"bdf78ef8-e0b1-47b5-8da7-4baae0482805"@en . "CONTENTdm"@en . "Delgamuukw Trial Transcripts"@en . "British Columbia. Supreme Court"@en . "2013"@en . "1990-06-26"@en . "In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial."@en . ""@en . "https://open.library.ubc.ca/collections/delgamuukw/items/1.0018502/source.json"@en . "application/pdf"@en . " 29030 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 THE MR. THE MR. THE MR. THE MR. THE MR. THE MR. THE MR. VANCOUVER, B.C. June 2 6, 1990 REGISTRAR: Order in court. In the Supreme Court of British Columbia, Tuesday, the 26th day of June, 1990. Delgamuukw versus Her Majesty the Queen, at bar, my lord. COURT: Mr. Rush. RUSH: Yes, my lord, I will be making a brief appearance this morning, and for the plaintiffs will be Mr. David Paterson, who's here with us this morning. COURT: Mr. Paterson. RUSH: I introduce Mr. Paterson again to your lordship. COURT: P-a-t-t? One T, my lord. THE MR. THE MR. PATERSON: COURT: Yes, thank you. Mr. Rush. RUSH: The issue of the hard-copy diskette copy of the Section 35 argument raised yesterday -- COURT: Yes. RUSH: I've had an opportunity of comparing the copy that is in your lordship's -- that was handed to your lordship, and I now see that the difficulty is that what was copied onto the diskette was a draft, and what should have been copied onto there was the final version, which turns up on another one of our machines. COURT: All right. RUSH: We'll replace the diskette and apologize for the tempest in a tea pot. COURT: All right. RUSH: I have another issue, my lord, arising out of the comment made by Miss Sigurdson yesterday, and it concerned a statement by her and an apparent recognition by your lordship that the Province was entitled to a written response of some kind at some point, and I wondered about this. I didn't know really what was being suggested here, I still don't, and it's for this that I wish to speak to your lordship. And I take it that Miss Sigurdson was voicing something that Mr. Goldie slipped into the discussion of the schedule at the end of the argument in April. COURT: In Smithers, I recall. RUSH: In Smithers. COURT: I recall him making that remark, yes. RUSH: What he said was: 29031 Submissions by Mr. Rush \"My lord, I forgot to mention one thing with respect to the schedule, and this provides no time for reply to the counter-claim by the Province. If we don't make up any time I would propose that the reply be filed in writing rather than scheduling in any further oral argument.\" 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: Mm-hmm. MR. RUSH: Now, your lordship said: \"I think that would be preferable because my plans are uncertain, but I have an uneasy feeling that I'm going to be in Nova Scotia at least for the first week in July and perhaps beyond.\" And there the matter stood, resting quietly until yesterday. : Mm-hmm. Now, my lord, the point that I want to come to is that in my submission there is no basis for any further written or oral response by the Province, and it flows from your lordship's determination of the order of the argument which was made on October the 5th, 1989, in which the last point of what you said was this: \"On the Monday following the completion of Canada's argument\" -- THE COURT MR. RUSH: THE COURT MR. RUSH: THE COURT MR. RUSH: And I understand from Mr. Macaulay and Miss Koenigsberg we're at that point today at noon, \"the Provincial defendant\" -- : But the Monday has to go by the board now, but that was -- Yes, I think we're now Tuesday. Yes. 'The Provincial Defendant will reply, if leave is given, to Canada's argument on the counter-claim, which reply will be scheduled for one day, to be followed immediately by Plaintiff's reply, if leave is given, which will be scheduled for three days. Court hours will be described as paragraph 4 above.\" 29032 Submissions by Mr. Rush 1 So two parts of this are settled, three days for the 2 plaintiffs, and a completion of the -- of Canada's 3 argument. The matter was revisited, however. Mr. 4 Goldie took objection to the scheduling, the matter 5 was revisited a few days later, and there was an 6 argument about whether or not Mr. -- the Province 7 would be entitled to have a further submission after 8 Canada's submission, and it was left unclear as to 9 whether this would constitute an argument that would 10 come before or after the Plaintiff's reply. And the 11 issue throughout, my lord, has always been who has the 12 last word, and the Plaintiffs have steadfastly taken 13 the position that we're entitled to state finally what 14 our position is to the whole of the Province's case 15 and to the whole of Canada's case, and that has been 16 the position we say throughout. Mr. Goldie's 17 position, however, has been that if in terms of the 18 counter-claim, which he says is as though he were 19 bringing an action, he has a final word in respect of 20 that. And to that issue, my lord, on October the 21 12th, you said this: 22 23 \"Well, I am not going to -- I am not sure that I 24 am ever going to resolve this question until I 25 have heard the arguments. It may be that Mr. 26 Goldie will have a right of further reply, but 27 it's not even a further reply. A right of 28 reply after you have replied to his 2 9 argument --\" 30 31 Talking to Mr. Grant: 32 33 \"But I think I am going to reserve on that until 34 I have heard the argument to decide whether or 35 not fairness requires whether he be given a 36 right of reply to that, to that narrow part of 37 the case, which seems to me not to be a -- 38 likely to take a lot of time and if it takes a 39 day, then so be it. But we'll find the day to 40 do it. But I'm not sure that I have to deal 41 with this now. It may be that the way the 42 argument develops it will be necessary or maybe 43 it will not.\" 44 45 And that's at volume 278 on October the 12th, 1989 at 46 page 20647. 47 Now, my lord, then followed the discussion of 29033 Submissions by Mr. Rush 1 scheduling in Smithers and the resolution, or at least 2 the proposed resolution, that occurred at that time. 3 And what I say, my lord, is this: That from your 4 lordship's statements of yesterday, that -- and my 5 learned friend Mr. Macaulay's response, it is evident 6 that the issue about the counter-claim is resolved or 7 will be resolved in the determination of paragraph 1. 8 Does the case -- is the case made out or is it not 9 made out by the Plaintiffs. The issue does not fall 10 to be determined on paragraph 2 of the Province's 11 counter-claim, and I think Mr. Macaulay made that 12 point. It's a point that we've made throughout. So I 13 say what is there in the counter-claim reply that 14 would either warrant A, a reply by way of oral 15 submission, or B, a reply by way of written 16 submission, and I say nothing. And I draw your 17 lordship's attention to the comments that you made 18 yesterday, where you said: 19 20 \"Well, if that's so, and I don't presume to 21 suggest one way or the other, it seems to me 22 that the real heart of the counter-claim is in 23 paragraph 1, and that -- and that paragraph 2 24 would only operate as paragraph 1 operates, and 25 I completely agree with that assessment.\" 26 27 And what I say, my lord, is that this issue of a right 28 of reply is disposed of, in my submission, by the 29 nature of that pleading and by the -- what I say is 30 the determination of the issues at large in the case 31 as pled, as a matter of our pleadings and as responded 32 to as a matter of Defendant's pleadings. But if that 33 isn't sufficient, my lord, what the Plaintiffs say is 34 that all of the issues that were raised in the 35 counter-claim of, if you can put it, seminal note for 36 that argument, were responded to by the Plaintiffs in 37 the course of their argument. And I note, my lord, 38 that the issues primarily, as I saw them, were what do 39 we say were the legal -- were the historical facts and 40 the legal significance of the Terms of Union argument 41 by the Province, response in the Plaintiffs' case to 42 that issue. What was the legal effect of 43 McKenna-McBride, what was the historical matrix and 44 the legal effect of P.C. 751, what was the legal 45 effect and historical matrix of P.C. 1265, and the 46 Joint Committee Recommendations of 1927, all issues 47 spoken of in the Plaintiffs' argument initially and 29034 Submissions by Mr. Rush Submissions by Mr. Macaulay 1 responded to in the Province. And, my lord, I was 2 astonished at the presumption that there would be 3 further written reply, or any further reply on the 4 part of the Province to the Plaintiffs' case, because 5 I say that A, they don't have the right to, and B, 6 even if they had the right to, then the issue is 7 disposed of by virtue of the fact that the Plaintiffs 8 have addressed these issues as part of their argument 9 in chief. And in my submission, my lord, I would like 10 the matter addressed now and a determination made of 11 this issue so that we can proceed on the basis of some 12 clarity into the remaining few days of this argument. 13 THE COURT: Thank you. Mr. Macaulay, do you have anything to 14 say? 15 MR. MACAULAY: No, my lord. I tend to agree with what Mr. Rush 16 has said. Those issues were dealt with first by the 17 Plaintiff and then by the Defendant in the main 18 argument, and of course, in reply to the Plaintiffs, 19 and we are dealing with the same matters. Because of 20 the nature of the counter-claim it's, well, virtually 21 impossible to talk about it without impinging on the 22 issues between the Plaintiff and the Defendant 23 Province. That's the problem Mr. Rush faces, and 24 that's why I agree with him. 25 THE COURT: What would the situation be if there were no 26 counter-claim in the context of this case, wherein the 27 Plaintiff first advances its arguments, Defendant A 28 replies and advances its separate arguments, Defendant 29 B then replies to the two that were brought ahead and 30 advances its separate arguments. Would the first 31 responding Defendant not have a reply to the second 32 Defendant before the Plaintiff makes his final 33 argument? 34 MR. MACAULAY: Only, my lord, if there was a distinct issue as 35 between the first and the second defendant. 36 THE COURT: Well \u00E2\u0080\u0094 37 MR. MACAULAY: It's hardly \u00E2\u0080\u0094 38 THE COURT: Certainly there are distinct issues between the 39 Defendants. 40 MR. MACAULAY: Well, we take different positions, but our \u00E2\u0080\u0094 is 41 the Province now going to address aboriginal rights? 42 That's the principle -- 43 THE COURT: Not generally, because they did so in their 4 4 argument. 4 5 MR. MACAULAY: We've \u00E2\u0080\u0094 46 THE COURT: Could they not reply to any specific positions 47 advanced after they argued by their co-defendant? 