporated or  22 contended to referentially incorporat, is a law of  23 general application.  Laws of general application were  24 defined in Kruger and Manuel.  Mr. Justice Dickson:  25  26 "There are two indicia by which to discern  27 whether or not a provincial enactment is a law  28 of general application.  It is necessary to  29 look first to the territorial reach of the Act.  30 If the Act does not extend uniformly through  31 the territory, the inquiry is at an end and the  32 question is answered in the negative.  If the  33 law does extend uniformly throughout the  34 jurisdiction the intention and effects of the  35 enactment need to be considered.  The law must  36 not be 'in relation to' one class of citizens  37 in object and purpose.  But the fact that a law  38 may have graver consequence to one person than  39 to another does not, on that account alone,  40 make the law other than one of general  41 application.  There are few laws which have a  42 uniform impact.  The line is crossed, however,  43 when an enactment, though in relation to  44 another matter, by its effect, impairs the  45 status and capacities of a particular group.  46 The analogy may be made to a law which in its  47 effect paralyzes the status and capacities of a 26025  Submissions by Ms. Mandell  1 federal company."  2  3 Kruger and Manuel goes on to discuss the  4 provincial game laws intended to conserve and manage  5 the resource do not relate to Indians qua Indians that  6 provincial laws may affect Indians so long as the laws  7 were not in relation to Indians.  8  9 "If, of course, it can be shown in future  10 litigation that the province has acted in such  11 a way as to oppose conservation and Indian  12 claims to the detriment of the latter -- to  13 'preserve moose before Indians' in the words of  14 Mr. Justice Gordon in the Strongquill case, it  15 might very well be concluded that the effect of  16 the legislation is to cross the line demarking  17 laws of general application from other  18 enactments.  It would have to be shown that the  19 policy of such an Act was to impair the status  20 and capacities of Indians.  Were that so, S. 88  21 would not operate to make the Acts applicable  22 to Indians.  But that has not been done here  23 and in the absence of clear evidence the court  24 cannot so presume."  25  26 And then in the case of Regina v. Dennis, the  27 Court followed this line of reasoning:  28  29 "On the other hand, legislation that restricts  30 Indians from hunting for purposes of food for  31 themselves or for their dependents has much  32 more serious consequences to them than the rest  33 of the population.  It infringes on their  34 aboriginal rights and, in my view, should not  35 be characterized insofar as Indians are  36 concerned as legislation of general  37 application."  38  39 Legislation restricting or extinguishing Indian  40 hunting rights, according to Dennis, is not  41 legislation of general application within the meaning  42 of Section 88, because it would permit piecemeal  43 extinguishment on a province by province basis, which  44 would be illogical and unfair, and because there is a  45 presumption that aboriginal rights continue until  46 there is a clear and plain intention to extinguish  47 them and that compensation would be expected.  This is 26026  Submissions by Ms. Mandell  1 a matter for the federal government.  2 As to whether provincial legislation can be  3 considered to be of general application in order to  4 allow incorporation by Section 88, it is important to  5 summarize our earlier argument as to general  6 constitutional validity.  Provincial legislation, to  7 be incorporated, must be independently valid.  8 Legislation which does not show clear intention to  9 extinguish title, does not do so.  Legislation which  10 does show such an intent is not law of general  11 application within provincial jurisdiction, but is  12 ultra vires on its face and cannot be incorporated.  13 The issue of intention to extinguish aboriginal  14 title must be considered.  An intention cannot be  15 inferred on the part of a provincial legislature to do  16 something indirectly that it would not do directly.  17 The province may intend to regulate hunting for  18 conservation purposes.  And this may have an impact  19 upon Indians.  The Province may not, however, intend  20 to extinguish or impair aboriginal hunting rights.  21 The ability to discern such an intent is at once the  22 precondition for extinguishment and the  23 disqualification of the statutes as one of general  24 application within the jurisdiction of the province.  25 And in the case of Regina v. Dick, Mr. Justice Beetz  26 stated:  27  28 "if the special impact of the Wildlife Act on  29 Indians had been the very result contemplated  30 by the Legislature and pursued by it as a  31 matter of policy, the Act could not be read  32 down because it would be in relation to Indians  33 and clearly ultra vires."  34  35 Now, the last section of the argument which I'll  36 address you on now is also in relationship to Section  37 88.  We have already said that Section 88 doesn't  38 apply to land, but I -- we submit that in light of  39 the -- because it's the court in Dick -- the court in  40 Dick held that the Wildlife Act, while affecting  41 Indians, specially as Indians, and they recognized  42 that, still could be applied to Indian hunting in  43 their personal sense, because it's a law of general  44 application and can be referentially incorporated.  45 It's our submission that in light of the  46 discriminations which have come before the court since  47 the court's decision in Dick, that even the case as 26027  Submissions by Ms. Mandell  1 was stated in -- by the Supreme Court of Canada in  2 Dick, today if it were decided on its facts could not  3 survive as being an infringement of the law as its now  4 evolved with respect to discrimination.  5 Mr. Justice Beetz in Dick distinguished between:  6  7 "... a law which discriminates between various  8 classes of persons, as opposed to a law of  9 general application."  10  11 Since this decision, the Supreme Court has had the  12 opportunity to further address the meaning of  13 discrimination, and has clarified that it is not only  14 the intent, but the effect or consequence of an  15 action, in its social context, which will determine  16 whether it is discriminatory.  17 And I didn't take your lordship to it, but if you  18 read Dick, you will see that it was argued that the  19 Act effects Indian people specially, and the court  20 found that that was true, that Mr. Dick was affected  21 specially, as the hunting that he was doing in its  22 curtailment did go to the way of life that he had, and  23 it was -- it's this interpretation which we are  24 setting up as against the law which is developed on  25 discrimination.  26 THE COURT: What are you saying here, Ms. Mandell, that an Act to  27 extinguish aboriginal title would be discriminatory?  28 MS. MANDELL:  Well, no, because Dick wasn't involved with the  29 extinguishment of aboriginal title.  Certainly we do  30 say that.  We say that if there was -- not that its  31 discriminatory.  We say it's ultra vires, that's been  32 the thrust of the afternoon.  33 THE COURT:  But you are obviously advancing this as an  34 alternative to that, or you wouldn't be mentioning  35 that.  36 MS. MANDELL:  The only reason I am mentioning it is that if the  37 federal Crown places a tremendous reliance in our  38 submission on Dick, and we say about Dick two things:  39 One is, as I have mentioned earlier, it doesn't have  40 anything to do with the issues at hand involving  41 Indian lands, and we've made that argument to you, but  42 we say that even if you look at Dick now, in light of  43 the discrimination cases, that case would -- and the  44 decision of that case would not stand up.  45 THE COURT: So you're saying I shouldn't follow it, because if it  46 was -- if I was -- as I am deciding this case now, I  47 have got to consider whether the authorities I am 2602?  Submissions by Ms. Mandell  1 going to follow -- whether my judgment will pass  2 mustard in light --  3 MS. MANDELL:  That's right.  4 THE COURT:  And then following authority such as Dick  5 wouldn't --  6 MS. MANDELL:  Wouldn't take you very far.  7 THE COURT:  -- wouldn't take me very far, because the law has  8 changed since Dick.  All right.  You are not  9 suggesting that I can apply the discrimination laws  10 retroactively back to whenever it's alleged that the  11 aboriginal titles were extinguished?  12 MS. MANDELL:  Oh, no.  I don't think — I don't think that Dick  13 has anything to do with the extinguishment of  14 aboriginal title, but I also don't think it's a good  15 decision for you to follow anyway.  16 THE COURT:  All right.  Thank you.  17 MS. MANDELL:  In the O'Malley case Mr. Justice Mclntyre for the  18 court held:  19  20 "It is the result or the effect of the action  21 complained of which is significant.  If it  22 does, in fact, cause discrimination; if its  23 effect is to impose on one person or group of  24 persons obligations, penalties, or restrictive  25 conditions not imposed on other members of the  26 community, it is discriminatory."  27  28 And at page 551.  29  30 "A distinction must be made between what I who  31 describe as directed discrimination and the  32 concept already referred to as adverse effect  33 discrimination in connection with employment.  34 Direct discrimination occurs in this connection  35 where an employer documents a practice or rule  36 which on its face discriminates on a prohibited  37 ground.  For example, 'No Catholics or no women  38 or no blacks employed here.' There is, of  39 course, no disagreement in the case at bar that  40 direct discrimination of that nature would  41 contravene the Act.  On the other hand, there  42 is a concept of adverse effect discrimination.  43 It arises where an employer for genuine  44 business reasons adopts a rule or standard  45 which is on its face neutral, and which will  46 apply equally to all employees, but which has a  47 discriminatory effect upon a prohibited ground 26029  Submissions by Ms. Mandell  1 on one employee or group of employees in that  2 it imposes, because of some special  3 characteristics of the employee or group,  4 obligations, penalties, or restrictive  5 conditions not imposed on other members of the  6 work force.  For essentially the same reasons  7 that led to the conclusion that an intent to  8 discriminate was not required as an element of  9 discrimination contravening the code, I am of  10 the opinion that this court may consider  11 adverse effect discrimination as described in  12 these reasons a contradiction of the terms of  13 the Code.  An employment rule honestly made for  14 sound economic or business reasons, equally  15 applicable to all to whom it is intended to  16 apply, may yet be discriminatory if it affects  17 a person or a group of persons differently from  18 others to whom it may apply."  19  20 And, my lord, I take you through the Action  21 Travail des Femmes case.  22  23 "No doubt, some people who discriminate do so  24 out of wilful ignorance or animus.  Many of the  25 first anti-discrimination statutes focused  26 solely upon the behaviour of such individuals,  27 requiring proof of intent to discriminate  28 before imposing any sanctions.  There are two  29 major difficulties with this approach.  One  30 semantic problem was a continuing confusion of  31 the notations of intent and malice.  The word  32 'intent' was deprived of its meaning in common  33 parlance and was used as a surrogate for  34 malice.  'Intent' was not the simple willing of  35 a consequence, but rather the desiring of  36 harm."  37  38 And at page 1138 the Court adopted the following  39 from the Abella report:  40  41 "Discrimination ... means practice or attitudes  42 that have, whether by design or impact, the  43 effect of limiting an individual's or a group's  44 right to the opportunities generally available  45 because of attributed rather than actual  46 characteristics ...  47 It is not a question of whether this 26030  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MS.  THE  MS.  THE  MS.  THE  MS.  THE  MS.  THE  MS.  THE  MS.  discrimination is motivated by an intentional  desire to obstruct someone's potential, or  whether it is the accidental by-product of  innocently motivated practices or systems.  If  the barrier is affecting certain groups in a  disproportionately negative way, it is a signal  that the practices that lead to this adverse  impact may be discriminatory.  This is why it is important to look at the  results of a system ..."  COURT:  I am not sure I follow what it is that --  MANDELL:  We are attacking?  COURT:  Yes.  MANDELL:  What happened in Dick.  COURT:  You are still attacking Dick?  MANDELL:  This is all I am attacking.  Same point.  COURT:  Then I think I understand.  MANDELL:  Okay.  We rely upon Mr. Justice Dickson, who makes  the following comment.  Andrews v. the Law Society, I urge that decision  upon you, as well as the Turpin case and Brooks.  I  won't ask you to read it.  It's all to do with the  same point.  That is that now the courts have said  it's not the intent of the legislature or the Act  which you look for discrimination, it's what effects  does it have on the specific class of peoples against  which the discrimination is claimed, and we say that  that's the -- that's the test now which wasn't decided  upon by the court in the Dick case.  I feel compelled  to quote you at page 65 in the case of Regina v.  Chief.  COURT:  You don't have to.  MANDELL:  I almost thought it was appropriate to end with  this, but I'll just remind your lordship of --  COURT:  Always appropriate to end --  MANDELL:  -- of your decision.  I think that it's an  appropriate analysis when it's applied to the facts of  the Dick case.  I am not going to end with you.  I am  going to end with Mr. Justice Norris in White and Bob.  COURT:  All right.  MANDELL: He addressed the meaning of discrimination in their  context.  "It is well that what is now attempted by the  enforcement of the game laws against the  Indians in this case be understood.  This is 26031  Submissions by Ms. Mandell  1 not a case merely of making the laws applicable  2 to native Indians as well as to white persons  3 so that there may be equality of treatments  4 under the law, but of depriving Indians of  5 rights vested in them from time immemorial,  6 which white persons have not had the right to  7 hunt out of season on unoccupied lands for  8 foods for themselves and their families."  9  10 The approach of "reading down" utilized in the  11 Chief case also found favour with the Supreme Court of  12 Canada in Derrickson.  13 It is submitted that laws otherwise of general  14 application which have a greatly disproportionate  15 impact on Indians would be discriminatory within the  16 meaning of the above cases, and would not be laws of  17 general application within the meaning of Section 88  18 as elaborated by Kruger and Manuel and in Dick.  19 My lord, I would like to congratulate myself at  20 finishing early and summarize.  