29035 Submissions by Mr. Macaulay 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 MR. THE MR. THE MR. MR. MACAULAY: Well, that depends very much on the kind of issue that they're replying to. A reply is generally restricted to matters that weren't part of the Plaintiffs' case, might not have been foreseen by the Plaintiffs. I'm talking now about the ordinary reply where you have one plaintiff and one defendant, and the courts have never welcomed extensive replies. COURT: Oh, no indeed. But \u00E2\u0080\u0094 MACAULAY: That leads to the leapfrogging. COURT: I am referring to the example, Mr. Macaulay, of the 30-odd documents that you put in as part of your submission yesterday. MACAULAY: Yes. If it were limited to that, I certainly couldn't see how they couldn't reply to that, but that is -- that's a very small slice. I don't think that's what the Province has in mind at all. COURT: No. MACAULAY: That's really more completing the record that was put in rather than anything else. THE COURT: All right, thank you, Mr. Macaulay. Mr. Rush, could you read to me again what I said in the memorandum of October? MR. RUSH: I'll pass it up to your lordship. It's on page -- the second page, last paragraph of substance. THE COURT: Well, this certainly contemplated that the Province's reply, if any, would follow Canada's argument and precede the Plaintiffs' reply. MR. RUSH: It does, my lord, and I would have to, given what you've said to your questions to Mr. Macaulay, I would have to agree that if there were matters, such as the documents raised by Mr. Macaulay, that they would be entitled to answer those documents and other like issues that arose anew in Mr. Macaulay's argument, but I say after Mr. Macaulay's argument, and with respect, my lord, the Province is in no worse a position than the Plaintiffs are in respect of answering Mr. Macaulay's argument. Mr. Macaulay's argument is an argument that has both positive and negative features for the Plaintiffs, and there are some aspects of it that we seek to reply to, and we have to bring ourselves up to speed on that, just as the Province would. And I would have to agree, my lord, that if there is a need to reply to Mr. Macaulay, then that such be done before the Plaintiffs, and there may be a convenient time to do that, that is to say tomorrow. THE COURT: Let's see what the Province says. MR. RUSH: Thank you. 29036 Submissions by Mr. Plant 1 MR. PLANT: Well, I think the first point, my lord, is this: 2 That the counter-claim is directed at the Plaintiffs. 3 The assumption that there is a claim over, while 4 ardently contended for by Mr. Macaulay yesterday, is 5 not one that is accepted, so as a matter of principle 6 what your lordship will hear when the Plaintiffs speak 7 in reply to the counter-claim is the defence to the 8 counter-claim that we have pleaded against them. And 9 if any issues are raised in that defence, which are as 10 yet unknown to us, by way of argument, then we are 11 entitled to reply. 12 Now, Mr. Rush says in his submission \"Oh, we don't 13 have to worry because they've said everything they 14 have to say about those issues\". And that may be so, 15 and if there is no new argument and no issue raised, 16 then we won't be seeking a right of reply to the 17 Plaintiffs' defence to the counter-claim. That then 18 leaves us with what Mr. Macaulay has said yesterday in 19 the argument, speaking to the argument which he 20 delivered to us relatively late Sunday night, 21 including documents which hitherto have not been part 22 of the court record. And I say that we're entitled to 23 answer that on either of two theories, either 24 following your lordship's example, because 25 Co-Defendant B is saying \"oh, no, no, no, no, this 26 isn't our problem, it's your problem Co-Defendant A\", 27 and Co-Defendant B, after Defendant A has finished, is 2 8 putting forward new arguments and new documents, and I 29 say that we have a right to answer that. And 30 alternatively, we have a right to answer it, although 31 I say it's an incorrect construction of what's going 32 on, but if somehow what's going on here is if Canada 33 is answering the counter-claim, then I say that we 34 have again, as a matter of principle, a right to reply 35 to that. 36 Now, that then leaves the problem of scheduling, 37 and I think that Mr. Goldie's proposal that there be 38 written reply was designed to accommodate the desire 39 of all parties and your lordship to finish the 40 argument, oral argument, by the end of this month. 41 And I'm still anxious to assist in that. I can't say 42 right now, because it's only been 25 minutes since 43 I've had the benefit of thought on Mr. Rush's 44 suggestion, I can't say right now whether we can 45 answer Canada's argument on the counter-claim 46 tomorrow, but I can say that we can't argue the 47 Plaintiffs' defence through the counter-claim until we 29037 Submissions by Mr. Plant Submissions by Mr. Willms 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 hear it, and so to suggest that we can go tomorrow, apart from certain practical difficulties, one of which is the absence of Mr. Goldie, which does have some bearing here, to suggest that we go tomorrow really probably isn't going to assist in expediting the solution to these problems. So that's I think the basic answer. I could take your lordship to rule 21(12) and we could go through the -- THE COURT: What does it say? MR. PLANT: It's entitled \"Defence to Counter-Claim\": \"A person served with a counter-claim\" -- That in this case would be the Plaintiffs: \"-- becomes a defendant to the counter-claim from the time of service with the same rights and obligations in respect of his defence to the counter-claim or otherwise as a defendant.\" And I say what follows from that is that we then have the same rights as the Plaintiff would, including the right to reply to the Defence to the counter-claim. THE COURT: Well, it's unfortunate that this matter wasn't resolved when the schedule was set so that surprise and inconvenience might have been avoided, but that wasn't done. The way the case has evolved leads me to conclude that the second paragraph of the counter-claim, or the second head of counter-claim is not being pursued at this trial. I think Mr. Goldie disclaimed that when he conceded that -- MR. WILLMS: My lord, if I can just \u00E2\u0080\u0094 THE COURT: Yes, go ahead. MR. WILLMS: That is from the submissions on the final Wednesday, and it's not that the counter-claim is disclaimed, it's, as your lordship observed, if it succeeds as a defence and the action is dismissed, so it's not that the counter-claim part 2 is irrelevant. The counter-claim part 2 is still relevant to the dismissal of the action, and that, I thought, my lord, and the extract is at pages 28406 to 28407, where your lordship and Mr. Goldie, there was an exchange about that part of the counter-claim, but when you read that section it's clear that the part isn't abandoned but that it's an absolute defence to the Plaintiffs' case and the Plaintiffs' action will be dismissed. THE COURT: Part 1 is an absolute defence? 2903E Submissions by Mr. Willms 1 MR. WILLMS: Part 1 is an absolute -- it goes further than a 2 defence, my lord, it's not only a defence to this 3 action, it's a defence to any action in the future. 4 But part 2 is a defence that would entitle the 5 Province in this case to a dismissal of the action 6 against it, with the Plaintiff left to whatever rights 7 they may have for relief against Canada in another 8 forum. 9 THE COURT: Well, I'm slicing this cheese as thin as I can slice 10 it, and it seems to me that when Mr. Goldie agreed 11 that -- to enforce the claims he has advanced in part 12 2 of the counter-claim, he would have to go through 13 another court. He is removing that issue from this 14 trial. Now, if that isn't so, and I gather from the 15 violent shaking of heads, the Province has mentioned, 16 then I regret that, but I have to deal with this on a 17 practical basis. And it does seem to me that the 18 Province's only position at this trial is that the 19 Plaintiffs' action should be dismissed, and that 20 result the Province seeks both in its defence and in 21 its counter-claim, part 1 of its counter-claim. 22 Now, it follows, in my view, regrettably, that 23 inevitably that the Province's reply must be made to 24 the co-defendant before the Plaintiff has the last 25 reply to the whole case. I see no alternative but to 26 require the Province to make its reply to the 27 co-defendant, Canada, at the end of Canada's argument. 28 MR. WILLMS: My lord \u00E2\u0080\u0094 2 9 THE COURT: Yes. 30 MR. WILLMS: On that point, there is one further thing, and that 31 is to the extent that the argument of Canada goes to 32 the counter-claim and is not adopted by the 33 Plaintiffs. It's neither here nor there. It's the 34 Plaintiffs that the counter-claim is against. If the 35 Plaintiffs choose not to adopt, and who knows which 36 parts of Canada's argument they will wish to adopt, 37 but in essence, there may be absolutely nothing to 38 reply to if the Plaintiffs -- the Plaintiffs, for 39 example, may decide that they don't want to adopt any 40 of Canada's argument on so-called Calder-type relief. 41 They may decide that that's never be been part of 42 their case, it's not in the pleadings, and in that 43 case there would be no need to reply to that at all. 44 If the Plaintiffs don't adopt it there's no issue, no 45 issue joined, and in my submission, it would be sort 46 of poking in the dark to attempt to divide Canada's 47 argument into the aspect that goes to the 29039 Submissions by Mr. Willms Submissions by Mr. Macaulay 1 counter-claim and the aspect that goes to defend the 2 Plaintiffs' case without knowing whether or not the 3 Plaintiffs want to adopt it or rely on it, because if 4 they don't adopt it or rely on it, in my submission 5 there is no issue joined and there is no need to reply 6 to it. 7 THE COURT: With respect, Mr. Willms, it seems to me that the 8 Province is entitled to reply to the co-defendant, and 9 how it will make that reply is for counsel. No one 10 knows in certainty what someone who speaks later is 11 going to say, but if I were to accede to what you're 12 suggesting, you would now reply to the -- or pardon 13 me -- the Province would next reply to the 14 co-defendant, and then the Plaintiff would reply, and 15 you would reply to that, and they would have a further 16 reply to you. Seems to me that is a course that is so 17 tortuous and unwieldy and unmanageable that it not 18 ought not to be followed. 19 MR. WILLMS: My lord, then I suppose then the difficulty is that 20 we may be replying to something that it is completely 21 unnecessary to reply to, for the first part. The 22 second part is, as my colleague, Mr. Plant, said a 23 minute ago, the reply on the counter-claim is going to 24 be limited to anything new that has been raised, and I 25 can't see any prejudice to the Plaintiffs to do that 26 by way of written reply at the close of the oral 27 argument. I just can't see the proper reply to the 28 new issues raised isn't going to prejudice the 29 Plaintiffs. 30 THE COURT: I don't see an answer to the problem we have, Mr. 31 Willms. I think I see only one path through this 32 particular piece of territory, and that's the one I've 33 already stated. I see no alternative, regrettable as 34 that may be. I won't ask you to state now, Mr. 35 Willms, Mr. Plant, whether you want to make that 36 reply, but it seemed to me that it must be told at the 37 end of Mr. Macaulay's argument or not later than 38 tomorrow. I do not enjoy being decisive in this 39 context in any way, I wish it weren't necessary to do 40 so, but as I say, I see no alternative. I would be 41 glad to hear from you when Mr. Macaulay has completed 42 as to what your best convenience will be, although it 43 may not be an optimal one. Mr. Macaulay, are you 44 ready to proceed? 