I'm going to take a  21 long bow back to yesterday afternoon when I started,  22 and ask your lordship to appreciate the thrust of the  23 argument in full.  And that is that aboriginal title  24 was a pre-existing legal right which was binding --  25 the recognition of which was binding on the colony  2 6 when the colony was formed, and when sovereignty was  27 asserted there.  There are presumptions which were  28 relied upon in Calder and which we urge upon you,  29 which were stated by the court in Simons and the Privy  30 Council in Abella, which stated that the sovereign  31 intended to respect our rights, and that the Indian  32 people could expect to continue to assert them.  And  33 this is consistent with the definition of aboriginal  34 title which Judsen in the Court of Appeal in Calder  35 described when he said that aboriginal title is that  36 when the white people were there, came the Indians,  37 the Indians were there, organized in societies as they  38 had been for centuries.  And that's what Indian title  39 is.  40 Now, we are dealing particularly with the Gitksan  41 and Wet'suwet'en title, but we say that this title has  42 survived the pre-Confederation period without it  43 having been extinguished.  We say that the only way --  44 the only two ways that it could be extinguished was by  45 treaty, which it wasn't, or alternatively, by a clear  46 and express legislative statement in any of the Acts  47 which the defendant province relies upon.  This isn't 26032  Submissions by Ms. Mandell  1 to challenge whether the sovereign has the right to  2 extinguish.  This is only to say that in exercising  3 that right it has to do so according to legal  4 principles.  We note that there was no grants of land  5 attempted in the claims area in this pre-Confederation  6 period, and we also note that all the land laws which  7 are referred to by the provincial defendant are laws  8 which are general and permissive in nature, generally  9 establishing a regime to alienate land.  10 We say that at Confederation for the province of  11 the Terms of Union, that aboriginal title was not  12 extinguished by the Terms of Union, and instead the  13 province bought into a Confederation which expressly  14 stated that its Crown title was burdened by the  15 aboriginal title and the federal government would have  16 legislative responsibility over Indians and lands  17 reserved for Indians.  And we say that there is  18 nothing new about the burden on the Crown title.  It's  19 exactly the same burden as was referred to by the  20 Royal Proclamation, by Johnson and Mcintosh, and now  21 it's part of the framework of the Constitution.  22 We say that after Confederation the province had  23 no legislative capability to extinguish aboriginal  24 title.  That was within the domain of the Federal  2 5 Crown.  26 And we say that any attempt on the part of the  27 Province either to extinguish aboriginal title or for  28 the court to construe that its actions so did would  29 have required the same analysis as to what is capable  30 of extinguishing aboriginal title as was submitted to  31 you would apply in the pre-Confederation period,  32 namely, that the language of the Acts would have to be  33 clear and express, and there would have to be  34 legislative competence to so do it.  And we say that  35 if the language was clear and express, then it was an  36 intrusion into Section 91(24) and paramountcy  37 prevails.  And we say that if the effect of it is to  38 so extinguish aboriginal title, it's beyond the  39 competence of the federal government to do it.  40 We say that neither the federal government or the  41 province can take any comfort in Section 88 in trying  42 to apply provincial laws referentially, that Section  43 88 does not apply to Indian land.  And we say that --  44 we urge you to apply the proper test for the  45 extinguishment of title, and in our submission it  46 would have to settle in the bottom that if title is to  47 be extinguished after Confederation, then it falls 26033  Submissions by Ms. Mandell  1 within the domain of the federal government and not  2 the province to do that.  3 THE COURT:  And they haven't done it.  4 MS. MANDELL:  Haven't done it.  I just wanted to address one  5 more thing before I sit down.  Its been bugging me,  6 something you said.  7 THE COURT:  I do that to a lot of people.  8 MS. MANDELL:  I just wanted to address one more thing.  I don't  9 know whether or not you still ask the same question,  10 which was one that you posed to Mr. Jackson a couple  11 of weeks ago, and that was "So where does Indian  12 jurisdiction fit?"  "Could somebody explain to me  13 where it fits into the federal Confederation."  And I  14 want -- I think you've been addressed in full as to  15 where we say Indian lands fit into Confederation, but  16 where we say Indian jurisdiction fits is that it is  17 part of the federal common law, which is encompassed  18 within Section 19(24), and which is beyond the  19 authority of the province to abrogate or infringe  20 under the constitutional principles that are  21 applicable.  22 THE COURT:  Well, I don't have any trouble with it.  As I have  23 said many times when if relates to land, when it comes  24 to trying to sketch out some judicial pronouncement  25 that would be sufficiently specific to be understood  26 as a law, then I'm in some difficulty, and I am  27 waiting for Mr. Jackson to show me some sample wording  28 of an order that could be made.  I haven't really  29 carried my thinking beyond that.  I could see -- I  30 would still have difficulty, but I could see a clearer  31 path if you weren't claiming these lands on behalf of  32 individual chiefs even.  But what you are asking me to  33 do is to make a declaration that chiefs, that  34 individual chiefs own an aboriginal right to specific  35 lands, and I think you expect me to specify what the  36 nature of that ownership is.  For example, is it just  37 a right to hunt and fish?  Is it a right free of  38 provincial laws?  Is it a right that presumably can't  39 be transferred to an outsider, to anyone but the  40 Crown?  But I expect you will want me to delineate the  41 various aspects of that ownership, and I don't have  42 much difficulty with that conceptually.  When you ask  43 me to go beyond that I have difficulty.  44 MS. MANDELL:  If I could reply to this extent only at the  45 moment.  And that is that the claim of jurisdiction is  46 not a claim in the individual houses alone.  And I did  47 want to direct your lordship's attention to the 26034  Submissions by Ms. Mandell  1 pleadings, where the houses -- the Gitksan and  2 Wet'suwet'en houses together claim both ownership and  3 jurisdiction, but jurisdiction more so than ownership,  4 although both of them are related, are a function of  5 the houses, and the houses acting together at the  6 feast enabling and enforcing laws which are applicable  7 throughout the Gitksan and Wet'suwet'en territories.  8 And it's not -- I mean, a single house law may be  9 limited to things like the Sisett (?) practises, but  10 the laws which are governing them all are related to  11 how the houses are formed and how membership can be  12 defined and adoptions, and the harvesting and managing  13 and the conservation laws and the laws which are  14 pervading throughout the houses that are part of the  15 common community are taught within the houses and  16 enforced within the houses, because that's the nature  17 of the tribal society, but they are not laws of the  18 house in that sense.  And the example which we urged  19 upon your lordship when we discussed jurisdiction were  20 aiming to show the collective nature of the sanctions  21 and the laws which operate through the houses  22 functioning together.  And so --  23 THE COURT:  At the moment I don't have a single example in mind  24 of what you are asking me to do in that regard.  25 MS. MANDELL:  I understand you have asked for some specific  26 language.  27 THE COURT:  Are you saying that the ownership of this property  28 will be transferred from the plaintiff to some other  29 chief if they decide to adopt somebody from outside  30 the house and make him the head chief?  31 MS. MANDELL:  Well, no.  No.  I mean, the laws within the  32 system, as you have heard, would preclude that.  33 THE COURT:  What about Pete Muldoe?  He was brought in from  34 outside the House of Gitludahl and made chief.  You  35 see, when you are talking about jurisdiction, I don't  36 know where you want me to draw the line, and what you  37 want me to specify as to what this jurisdiction or  38 this authority is.  39 MS. MANDELL:  All right.  That's something which we'll have to  40 return to you on in more -- in a more fullsome way.  41 What I was addressing to you was presumably you are  42 going to come to terms with what the jurisdiction is  43 which is being sought after, and from the point of  44 view of the law, I didn't want to be leaving the Court  45 today without advising you as to where in law we say  46 that jurisdiction, if it's to be found and will  47 operate, fits within the framework of Confederation. 26035  Submissions by Ms. Mandell  1 THE COURT:  Let me give you another example that I just thought  2 about.  Say chief A for some reason insults chief B,  3 and to make peace they decide to give -- A decides to  4 give B a piece of territory.  5 MS. MANDELL:  Yes.  6 THE COURT:  You would want me to in some way write a code by way  7 of an order that would authorize or put at least a  8 judicial stamp of approval on that practice.  9 MS. MANDELL:  Well, the declaration would recognize that the  10 Gitksan and Wet'suwet'en have in the past, continue  11 and do, have the jurisdiction with respect to the  12 settling of disputes which may involve the transfer of  13 territory.  14 THE COURT:  It's just such a vast and indesribable proposition  15 in my present state of understanding of Gitksan  16 culture that I just can't relate to a form of a court  17 order.  That's my difficulty.  18 MS. MANDELL:  All right.  19 THE COURT:  Not just my difficulty.  It's yours too.  20 MS. MANDELL:  Well, we'll hopefully bring it to closure with you  21 then, and do that before the week's over.  22 THE COURT:  I will look forward to hearing anything you can  23 offer in that regard.  24 MS. MANDELL:  Thank you, my lord.  25 THE COURT:  All right.  Well then, we are going to adjourn then  26 until 7:00 o'clock.  27 THE REGISTRAR:  Order in court.  Court stands adjourned.  28  2 9 (PROCEEDINGS ADJOURNED TO 7:00 P.M.)  30  31 I HEREBY CERTIFY THE FOREGOING TO BE  32 A TRUE AND ACCURATE TRANSCRIPT OF THE  33 PROCEEDINGS HEREIN TO THE BEST OF MY  34 SKILL AND ABILITY.  35  3 6    37 LORI OXLEY  38 OFFICIAL REPORTER.  39 UNITED REPORTING SERVICE LTD.  40  41  42  43  44  45  46  47 26036  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO DINNER ADJOURNMENT)  THE  THE  MR.  THE  MR.  THE  MR.  REGISTRAR:  Order in court.  COURT:  Mr. Rush.  RUSH:  Thank you, my lord.  I have handed to the registrar,  and I now hand to your lordship the next segment of  the argument.  COURT:  Thank you.  RUSH:  Dealing with the post union recognition of aboriginal  title.  It goes in at the back of volume 7.  COURT:  Yes.  Thank you.  RUSH:  My lord, the first part of this, page 67 to 70, is a  summary response to the Province's counter-claim.  And  it is to their paragraph 41 the particular points have  been addressed previously by Ms. Mandell, to some  degree myself.  And I will address some of these  points more specifically in the course of my  submissions tonight.  And further submissions will be  made on these points by Mr. Adams.  I don't intend to  do anything further with these except to direct your  lordship's attention to them.  THE COURT:  Thank you.  MR. RUSH:  As a summary of our position with regard to the  various components of paragraph 41 of the Province's  counter-claim.  And I move to 71 which is the section  entitled "Post Union Recognition Of Aboriginal Title".  And "Recognition of Aboriginal Title After 1871."  When British Columbia became a Province, the  governmental responsibility for Indians and land  reserves to Indians was transferred to Canada.  Under  the Terms of Union, British Columbia was, from time to  time, to convey to the Dominion lands --  THE COURT:  I'm sorry, Mr. Rush, where are you?  MR. RUSH:  On page 71, my lord.  THE COURT:  Yes, thank you.  MR. RUSH:  And under the terms, my lord, British Columbia was,  from time to time, to convey to the Dominion lands to  be held in trust for use and benefit of the Indians.  The Dominion was to pursue a policy "as liberal"  toward the Indians as that which had previously  obtained in British Columbia.  Irreconcilable  differences between the two governments were to be  referred to the Secretary of State for the Colonies.  Immediately after union, the Dominion raised with  the Lieutenant-Governor of the Province their proposal  to appoint Indian Commissioners, and this became known 26037  Submissions by Mr. Rush  1 as the Indian Board, to deal with Indian land  2 questions after Confederation.  Hector Langevin wrote  3 to Trutch indicating that the "question of Indian  4 Commissioners will be considered."  The Dominion  5 Government had specified -- had specific action in  6 mind with regard to Indian Affairs from the outset but  7 Trutch had caused delays in appointing the  8 Commissioners.  9  10 In March of 1871, Langevin visited British  11 Columbia "with a view...he says...of acquiring a  12 knowledge of that new Province".  He tabled a report  13 which included information regarding Indians and  14 Indian Treaties in the Province of British Columbia.  15 In his report, he drew on information from Judge  16 Begbie and Mr. Sproat.  He reported on the Indian  17 Reserves which had been established.  He also included  18 a section entitled "Treaties with the Indians" and  19 appended two Douglas treaties as examples of treaties  20 made with the Indians on Vancouver Island.  He noted  21 that there did not appear to have been any treaties  22 with the Indians on the Mainland.  In Appendix EE he  23 listed the treaties which had been made.  And this  24 appears to be the first indication after 1871 of  25 Canada's acknowledgment of the existence of Indian  26 title in British Columbia prior to union.  It is  27 noteworthy that Langevin refers to "treaties" when  28 listing the treaties made on Vancouver Island.  And  2 9 Langevin also appended Trutch's memorandum of January  30 13, 1870.  31  32 Now, notwithstanding Langevin's efforts to obtain  33 some clarity about the pre-1871 state of Indian land  34 title in British Columbia, the Dominion remained  35 unclear as to that policy which had previously been  36 implemented in the Colony.  I draw your lordship's  37 attention to the letter from Sir John A. Macdonald of  38 October 30, 1872, in which he wrote privately to  39 Trutch about Powell who was appointed as the Indian  40 Commissioner.  