45 MR. MACAULAY: Thank you, my lord. My lord, perhaps I could go 4 6 back to some documents, a document that I had referred 47 to yesterday at page 287 of my written submission. 29040 Submissions by Mr. Macaulay 1 Remember, my lord, I showed you this tab 34, a letter 2 written by Premier Oliver to O'Meara, which followed a 3 couple of letters from O'Meara to Oliver and his 4 secretary. And one of those letters, tab 34 -- sorry, 5 tab 32, was O'Meara's letter to Oliver enclosing 6 certain documents. If you turn to tab 32. The fifth 7 is a letter addressed by the Lord President of His 8 Majesty's Privy Council through the Clerk of the 9 Council to the Agents of the Nishga tribe on the 16th 10 of September, 1918. Do you see that one? That is an 11 exhibit, in fact, and to show that it's Exhibit 12 1203-8, and it might be well to look at that. It's a 13 brief letter, if I can hand it up, this exhibit, and 14 that's what they were talking about, the Premier and 15 Mr. O'Meara. It was the petition that had been 16 launched in the early part of the century on behalf of 17 the Nishga. That's the best photocopy we could 18 manage. 19 THE COURT: I can read it. 20 MR. MACAULAY: The first page is pretty good. But it refers to 21 the Nishga nation. It is a petition as to the nature 22 and extent of the rights of the said Nishga nation or 23 tribe in respect of the said territory. So it was the 24 Nishga petition that was being dealt with. And -- 25 THE COURT: May I put that with this document? 26 MR. MACAULAY: Well, I think I was going to suggest that, my 27 lord. 28 THE COURT: Yes. And with the exhibit number is 1203-8? 29 MR. MACAULAY: Yes, 1203-8, and it's one of the enclosures to 30 this letter. It merely shows the subject -- well, it 31 was fairly clear, I think, from the general tenure of 32 the discussion between O'Meara and the Premier and the 33 Premier's secretary, but this shows the kind of -- 34 precisely the kind of thing the guy got. In other 35 words, when Bill 17 was in the hopper, if I can use 36 that expression, O'Meara was concerned that that might 37 affect the Nishga petition, things -- that kind of 38 issue, which was the land claim, which was the claim 39 to ownership of lands. And the Premier's reply that 40 was found at tab 34 was no, that won't affect -- I'll 41 use the Premier's words now: 42 43 \"The hearing, weighing and deciding according to 44 merit, the matters in the document submitted.\" 45 46 That was the understanding of the legislation that was 47 being passed in order to conclude the McKenna-McBride 29041 Submissions by Mr. Macaulay 1 process. 2 The -- oh, I might add that while I was making my 3 argument, or after I made my argument yesterday, the 4 counsel for the Province drew to my attention that I 5 had taken either the first or second version of their 6 submission on a certain point and reproduced it at 7 pages 319 and 320 of my argument. Indeed, at the 8 conclusion of the Province's counter-claim argument 9 amended -- some amended material was handed up, and I 10 was using their old material, the original material 11 that had been delivered in March, and not the new 12 material that was delivered at the conclusion of Mr. 13 Goldie's submissions. 14 THE COURT: So this replaces \u00E2\u0080\u0094 15 MR. MACAULAY: This replaces those pages, 319 and 320. And the 16 only change is the -- is our -- the only change is the 17 change from the old version of the Province's argument 18 to the new version of their submissions on the 1927 19 Committee and subsequent events. 20 At the conclusion yesterday of the submission I 21 was at page 329, 330, and I was showing your lordship 22 that the Appropriation Acts that dealt with the B.C. 23 Special through the years were not such that provided 24 a statutory order that these payments be made, and 25 that in recent years there's been no mention of the 26 B.C. Special at all in the Appropriation Acts. And 27 that is the basis for my saying at the conclusion of 28 the 1927 proceedings the only permanent fallout was 29 the adoption of a policy by Canada on the 30 recommendation of that committee, Joint Committee, 31 which is continued, the policy has continued to the 32 present time. In fact, it's -- as your lordship has 33 heard, it's now $300,000 rather than $100,000. And 34 your lordship has heard much evidence on how that's 35 divied up and the purpose for which it's used and so 36 on. But it is nothing more than policy, and policy 37 does not change the law, it does not change the 38 constitution, it does not change the effect of the 39 issues between the parties here. 40 I have one more brief submission at page 330, top 41 of 331 on that subject. The Province argues: 42 43 \"That the Dominion viewed P.C. 1265 as a 44 complete discharge of British Columbia from all 45 further obligations towards Indians is clear 46 from the fact that after July 19th, 1924, it 47 purchased additional lands required for Indian 29042 Submissions by Mr. Macaulay 1 reserves from the Province.\" 2 3 And they go on to say: 4 5 \"Furthermore, in some cases, such additional 6 lands were purchased with B.C. Special funds.\" 7 8 Now, our submission is that this argument of the 9 Province confuses the obligations owed to the Dominion 10 by the Province under Term 13 with the issue of 11 whether there are any aboriginal rights that form a 12 burden on Provincial Crown lands. It wasn't unique 13 for Canada to purchase lands for Indians. And as an 14 illustration, in his letter of July 29th, 1912 to 15 McBride, McKenna noted that 6,271 acres of land had 16 been purchased by the Dominion already. 17 THE COURT: How much? 18 MR. MACAULAY: 6,271 acres of land. That's Exhibit 1203-8. In 19 fact, 1,948 acres in the Babine Agency were bought in 20 1909 from the Provincial Government for four reserves 21 for the Fort Babine Indians. 22 THE COURT: I don't think you mean 1203-8, do you; that was the 23 letter from the Privy Council, or does it mention it 24 in there? 25 MR. MACAULAY: Well, the volume, as I understand it, is 1203-8. 26 That's just the volume number, and then you look to 27 X-14, page 326. 28 THE COURT: X-14? 2 9 MR. MACAULAY: Page 32 6. 30 THE COURT: And what is that, these acreages, or is that the 31 letter of -- 32 MR. MACAULAY: Yes. Well, I'll get them now. If we can come 33 back to that, I'll dig out the exhibit. 34 THE COURT: Thank you. 35 MR. MACAULAY: And in their part X, XII and XIII of the 36 Province's counter-claim argument, they refer to 37 events in the Kitwancool Valley in 1927. In this 38 case, Canada argues that the Province has had the 39 authority to make grants of title or other interests 40 in Provincial Crown lands and that such grants 41 extinguished -- have that effect of extinguishing 42 aboriginal rights, at least up to 1982. 43 THE COURT: Well, is it your position that if the Crown were to 44 grant title to MacMillan Bloedel to the whole of the 45 Skeena Valley, would that extinguish aboriginal rights 46 in the valley? 4 7 MR. MACAULAY: Yes, my lord, if the Crown had done that. 29043 Submissions by Mr. Macaulay 1 THE COURT: If they did it today? 2 MR. MACAULAY: I beg your pardon, my lord? 3 THE COURT: If they do it today? 4 MR. MACAULAY: It is very doubtful they would do it today 5 because of the provisions of Section 35. There would 6 have to be justification. 7 THE COURT: I thought your argument would be well, all right, 8 you would say it would have to withstand the 9 justification process of Sparrow. 10 MR. MACAULAY: Yes, my lord. 11 THE COURT: Yes, all right. I'm not suggesting that the 12 Province should do that. 13 MR. MACAULAY: I have the exhibit now. The exhibit is at 14 1203-8, volume 8 -- dash 8 simply means volume 8. 15 We're operating in quantities not normally known to 16 the law, and the X-14 is tab 14 in that volume. So 17 you could put tab for X. And tab 14 is a document 18 comprising it must be over a hundred pages. Well, 19 60 -- 66 -- I'm pretty close. It appears to be over 20 90 pages. And it's a letter to McBride -- this is the 21 famous letter to McBride from McKenna in which he 22 says: 23 24 \"As to the first claim, I understand that you 25 will not deviate from the position which you 26 have so clearly taken and frequently defined, 27 that the Province's title to its land is 28 unburdened by Indian title.\" 29 30 Et cetera. And the public interest, \"you're not 31 prepared to discuss it\", and for the purposes of these 32 negotiations it's dropped. 33 34 That letter. 35 THE COURT: Yes. 36 MR. MACAULAY: Well, attached to that letter there's quite a lot 37 of matters to be dealt with, a variety of matters, 38 mostly reserve matters. Attached to it was a 39 statement, exhibits showing reserves and railway belts 40 and statements of various kinds, and all kinds of 41 statistical material or material done in column form, 42 table form. And the very last one is a statement, and 43 it shows \"Showing lands purchased by the Dominion 44 outside the railway belt and included in reserves\". 45 And the first item is Babine Agency, the Hagwilget's 46 number 13, 14, 15 and 16 comprising 1,948 acres 47 purchased in 1909 by the Provincial Government from 29044 Submissions by Mr. Macaulay 1 the Indians in consideration of their ceasing to place 2 barricades in the river for securing fish. That's a 3 fallout from the barricade issue. And there were 4 purchases in Kwawkewlth outside the claim area in New, 5 Westminster Agency, in Williams Lake, and an agency in 6 Cowichan for a total of 6,271 acres. All those 7 agencies, of which 1,948 acres was in the Babine 8 Agency but not in the claim area, they're called 9 Hagwilget number 13, 14, 15 and 16. I assume that 10 that's over in the Babine country. At that time what 11 we call Hagwilget was known as Roger Du Boulle(?), and 12 Hagwilgets were a category of Indian. 13 Now, turning to this last argument, or the last 14 argument that we deal with, and they deal with it at 15 parts X, XII and XIII of their counter-claim argument, 16 we say that the Province confuses the obligations -- 17 I've just repeated that -- owed to the Dominion under 18 Term 13 with the issue regarding aboriginal rights to 19 Crown lands. And then I point out these purchases. 20 And finally, at page 331 of my argument, they 21 talked about the Kitwancool Valley, and the -- we say 22 that the Provincial Crown has the authority to make 23 grants, and there was no change in policy after the 24 adoption of Order-In-Council 1265, Order-In-Council 25 1265 in 1924. The Province has exhibited Laurier's 26 telegram in 1909 to Stephen Morgan, which reads 27 \"Dominion Government cannot prevent persons from 28 staking provincial lands but will prevent land being 29 staked for settlement on Indian Reserves\". 30 So it was Sir Wilfred Laurier recognized that the 31 Province could do that, and there was nothing that the 32 Federal Crown could do other than to defend reserves. 33 I want to turn now, my lord, to another, and it 34 will be the last -- we've made -- our submissions of 35 course follow on these large number of submissions of 36 every conceivable kind made by the Province on their 37 counter-claim, but I'm going to deal with -- orally 38 with only one more, and that is the Order-In-Council 39 751. It's to be found starting at page 265 of the 40 argument, and I can deal with it I think fairly 41 expeditiously. This of course is before the 42 McKenna-McBride hearings had started, or about the 43 same time. It's contemporaneous with the 44 establishment of and the instructions to the Royal 45 Commission on Indian Affairs in B.C., and I say here 46 the Province argues that by this Order-In-Council the 47 Dominion explicitly acknowledged \"that British 29045 Submissions by Mr. Macaulay 1 Columbia's entire obligation towards the Indians was 2 encompassed in Term 13 of the Terms of Union, and 3 that, if Indian title existed in British Columbia, the 4 Dominion alone was responsible for and had the power 5 to extinguish it\". This is another -- \"By responsible 6 for\" they mean, and I think your lordship understands 7 that they mean that Canada has a duty or obligation. 8 That's what \"responsible for\" means. 9 Canada didn't adopt this Order-In-Council because 10 of any responsibility owed to the Province, or for 11 that matter, to the Indians of British Columbia. It 12 was Canada's position that the extinguishment of 13 aboriginal rights in Provincial Crown lands was not 14 Canada's responsibility. Canada adopted this 15 Order-in-Council to deal with the \"vexatious\" 16 question. And, my lord, I'll come to the origin of 17 the \"vexatious\" -- the term \"vexatious\" in a minute. 18 I was wrong in saying I thought it was in the 19 Order-in-Council itself, it wasn't, but it was used at 20 the time and in connection with that Order-In-Council. 21 As Laurier said in 1911 to the Indian representatives, 22 \"It is a matter of good government to have no one 23 resting under a grievance\". As a matter of policy, 24 Canada attempted to address the British Columbia 25 Indians' grievances. 26 Canada expressed a willingness to assume the cost 27 of compensating Indians for the extinguishment of any 28 validated Indian claim, but not to an unlimited 29 extent. The offer in this Order-In-Council was 30 subject to certain conditions, and they were never 31 agreed to. 32 In the Order-In-Council, Canada considered that 33 British Columbia would not negotiate with the Indians 34 regarding their demands and that British Columbia, 35 because of its Crown immunity, could not be forced to 36 negotiate. By the Order-In-Council, Canada tried to 37 resolve the stalemate. 38 It is incongruous for the Province to attempt to 39 rely on these actions by Canada. If, as Canada argues 40 that Canada had no duty to deal with the aboriginal 41 claims to the Provincial lands, and the fact that 42 Canada attempted to resolve this \"vexatious question\" 43 that the Province refused to deal with, does not 44 change the effect of the constitution or the law. In 45 other words, a policy initiative does not change the 46 law and it does not change their rights between 47 parties or between the Indians and either government. 29046 Submissions by Mr. Macaulay 1 THE COURT: Well, tell me why it's not reasonable to look at 2 this as a tragedy of misunderstanding and lack of 3 communication on both sides? Canada clearly had the 4 sole right to speak for the Indians and to enter into 5 agreements with them, which would be required in order 6 to dispose of this question. Canada had assumed 7 responsibility for Indians, why is it reasonable for 8 Canada to put all the responsibilities you seem to be 9 doing on the Province? 10 MR. MACAULAY: I'm not putting any responsibility on the 11 Province. I'm saying that the Province doesn't owe a 12 duty to the Indians to deal with their -- the 13 aboriginal title. What the Province is -- but the 14 Province has the burden of that title on their Crown 15 lands, and the Province wrongly held the fixed view 16 that there was no such thing. That was the origin of 17 the trouble, that was part of the origin of the 18 trouble. 19 THE COURT: Well, Canada was discharging all these 20 responsibilities on the prairies. 21 MR. MACAULAY: That was a matter of policy. 22 THE COURT: Why didn't it have the same policy as British 23 Columbia. 24 MR. MACAULAY: Because British Columbia wouldn't have it. No, 25 there's another answer to that. Canada was the land 26 owner on the prairies, it owned the land. It could go 27 to the tribes and say \"Now, if you will cede your 28 land, if you will surrender all your rights of 29 whatsoever kind, then we will give you such and such a 30 block of territory that will be yours forever\", and so 31 on, and that's how they were doing it on the prairies. 32 And some people of British Columbia clearly, when you 33 read the discussions in the B.C. Legislative Council, 34 that some people thought that was a terrible way of 35 carrying on business, because on the prairies it 36 involved removing all the Indians perhaps hundreds of 37 miles from where they had been found or settled, at 38 least at that point, to a very very large reserve in 39 some other place, and Canada was the owner of the 40 land. It was in a position to dedicate that land for 41 reserves, and it also was the beneficiary of the 42 cession. 43 British Columbia was entirely different for two 44 reasons. First, it had no interest in the lands 45 except for the railway block on the Peace River, and 46 the railway belt in the Peace River block, and it had 47 no interest in the lands. It could not say to the 29047 Submissions by Mr. Macaulay 1 Indians, \"Well, now if you will give up your trapping 2 rights and hunting rights we will give you a great big 3 reserve\". 4 THE COURT: Well, Canada had title to the railway belt, didn't 5 hesitate to deal with it. 6 MR. MACAULAY: Well, but we're not dealing with the railway, I'm 7 talking about in most of British Columbia. They did 8 establish reserves in the railway belt. The reserves 9 were established on the railway belt and they weren't 10 the ones subject to cut-offs. There's another thing, 11 there's another factor: Unlike anywhere else in the 12 west, the Northwest Coast Indians had been taught that 13 they were the owners of the land and that the position 14 that they should take is that they would themselves 15 decide how much they wanted to keep for themselves and 16 how much they would be willing to sell. Now, that 17 claim that we say originated with Duncan and Tomlinson 18 at Metlakatla and spread, and is reflected in the 19 Nishga Petition, for instance, and is reflected in the 20 Plaintiffs' claim in this case -- it never died -- 21 made it even more complicated or difficult to deal 22 with. When the Federal Government, after 1924 or in 23 the early 20's, tried to reach some kind of agreement 24 with the Indians, they couldn't because of the nature 25 of the Indians' demand based on what the Indians had 26 been told for, by then, over a generation that they 27 were the owners of the land. 2 8 And the formula went this way: It was the Duncan 29 formula. You have not concurred, you have not sold 30 the land, therefore if any of you have lost any land 31 it's been stolen. And that was the gospel regarding 32 land claims that was preached from 1882 onwards in 33 northern and northwestern British Columbia. 34 THE COURT: I just find it incongruous that the Province and 35 Canada are blaming each other, when it seems to me 36 that perhaps both have failed to deal with the 37 problem. 38 MR. MACAULAY: Canada couldn't act without the Province, just as 39 Canada -- 4 0 THE COURT: The Province couldn't act without Canada. 41 MR. MACAULAY: The same in Ontario, it's the same thing in 42 Ontario. Remember that message that was sent to the 43 Lieutenant-Governor of Ontario by the Superintendent 44 General of Indian Affairs in 1870, just as the Terms 45 of Union were negotiated at the same time, and having 46 nothing to do with B.C., he was saying to Ontario, he 47 was saying \"We believe that inside your borders of 2904E Submissions by Mr. Macaulay 1 your province there's some unceded land, and we think 2 that you ought to start taking a look at that\". 3 THE COURT: You see, it seemed to me that British Columbia was 4 prepared to give up land, that was the whole purpose 5 of McKenna-McBride. 6 MR. MACAULAY: Well, it was prepared to extend some reserves. 7 It wanted cut-offs on others. 8 THE COURT: Mm-hmm. 9 MR. MACAULAY: And in the end the cut-offs exceeded the 10 additions. 11 THE COURT: Canada must have agreed to that. 12 MR. MACAULAY: Yes. That was \u00E2\u0080\u0094 well, that was the 13 recommendation of the commissioners, who spent two or 14 three years out in the field. 15 THE COURT: Well, Canada accepted it and enacted it. 16 MR. MACAULAY: Yes, yes. 17 THE COURT: Well, I'm not suggesting for a moment that Canada 18 can't blame British Columbia if it wanted to. 19 MR. MACAULAY: It's not a question of blame. 20 THE COURT: I took that from your submission. 21 MR. MACAULAY: Well, the acts speak for themselves. It's not a 22 question of blame. We say that there are aboriginal 23 rights there, and those aboriginal rights form a 24 burden on Provincial Crown land. And it is -- the 25 Province can either live with that or do something 2 6 about it. The Federal Government -- 27 THE COURT: Is that the way Canada discharges its obligation 28 with the Indians? 2 9 MR. MACAULAY: No. The Federal Government does not have the 30 obligation to free up all Provincial Crown lands by 31 making treaties at God knows what costs. As the 32 Plaintiffs say, there's not enough money in Canada to 33 pay them. That problem was solved between Canada and 34 another Province, that is Ontario. Once it was 35 determined that some of these lands in which treaties 36 had not been made were in Ontario, I'm thinking of 37 Treaty 3, then Ontario and Canada formed a joint 38 commission and they negotiated a treaty and shared the 39 burden. But British Columbia's position is it -- \"We 40 have no responsibility to do anything about our own 41 lands, if there is aboriginal title the Federal 42 Government has to pay, no matter what it is, the 43 Federal Government has to pay it all, and we don't 44 have to do anything. We'll just carry on business as 45 usual, as if it didn't exist\". 46 THE COURT: I'm not suggesting that that wouldn't be an equally 47 unreasonable position to take. I'm just wondering 29049 Submissions by Mr. Macaulay 1 why -- not why. People are entitled to do whatever 2 they want, up to a point, but I'm just perhaps 3 bemused, is the word, at the finger pointing between 4 the two arguments of the Crown. They're blaming you 5 and you're blaming them. At least I thought you were 6 blaming them. You say you're not, you're saying this 7 is on their own heads. 8 MR. MACAULAY: I'm talking about their arguments before this 9 court. The position B.C.'s obviously taken, you have 10 to remember that B.C.'s position throughout this is 11 \"Don't talk to us, don't even talk to us on the 12 subject of the Indians, if the Indians are -- there's 13 unrest there and something has to be done, you go do 14 it, that's none of our business. We have what you 15 hold, we have the Provincial Crown lands, and they 16 aren't affected\". 