And Macdonald said:  41  42 "I would still like to hear from you  43 confidentially as to the best mode of  44 management of Indian Affairs generally, with  45 some information as to what system you have  46 hitherto pursued with respect to Indian  47 matters." 2603?  Submissions by Mr. Rush  1  2 Clearly Macdonald, for one, was unaware of the  3 Indian land policy to recognize aboriginal title  4 pursued by the Colonial regime.  Macdonald's letter  5 crossed in the mail with a letter from Trutch in which  6 Trutch took the opportunity to express his views on  7 Indian land policy in the Colony.  8  9 Now, Trutch's disingenuous views on Indian policy  10 in the new Province of British Columbia were expressed  11 in his letter of October 14, 1872.  And I have drawn  12 your lordship's attention to this letter in our  13 opening submission.  And I again ask your lordship to  14 make note of the underscored portions.  And I will  15 refer you to a few.  He points out to Macdonald:  16  17 "We have never bought out any Indian claims to  18 land, nor do they expect we should, but we  19 reserve for their use and benefit from time to  20 time tracts of sufficient extent to fulfill all  21 their reasonable requirements for cultivation  22 or grazing."  23  24 He goes on:  25  26 "If you now commence to buy out aboriginal  27 title to the lands of B.C., you would go back  28 of all that has been done here for 30 years  29 past and would be equitably bound to compensate  30 the tribes who inhabited the district now  31 settled farmed for white people."  32  33 And then he goes on saying that "Our Indians ... better  34 be left alone."  35  36 And, my lord, Trutch went on in his letter to make  37 a pitch that Indian matters in British Columbia should  38 be placed in the hands of the Lieutenant-Governor,  39 himself.  And he sets that out in the next passage.  4 0 Dr. Lane reviewed that.  41  42 And I go to the next paragraph, my lord, Trutch in  43 his letter ignored the Douglas Treaties when he  44 advised Macdonald "we have never bought out any Indian  45 claims to land".  He re-shaped the history of the  46 Colony by suggesting that the only policy was the  47 reserve-making policy.  And I think it's worthwhile to 26039  Submissions by Mr. Rush  1  2  3  4  5  1  6  7  THE  COURT:  8  9  MR.  RUSH:  10  THE  COURT:  11  MR.  RUSH:  12  THE  COURT:  13  14  MR.  RUSH:  15  THE  COURT:  16  MR.  RUSH:  17  THE  COURT:  18  19  MR.  RUSH:  20  THE  COURT:  21  MR.  GOLDIE  22  23  MR.  RUSH:  24  MR.  GOLDIE  25  1  26  MR.  RUSH:  27  THE  COURT:  28  MR.  GOLDIE  29  MR.  RUSH:  30  31  THE  COURT:  32  33  MR.  RUSH:  34  35  36  THE  COURT:  37  MR.  RUSH:  38  THE  COURT:  39  MR.  RUSH:  40  THE  COURT:  41  MR.  RUSH:  42  43  44  45  MR.  GOLDIE  46  47  1  note, my lord, that Trutch makes no distinction  between the mainland and Vancouver Island.  When he  wrote to Macdonald in 1872, he saw no distinction,  apparently.  And we say, of course, there was no  distinction to be made in terms of the implementation  of the law and Indian land policy in the two Colonies.  Forgive me, Mr. Rush, but were there any treaties  after the retirement of Douglas?  No, my lord.  Were there any --  Except in Treaty 8 in the northeast.  Were there any treaties after the establishment of  the Colony of Vancouver Island?  After the establishment of Vancouver Island?  Yes.  Yes.  14, my lord.  Those 14 were after the Colony was established?  They weren't Hudson's Bay Treaties?  They were after the colony had been established.  Yes, all right.  :  Those were the treaties that were made by Douglas'  agent for the Hudson's Bay Company.  No.  With great respect, as agent for the Crown.  :  I beg your pardon, agent for the Hudson's Bay  Company.  That's what they say.  Well, with the greatest respect --  Was he Governor?  :  Not for the first number.  My lord, with respect, my friend will make this  argument.  Well, no, Mr. Rush.  I am asking this question.  And  I am asking both of you for your assistance.  Mr. Douglas, my lord, made the treaties as a  representative.  He was an employee of the Hudson's  Bay Company.  Yes.  The Hudson's Bay Company was agent for the Crown.  Yes.  As the Crown acknowledged.  Yes.  And our position is, and I think it is clearly  evident in the material, that he was acting as agent  for the Crown.  And I don't see that there is even a  factual distinction to be made there.  :  Well, with great respect, all I am going to draw  your lordship's attention to is the wording of the  document itself. 26040  Submissions by Mr. Rush  1  THE  COURT:  2  1  3  MR.  GOLDIE  4  MR.  RUSH:  5  THE  COURT:  6  MR.  GOLDIE  7  8  9  10  11  12  13  14  15  16  17  THE  COURT:  18  MR.  GOLDIE  19  20  THE  COURT:  21  MR.  GOLDIE  22  THE  COURT:  23  MR.  RUSH:  24  25  ]  26  MR.  GOLDIE  27  28  29  30  MR.  RUSH:  31  32  33  34  THE  COURT:  35  MR.  RUSH:  36  37  38  39  THE  COURT:  40  MR.  RUSH:  41  42  THE  COURT:  43  44  MR.  RUSH:  45  46  THE  COURT:  47  MR.  RUSH:  I am really concerned about the date of the  documents.  :  Well, I will read the first one.  Which documents are these?  The treaties.  :  The 25th of April, 1850:  "...do consent to surrender, entirely and  forever, to James Douglas, the agent of  Hudson's Bay Company in Vancouver Island, that  is to say, for the Governor, Deputy Governor,  and Committee of the same."  Now, the Courts have held, and we don't question this,  that those treaties are agreement for purchase are  binding upon the Crown.  Yes, all right.  :  But he wasn't even Governor when that document was  negotiated.  For any of them, or just that one?  :  No.  For the first nine I think it was.  All right.  I will be sure to object to my friend when he makes  that argument as part of his case, so he has already  made his argument on that point.  :  Well, my friend is persistently anticipating my  argument, as is my friend Ms. Mandell.  I begin to  know now why they ask for additional time.  It is to  pre-empt my argument.  Well, my lord, if we would have had three weeks for  reply, we certainly would have left much of this for  reply.  But we are asked to respond in advance, and  this is what we've done.  All right.  All right.  My lord, to come back to the Douglas points, Douglas  became the Governor of Vancouver's Island after  Blanchard left in 1851.  And treaties were made when  he was Governor.  Yes.  As Governor of Vancouver Island.  There were 14 of  those treaties.  And you say -- between you, it sounds like there is  five of them were made after he became Governor?  That's correct.  Well, it appears to be correct, my  lord.  Yes.  That can be checked.  Now, my lord, I take you further to the -- 26041  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  I'm sorry, just one other thing.  When he said "30  years", he is writing now in --  MR. RUSH:  He is writing, my lord, in --  THE COURT:  '72?  MR. RUSH:  In 1872.  THE COURT:  It is not 30 years.  It is less than 20 years.  MR. RUSH:  He was stretching it.  THE COURT:  Yes.  MR. RUSH:  And our position is he was stretching the whole of  his letter.  And that's the point, my lord.  And Mr.  Trutch seriously overstepped himself when he expressed  to Macdonald "if you now commence to buy out  aboriginal title to the lands of B.C. you would go  back of all that has been done for 30 years past."  Trutch was clearly in a position of authority when he  advised the Federal Government in these terms.  The  Dominion was plainly deceived about the real nature of  the pre-Union policy of the Colonies to recognize  aboriginal title.  Now, in June of 1873, my lord, Canada proposed to  deal with the question of aboriginal title and Indian  claims to land by the establishment of a Board of  Commissioners in the new Province of British Columbia.  Order-in-council 860 approved by Lord Dufferin, and  dated June 16, 1873 provided as I've set out.  And I  draw your attention to the second paragraph, my lord.  "That this Board under the direction of the  Superintendent General of Indian Affairs at  Ottawa would suggest that general principles  under which the Indians are to be dealt with,  arrange under the directions of the  Superintendent General all negotiations and  treaties with the Indian tribes and resort from  time to time the basis upon which all questions  of general policy re Indian Affairs should be  settled.  The Secretary of State recommends that a board  of similar power should be constituted in  British Columbia."  The board was constituted, Mr. Trutch as Lt. Governor,  Dr. Powell as the first Indian Agent for B.C. was the  second, and Mr. Lenihan the third.  Soon after Powell's appointment, he asked for 26042  Submissions by Mr. Rush  1 instruction on Indian policy to be pursued in British  2 Columbia, including a question as to whether he was to  3 distribute presents when he visited Indians in  4 meetings at different localities.  His request was  5 referred to an Order-in Council, PC 582, approved 19th  6 May 1874.  The Order-in-Council reflects the views of  7 the Minister of the Interior, in part, it stated:  8  9 "That it is assumed that the Government does  10 not contemplate giving the Indians of British  11 Columbia any compensation for the lands, as has  12 been done with the Indians of the Northwest,  13 and he the Minister submits that in view of the  14 general discontent now prevailing amongst the  15 former, it would be advisable to spend a small  16 sum annually in the distribution amongst them  17 of useful presents."  18  19 Now, the above passage, my lord, reports the  20 Minister's assumptions as to what Dominion Government  21 policy will be respecting extinguishment of Indian  22 title in British Columbia.  It is not, we say, a  23 statement of government policy by the Minister.  24 Further, in adverting to the Minister's assumption,  25 the Privy Council in this document neither confirms  26 nor endorses the assumption.  The effect of PC 582 is  27 to authorize expenditure of a certain sum of money out  28 of the current year's appropriation to be used for  29 presents to selected Indian bands and/or individuals.  30 PC 582 cannot be read as a Dominion Government  31 statement concerning Indian title in British Columbia.  32 It simply does not address the issue.  33  34 On the PC 582, in giving his approval, Lord  35 Dufferin made this comment:  36  37 "Why is a different system pursued in British  38 Columbia with regard to compensation to Indians  39 from that in the Northwest Territories."  40  41 Lord Dufferin's addendum to the document signifies  42 that while he approved the request to expend funds for  43 presents, he took exception to the Minister's  44 assumption about Dominion Government policy respecting  45 Indian title in British Columbia.  46  47 Macdonald envisaged the Board of Commissioner 26043  Submissions by Mr. Rush  1 making treaties with the Indians of British Columbia  2 and to extinguish their aboriginal title.  And I say  3 this is evident from his letter to Trutch of April 9,  4 1874.  And here Macdonald says:  5  6 "The Indians look up to the Governor as  7 representing the Queen, and if treaties or  8 important negotiations were made or entered  9 upon with them it should be through him.  They  10 should be taught to look up to him, and not to  11 any subordinate officer."  12  13 And he goes on about not diminishing the status of the  14 Governor.  15  16 My lord, Trutch replied on May 25, 1874 agreeing  17 that the Lieutenant-Governor should be head of Indian  18 Affairs in the Province and in this capacity would act  19 as head of the Commission.  20  21 The Board, however, never functioned.  Trutch  22 disapproved of actions taken by Mr. Powell who felt  23 that he had the authority to act as the Indian  24 Superintendent of British Columbia.  And Trutch felt  25 Powell's actions were inconsistent with his own.  26 There was considerable correspondence on the subject  27 and eventually the Board was scrapped because Trutch  28 felt that he couldn't function as Lieutenant-Governor  29 and head of the Commission.  30  31 And, my lord, the next two letters refer to the  32 dispute between the Dominion and Trutch over his role  33 on the Indian Board.  And I set them out for your  34 lordship, the letter Trutch to Laird, and then Laird's  35 response.  And perhaps just making note of Laird's  36 response:  37  38 "I very much doubt however whether the  39 Government would be prepared to delegate to any  40 person in British Columbia the general control  41 and management of Indian Affairs in that  42 Province.  43 I gather from your communications that Dr.  44 Powell has in your opinion assumed an attitude  45 of undue independence as a member of the  46 Board."  47 26044  Submissions by Mr. Rush  1 My lord, abolition of the Indian Boards did not in  2 any way signal an abandonment of the policy to  3 extinguish Indian title through the treaty-making  4 process.  In August and September of 1876, acting on  5 behalf of Her Majesty, Alexander Morris,  6 Lieutenant-Governor of the Province of Manitoba and  7 the Northwest Territories with two other Commissioners  8 negotiated Treaty No. 6.  And Mr. Jackson has made  9 submissions with respect to that.  10  11 It is highly significant, however, that after  12 Union, the Province and Canada conceived of  13 fullfilling their obligations under the Terms of Union  14 by the establishment of a Board which would suggest  15 principles and arrange for negotiations and treaties  16 with the Indians of British Columbia.  Clearly both  17 governments here recognized the aboriginal title to  18 lands in British Columbia and envisaged a process of  19 negotiations and treaty-making to relinquish that  20 title.  As Dr. Lane said in her evidence:  21  22 "I think the first substantive action taken by  23 the Dominion Government..."  24  25 And I add after union in 1871,  26  27 "...was a setting up of the Board just...which  28 was to make treaties with Indians in British  29 Columbia for the extinguishment of the Indian  30 title."  31  32 Now, my lord, in our submission it is clear that  33 Canada and British Columbia considered that aboriginal  34 title was extant in the Province.  35  36 Now, following this, discussions occurred between  37 the Dominion and the Province over the setting aside  38 of reserve lands for Indians in the Province.  39  40 And a lengthy dispute arose between the two  41 governments as to the amount of land to be reserved  42 for Indians.  The Dominion Government considered that  43 80 acres per family would be reasonable given the  44 difference in topography between B.C. and the prairies  45 where 160 acres per family was the norm.  The British  4 6 Columbia government contended that the language of  47 Clause 13 in the Terms of Union precluded creation of 26045  Submissions by Mr. Rush  1 reserves larger than those allotted in British  2 Columbia prior to 1871.  3  4 David Laird on November 2, 1874, set out the  5 history of these differences in a memorandum which was  6 highly critical of the Indian land policy in British  7 Columbia.  And at the time David Laird was Minister of  8 the Interior responsible for Indian Affairs.  