17 THE COURT: All right, thank you. 18 MR. MACAULAY: And I go on to say it is incongruous for the 19 Province to reply on these actions by Canada. If, as 20 Canada argues that Canada had no duty to deal with the 21 aboriginal claims to rights in the Provincial lands, 22 the fact that Canada attempted to resolve the 23 \"vexatious question\" and the Province refused to deal 24 with -- that the Province refused to deal with, does 25 not change the effect of the constitution or the law. 26 Moreover, the Canadian officials noted that by P.C. 27 751 Canada would be \"relieving\" British Columbia of 28 the onus of granting compensation, if they wanted to. 29 We don't say that they had a duty to. All we say is 30 that if they want to clear land for one reason or 31 another from the Indian interest, then they're the 32 ones responsible as the land owners. 33 Now, in 1913 the Nishga petitioned the King 34 \"claiming to hold a tribal title to the whole of the 35 territory\" in the Nass River region and asking for a 36 determination of the nature and extent of their 37 rights. And that's that -- it was that petition that 38 O'Meara was talking about when he was discussing -- 39 having discussions later with Mr. Oliver. While the 40 Royal Commission was being set up in the spring and 41 summer of 1913, Canadian and Nishga representatives 42 met several times, and Interior Minister Roche 43 forwarded a copy of the Nishga Petition to the 44 Minister of Justice. And Doherty's reply is set out 45 at page 267. The only portions of that document I 46 refer to are the underlined ones, particularly: 47 29050 Submissions by Mr. Macaulay 1 \"The agreement of 24th September, 1912, between 2 representatives of the Dominion and British 3 Columbia, which was approved by 4 Order-in-Council of 27th November following 5 appears to evince a departure from the policy 6 of the late Government.\" 7 8 And he goes on to say about the Nishga Petition at the 9 bottom of the letter: 10 11 \"Upon the merits I think the Indian claim is a 12 very doubtful one, but I am not prepared to say 13 that it is not without sufficient foundation to 14 justify consideration by the courts.\" 15 16 In the petition, Duncan Scott, who later played a 17 significant part in the 1927 proceedings, was even by 18 then Deputy Superintendent General, and he provided a 19 memorandum that is of some interest, and the portions 20 of his lengthy memorandum I draw to your lordship's 21 attention are at page 269, where he says, 1, he talks 22 about the two main difficulties to submitting the 23 Nishga petition for judicial review. First: 24 25 \"1. The refusal of British Columbia to consent 26 to a stated case which would include any 27 reference to the Indian title. 28 2. Uncertainty as to the extent of 2 9 compensation which might be demanded by the 30 Indians if they were successful before the 31 courts, and if the Crown found it good policy 32 to extinguish the title to the Indians.\" 33 34 And then he goes on about the first difficulty: 35 36 \"With reference to the first difficulty, I would 37 propose that it be held that British Columbia 38 has fully discharged its obligation to the 39 natives by granting from the public domain of 40 the Province reserve lands to be administered 41 exclusively for their benefit, and that, if the 42 Indian claim is found valid by the court of the 43 Privy Council, and, if it is thought advisable 44 to offer anything further for extinguishment of 45 title, the Dominion should assume the burden 46 and compensate the Indians according to the 47 past usage in such arrangements as have been 29051 Submissions by Mr. Macaulay 1 made by the good-will of the Crown with the 2 aborigines. The Dominion has interest in the 3 land in the Railway Belt, and, to this extent, 4 would benefit by the extinguishment of the 5 Indian title.\" 6 7 So Scott is proposing a solution, and that in effect, 8 my lord, is what became P.C. 751. 9 THE COURT: Didn't P.C. 751 say that the Indians would accept 10 the McKenna-McBride allocation of reserves in exchange 11 for all their aboriginal rights? 12 MR. MACAULAY: Well \u00E2\u0080\u0094 13 THE COURT: It circumvented this question of compensation, 14 didn't it? 15 MR. MACAULAY: No, no. Can I draw your attention to page 271, 16 which is the proposal which became almost verbatim in 17 P.C. 751, where, as I say, I say \"Scott concluded\" -- 18 this became, without hardly a change, 751. First: 19 20 \"The Indians of British Columbia shall, by their 21 Chiefs or representatives, in a binding way, 22 agree if the court\" -- 23 24 THE COURT: Sorry. Where are you reading from? 2 5 MR. MACAULAY: 271 of my argument. 2 6 THE COURT: Yes. 27 MR. MACAULAY: Well, here is the proposal that became \u00E2\u0080\u0094 28 THE COURT: Oh, yes. I see where you are. 29 MR. MACAULAY: Yes. First: 30 31 \"The Indians of British Columbia shall, by their 32 Chiefs or representatives, in a binding way, 33 agree if the court, or, on appeal, the Privy 34 Council decides that they have a title to lands 35 of the Province, to surrender such title, 36 receiving from the Dominion benefits to be 37 granted for extinguishment of title in 38 accordance with past usage of the Crown in 39 satisfying the Indian claim to unsurrendered 40 territories, and to accept the finding of the 41 Royal Commission on Indian affairs in British 42 Columbia, as approved by the Governments of the 43 Dominion and the Province as a full allotment 44 of Reserve lands to be administered for their 45 benefit as part of the compensation.\" 46 47 So the compensation was to be of two kinds. It was to 29052 Submissions by Mr. Macaulay 1 be whatever was recommended by the Royal Commission, 2 which was just about to start -- just starting on its 3 work. And second, obviously cash compensation from 4 the Federal Crown on the level or on the basis that it 5 had been determined in the treaty-making process, 6 which was just ending on the prairies. And it was 7 part of the deal too: 8 9 \"That British Columbia, by granting these 10 reserves, shall be held to have satisfied all 11 claims of the Indians.\" 12 13 So they were going to get a release. And: 14 15 \"The remaining considerations be provided and 16 the cost thereof borne by the Government of 17 Canada.\" 18 19 And then it went on to provide for counsel, And also, 20 what would happen in the event that the Petitioner did 21 not succeed. 22 Now, the Province about that says it is, of 23 course, clear that the second of Scott's conditions 24 was simply a statement which acknowledged the 25 constitutional arrangement between British Columbia 26 and of Canada provided for and embodied in Term 13 of 27 the Terms of Union. It reflected -- the Province says 28 it reflected the situation which would obtain whether 29 or not the Indians agreed. We say that's wrong. The 30 constitutional arrangement provided for in Term 13 and 31 Section 109 is discussed -- we have discussed that in 32 our earlier argument. 33 The second of Scott's conditions simply reflected 34 the means by which the Province's objection to a court 35 submission could be overcome, that's why it was there. 36 The idea was a clever idea too. Surely by doing this 37 the Province could no longer have any objection to the 38 mention of this subject. 39 My lord, I see it's 11:15. 4 0 THE COURT: All right. 41 MR. MACAULAY: We'll finish this soon. 42 THE REGISTRAR: Order in court. Court will adjourn. 43 44 45 46 47 29053 Submissions by Mr. Macaulay 1 (PROCEEDINGS ADJOURNED AT 11:15) 2 3 I hereby certify the foregoing to be 4 a true and accurate transcript of the 5 proceedings herein transcribed to the 6 best of my skill and ability 7 8 9 10 11 Graham D. Parker 12 Official Reporter 13 United Reporting Services Ltd. 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 29054 Submission by Mr. Macaulay 1 (PROCEEDINGS RECONVENED AT 11:30 A.M.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Macaulay. 5 MR. MACAULAY: My lord, after Scott made his proposal the 6 Superintendent General, that's the minister, Mr. 7 Roche, wrote a letter to the Prime Minister, Sir 8 Robert Borden, and I quote from the letter at the 9 bottom of 272 of my argument and the top of 23, and it 10 bears reading. The question of 751. The minister 11 says to the Prime Minister: 12 13 \"I have pleasure in sending you herewith a 14 memorandum from the Deputy Superintendent 15 General on the subject of the Indian land title 16 in British Columbia, making certain recommenda- 17 tions which I am inclined to approve. The 18 papers are in the form of a memorandum to His 19 Royal Highness in Council. The advantage of 20 these suggestions is that we relieve the 21 Province of British Columbia from the onus of 22 granting any compensation to the Indians except 23 the reserves, and the Province should not, 24 therefore, seriously object to our going to the 25 courts; in all other respects their interests 26 in the lands are safeguarded. 27 The purpose sought to be accomplished by 28 making it necessary for the Indians to express 29 their willingness to surrender the title in 30 accordance with past usage of the Crown is that 31 the Dominion might not be embarrassed by 32 extravagant claims. It is evident from the 33 memorial from the Nishga Indians that they 34 imagine the disposal of the provincial lands 35 would be in their hands if the case were 36 decided in their favour by the courts, and, no 37 doubt, they have been led to this erroneous 38 opinion by interested persons. I think it good 39 policy to clear up this misapprehension before 40 we consent to take the case to the courts; the 41 Indians will then realize the extent to which 42 they can accept benefits if their case 43 succeeds. 44 As Mr. Scott points out, there are two 45 Indian treaties for the Province of Ontario in 46 which the obligations are shared by the 47 Dominion and the Province. We have already a 29055 Submission by Mr. Macaulay 1 considerable expenditure in British Columbia, 2 to which something would be added and the whole 3 expense would not be proportionately in excess 4 of what we are paying in the Western Provinces. 5 Of course, in the Western Provinces the 6 Dominion holds the lands, but it is worthless, 7 I think\" -- 8 9 THE COURT: \"Worthwhile.\" \"Worthwhile.\" 10 MR. MACAULAY: I'm sorry, \"worthwhile.\" Yes, that's right, my 11 lord. 12 13 \"...I think, to increase our expenditure for the 14 British Columbia Indians in order to obtain a 15 settlement of a vexatious question.\" 16 17 And that's where vexatious question came from, my 18 lord. It wasn't Sir Wilfrid Laurier. It was Minister 19 Roche. 20 And in June of 1914 the Governor in Council 21 approved of the Exchequer Court reference in that 22 famous Order in Council 751 on the terms proposed by 23 Scott, which we've just seen. 24 Now, my lord, I'd like to hand up a new page 273. 25 There was a misprint there. I had quoted Mr. Roche. 26 There had been a couple of pages -- words left out. 27 In the original it says -- original of our version 28 it's \"settlement vexatious question,\" but it should 29 read \"settlement of a vexatious question.\" So there 30 is two copies, one for your lordship one for the 31 court. 32 THE REGISTRAR: Thank you. 33 MR. MACAULAY: And one for the plaintiffs. 34 THE COURT: Thank you. 35 MR. MACAULAY: And one for the Province, which corrects that 36 typo in Mr. Roche's letter. That's an exhibit, by the 37 way, Mr. Roche's letter. 38 Now, I say at 274, 751 was Canada's policy but the 39 conditions were not for Canada to adhere to - the 40 conditions were for the acceptance by British Columbia 41 and the Indians. 