He noted  9 that the dispute between the two governments had  10 caused the Indian Superintendent to arrest the survey  11 of Indian reserves in the Province.  While the dispute  12 centred on the size of Indian reserves to be created,  13 the memorandum and the ensuing despatches and  14 correspondence on this matter frequently referred to  15 the larger issue of aboriginal title.  And I draw your  16 attention to the two paragraphs, my lord, that I have  17 underscored.  18  19 "To the Indians ... Laird says...the land  20 question far transcends in importance all  21 others, and its satisfactory adjustment in  22 British Columbia will be the first step towards  23 allaying the wide-spread and growing discontent  24 now existing among the native tribes of that  25 Province."  26  27 And he says further, a theme appointed is picked up  28 later by David Mills.  29  30 "When the framers of the Terms of admission of  31 British Columbia into the Union of Canada  32 inserted this provision, requiring the Dominion  33 Government to pursue a policy as liberal  34 towards the Indians as that hitherto pursued by  35 the British Columbia Government, they could  36 hardly have been aware of the marked contrast  37 between Indian policies which had, up to that  38 time, prevailed in Canada and British Columbia  39 respectively."  40  41 Now, over to 82, my lord.  The memorandum was  42 considered by the Privy Council in Ottawa and copies  43 were provided to the Lieutenant-Governor of B.C. for  44 the consideration of his government and to the  45 Governor General of Canada, Lord Dufferin.  46  47 It is noteworthy that the Minister of the Interior 26046  Submissions by Mr. Rush  1 again draws attention to the fact that the Dominion  2 could not have been aware at the time of the  3 negotiations for the terms of the Union with Canada of  4 the difference between the Indian policies which  5 prevailed in Canada and B.C.  In Laird's mind,  6 however, the issue of Indian land title was important  7 to Indian people in the Province.  Laird voices this  8 in terms which indicate that the Dominion saw that  9 native title in the Province had not been  10 extinguished.  He both recognizes that title and the  11 need to deal with it.  12  13 Now, I direct your lordship's attention to an  14 exchange between Lord Dufferin and Lord Carnarvon of  15 the Colonial Office in 1874.  Dufferin forwarded the  16 Laird memo along with other relevant papers to Lord  17 Carnarvon in the Colonial Office in London.  Dufferin  18 took the occasion to write a lengthy despatch on  19 December 4, 1874, dealing solely with the Indian land  20 policies of the British Columbia government.  He  21 referred to the failure of British Columbia to  22 extinguish aboriginal title, and he remarked as  23 follows.  I draw your attention, my lord, to the  24 second paragraph.  He points out:  25  2 6 "As a consequence the Government of Canada has  27 never permited any lands to be occupied or  28 appropriated, whether by corporate bodies or by  29 individuals, until after the aboriginal title  30 has been extinguished and the Districts  31 formally surrendered by the Tribes or bands  32 which claimed them, for a corresponding  33 equitable consideration.  34 In British Columbia ... Lord Dufferin  35 notes...this principle seems never to have been  36 acknowledged.  No territorial rights are  37 recognized as pre-existing in any of the  38 Queen's Indian subjects in that locality..."  39  40 Now, he was wrong as to that extent of his knowledge,  41 my lord.  But he is right as to what follows.  42  43 "...except in a few special cases dealt with by  44 the Hudson Bay Company before the foundation of  45 the Colony..."  46  47 And he is wrong about that in some circumstances as 26047  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  MR.  MR.  GOLDIE  RUSH:  GOLDIE  RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  well, my lord.  :  He is wrong in the preceding paragraph, too.  Well, I am sure you will make that point.  :  I will.  "...the aboriginal title has never been  extinguished over any of the territories now  claimed as Crown property by the local  government, and lands have been pre-empted and  appropriated without reference to the consent  or wishes of their original occupants."  :  What do you think he means by that?  That they have  allowed it to be settled?  Yes.  That settlement had proceeded by way of  pre-emption on lands which had not been extinguished.  :  Yes.  Over which the title had not been extinguished.  Now, my lord, whether or not Dufferin was entirely  accurate in his recital of the implementation of  Indian policy in Canada as a matter of law, it is  clear that the policy he enunciated was consistent  with the fundamental principles of Indian land rights  in the common law and affirmed by the Royal  Proclamation of 1763.  And we say it was consistent  with the application of the policy entailed in the  instructions to Cook, in the Confidential Memorandum,  and in the various despatches to Douglas when British  Columbia became a colony.  Dufferin was not fully informed about the fact  that both the Colonial Office and the Governors in the  Colonies of Vancouver's Island in British Columbia  recognized the aboriginal title of the native  inhabitants as well as acknowledging that it needed to  be extinguished.  He was right, however, in noting  that reserves were established while the aboriginal  title was not extinguished, but deferred for later  treatment.  He saw no inconsistency with lands having  been pre-empted upon settlement and the unextinguished  title.  Indeed, my lord, we say there is no inconsistency  as the Supreme Court of Canada in the Royalties case  much later concluded in its evaluation of Treaty 3.  Mr. Justice Duff set out the circumstances which led 2604?  Submissions by Mr. Rush  1 to Treaty 3 showing non-Indian occupation of  2 aboriginal lands prior to the negotiation of the  3 treaty for its relinquishment or the relinquishment of  4 Indian rights or Indian title.  5  6 Now, my lord, the official minutes written on  7 Dufferin's despatch when it was received in England  8 naturally focus on the immediate problem of what  9 action should be taken regarding the dispute over the  10 size of the reserves.  The minute placed on Dufferin's  11 despatch in the Colonial Office on December 18, 1874  12 noted this:  13  14 "These papers disclose a most terrible state of  15 affairs as regards the present position and  16 future prospects of the Indians in British  17 Columbia."  18  19 The bottom of the page, my lord.  The consensus was  20 that intervention from Britain would be premature as  21 to the response of the British Columbia government had  22 not yet been received.  None of the commentators,  23 including Carnarvon himself, disagreed with Dufferin's  24 characterization of the Imperial policy respecting  25 aboriginal title.  26  27 Lord Dufferin expressed himself privately to Lord  28 Carnarvon in the Colonial Office on the subject of  29 Indian land matters in a letter dated November 26,  30 1874.  And he said:  31  32 "By next mail I shall be sending you very  33 important despatch covering an Order-in-Council  34 relative to the unsatisfactory position of the  35 Indian question in British Columbia.  That  36 Province appears to be treating its Indian  37 subjects with great harshness.  It does not  38 recognize any obligation to extinguish the  39 aboriginal title, before dealing with the Crown  4 0 lands."  41  42 In these words, Dufferin is reflecting the legal  43 obligations on the Crown underpinned by the common law  44 and clear statements to that effect recognized and  45 affirmed in the Proclamation.  And there is no  46 question of London's recognition of aboriginal title  47 in British Columbia and the need for it to be 26049  Submissions by Mr. Rush  1 extinguished.  2 MR. GOLDIE:  Where is that stated, please?  3 MR. RUSH:  Where is what?  4 MR. GOLDIE:  You say:  "There is no question of London's  5 recognition."  I am unaware of any reference to  6 London.  7 MR. RUSH:  Well, there may not be any reference to London, my  8 lord, but I —  9 THE COURT:  That's your submission?  10 MR. RUSH:  I am using London.  I think my friend is taking a  11 technical point, is he not?  12 MR. GOLDIE:  No.  I'm taking the question —  13 MR. RUSH:  He is saying that it doesn't refer to Lord Carnarvon.  14 And it is evident by the review of the despatch that  15 there is no -- that there is no question, in our  16 submission, that when those are read that the Colonial  17 Office accepts the recognition of aboriginal title in  18 British Columbia.  19 MR. GOLDIE:  All right.  Thank you.  20 MR. RUSH:  In another private communication that supports the  21 point I just made between Dufferin and Carnarvon on  22 December 21, 1874, the following point is made by Lord  23 Dufferin:  24  25 "I don't think I have written to you privately  26 on the subject of the long "British Columbia  27 Indian" despatch I had to send you.  I don't  28 think there is anything to add to the case set  29 fort in the official papers.  The B.C.'s have  30 evidently been behaving very badly, and they  31 certainly should be required to extinguish the  32 aboriginal title before assuming possession of  33 the land, which is the universal principle  34 observed in every province of the Dominion, but  35 the truth is British Columbia is hardly a large  36 enough community to have as yet developed a  37 conscience.  If we live...I guess that should  38 be leave...out of account the mining  39 population, who are a migratory class, I don't  40 think there are more than 2,000 families in the  41 whole province, including the capital, and most  42 of those are more or less adventurers, without  43 the sense of responsibility."  44  45 I'm sure that given the Colonial estimates of the  46 numbers of native people, Lord Dufferin was here  47 referring to non-Indian people. 26050  Submissions by Mr. Rush  1 No doubt Dufferin, my lord, had Trutch in mind  2 when he alluded to the fact that British Columbia was  3 not large enough to have "as yet developed a  4 conscience".  He might have gone on to add "nor  5 respect for the law and Crown obligations".  6  7 The following month in January of 1875, the  8 Dominion Deputy Minister of Justice, Mr. Bernard,  9 recommended disallowance of "An act to amend and  10 consolidate the laws affecting Crown Lands in British  11 Columbia" passed on March 2, 1874.  And this was the  12 Dominion's disallowance of the British Columbia Land  13 Act, my lord.  14  15 Now, it was disallowed because the legislation did  16 not take into account aboriginal title, and also  17 because Indians were prevented from pre-emption or  18 recording lands without prior written permission of  19 the Lieutenant-Governor.  In support of his  20 recommendation, the Deputy Minister referred to the  21 Royal Proclamation policy enunciated in 1763.  And he  22 wrote:  23  24 "It is sufficient, for the present  25 circumstances, to ascertain the policy of  26 England in respect to the acquisition of the  27 Indian territorial rights, and how entirely  28 that policy has been followed to the present  29 time, except in the instance of British  30 Columbia.  31 The determination of England, as expressed in  32 the Proclamation of 1763, that Indians should  33 not be molested in the possession of such parts  34 of the dominions and territories of England as,  35 not having been ceded to the King, and reserved  36 to them, and which extended also to the  37 prohibition of purchase of lands from the  38 Indians, except only to the Crown itself -- at  39 a public meeting or assembly of the said  40 Indians to be held by the governor or  41 commander-in-chief -- has, with slight  42 alterations, been continued down to the present  43 time, either as the settled policy of Canada,  44 or by legislative provision of Canada to that  45 effect, . . .  46 ... the Act, meaning the British Columbia Land  47 Act, under consideration not only ignores those 26051  Submissions by Mr. Rush  1 rights, but expressly prohibits the Indians  2 from enjoying the rights of recording or  3 pre-empting lands, except by the consent of the  4 Lieutenant-Governor; --  the undersigned feels  5 that he cannot do otherwise and advise that the  6 Act in question is objectionable, as tending to  7 deal with lands which are assumed to be the  8 absolute property of the province, an  9 assumption which completely ignores, as  10 applicable to the Indians of British Columbia,  11 the honour and good faith with which the Crown  12 has, in all other cases, since its sovereignty  13 of the territories in North America, dealt with  14 their various Indian tribes.  15 The undersigned would also refer to the British  16 North America act, section 109, applicable to  17 British Columbia, which enacts in effect that  18 all lands belonging to the province shall  19 belong to the province, "subject to any trust  20 existing in respect thereof, and to any  21 interest, other than that of the province in  22 the same'."  23  24 And then he says:  25  26 "That which has been ordinarily spoken of as  27 the "aboriginal title" must, of necessity,  28 consist of some species of interest in the  29 lands of British Columbia.  30 If it is conceded that they have not a freehold  31 in the soil, but that they have an usufruct, a  32 right of occupation or possession of the same  33 for their own use, then it would seem that  34 these lands of British Columbia are subjects,  35 if not to a 'trust existing in respect  36 thereof, at least 'to an interest other than  37 that of the province alone',"  38  39 citing the passages of section 109.  40  41 Bernard's views were concurred in by the Minister of  42 Justice, Mr. Fournier, and by the Governor General in  43 Council, and the Act was disallowed on January 19,  44 1875.  45  46 By disallowing the B.C. Land Act, the Governor of  47 Canada, and the Governor-General adopted Bernard's 26052  Submissions by Mr. Rush  1 views that aboriginal title to land was extant in  2 British Columbia and unextinguished.  The Dominion  3 recognized that title as a distinct interest in the  4 lands of British Columbia.  And the Dominion  5 identified the Royal Proclamation of 1763 as  6 expressing the pre-existing title right of the Indians  7 and endorsed the fact that the principles of the  8 Proclamation applied in British Columbia.  9  10 I should remind your lordship, my lord, I have  11 made this -- drawn this to your attention before, but  12 this was a view that Bernard held in 1866, prior to  13 Confederation, in respect of upper Canada.  And he  14 made a report to the Privy Council at that time which  15 I have exhibited there in June 9, 1866, in which he  16 expressed similar views to those that he expressed in  17 this memo which led to the disallowance.  18  19 The Dominion also expressed that the Indian  20 interest in the land is one "other than that of the  21 province".  