42 In this submission I'd like to turn now to page 43 276. I'm sorry, I better deal with the bottom of page 44 275. Meetings were held with the Indian representa- 45 tives, but the proposal, Order in Council 751 proposal 46 was never formally presented to the Indians. In March 47 of 1916 the minister wrote to certain Spence's Bridge 29056 Submission by Mr. Macaulay 1 chiefs, and he wrote as follows: 2 3 \"I am in receipt of your joint letter signed 4 at Spences Bridge on the 17th March, 1916. I 5 regret to see that you state you will not agree 6 to the terms and conditions proposed in the 7 Order-in-Council of the 20th June, 1914.\" 8 9 That's 751. 10 11 \"You have made this statement before the 12 agreement has been officially laid before you, 13 but notwithstanding this, at some convenient 14 time you will be asked to consider the 15 agreement and I then hope you will be able to 16 concur, as these proposals are made in your 17 best interests and with the desire of having 18 your claim decided by the Courts and by appeal 19 to His Majesty's Privy Council in England.\" 20 21 Mr. O'Meara lobbied the government to change its 22 policy, but Mr. Doherty, the Minister of Justice, 23 declined. And those are the -- the other excerpts on 24 page 275. 25 We now come to 276. I'm referring to that letter 26 of Doherty's. He concludes by noting that the first 27 matter is whether the Indians have acquiesced in the 28 conditions of the Order in Council, and the matters of 29 procedure will be then considered, but he assured the 30 Indians that no point of procedure would be allowed to 31 prejudice the decision on the merits. And the 32 Province argues: 33 34 \"As was noted in paragraph 26 above,\" 35 36 and that's their paragraph 26, 37 38 \"the Dominion continued to hold out P.C. 751 as 39 the only means by which it would assist Indians 40 in British Columbia to obtain a Court decision 41 respecting the existence of aboriginal title.\" 42 43 And we say that that Order in Council represented the 44 only means by which Canada thought it could obtain a 45 court decision. Without B.C.'s concurrence the 46 reference was impossible. 47 And the Province refers to a series of meetings in 29057 Submission by Mr. Macaulay 1 1915. The Indians' objections to the Order in Council 2 and their counter-proposals were discussed and 3 considered by the Nishga representatives and the 4 ministers of Canada. The record of much of what went 5 on was published in a pamphlet by the Conference of 6 Friends of the Indians of British Columbia in July. 7 And that's an exhibit. And the pamphlet records, 8 amongst other things, that Dr. Roche, the minister, 9 advised the Nishga in March of 1915 the following: 10 11 \"[A] 11 I can say is that I am prepared to 12 bring it once more before Council with a view 13 if seeing if they are willing to have a 14 reference made on the ground suggested by the 15 Indian Tribes, but, while we have not got the 16 consent of the British Columbia Government to 17 our present method of settlement, we are not 18 having their opposition, and I fear that to 19 give that case to the courts on other terms 20 would mean the opposition of the British 21 Columbia Government, and that was the stumbling 22 block in the way of Sir Wilfrid Laurier 23 carrying out his promise. Sir Wilfrid has been 24 quoted on a number of occasions here as stating 25 it ought to be decided by the Judicial 26 Committee; well, I believe he is quite right, 27 that is what this Government says, but, at the 28 same time, Sir Wilfrid did not devise any plan 29 to have the Judicial Committee of the Privy 30 Council pass upon it; he never got it before 31 them, and the reason he did not, so far as my 32 understanding, is that the British Columbia 33 Government would not consent, and, while he 34 intimated that if it were possible to devise 35 some other method of bringing it before the 36 courts, he would do so, still he never did 37 devise any other method. Now, this Government 38 has devised a method, and, I think, a fair one, 39 and we had hoped the Indians would accept.\" 40 41 So he was discussing that with the Nishga, the 42 representatives of the Nishga. And it didn't work. 43 My last quote here is Mr. O'Meara's statement to 44 Scott at one of these meetings. And O'Meara says: 45 46 \"The basis of the greatest difficulty of all 47 is the fact that vast quantities of land in 2905E Submission by Mr. Macaulay 1 British Columbia have been disposed of by the 2 Province to persons who have bought in good 3 faith. Now, the Nishgas and the other Tribes 4 say that these transactions have been unlawful 5 under Proclamation of King George the Third. 6 The Nishgas are proposing that the difficulty 7 arising from that state of things would be 8 dealt with in this particular way. Now, if the 9 Secretary of State should decide that lands 10 that have already been sold by the Province, 11 should go to the Indians, then, no doubt, some 12 compensation would have to be made to the 13 persons who in good faith had purchased, and, 14 as I pointed out to the Nishgas, the Province 15 was interested in that question, and also, 16 under the McKenna agreement, the Government of 17 Canada was interested, because the Government 18 had seen fit to undertake special responsibil- 19 ity for the whole matter.\" 20 21 And Mr. Scott said: 22 23 \"I understood you to say that the Dominion 24 would have to compensate the owners?\" 25 2 6 And Mr. O'Meara said: 27 28 \"In pursuance of the terms of the McKenna 2 9 agreement.\" 30 31 And Mr. Scott says: 32 33 \"Of course I do not agree with that. There 34 is no objection to your making that statement; 35 I cannot agree with it.\" 36 37 And, my lord, by Order in Council 1422 Canada 38 declined to alter its policy and decided that the 39 terms of P.C. 751 be not modified or altered. The 40 Nishga position was that the settlers be cleared out 41 and paid whatever their lands were worth, and so you 42 can see how difficult it was. 43 May I say in answer -- and this is in answer to a 44 question put to me by your lordship earlier, there are 45 discussions, as your lordship knows, going on with the 46 Nishgas now, and they've been going on for -- is it 12 47 years? 29059 Submission by Mr. Macaulay 1 MS. MANDELL: Since 1973. 2 MR. MACAULAY: And the Dominion, of course, has the \u00E2\u0080\u0094 faces the 3 difficulty today that it always has faced, and that is 4 that the land doesn't belong to them and it's not 5 theirs to deal with, and the Province has declined to 6 attend, and so the stalemate goes on. It didn't go on 7 in other provinces that owned their own land, like 8 Ontario. 9 My lord, the other submissions made by Mr. Goldie 10 concerning the counterclaim, Treaty 8, the land acts, 11 what happened between 1874 and 1878, and so on, are 12 all matters of which we have made written submissions. 13 I don't consider that it is necessary or desirable to 14 read every line. I am satisfied we have made full 15 answers. If your lordship deems it necessary to 16 address those issues that are really issues -- those 17 other issues are issues between Canada and the 18 Province. They are not issues between the plaintiff 19 and the defendants in this case. The issues between 20 the plaintiff and the defendants are of different 21 character. And we go back to our original submission, 22 of course, that it's not necessary to deal with Part 23 II of the counterclaim at all. Those are my 24 submissions. 2 5 THE COURT: Thank you. 26 MR. MACAULAY: I have one or two things I'd like to deal with. 27 One thing I'd like to deal with. It had to do with 28 one of the wills. And this may be -- I may be 29 anticipating the plaintiffs' reply at this point. At 30 a certain point I came to Mr. Joe David Brown's will, 31 and Mr. Grant, who was then on duty as counsel for the 32 plaintiffs, challenged our identification of the 33 testator, who was a member, your lordship may recall, 34 of the Kitsegukla Band, and, of course, we had his 35 band number and whatnot. But what he seemed to 36 challenge was his name, the name assigned to him, the 37 chiefly name, to Mr. Joe Brown, and the basis for 38 holding that the testator was that particular Joe 39 Brown. Well, I went back to the transcript of a 40 cross-examination of Ernest Hyzims. Mr. Hyzims is 41 another hereditary chief, the head chief of a house 42 and a resident of Kitsegukla. And in my cross- 43 examination I asked him, amongst other things: 44 45 \"Q Did you know Joe Brown who used to live at 46 Gitsegukla? 47 A Yes. 29060 Submission by Mr. Macaulay 1 Q And what was his house? 2 A That's the Gisgaast head chief...\" 3 4 And I'll spell the other word. I'm not going to 5 pronounce it. X-s-g-o-g-i-m-l-a-x-h-a. That was one 6 way of identifying him. By the way, that's Exhibit 7 608-A, that whole transcript is, my lord, and it's at 8 page 15, and those were lines 25 to 29. So that may 9 or may not allay Mr. Grant's concerns we've got the 10 right man. 11 On the genealogy which we -- 12 THE COURT: Still relating to Joe David Brown? 13 MR. MACAULAY: Yes, my lord. 14 THE COURT: Yes. 15 MR. MACAULAY: \u00E2\u0080\u0094 of the house called Haak asxw, that's H-a-a-k 16 a-s-x-w, on the second page, and we included that with 17 the will, Joe Brown, bearing that chiefly name, is 18 shown as the husband of Martha Brown, whose chiefly 19 name was Mool'xan, Mool'xan, which is a chief -- a 20 head chief name at Kitsegukla. But if your lordship 21 would like to make a note, on page 1 we -- his name 22 appears on page 2 of that genealogy, and that's the 23 only one we've produced, but on page 1 Connie Wesley, 24 who apparently inherited Joe Brown's name, is shown as 25 married to a member of Haak asxw, and she and Esther 26 Hyzims were the beneficiaries. In the will she's 27 called Connie Milton, and, of course, the genealogy 2 8 shows that that was -- her maiden name was Connie 29 Wesley. She married George Milton of the Haak asxws, 30 and she inherited his name. So we've got the right 31 person. We've properly identified that particular 32 one. 33 If there were any doubt about it, we could refer 34 also to the evidence of, commission evidence of 35 Stanley Williams. That's Exhibit 446E at page 380, 36 where he was asked by Mr. Grant in re-examination: 37 38 \"Q You were asked about Martha, Mool'xan, I 39 believe it's Martha Mool'xan, Mrs. Joe Brown, 40 who held the name Mool'xan, and you were asked 41 about who held the name after her death. Did 42 George Milton, the holder of the name Haakasxw, 43 did he care for the name Mool'xan from the time 44 of Martha Mool'xan's death until his death? 45 A Nobody took this name. Jacob Milton was 46 supposed to have taken this name but he didn't 47 have enough money and materials and so Haakasxw 29061 Submission by Mr. Macaulay 1 is looking after this name. They will have to 2 do something about Mool'xan, before this name 3 is given away.\" 4 5 So that passage, my lord, at page 380, lines 34 to 44, 6 shows that Mrs. Joe Brown is Mool'xan, and that just 7 confirms what's on the genealogy. It's the same 8 person we're talking about. 