The views here expressed by the Dominion  22 in no way support the Province's interpretation of the  23 Terms of Union that the establishment of reserves in  24 the Province would satisfy the Province's obligations  25 to the Indian people.  26  27 Now, later, my lord, Edward Blake, who was then  28 Minister of Justice, commented upon the unsettled  29 state of affairs between the governments upon the  30 re-introduction of the B.C. Land Act.  It was  31 disallowed.  And subsequent to that, it was re-enacted  32 and re-submitted.  And what Mr. Blake said on this  33 occasion is this:  34  35 "The grave questions arising in that report  36 (Bernard's) and those under discussion between  37 the two governments as to the mode of dealing  38 with the Indians, are still unsettled; and it  39 appears to the undersigned that the alterations  40 made in this Act are not such as to meet the  41 difficulties which resulted in the disallowance  42 of the formal...that should be former act.  43 It may perhaps be hoped that before the time in  44 which the power of disallowance must be  45 exercised, this question will be settled."  46  47 Mr. Blake took into account the views of Mr. Basil 26053  Submissions by Mr. Rush  1 Humphreys, Clerk of the Executive Council.  And  2 Humphreys reports the following:  3  4 "That the objections to the Act, amending the  5 Crown Lands Act, are considered to be removed  6 by the agreement for the settlement of the  7 Indian land question by Commissioners, and that  8 the Power of Attorney Act will be immediately  9 amended so as to remove objections to Section  10 7."  11  12 On this occasion, my lord, the provincial  13 legislation was not disallowed, not because the  14 defects in the law that had been objected to had been  15 cured, but because a new apparatus had been set up, as  16 described by Mr. Humphreys, for the settlement of the  17 Indian Land question in the Province, namely the  18 Indian Reserve Commission.  And this is evident from  19 the report of Edward Blake of April 28, 1876.  And I  20 take you to the bottom paragraph of this page.  And he  21 says:  22  23 "Although the undersigned cannot concur in the  24 view that the objections taken are entirely  25 removed by the action referred to; and, though  26 he is of the opinion that, according to the  27 determination of council upon the previous  28 Crown Lands Act, there remains a serious  29 question as to whether the Act now under  30 consideration is within the competence of the  31 Provincial Legislature, yet since, according  32 to the information of the undersigned, the  33 statute under consideration has been acted  34 upon, and is being acted upon largely in  35 British Columbia, and great inconvenience and  36 confusion would result from its disallowance;  37 and, considering that the condition of question  38 at issue between the governments is very much  39 improved since the date of his report, the  40 undersigned is of the opinion that it would be  41 the better course to leave the Act to its  42 operation."  43  4 4 And they did.  45  46 Now, the Dominion did not exercise its  47 disallowance power because, my lord, the Province 26054  Submissions by Mr. Rush  1 agreed to the settlement of the "Indian land question"  2 in British Columbia by the establishment of an Indian  3 Reserve Commission.  Blake's report makes it clear  4 that it was a political solution.  And the aboriginal  5 title of the native -- the aboriginal title of the  6 native people of the Province was not dealt with.  It  7 was deferred.  8  9 The reference by Blake to the Commissioners is to  10 the three-man body of Indian Reserve Commissioners  11 which was set up by joint agreement of the two  12 governments.  The one Commissioner being the  13 representative of the Dominion, the second the  14 representative of the Province, and the third being a  15 joint Commissioner answerable to both governments.  16 And they were to try to resolve the questions relating  17 to Indian lands in British Columbia.  However,  18 specifically they directed their attention only to the  19 allocation of reserves in British Columbia, leaving  20 aside the question of aboriginal title and the  21 extinguishment thereof.  22  23 The debate over the size of Indian reserves  24 dragged on for another year and was finally resolved  25 by an agreement to have a joint Dominion-Provincial  26 Indian Reserve Commission establish reserves on an ad  27 hoc basis without having an uniform allocation in all  28 parts of the province.  29  30 The larger issue of aboriginal.  Title remained an  31 unresolved and contentious matters, but it was  32 overshadowed by the other disputes between the  33 province and the Dominion.  34  35 And this takes me to Governor-General, Lord  36 Dufferin in 1876.  In that year Dufferin took occasion  37 to issue a clear statement of continuing Imperial  38 policy to recognize aboriginal title in Canada and an  39 unequivocal condemnation of British Columbia's  40 government policy which denied aboriginal title.  The  41 Governor General's statement on aboriginal title was  42 made in a public address in Victoria on September 20,  43 1876.  The context in which the statements were made  44 underline the importance which was placed on the  45 anomalous position taken by the British Columbia  46 government on the aboriginal title issue.  The  47 Governor General's statements on aboriginal title were 26055  Submissions by Mr. Rush  1 issued during an address and visit which had as their  2 primary aim the easing of strained relations between  3 British Columbia and the Dominion government.  Given  4 this context, reference to the contentious issue of  5 British Columbia's refusal to recognize aboriginal  6 title is the more remarkable.  7  8 One of the material terms on which British  9 Columbia had joined Confederation was the promise of a  10 railway link to eastern Canada.  The Dominion  11 government had not performed on its promises to begin  12 construction within the specified time.  Lord  13 Carnarvon of the Colonial Office had attempted to  14 arbitrate in 1874, but by 1876 the situation had  15 deteriorated and there were threats that B.C. would  16 separate from Canada.  17  18 In August of 1876 Lord Dufferin visited British  19 Columbia in an effort to ease the strained relations  2 0 between the Dominion government and the Province over  21 the delay in construction of the Pacific Railway and  22 the failure of the Dominion government to give effect  23 to the 1874 Carnarvon terms of arbitration.  Dufferin  24 arrived at Esquimalt in mid-August, spent ten days  25 listening to grievances about the railway matter, and  26 then proceeded on a tour of the coast, lower mainland,  27 and part of the interior during the course of which he  28 received Indian addresses, petitions and memoranda  29 from various groups regarding aboriginal title.  30  31 Now, the speech that Dufferin made in Victoria was  32 delivered on September 20th just before he left for  33 Ottawa.  Dufferin gave an address which reviewed the  34 history of the railway issue and demonstrated  35 understanding and sympathy with the grievances of  36 British Columbia with regard to this matter.  I should  37 point out, my lord, that this is a very long speech.  38 And it goes on for many pages.  And the portion that I  39 have directed your attention to deals with the  40 question of Indian title.  Dufferin's speech on this  41 occasion has been regarded as an outstanding example  42 of diplomatic oratory and was widely quoted and  43 reproduced.  In his closing remarks he addressed the  44 failure of the British Columbia government to  45 recognize aboriginal title.  46  47 Dufferin reiterated that this had always been 26056  Submissions by Mr. Rush  1 Imperial policy to recognize aboriginal title in  2 Canada and that treaties with Indians were at that  3 moment being negotiated by the Lieutenant-Governor of  4 Manitoba.  He referred to the post-Douglas refusal of  5 British Columbia governments to recognize aboriginal  6 title as an "error".  The following passages are taken  7 from that report dealing with aboriginal title.  And,  8 my lord, I just ask you to go down to the sentence  9 beginning:  10  11 "Most unfortunately, as I think, there has been  12 an initial error ever since Sir James Douglas  13 quitted office, in the Government of British  14 Columbia neglecting to recognize what is known  15 as the aboriginal title.  In Canada this has  16 always been done; no government, whether  17 provincial or central, has failed to  18 acknowledge that the original title to the land  19 existed in the Indian tribes and communities  20 that hunted or wandered over them.  Before we  21 touch an acre we make a treaty with the chiefs  22 representing the lands we are dealing with,  23 and having agreed upon and paid the stipulated  24 price, often times arrived at after a great  25 deal of haggling and difficulty, we enter into  26 possession, but not until then do we consider  27 that we are entitled to deal with an acre."  28  29 He then goes on, my lord, to express the views that  30 treaties were then being negotiated with the Sioux and  31 the Crow.  And I take you down a little farther in the  32 passage where he says:  33  34 "I confess I consider that our Indian  35 fellow-subjects are entitled to exactly the  36 same civil rights under the law as are  37 possessed by the Indian population --"  38  39 THE COURT:  "White population".  40 MR. RUSH:  Yes, excuse me.  41  42 "...the white population, and that if an Indian  43 can prove a prescriptive right of way to a  44 fishing station, or a right of way of any other  45 kind, that that right should no more be ignored  46 than if it was the case of a white man."  47 26057  Submissions by Mr. Rush  And he continues on to the bottom:  "...but I have also been able to understand  that in these latter districts it may be even  more necessary to deal justly and liberally  with the Indians in regard to his land rights  even than on the praires of the North-West."  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.  THE  MR.  THE  MR.  THE  MR.  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  :  If you're right in your basic submission, then why  didn't the Federal Government go and extinguish the  title?  They seem to be exercised about it.  They have  signed in Terms of Union.  They know what they are.  They know their responsibility.  Why didn't they go  and extinguish it?  They didn't have control of the land.  :  Well —  They had to -- my lord, if the government was to act,  the federal government was to act, it couldn't act  without having control of the provincial title to the  land.  And so it could not act unilaterally.  :  And the provincial government couldn't act because  it didn't have the authority to deal with the Indians.  It didn't have the administrative powers that were  allocated to the federal government upon the terms of  union.  :  All right.  My lord, we say that Lord Dufferin's remarks plainly  state the consistent and continuing policy of the  British Crown with regard to aboriginal title in  Canada.  And these remarks also clearly state the  Crown Imperial's own view of the Crown's obligations  as a matter of law and policy during the Colonial  period in British Columbia, prior to 1871.  Dufferin  clearly and unequivocably states that British  Columbia's policy after Douglas was in "error" and is  anomalous.  That Dufferin should choose to deliver  these remarks at the close of the diplomatic visit the  purpose of which was to ease tensions between the  Dominion and British Columbia governments must be  taken as indicative of the serious concern with which  the British Columbia government position on aboriginal  title was viewed.  Dufferin's speech is also evidence that Article 13  of the Terms of Union did not intend to deal with the  aboriginal title of the Indians of the Province.  Dufferin called for treaties to be made with the 2605?  Submissions by Mr. Rush  1 Indians of the Province and so far as their land  2 rights were concerned to be dealt with "justly and  3 liberally".  The Imperial Crown, through Lord  4 Dufferin, saw a continuing obligation on the Province  5 to deal with the Indian interest in the land.  6  7 Now, my lord, in the following year, 1877, there  8 was a general Indian war -- there was a concern that a  9 general Indian war might break out in the interior of  10 the Province because of the unsatisfactory handling of  11 Indian matters there.  In the summer of 1877 alarms  12 were raised and coded telegrams were flying to Ottawa  13 predicting an Indian insurrection.  14  15 In 1877, Dufferin sent a private communique to  16 Carnarvon.  And in it he said this:  17  18 "As I have often had occasion to mention to you  19 in my public and private correspondence, the  20 B.C. government has never dealt properly with  21 its Indians.  Instead of following the example  22 of Canada, and buying up the aboriginal title,  23 the whites in British Columbia have simply  24 claimed the land as their own, and though they  25 have made certain Indian reservations in  26 various places a great deal of injustice has  27 been perpetrated both in regard to their  28 allotment, and the subsequent resumption of  29 portions of them.  Unfortunately, the Dominion  30 Government have no legal power of interference,  31 but by dint of a considerable amount of moral  32 pressure exercised privately by myself, and  33 "semi"-officially by Mackenzie, we got them to  34 agree to the appointment of joint commissioners  35 who were to settle all disputes upon equitable  3 6 terms."  37  38 He is talking there about the Indian reserve  39 commission.  40  41 And then, my lord, I have set out the whole of his  42 despatch.  And I ask you to go down to the -- after  43 expressing concerns about Indian unrest on 99, at the  44 bottom he said:  45  46 "All this is very uncontrollable" --  47 26059  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. RUSH:  Uncomfortable.  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  "... uncomfortable, but I do not see that I can  do anything more than I have done. I am sure I  spoke out strongly enough to the B.C.'s  themselves, when I was there last year, warning  them publicly in my speech of what the  consequences would be if they did not deal more  justly by the native population."  My lord, the Province argues that Dufferin's  speech in Victoria was made gratuitously and without  the authority of the Imperial Crown.  Carnarvon in  London knew and approved of Dufferin's position.  In a  minute of November 2, 1876, Lord Carnarvon said about  the speech:  "It is an admirable speech in temper, taste,  language and deserves every praise."  Dufferin's private letter to Carnarvon set out  above repeats his views expressed in the Victoria  speech.  The Colonial Office did not disavow or  repudiate Dufferin's comments.  They endorsed them.  Dufferin was clearly expressing the views of the  Imperial Crown.  Based on what David Mills, Minister  of the Interior of the Government of Canada said about  but a week later, Dufferin was also expressing the  views of the Canadian Government.  Now, I turn to Mr. Mills, Minister of the  Interior, then charged with responsibility over Indian  Affairs.  David Mills wrote to Lieutenant-Governor  Powell, the Indian Superintendent in Victoria not a  week later expressing the Dominion's views on  aboriginal title in British Columbia.  My lord, I just  want to pause to tell your lordship that at the end of  this section at page 117 I have included a typescript  of Mills' handwritten letter.  And this is the  typescript of the exhibits which have been marked in  the proceedings as 1040-92 and 1040-93.  I provide  those to you for ease of reading.  :  Thank you.  If you can work through Mr. Mills' handwriting, which  is quite good.  :  Yes.  You could go do that directly. 26060  Submissions by Mr. Rush  1 THE COURT:  Thank you.  2 MR. RUSH:  Now, with regard to Mills' speech, my lord, he says:  3  4 "In reading over some of the communications  5 which you formerly sent to this department, I  6 observed that a policy has been pursued towards  7 the Indian population of British Columbia  8 wholly at variance with the course that it has  9 been thought necessary to pursue towards the  10 aboriginal inhabitants in every other part of  11 the Dominion..  12 Should anything so disastrous as an Indian war  13 overtake the Province of British Columbia, I do  14 not believe that the Provincial authorities  15 would be permitted to deal with any portion of  16 the lands claimed by the Indians until the  17 aboriginal title had been first extinguished by  18 making them reasonable compensation..  19 I do not know whether the Government of Canada  20 is fully aware of the conditions of things at  21 the time British Columbia was admitted to the  22 Union -- whether they were aware that the  23 Government of British Columbia had undertaken  24 to deal with the public lands of that Province  25 without first having extinguished the  26 aboriginal title."  27  28 And here he is reiterating a point that I drew your  29 lordship's attention to a few moments ago that David  30 Laird made on November 2, 1874.  31  32 "But, however that may be, there can be no  33 doubt whatever that no arrangement between the  34 Government of Canada and the Government of  35 British Columbia could take away any rights  36 which the Crown has always recognized as  37 belonging to the Indian natives."  38  39  40 And, my lord, at the bottom of the page he carries  41 on this with this comment:  42  43 "The Government of British Columbia have  44 retained possession of the waste lands of the  45 Crown within the limits of the Province, but  46 they have never extinguished the aboriginal  47 title, nor have they made any provision for 26061  Submissions by Mr. Rush  1 annuities to the Indian population.  And I have  2 no doubt whatever, that as guardians of the  3 aboriginal inhabitants of the Dominion, the  4 Government of Canada have the right to insist  5 upon the extinguishment of this title before  6 the Provincial Govt, assume absolute control of  7 these lands; and if it becomes necessary, in  8 order to prevent an Indian war, to assert this  9 right on behalf of the Indians, there can be no  10 doubt as to the course which it would be the  11 duty of the Federal Government to pursue."  12  13  14 The above excerpts make clear Mills' view that the  15 aboriginal title in British Columbia had not yet been  16 extinguished and that it was important that it should  17 be formally purchased.  He also makes evident that the  18 Dominion government is not anxious to press the  19 Province regarding this matter if it can be avoided.  2 0 His remark that no agreement between the Government of  21 Canada and the Government of British Columbia could  22 take away aboriginal title refers to Article 13 of the  23 Terms of Union.  His comment is consistent with views  24 of later Dominion officials.  Their comments refer to  25 later agreements between the Government of Canada and  26 the Province and with legislation approving the report  27 of the McKenna-McBride Commission.  And I will come to  28 that later.  29 THE COURT:  I think if you don't mind, Mr. Rush, we will take a  30 short adjournment.  31 THE REGISTRAR:  Order in court.  Court stands adjourned.  32 (PROCEEDINGS ADJOURNED AT 8 o'clock)  33  34 I hereby certify the foregoing to  35 be a true and accurate transcript  36 of the proceedings transcribed to  37 the best of my skill and ability.  38  39  40  41  42  43 Lisa Franko,  44 Official Reporter,  45 UNITED REPORTING SERVICE LTD.  46  47 26062  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECOMMENCED AT 8:10 P.M.)  THE REGISTRAR  THE COURT  MR. RUSH:  THE COURT  Order in court.  Mr. Rush.  David Mills, my lord, I am carrying on at the bottom  of 102, makes the point to Powell, which is the very  point we make in this case.  No matter what was agreed  to at the time of B.C. entry into the Union of Canada  as between the Dominion and the province, they could  not take away the aboriginal rights of the Indian  ancestors of the plaintiffs.  It was not just a matter  of policy that the Indian interest in the land  required purchase, with consent, by the Crown before  it could be dealt with.  It was a matter of the common  law and a requirement of the Royal Proclamation of  1763 which had been recognized by the Crown throughout  the territories of Canada.  We say it was a legal  principle.  The public lands of the Crown within the  province could not be dealt with by the province or  the colony before it without having extinguished the  aboriginal title.  Mills' statement here was a correct  reflection of the law in 1877.  It remains a correct  statement of the law today.  Now, Mills the next day also wrote in a similar  vein to Malcolm Sproat, the joint commissioner  representing both the Dominion and the province on the  Indian Reserve Commission.  And he commented on the  legal aspects of aboriginal title as follows.  And, my  lord, I'll just direct your lordship to the passage  that -- have you look at the underscored portion.  Much of this is the same views expressed by Mr. Mills  as expressed to Mr. Powell.  And I ask your lordship  to look at the second to last and last paragraph.  Now, over to 105, my lord.  The Minister of the  Interior, in the communications quoted from above,  states unequivocally his view that the legal  responsibility of the Government of Canada is to  insist that aboriginal title be protected in British  Columbia, but that he would prefer to avoid raising  the issue, if possible.  Mills correctly saw B.C.'s  policy towards Indians as unjust and illegal.  What do you say, Mr. Rush, was the real situation?  You're saying that Canada should have insisted that  the aboriginal title be extinguished, but if you're  right in your law there is no way that anyone could  extinguish it without the consent of a third party.  Or let's take -- that the Indians refuse to consent. 26063  Submissions by Mr. Rush  1  2  MR.  RUSH:  3  4  5  THE  COURT  6  MR.  RUSH:  7  THE  COURT  8  MR.  RUSH:  9  10  11  THE  COURT  12  13  14  15  MR.  RUSH:  16  17  18  19  20  21  22  23  24  25  26  THE  COURT  27  MR.  RUSH:  28  29  30  31  32  33  34  THE  COURT  35  MR.  RUSH:  36  37  38  39  40  41  42  43  THE  COURT  44  MR.  RUSH:  45  THE  COURT  46  MR.  RUSH:  47  What's the result?  Well, my lord, the result is that where any party  refuses to consent, it's a function of negotiation,  and it's a function of give and take.  :  What if the Indians say we won't negotiate?  Well, then, the situation pertains.  :  That the —  That their title remains unextinguished, that there  remains an outstanding obligation to take steps to  extinguish it.  :  And no dealing with land in the meantime?  You say,  using the Royalty case, you go ahead and give the land  to settlers or anybody that wants it, subject to that  right?  There were two -- there are at least two  possibilities.  One is that you don't deal with it  subject to the resolution or the negotiation with the  Indian people, or you do deal with it, and you deal  with it on the understanding that the title will be  extinguished at some future date.  And throughout all  of this, my lord, is stated expressly or impliedly the  fact that title is deferred, we'll deal with it later.  And this is precisely what David Mills did here.  He  said we can't compel the province to deal with  aboriginal title, but what we --  :  You could by disallowing all legislation.  Yes, my lord, that would have been the political  clout that he could have insisted upon, but the  resolution that was chosen here is as indicated in the  second to last paragraph.  Give ample land in the  course of the allocation of reserves, and maybe that  will be sufficient to deal with the issue.  But at the  same time we are setting aside --  :  Setting aside the question of title.  Setting aside the question of title, and if the  reserve commissioners deal, as he says, wisely and  liberally with the Indian people, then maybe the issue  will be dealt with.  And as he says, it is of the  utmost consequence that the commissioners in setting  apart reservations for the Indians should make them so  ample as to avoid the necessity, if possible, of  raising the question.  :  Where is that?  It's the second to last paragraph that I --  : Yes.  In order to -- in order that the question may not be  raised and more avoid it, it is of the utmost 26064  Submissions by Mr. Rush  1 consequence that the commissioners in setting apart  2 reservation for the Indians should make them so ample  3 as to avoid the necessity, if possible, of raising the  4 question.  And the issue throughout had been how big  5 are the reserves that the commission would set aside?  6 And it's clear that the size -- that the provincial  7 government had in mind was considerably smaller than  8 both the Dominion and the Indians had in mind.  But my  9 point here is only that this was the resolution, if  10 you will, the political compromise that was suggested,  11 and in fact I submit was attempted to be put in place  12 with the Indian Reserve Commission, but the Reserve  13 Commission did not act in accordance with Mr. Mills'  14 instructions.  15 THE COURT:  Yes.  All right.  Thank you.  16 MR. RUSH:  The further point, my lord, in response to your  17 earlier query, or the query that initiated my  18 response, in terms of what happens if the native  19 people do not deal, is that there is a corresponding  20 obligation or at least compulsion on the Indian  21 people, and that is that they can't deal with the land  22 either, because its inalienable for them, except to  23 the Crown.  So any titles or any alienations which  24 they attempt to give would be invalid as against the  25 grantees that they give.  26 THE COURT:  Well, that would only rise if the Indians decided  27 that they wanted to divest themselves of their lands.  28 MR. RUSH:  Exactly, my lord, but presumably that's the same  29 compulsion that's on the provincial government.  It's  30 a question of these issues arise only when the estate  31 is transferred to third parties, but there is a  32 corresponding, if you will, compulsion to negotiate.  33 And in our submission, my lord, it is because of that  34 that it is highly unlikely that you would have this  35 situation posited by your lordship that no one would  36 deal.  37 THE COURT: I think it's useful to test these propositions by  38 assuming the worst, and see whether if it can be  39 accommodated in the worst scenario, and sometimes can  40 be better if it isn't quite that bad.  It seems to me  41 that what you are really laying out, however, is a  42 potential stalemate.  There is room for a stalemate in  43 what you are proposing here, and what they were  44 talking about.  45 MR. RUSH:  Oh, yes, I think there is room for a stalemate.  46 THE COURT:  The feds are saying get it extinguished, but it  47 depends on the goodwill of two other parties. 26065  Submissions by Mr. Rush  1 MR. RUSH:  Both of whom are under considerable compulsion  2 similar -- have similar interests in wanting to  3 resolve it.  4 THE COURT:  Well, you are assuming that.  I am not sure.  I  5 can't at this moment say the Indians want to resolve  6 it.  7 MR. RUSH:  Well, my lord, I think you can by looking at the  8 history of treaty making throughout all of North  9 America.  And that, I think, is the point of Mr.  10 Jackson's submission, is that in fact Indian people  11 have treated and continue to treat --  12 THE COURT:  Well, they treated or they got taken.  I don't know  13 which.  14 MR. RUSH:  Well, but as a matter of law, my lord, the question  15 and our proposition is that the title of the  16 aboriginal title remains extent.  And I mean yes, you  17 take it, and you can say it may be said to be taken  18 fair and square, but that doesn't mean that it's dealt  19 with as a matter of law.  And in my submission if one  20 looks at the history of dealing with native people,  21 then you readily see that native people will deal in  22 terms of lands, because of the benefits that are  23 naturally attended with that, and I think Treaty 8,  24 which is what I will be coming to in a moment, is a  25 case on point.  2 6    THE COURT:  All right.  Thank you.  27 MR. RUSH:  My lord, the next section that I turn your lordship's  28 attention to is the Indian Reserve Commission, and I  29 only intend to touch upon it here briefly, because it  30 would be dealt with at greater length by Mr. Adams.  31 The point I make here is that the Indian Reserve  32 Commission was set up by a joint agreement, and it  33 consisted of three commissioners.  Established in  34 October of 1876.  As noted earlier, the commissioners  35 were directed to resolve questions relating to the  36 Indian lands in British Columbia.  They specifically  37 directed their attention only to the allocation of  38 reserves in B.C.  They did not deal with the question  39 of aboriginal title and the extinguishment thereof.  40 The aspect of the Indian land question in British  41 Columbia of the unextinguished aboriginal title of  42 Indians to the land remained an unresolved and  43 contentious matter.  44 The Indian Reserve Commission went about the  45 province allocating lands to be reserved for the  46 Indians of the province.  The commissioner's work,  47 first carried out by a three person commission and 26066  Submissions by Mr. Rush  1 then by a single joint commissioner, extended over  2 several decades.  The first commissioner to arrive in  3 the territory of the Gitksan and Wet'suwet'en was  4 Peter O'Reilly in 1891.  Mr. Adams will be dealing  5 more specifically with the relationship between Mr.  6 O'Reilly's commission and the Gitksan and Wet'suwet'en  7 people with whom he encountered.  8 Mr. O'Reilly, my lord, by minute set aside the  9 first reserve in the territory of the Gitksan and  10 Wet'suwet'en in 1891, but it wasn't surveyed until  11 1899.  12 MR. GOLDIE:  That's Mr. O'Reilly in his capacity as the Indian  13 Reserve Commissioner or the first reserve set aside by  14 Mr. Hutney (?).  15 MR. RUSH:  Well, I'll be glad to hear my friends argue on that.  16 In my submission, my lord, Mr. Adams will deal with  17 that proposition.  