9 There's another but a slightly more oblique 10 reference to the same effect in Stanley Williams' and 11 at page 5 of the transcript of the cross-examination 12 of Mary Joseph on her territorial affidavit. It's 13 Exhibit 662A, page 5. And at trial Olive Ryan, in 14 Volume 17, page 1083, identified Mool'xan as Martha 15 Brown. And also coming back to Stanley Williams, his 16 commission evidence, Exhibit 446D, at page 231 at the 17 bottom of the page, starting on line 33, Mr. Plant was 18 asking about this for some reason, and Mr. Plant's 19 question was: 20 21 \"Q Oh. I'm sorry that my pronunciation is so 22 poor. Thinking again about -- well, no, let's 23 move onto something else. 24 You just mentioned Mool'xan.\" 25 26 That's M-o-o-1-'-x-a-n. 27 28 \"Did you ever know Mrs. Joe Brown? 2 9 A Yes, I remember her. She knows how to smoke 30 those big pipes. 31 Q Did she have the name Mool'xan at one time? 32 A Yes, that's the lady that's called Mool'xan. 33 Q Do you recall now who held the name Mool'xan 34 after her death? 35 A Nobody today. Whoever gets the grave soon or 36 the pole will receive -- will get Mool'xan's 37 name. 38 Q Has it been a long time since Mrs. Joe Brown 39 passed away?\" 40 41 On the top of the next page, which is page 272: 42 43 \"A It's probably about 30 years now.\" 44 45 So those are some of the documents, and if there 46 were any doubt about it, we can refer again to the 47 census, our exhibits, and, of course, the estate file. 29062 Submission by Mr. Macaulay Submission by Ms. Koenigsberg We didn't put the estate file in. The estate file would establish that. I don't think in view of all those that identification is necessary. COURT: Mr. Macaulay, where in your argument do you suggest I should put my notes of what you've just told me? Is there a section number or page number or -- MACAULAY: I handed up a book of wills covering traplines and hunting grounds. COURT: Yes. MACAULAY: Just one volume. Tab 14. COURT: That's fine. MACAULAY: Deals with Joe Brown, Joseph David Brown. COURT: Yes. All right. MACAULAY: He is regimental number 6 at the Kitsegukla Band, and they've given his name here as X-s-g-o-g-i-m- l-a-x-h-a . COURT: Yes. MACAULAY: You see, the difficulty there, my lord, was that he appeared on the Haak asxw genealogy, H-a-a-k a-s-x-w genealogy, but he didn't appear on the genealogy of his own house. COURT: Yes. MACAULAY: He appears on Exhibit 853-20, but he doesn't appear on Exhibit 853-45, which is his own house, though he had the name, apparently. And why that is we don't know, but all we were concerned about is to identify who this testator was. I believe we've done it beyond a reasonable doubt. COURT: All right. Thank you. MACAULAY: Thank you, my lord. Ms. Koenigsberg has a submission to make regarding the last aspect of jurisprudence on aboriginal rights. COURT: Thank you. Is there a volume I should be looking at? KOENIGSBERG: Your lordship will require the volume of authorities of the Attorney-General of Canada. There was a blue -- COURT: A small one or a large one? KOENIGSBERG: Yes, it's a small. My lord, I'm handing up a brief submission with a tab, the tab is labelled \"Concluding Remarks,\" to go in the very back of the Attorney-General of Canada's final argument. COURT: 12? KOENIGSBERG: 11, I think, my lord. COURT: Yes. KOENIGSBERG: And lest we be concerned that the Supreme Court of Canada is not busy turning out judgments. 1 2 3 4 THE 5 6 7 MR. 8 9 THE 10 MR. 11 THE 12 MR. 13 THE 14 MR. 15 16 17 THE 18 MR. 19 20 21 22 THE 23 MR. 24 25 26 27 28 29 THE 30 MR. 31 32 33 THE 34 35 MS. 36 37 38 THE 39 MS. 40 41 42 43 THE 44 MS. 45 THE 46 MS. 47 29063 Submission by Ms. Koenigsberg 1 They turned out another one on June 21st. It is known 2 as Mitchell, and I'm not sure how to pronounce the 3 name of this Indian band, but on my best guess it's 4 Peguis, the Peguis Indian Band. And that judgment, 5 believe it or not, has some bearing, in my submission, 6 on the matters in issue. 7 THE COURT: It won't go in your book, Ms. Koenigsberg. 8 MS. KOENIGSBERG: My lord, I crammed it into mine. I don't know 9 if it will go into yours. If it won't, we will 10 provide your lordship with another binder for 11 reorganization purposes. 12 THE COURT: Well, if you've got it in yours, maybe we can get it 13 in ours. Let's try. Yes, we got it in. The index 14 goes in the front? 15 MS. KOENIGSBERG: Yes, my lord, because it just has that 16 additional authority. 17 THE COURT: All right. Thank you. 18 MS. KOENIGSBERG: My lord, we wish to address some aspects of 19 the effect of Section 35 and make summary remarks 20 leading up to that in what is our best effort to meet 21 some of the problems that your lordship foresaw in 22 coming to grips with what I will call the use and 23 occupancy jurisprudence. The difficulty of coming up 24 with anything even close to a draft order is twofold 25 for the Attorney-General of Canada: first, the 26 anomalous position in which we are in this lawsuit, 27 added by the Province in order to be bound by the 28 facts; and the fact that the plaintiffs have pleaded a 29 case which may or may not include the claim that we 30 are in fact addressing, and the Province having chosen 31 to meet the claim as it appears on the pleadings. I 32 thus learned the value of the adversary system. It's 33 a lot easier to define things when you have something 34 to push against, and we find ourselves in a position 35 of basically not having anything to push against in 36 dealing with trying to determine exactly where these 37 issues fall. Therefore, we've attempted to solve that 38 problem by summarizing in the briefest possible way 39 what we would come to see as the essential 40 characteristics of the issues as we have attempted to 41 elucidate them much more broadly and then tried to fit 42 Section 35 and the role of the Province into the end. 43 So beginning with that, we've addressed the issue 44 of aboriginal rights, and we say that aboriginal 45 rights remain a burden on Crown land so long as they 46 are necessary to support an aboriginal way of life or 47 are extinguished by clear and plain acts of the 29064 Submission by Ms. Koenigsberg 1 Sovereign. 2 That aboriginal rights are communal and not 3 personal rights is a given not challenged by the 4 plaintiffs. 5 THE COURT: Well, is that really so? It seems to me that the 6 Privy Council in St. Catherine's said they were 7 personal rights. 8 MS. KOENIGSBERG: Well, in my submission, they meant personal 9 only in the sense of inalienable, and I think that -- 10 THE COURT: Not proprietary? 11 MS. KOENIGSBERG: That's right. 12 THE COURT: But didn't Milirrpum fail on the ground that there 13 was no communal rights recognized by law? 14 MS. KOENIGSBERG: Well, in that jurisdiction on that 15 jurisprudence that's correct, but that particular 16 argument was not -- has not been accepted in Canada. 17 MS. MANDELL: My lord, I don't want to interrupt my friend. I 18 think she means in her first sentence \"are not 19 extinguished by clear and plain acts,\" not \"are 20 extinguished.\" 21 MS. KOENIGSBERG: Yes, yes, I do mean that, and I don't know why 22 I didn't notice that it was not. 23 MS. MANDELL: And also the plaintiffs don't accept the fact that 24 aboriginal rights are communal only. We adopt the 25 reasoning of the Court of Appeal in Pasco that they're 26 both communal and personal. 27 MS. KOENIGSBERG: Well, I didn't understand my friends to 28 challenge the jurisprudence that aboriginal rights are 29 communal, and it's my submission then -- if we are 30 dealing with a challenge at least at that level, my 31 submission would be that the Court of Appeal in Pasco 32 did not say that they were not communal in nature, 33 and, in fact, they went on to say they can be 34 exercised personally, and I deal with that in my next 35 couple of sentences. 36 THE COURT: All right. 37 MS. KOENIGSBERG: The communal aspect of them, in our 38 submission, defines their essential characteristic of 39 relating to a way of life of a community. That is not 40 to say that individual members of the community don't 41 exercise the rights - that is exactly what they were 42 doing when they participated in those traditional 43 pursuits which supported the existence of the 44 community before the time of the assertion of British 45 sovereignty. 46 The bundle of rights that we have argued are 47 aboriginal rights fall into three categories. There 29065 Submission by Ms. Koenigsberg 1 are rights which have been protected by being made 2 into reserves. Those rights are to village sites, 3 cultivated fields, adjacent lands for tillage or 4 timber. These rights have been given a proprietary 5 character through the Indian Act. 6 The second category -- 7 THE COURT: That paragraph 1 defines -- describes reserves, does 8 it? 9 MS. KOENIGSBERG: Yes, it does. 10 The second category of rights that we attempted to 11 describe are fishing sites and fishing rights. The 12 majority of fishing sites in the claim area have been 13 protected by reserve status and given a proprietary 14 character by the Indian Act. The right to fish for 15 food in traditionally occupied places has been 16 unqualifiedly protected as a usufructuary right. It 17 has no proprietary character, but its regulation has 18 not extinguished the underlying right to food fish. 19 THE COURT: Well, do you intend in your second paragraph there 20 to refer to off site -- I'm sorry, off reserve sites? 21 MS. KOENIGSBERG: No. In my submission, my lord, the right to 22 fish itself, no matter where, whether it happens to 23 take place -- 2 4 THE COURT: Yes. 25 MS. KOENIGSBERG: \u00E2\u0080\u0094 on a site which is on a reserve, which 26 would -- different things might flow from questions 27 one might ask about that site having been made into a 28 reserve, but as to the right to fish itself -- 29 THE COURT: Off reserve. 30 MS. KOENIGSBERG: \u00E2\u0080\u0094 off reserve or on reserve \u00E2\u0080\u0094 31 THE COURT: Yes. 32 MS. KOENIGSBERG: \u00E2\u0080\u0094 it is a non-proprietary right, and all we 33 say is it's unqualified in the sense that it is not 34 qualified in the way that other usufructuary rights 35 were qualified. 36 THE COURT: Is it exclusive or non-exclusive? 37 MS. KOENIGSBERG: It's \u00E2\u0080\u0094 38 THE COURT: That's off reserve. 39 MS. KOENIGSBERG: In the claim area, in my submission, as on the 40 facts, it is exclusive. 41 THE COURT: No one else can fish in the claim area? 42 MS. KOENIGSBERG: According to the \u00E2\u0080\u0094 oh, I'm sorry. It has to 43 be exclusive on the facts. If you find it's not 44 exclusive, in my submission, off reserve, it would be 45 extinguished. But I don't think that we're really 46 facing that issue, my lord. 47 THE COURT: I'm not following that. 29066 Submission by Ms. Koenigsberg 1 MS. KOENIGSBERG: Well, maybe we're not meeting on the right 2 question. 3 THE COURT: Well, we may not be. I'm not troubled by your 4 proposition on reserves. That's clearly exclusive and 5 it's been given what you call this proprietary 6 character. 7 MS. KOENIGSBERG: Yes. 8 THE COURT: And certainly it's in a different category. But 9 let's walk a half a mile off the reserve -- 10 MS. KOENIGSBERG: Yes. 11 THE COURT: -- to the banks of one of the great rivers, and you 12 say that the Indians have a right to fish there which 13 hasn't been extinguished? 