18 THE COURT: You said that there was a minute, but it isn't  19 mentioned here, is it?  20 MR. RUSH:  No, my lord.  As I say, Mr. Adams will deal  21 specifically with the reserve allocations, and you  22 will see from the evidence that the first one was  23 established in 1891.  24 Mr. O'Reilly's contact with the Gitksan and  25 Wet'suwet'en as a single commissioner, as I say, will  26 be addressed specifically in our argument.  Suffice to  27 say now that the commission did not purport to deal  28 with the aboriginal title of the Indian people of the  29 province, nor particular with that of the Gitksan and  30 Wet'suwet'en people.  The treatment of the aboriginal  31 title to the lands continued to be deferred.  32 And, my lord, I turn to Treaty no. 8 in north  33 eastern British Columbia, and I do so for these three  34 reasons:  First, it provides further documentation  35 that the Dominion Government recognized the existence  36 of unextinguished aboriginal title in British Columbia  37 after the province joined Confederation.  Second, it  38 provides an example of Crown purchase with Indian  39 consent to extinguish aboriginal title well after the  40 date at which the Crown asserted jurisdiction over the  41 area, and well after a large body of colonial and  42 provincial legislation had been enacted to regulate  43 land and other matters.  Clearly, the mere existence  44 of such legislation was not considered inamicable to  45 the subsequent extinguishment of aboriginal title by  46 treaty between the Indians and the Dominion  47 Government.  And thirdly, the history of Treaty No. 8 26067  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  shows that the Government of British Columbia has  actively cooperated in carrying out the terms of  Treaty No. 8 by conveying lands to Her Majesty in  Right of Canada for the purpose of fulfilling land  obligation to the Indians under Treaty No. 8.  Now, briefly, my lord, the terms of Treaty 8 are  these.  Under the terms aboriginal title to a large  area of north eastern British Columbia was  extinguished.  The area covered by Treaty No. 8 in  British Columbia is bounded to the west and southwest  by the main range of the Rocky Mountains, on the north  by the 60th parallel of north latitude and on the east  by the 120th degree longitude.  The initial negotiations and signing took place at  several locations in 1899.  The treaty covers a broad  area of northern Alberta, as well as the north eastern  part of British Columbia.  A number of bands signed  adhesions to the treaty at later dates and over a  period of years.  The Dominion treaty commissioners were scheduled  to meet with Indians in British Columbia in 1899, but  due to delay were unable to do so.  The commissioners  met the following year with Beaver Indians at Fort St.  John, who signed an adhesion to the treaty.  In  succeeding years additional Beaver accepted the  treaty.  In 1910 and 1911 Slave and Sekani Indians at  Fort Nelson were added to the treaty.  Like other numbered treaties, Treaty no. 8 was  negotiated between the Government of Canada and the  Indians.  British Columbia was not a party to the  treaty, but the province was involved in discussions  preliminary to the treaty, and has cooperated in  bringing its terms into effect.  Treaty 8 provided, among other things, for the  extinguishment of aboriginal title in north eastern  British Columbia, payment of annuities to the Indians,  and reservation of certain lands for them.  The terms  of the treaty provided that for those families who  desired to reside on Indian reserves, land would be  allocated on the following basis:  Not to exceed one  square mile per family of five, or in that proportion  for larger or smaller families.  Alternatively, for  families or individuals who preferred to live apart  from band reserves, land in severalty would be  provided to the extent of 160 acres to each Indian.  :  Would that be outright?  Yes. 2606?  Submissions by Mr. Rush  1 THE COURT:  They could then if they wished —  2 MR. RUSH:  Yes.  Both the land option and the greater size of  3 land allocations per capita are in sharp contrast to  4 the postage stamp lands provided to Indians in British  5 Columbia not parties to Treaty No. 8.  These contrasts  6 preclude any confusion as between land allocations  7 made under the treaty and land allocation made under  8 the terms of Article 13 of the Terms of Union.  9 Treaty No. 8 was authorized in 1899 many decades  10 after the Crown asserted sovereignty over the area  11 east of the Rocky Mountains.  One of the reasons given  12 by Commissioner Forget for entering into treaty with  13 the aboriginal people in 1899 was increasing ill  14 feeling on the part of native people because of the  15 extension of governmental authority in advance of the  16 acquisition of title.  The Metlakatla people resisted  17 having jurisdiction of the Indian Act extended to  18 them, and I make this as a parenthetic statement, my  19 lord, and failing to get the Dominion Government to  20 enter into treaty with them had left British Columbia  21 just two years earlier in 1887.  22 THE COURT:  You mean that was going to Alaska, was it not?  23 MR. RUSH:  Yes.  When the Dominion Government, my lord, decided  24 to negotiate Treaty No. 8, the action was authorized  25 by PC 2749, approved 6 December 1898.  The acting  26 Secretary of State wrote to the Lieutenant Governor of  27 British Columbia on 12 December 1898 forwarding a copy  28 of 2749 and requesting the Government of B.C. to  29 formally acquiesce in the forthcoming treaty so that  30 guarantees could be given to the Indians in north  31 eastern British Columbia regarding lands to be  32 reserved for them under the Terms of Treaty.  33 It says nothing, my lord, in the Order in Council,  34 about the Terms of Union.  35 PC 2749 provided inter alia:  36  37 "... the Minister further recommends that the  38 Government of British Columbia be asked to  39 formally acquiesce in the action taken by Your  40 Excellency's government in the matter and to  41 intimate its readiness to confirm any reserves  42 which it may be found necessary to set apart  43 within the portion of the province already  44 described."  45  46 On December 20th, 1898 the Lieutenant Governor of  47 British Columbia forwarded the copy of PC 2749 to the 26069  Submissions by Mr. Rush  1 Provincial Secretary along with a cover letter  2 recommending favourable consideration by the British  3 Columbia government of the Dominion Government  4 request.  5 Under date of 27 December 1898 the Deputy  6 Provincial Secretary, A. Campbell Keddie, wrote to the  7 Lieutenant Governor acknowledging receipt of his  8 letter and the copy of PC 2749, and advised that they  9 would receive due consideration.  10 The copy of the Order in Council at the provincial  11 archives of British Columbia bears a stamp and  12 handwritten date showing that the document was  13 received by the clerk of the executive council on  14 December 20th, 1898.  15 It appears from enclosures in the file that the  16 copy of PC 2749 was referred to the Attorney General's  17 office and returned to the executive council in  18 September 1899.  19 There is no record of a communication from the  20 British Columbia Government in response to the  21 Dominion Government request for a formal acquiescence  22 of Treaty No. 8.  Neither of the defendants in this  23 case, The Queen, has disclosed any record of a British  24 Columbia Government answer to the Dominion Government.  25 Whether or not, my lord, and I am on page 111, the  26 province made reply in 1898 or 1899, the record shows  27 that the British Columbia government acquiesced in the  28 terms of Treaty No. 8 at least as early as 1923 and  29 again in 1961.  And this is evidenced both in the  30 language used and actions taken by the province in  31 sanctioning the work of the Royal Commission on Indian  32 Affairs in British Columbia and in conveying lands to  33 the Dominion Government for the use of Indians in  34 British Columbia under the terms of Treaty No. 8.  35 Initially, my lord, four reserves totalling about  36 37,573 acres were set apart under the Terms of Treaty  37 No. 8.  These reserves were located within the Peace  38 River Block.  The Peace River Block was a tract of  39 land which at the time was held by the Crown in Right  40 of Canada.  Because the land was under the control of  41 the Dominion Government, the province was not involved  42 in any conveyance of land for Indians at that time.  43 The Peace River Block is only a small part of the  44 lands included in Treaty 8 in British Columbia.  45 As a historical matter, in 1930 the Peace River  46 Block was reconveyed from the Dominion to the  47 province.  And the Scott-Cathcart Agreement of 1929 26070  Submissions by Mr. Rush  1 provided that the Indian reserves already established  2 within the Peace River Block would be held in trust  3 for the Indians and administered by the Dominion  4 Government.  5 The Royal Commission on Indian Affairs for British  6 Columbia reported in 1916 that it had the  7 responsibility to allocate lands for Indians in the  8 Treaty No. 8 area who had not yet been allocated lands  9 or for whose benefits reserves had not yet been set  10 apart.  The commission noted that there were Indians  11 under Treaty No. 8 who lived so distant from the Peace  12 River Block that it was not feasible to allocate lands  13 for them there.  However, the commissioners did not  14 visit these Indians to determine their needs because  15 of difficulties of access to them, inadequate  16 information as to where they might be located, and  17 lack of Census data regarding their numbers.  18 The commission concluded that allocation of lands  19 for these people would have to be under the terms of  20 Treaty No. 8, and would have to be deferred until more  21 adequate information about these Indians were  22 available.  The commission discharged its duties with  23 respect to Treaty 8 Indians by a resolution moved by  24 J.A.J. McKenna, seconded by J.P. Shaw of the -- of  25 British Columbia commissioner, and unanimously adopted  26 at a meeting of the commission held 31 January 1916.  27 The resolution provides, among other things, that  28 when additional lands are allocated for Indians within  29 the Treaty No. 8, but outside the Peace River Block,  30 the Government of British Columbia will convey such  31 lands in accordance with the terms of agreement with  32 the Government of the Dominion 24 September 1912, and  33 that the lands are to be selected under and in  34 accordance with the terms of Treaty No. 8.  35 The resolution is incorporated in interim report  36 number 91, dated 1 February 1916.  It is published in  37 the report of the Royal Commission on Indian Affairs  38 for the Province of British Columbia at volume 1 at  39 pages 126 to 128.  40 Now, my lord, I have attached that particular  41 interim report number 91 for your reference, and it --  42 this is referred to in the 1923, and then later 1961  43 provincial Orders in Council, but it is also referred  44 to in Kao (?), which is Exhibit 1172.  And I believe  45 that this report number 91 was contained within the  46 Royal Commission reports that had been submitted by  47 the province, but in my efforts to find it I couldn't 26071  Submissions by Mr. Rush  1 find it, but I believe that it was there, but must  2 confess I couldn't find it.  I am now --  3 MR. GOLDIE:  No issue is being taken with that.  4 THE COURT:  Thank you.  5 MR. RUSH:  Nonetheless, I provide a copy of that.  6 My lord, the report of the Royal Commission  7 including interim report number 99 was approved and  8 confirmed.  9 THE COURT:  91.  10 MR. RUSH:  Number 91 was approved and confirmed by British  11 Columbia Order in Council 911, and that was approved  12 on July 25th, 1923.  13 THE COURT:  Well, I'm sorry, I may have lost you here, but is  14 interim report number 91 the one that provides for  15 Treaty 8 allocations for -- at that time unidentified  16 Indians, or does this interim report number 91 go  17 further?  18 MR. RUSH:  It's for Indians who would come under the compass of  19 Treaty No. 8, but who would come under -- who are  20 outside of the Peace River Block, and who would -- and  21 could adhese to the treaty after.  22 THE COURT:  Yes.  Thank you.  23 MR. RUSH:  And, my lord, the source of the treaty -- excuse me,  24 interim report number 91 deals with the resolution  25 that I have referred you to of February 1, 1916.  2 6 THE COURT: Yes.  27 MR. RUSH:  But the point I was trying to make here is that that  28 report was approved and confirmed by British Order in  29 Council 911 of July 25th, 1923, and the Order in  30 Council 911 authorized under the Indian Affairs  31 Settlement Act of 1919.  32 THE COURT:  That's a British Columbia Order in Council?  33 MR. RUSH:  That's correct.  34 MR. RUSH:  Now, in addition to that by Order in Council 2995,  35 approved in 28 November 1961, the British Columbia  36 Government authorized conveyance from the Crown in  37 Right of British Columbia to the Crown in Right of  38 Canada of approximately 24,000 acres of land for use  39 and benefit of Indians to carry out the terms of  40 Treaty 8, and B.C. Order in Council 2995 cites and  41 quotes interim report number 91, and as well the Order  42 in Council 911 and the Indian Affairs Settlement Act  43 as authorization to which the order is passed.  44 Now, the final point I wish to make, my lord, with  45 regard to Treaty No. 8, is in respect of the Dominion  46 Land Act of 1906 passed after Treaty No. 8 was entered  47 into. 26072  Submissions by Mr. Rush  1 The Dominion Governments policy to recognize  2 aboriginal title in British Columbia we say is also  3 evidenced in the Dominion Land Act, and this Act sets  4 out provisions for the disposal of Dominion lands.  5 Now, my lord, the interpretation section of the  6 Act defines Dominion lands as any lands to which the  7 Act applies.  The application section limits the area  8 to which the Act applies to the public lands of  9 Manitoba, Saskatchewan and Alberta, and the  10 territories of Canada.  It then specifically includes  11 the Peace River Block in British Columbia as Dominion  12 lands within the meaning of the Act.  The clause  13 immediately following that provides that none of the  14 provisions of the Act shall apply to territory to  15 which the aboriginal title is not extinguished.  16 Now, I have set out the relevant portions to which  17 I have made reference.  And what we say, my lord, is  18 that the Peace River Block lies within the Treaty 8  19 area in British Columbia.  Under the terms of Treaty  20 8, aboriginal title to the lands covered by the treaty  21 was extinguished.  From this it might appear that  22 clause 4 above was not directed to lands in the Peace  23 River Block.  However, as noted earlier, Indians in  24 British Columbia were formally added as parties to  25 Treaty 8 over a period of years.  And the provision  26 excluding from the operation of the 1906 Act territory  27 to which aboriginal title had not been extinguished  28 would apply to land within the Peace River Block  29 belonging to Indians who were not yet joined as  30 parties to Treaty 8 in 1906.  31 Thus it might be said, my lord, that late comers  32 to the treaty were on lands for which aboriginal title  33 was acknowledged to exist by this Act.  34 Now, our summary on this section, my lord, is  35 this, that the documents that we've directed your  36 attention to illustrate that imperial policy to  37 recognize aboriginal title and to purchase it by  38 formal treaty were continued by the Dominion  39 Government in British Columbia after 1871.  The  40 material reviewed here also shows that the Dominion  41 Government after 1871 considered that aboriginal title  42 in British Columbia had not been extinguished.  43 The Dominion Government through the Department of  44 Justice and the Minister of Interior and the Imperial  45 Government through the Governor General of Canada  46 regarded the failure of British Columbia to extinguish  47 native title to be anomalous and an error that 26073  Submissions by Mr. Rush  1 required rectification.  2 The Secretary of State for the colonies deferred  3 intervening in Indian land matters in British Columbia  4 pending possible resolution of these issues by the  5 Government of British Columbia and Canada.  6 The Government of Canada deferred pressing British  7 Columbia on the aboriginal title matter pending  8 resolution of the more immediate issue of defining  9 Indian reserves in the province.  10 The actions of the Government of Canada in 1900  11 and in subsequent years to formally purchase  12 aboriginal title in north eastern British Columbia  13 through Treaty 8 shows that in their view aboriginal  14 title in British Columbia had not been extinguished,  15 and that it was appropriate to do so by formal treaty.  16 By extension there was no enactment by the Dominion  17 nor any conduct or agreement which was intended to or  18 operated to extinguish the title of the plaintiffs or  19 their ancestors.  20 And finally, my lord --  21 THE COURT:  I don't understand that last sentence. "By  22 extension" --  23 MR. RUSH:  We say there was no enactment.  There was no  24 enactment, or there was no conduct or agreement.  25 THE COURT:  Other than Treaty 8, on which Treaty 8 is based?  26 MR. RUSH:  Yes, except Treaty 8.  27 THE COURT:  Yes.  All right.  28 MR. RUSH:  The language in the Dominion Land Act of 1906, which  29 included the Peace River Block, and which excluded  30 territory to which aboriginal title had not been  31 extinguished, is further indication of the Dominion  32 Government's policy to recognize aboriginal title  33 until formally extinguished.  34 And, my lord, that concludes that section, and  35 I've passed up to your lordship the next section of  36 our argument, which commences at 118, and this deals  37 with Provincial and Dominion legislation and  38 Provincial Dominion agreements after 1871.  And I  39 would like to move to that now.  40 Now, it is our argument that there is no  41 provincial legislation enacted after British Columbia  42 joined Confederation which explicitly addressed the  43 issue of aboriginal title or which purported to  44 extinguish aboriginal title in British Columbia.  On  45 the contrary, as in the case of pre-1871 colonial  46 legislation, contemporaneous correspondence shows  47 evidence of government recognition of Indian rights in 26074  Submissions by Mr. Rush  1 land.  We are concerned here with an examination of  2 the post-1871 enactments which the province cites as  3 evidence that aboriginal title has been extinguished  4 in British Columbia.  5 The province asserts that if aboriginal title  6 existed in British Columbia after 1871, it was  7 extinguished by certain agreements, statutes and  8 Orders in Council.  Eleven items cited by the province  9 consist of two kinds of enactments.  Firstly,  10 agreements reached between representatives of the  11 Government of B.C. and of Canada, and secondly, Orders  12 in Council and statutes approving and implementing  13 those agreements.  14 The eleven enactments or agreements referred to  15 are cited by the province in its further Amended  16 Statement of Defence at paragraph 37.  The following  17 list reflects the chronological sequence of the events  18 and places relating the items to each other.  My lord,  19 I simply want to go through this very quickly.  There  20 is the Terms of Union of 1871 and the McKenna-McBride  21 agreement of 24 September 1912, the Indian Affairs  22 Settlement Act of 29 March 1919, the B.C. Statute, the  23 Indian Settlement Act of 1 July 1920, Canada Statute,  24 Order in Council 911 about which I have made some  25 submissions, PC 1265 of Canada, Order in Council of  26 July 19, 1924, PC208, Canada, Order in Council, the  27 agreement of 20 February 1930, the Order in Council  28 1151 of British Columbia of 24 September 1930.  Order  29 in Council 1036 of 29 July 1938, and the Indian Act.  30 And, my lord, the eleven items cited by the  31 province are concerned with resolving issues and  32 differences between the province and the federal  33 government respecting Indian reserves in British  34 Columbia and with the transfer of reserve lands from  35 the province to the Crown in Right of Canada.  The  36 items listed above follow from the Terms of Union, the  37 McKenna-McBride agreement in 1912, through the work of  38 the Royal Commission 1913 - 1916 and subsequent  39 negotiations to the special arrangements for the  40 Indian Reserves in the Railway Belt and Peace River  41 Block because of the reconveyence of those lands from  42 the Dominion back to the province, leading to the  43 transfer of the Indian reserves outside of the Railway  44 Belt and Peace River Block from the province to  45 Canada, and finally to the Indian Act of 1951.  46 None of these agreements, statutes, or Orders in  47 Council addresses the issue of the unextinguished 26075  Submissions by Mr. Rush  1 aboriginal title to lands in B.C.  The reason for this  2 is clear and is explicitly stated in official  3 documents connected with these enactments.  The issue  4 of aboriginal title was specifically excluded from the  5 negotiations which led to the agreements and related  6 legislation which are relied on by the province.  In  7 July 1912 the Dominion decided to defer attempts to  8 deal with the aboriginal title issue in order to  9 resolve disputes between the two governments regarding  10 Indian Reserves.  11 Now, my lord, just before I go into the heading  12 that is the subject matter of the next section, that  13 is the prelude to the McKenna-McBride agreement, I  14 just note that we have made our submissions regarding  15 the Terms of Union, and that we here intend to turn to  16 the second of the items listed by the province in  17 their chronological order.  18 Now, differences between the province and the  19 Dominion regarding the issue of the land question in  20 British Columbia had existed since British Columbia  21 joined Confederation.  After nearly three decades of  22 unsuccessful attempts to negotiate this and other  23 differences with British Columbia regarding Indian  24 policy matters, the Dominion Government in 1910  25 prepared a list of ten questions to be submitted  26 jointly by the Dominion and British Columbia to the  27 Supreme Court of Canada.  And the first three  28 questions dealt with the issue of aboriginal title.  29 Now, my lord, if these seem familiar to you, it's  30 not a coincidence, but the issues that your lordship  31 has to resolve were pre-figured by the Deputy Minister  32 of the Department of Justice, Mr. Newcombe.  And the  33 questions that he posed were these.  Number one.  34  35 "Was the right or title of the Crown as  36 represented by the Government of British  37 Columbia at the Union in or to the lands in the  38 province which were at the time ungranted, and  39 which were claimed by them and were and had  40 been from time immemorial in the possession of  41 the several tribes of Indians inhabiting the  42 province within their respective limits,  43 subject to any interest, right or title of the  44 said tribes insofar as the interest, rights or  45 title claimed by them had not been theretofore  46 ceded, surrendered or otherwise relinquished?"  47 26076  Submissions by Mr. Rush  1 The second question:  2  3 "If so, does such interest, rights or title of  4 the said tribes of Indians so inhabiting  5 constitute an interest other than that of the  6 province in the said lands within the meaning  7 of Section 109 of the British North America  8 Act, 1867?"  9  10 "Is such interest, right or title of the said  11 tribes of Indians an interest independent of  12 and legally sustainable in competition with the  13 beneficial interest of the province?"  14  15 "Are the said tribes of Indians entitled to  16 remain in possession of the said lands  17 according to their respective limits as against  18 the government of the province, or any person  19 to whom the province may grant the same, until  20 the said interest, right or title of the said  21 tribes of Indians shall have been ceded,  22 surrendered or otherwise relinquished?"  23  24 And number 3:  25  26 "Were the several areas of tracts of lands in  27 the province of British Columbia which were at  28 the time of the Union claimed by the various  29 tribes of Indians inhabiting the province  30 within their respective limits, and which then  31 were and had been from time immemorial in the  32 possession of the said tribes respectively, and  33 which had not been ceded to or purchased by the  34 Crown, lands reserved for the use and benefits  35 of the Indians within the meaning of Article 13  36 of the Terms of Union with British Columbia?"  37  38 In his memorandum to the Prime Minister Newcombe,  39 the deputy minister of justice set out the course of  40 events which led him to drafting the proposed  41 questions for submission to the Supreme Court of  42 Canada.  With respect to the above three questions Mr.  43 Newcombe said this:  44  45 "You will observe that the first three of my  46 draft questions are directed entirely to this  47 point, that is to say the surrendered title to 26077  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  the land of the Indian people, which of course  underlies the whole situation, and now for some  reason which has not been explained, the  government of British Columbia object to having  this question elucidated by the court."  So the province refused to litigate the issue of  the first three questions.  In addition to those three questions, however, my  lord, Newcombe drafted six more questions for  reference.  And I have set these out, and I am not  going to read them, but I do wish to draw to your  lordship's attention that they too are issues which  had been ones in need of resolution and constituting  questions of controversy between the governments.  And  I simply ask your lordship to look, for example, at 4.  "If tracts of lands within the description of  Article 13 of the Terms of Union ... does the  province in view of such conveyance retain any  right, title or interest in such tracts of  lands?"  THE COURT:  These 6, were they done contemporaneously, before or  after?  MR. RUSH:  They were all at one time, my lord.  These were -- I  shouldn't have separated them like this.  They were  questions 1 to 10, and I separated them out because  the province at the time refused to agree to the  reference, if the first three questions were included.  THE COURT:  All right.  MR. RUSH:  They were prepared to go with the remaining 6, that  is numbers 4 to 10.  THE COURT:  Well, I am sure the answer is very clear somewhere,  but why didn't Canada just go anyway?  It didn't need  to consider the province to submit a question to the  Supreme Court of Canada.  MR. RUSH:  My lord, it wouldn't have resulted in anything if in  fact the province hadn't agreed.  THE COURT:  I don't understand that.  MR. RUSH:  Well —  THE COURT:  The Province didn't want to go to the offshore  reference either, but Canada did.  MR. RUSH:  Well, my lord, apparently it isn't evident from the  material, but I am going to address this in a slightly  different way.  It isn't evident from the material  with regard to the reference of the Supreme Court of 2607?  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Canada as to why they didn't unilaterally proceed, but  they didn't.  THE COURT:  All right.  MR. RUSH:  But there is a reference that emerges with regard to  a reference to the Exchequer Court of Canada.  THE COURT:  All right.  MR. RUSH:  And it is this reference that needed the consent of  the province.  And, my lord, the only explanation I  can offer at this point is presumably that federal  government felt that without the province's consent,  they were going to be in more trouble than they  wanted.  In any event, you will see what the resolution  turns on.  The province, however, my lord, and perhaps this  indicates what happens when you do take unilateral  action, despite the federal government's desire to  move to a reference of the Supreme Court of Canada,  the province instituted its own reference to the  Supreme Court of British Columbia, which was brought  on certain questions, of course, not including  aboriginal title.  The Dominion did not participate,  and there was considerable discussion during argument  as to the propriety of the province's action, and  ultimately the Court refused to decide the question.  The province then had to reopen discussions with the  Dominion for an amicable reference to the Supreme  Court of Canada, and this appears in Newcombe's letter  to Laurier.  So apparently at this point the Dominion  felt they had an advantage in urging the province to  join them in the reference.  THE COURT:  Do you think this is a convenient place to stop, Mr.  Rush?  MR. RUSH:  Yes, it is, my lord.  THE COURT:  How are we getting along?  MR. RUSH:  We are a little behind, my lord.  We were expecting  to go ahead with Mr. Adams tomorrow at 9:30.  I think  I'll probably need an hour to finish my section.  THE COURT:  All right.  You mean before Mr. Adams?  MR. RUSH:  Yes, before Mr. Adams.  I am not proposing, however,  that we alter the time -- our day tomorrow.  I am  proposing that I encroach on Mr. Adams' time.  THE COURT:  All right.  We are set tomorrow for?  MR. RUSH:  9:30.  THE COURT:  9:30 to 5:30 or 6:00 o'clock?  MR. RUSH:  Yes.  THE COURT:  All right.  Then I think we have probably done as 26079  Submissions by Mr. Rush  1 much as we should tonight.  I think we should adjourn  2 then until 9:30 tomorrow morning.  All right.  Thank  3 you.  4 THE REGISTRAR:  Order in court.  Court stands adjourned.  5  6 I HEREBY CERTIFY THE FOREGOING TO BE  7 A TRUE AND ACCURATE TRANSCRIPT OF THE  8 PROCEEDINGS HEREIN TO THE BEST OF MY  9 SKILL AND ABILITY.  10  11    12 LORI OXLEY  13 OFFICIAL REPORTER  14 UNITED REPORTING SERVICE LTD.  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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