14 MS. KOENIGSBERG: If on the facts it's not been extinguished or 15 abandoned, yes. And, in fact, off reserve aboriginal 16 fishing, on the evidence, in a few places has taken 17 place, and there's no evidence -- I'm searching my 18 mind, but I don't believe there's any evidence that in 19 particular in a few specific areas there's any 20 evidence of it having been extinguished or abandoned. 21 Now, there is evidence of abandonment, which we've 22 dealt with, of fishing areas off reserve. 23 THE COURT: Well, let's assume there's a location that is off 24 reserve but which Indians from time to time use for 25 fishing and they haven't abandoned it. Let's assume 26 that it's right within the Village of Smithers. But 27 from time to time over the years I'm sure Indians have 28 fished along the river, not just -- not just on their 29 reserves. Now, do you say fishing there is an 30 aboriginal right or they have an aboriginal right to 31 fish there? 32 MS. KOENIGSBERG: If that is an area \u00E2\u0080\u0094 and, I'm sorry, I can't 33 recall on that particular area. If that were an area 34 that they could show and have shown they have 35 traditionally and continuously used, and I don't mean 36 continuously -- 37 THE COURT: Yes. All right. 38 MS. KOENIGSBERG: That they have not abandoned by not having 39 fished there for the last 20 or 40 years. 4 0 THE COURT: All right. 41 MS. KOENIGSBERG: Then, yes, they are exercising an aboriginal 42 right which has not been extinguished. 43 THE COURT: All right. And is it exclusive? 44 MS. KOENIGSBERG: Yes. Food fishing, my lord. 45 THE COURT: Well, that's what troubles me because it didn't seem 46 to me that Sparrow was in any way suggested to be an 47 exclusive right. 29067 Submission by Ms. Koenigsberg 1 MS. KOENIGSBERG: We're back to that problem, my lord. In my 2 submission, on the facts in Sparrow the aboriginal 3 people there in issue did not as within a defined 4 group fish exclusively pre-contact, and the issue was 5 not before the court, it's true, to make a declaration 6 as to what the actual nature of that aboriginal right 7 was, because it was dealing with a fishing 8 prosecution, as to whether this person was exercising 9 an aboriginal right. But, in my submission, on the 10 facts as they are in the judgment no exclusive right 11 to fish in that area was claimed or would have been 12 claimed. The evidence was that there were a group of 13 discrete Indian people who shared that resource, and 14 the claim was that it was an aboriginal right to 15 continue that. 16 THE COURT: But on the facts of Sparrow as set out in the 17 reasons, including the anthropological evidence, one 18 would think that if your proposition is sound that 19 that would have been an exclusive right to fish in 20 Sparrow, and there's no suggestion of it in the 21 judgment. 22 MS. KOENIGSBERG: An exclusive right to fish, my lord \u00E2\u0080\u0094 23 THE COURT: In the past. 24 MS. KOENIGSBERG: Well, my lord \u00E2\u0080\u0094 25 THE COURT: And is that right exclusively reserved for Indians 26 pursuant to their aboriginal right? 27 MS. KOENIGSBERG: Oh, I see what your lordship is getting at. 2 8 THE COURT: I'm sure that the judgment contemplates that there 29 will be other fishing in -- 30 MS. KOENIGSBERG: Oh, yes. 31 THE COURT: \u00E2\u0080\u0094 I think it's Canoe Pass or Canoe Passage. 32 MS. KOENIGSBERG: Yes. 33 THE COURT: And what the court was at pains to do was to 34 establish priorities. That in itself suggests that 35 anyone could -- I suppose the Indian right to -- not 36 the right, but the possibility of fishing there had to 37 arise because it was a regulated industry, because if 38 it wasn't a regulated industry, well, then every 39 citizen in British Columbia might fish in Canoe Pass. 4 0 MS. KOENIGSBERG: Yes. 41 THE COURT: But they can't because you need a licence. 42 MS. KOENIGSBERG: Yes. Now, if we come back to looking at the 43 difference between the actual fishing right and the 44 place \u00E2\u0080\u0094 4 5 THE COURT: Yes. 46 MS. KOENIGSBERG: \u00E2\u0080\u0094 Canoe Pass, as I understand it, and I could 47 be quite wrong, is not -- there is no evidence as to 2906E Submission by Ms. Koenigsberg 1 exclusive use of that place. 2 THE COURT: Well, there is evidence that it's not exclusive. 3 MS. KOENIGSBERG: That's right, that anyone and everyone fished 4 there. The evidence that I thought we were addressing 5 in the Gitksan-Wet'suwet'en claim area is off reserve 6 identified areas where people say they fished 7 exclusively, a place. 8 THE COURT: Well, all right. 9 MS. KOENIGSBERG: If the evidence is that they did not fish 10 there exclusively, that everyone joined in that -- 11 and, in fact, interestingly enough, those are the 12 facts, and I believe there are some facts that that is 13 the case around Kisgegas. However, it's been made 14 into a reserve, which removes it as an issue. 15 THE COURT: It's only a reserve on one side of the river, isn't 16 it? 17 MS. KOENIGSBERG: I think it's both sides. 18 THE COURT: I'm not sure. Is it both sides? 19 MS. KOENIGSBERG: I think it's both sides, my lord. 20 THE COURT: Let's go upstream three miles. I have no doubt that 21 Indians fished there at the time of Trader Brown and 22 before at various locations along the Babine, both 23 Gitksan and non-Gitksan, that is, the Indians from the 24 Fort Kilmaurs area. 25 MS. KOENIGSBERG: Yes. 26 THE COURT: There is no clear identification of who fished where 27 in those days, but let's assume -- I haven't 28 considered it carefully. Let's assume the evidence 29 doesn't establish exclusive Gitksan fishing three 30 miles upstream from Kisgegas. If that is so, you 31 would say that the right to fish would not be 32 exclusive? 33 MS. KOENIGSBERG: That's right. 34 THE COURT: But would you say it would be fishing pursuant to an 35 aboriginal right? 36 MS. KOENIGSBERG: Yes. 37 THE COURT: It would be fishing pursuant to a non-exclusive 38 aboriginal right? 39 MS. KOENIGSBERG: That's correct, which has been regulated and 40 remains regulated pursuant to Sparrow, but not 41 extinguished because, in fact, it's provided for. The 42 preservation of that food fishery is provided for. 43 THE COURT: In Sparrow? 44 MS. KOENIGSBERG: Well, under the legislation which applies 45 there and in Sparrow. 4 6 THE COURT: All right. Where are you? 47 MS. KOENIGSBERG: I'm on the third category. The other 29069 Submission by Ms. Koenigsberg 1 usufructuary rights we say fall into a third category, 2 such as hunting, trapping, and berry picking. We have 3 described those as amorphous rights and already 4 addressed you on that issue. We take the position 5 that they are diminishing in their character, but they 6 can be exercised wherever there is unoccupied Crown 7 land appropriate to the purpose. 8 THE COURT: And again they would be exclusive or non-exclusive? 9 MS. KOENIGSBERG: In my submission, they are non-exclusive 10 rights. 11 THE COURT: Different from fishing? 12 MS. KOENIGSBERG: Very different from fishing. And as to the 13 different ways in which they have been dealt with, I 14 would refer your lordship back to the combination of 15 Douglas' policy, as he set it out, but specifically in 16 the claim area the implementation of that policy or 17 the beginning of the implementation of that policy by 18 O'Reilly and Vowell and the very different way in 19 which fishing rights are characterized. 20 We then go on to address the issue again of who we 21 say are the holders of the rights. The preponderance 22 of evidence, we submit, supports the conclusion that 23 the kinds of aboriginal rights existing in the claim 24 area were held by the Gitksan and Wet'suwet'en people 25 as organized in villages. We do not say that the 26 Gitksan and Wet'suwet'en did not have other forms of 27 organization. We do say that in relation to the 28 rights as described it was in their village 29 organization that they held these rights. And, in my 30 submission, we've canvassed, however briefly, the 31 difficulty of whether the bands are before your 32 lordship. In my submission, their constituent parts 33 are. 34 THE COURT: Unless there is a body of aboriginal people who 35 belong to the bands who don't recognize or participate 36 in house activities. 37 MS. KOENIGSBERG: Well, frankly, my lord, I don't think that the 38 problem posed by talking about band as a -- now a 39 successor in title, if you will, to the village, which 40 is simply a practical extension, is any more difficult 41 of resolution than any other possible declaration that 42 your lordship might have to make as to who are the 43 holder of the rights, whether it's ownership and 44 jurisdiction as contended for or any other. 45 I then address again the issue of abandonment. 46 Abandonment or the non-use of aboriginal rights will 47 result in an extinguishment of those rights. 29070 Submission by Ms. Koenigsberg 1 Abandonment must be inferred from the actual 2 conduct of the aboriginal community. Non-use or non- 3 occupancy for a significant number of years is one 4 major factor. Twenty years or a generation, as we 5 have submitted, is a minimum. And that's because, we 6 would say, it's combined with the general evidence of 7 abandonment of hunting and trapping as a way of life 8 in the 1950s one generation supports the inference of 9 voluntary abandonment. 10 THE COURT: But what if in 1991, 40 years later, the price of 11 furs becomes so enhanced that it becomes highly 12 profitable? 13 MS. KOENIGSBERG: Well \u00E2\u0080\u0094 14 THE COURT: Would the natives not have the right, if they 15 haven't used -- assuming they haven't used that right 16 for 40 years, not have a right to resume? 17 MS. KOENIGSBERG: We say they don't for this reason: they don't 18 have that right as aboriginals. They, in fact, of 19 course, have the right to exercise whatever rights 20 they wish on their traplines. 21 THE COURT: Under the general law? 22 MS. KOENIGSBERG: Yes. 23 THE COURT: If they \u00E2\u0080\u0094 if they have a trapline licence? 24 MS. KOENIGSBERG: Yes, or if they want \u00E2\u0080\u0094 25 THE COURT: Or if they want to get one. 26 MS. KOENIGSBERG: Or if they want to get one. And it's not 27 onerous. The issue is this. First of all, as a 28 concept, abandonment amounts to extinguishment. Once 29 you find abandonment, inferring from all of the 30 factors that it is an abandonment of a way of life, in 31 my submission, they don't resume. And your lordship 32 has heard evidence that the increase, significant 33 increase in fur prices has not resulted in aboriginal 34 people going out and trapping. And, in my submission, 35 that is not to say that some, and I might say a very 36 few on the evidence, native people don't trap for a 37 living, but your lordship has also heard evidence, and 38 my colleague Mr. Macaulay addressed you on this issue, 39 a very few who do are now dealing with that. I mean, 40 as a community they are dealing with traplines as 41 personal property. This no longer has the character 42 right across the board of an aboriginal right, of the 43 exercise of an aboriginal right. 44 The second most important factor, it is submitted, 45 is that of voluntariness. If there is evidence that a 46 non-use or non-occupation of a site by members of the 47 aboriginal community is because of illegal 29071 Submission by Ms. Koenigsberg 1 dispossession of that area, then, it cannot be said 2 that the rights have been abandoned. Voluntariness is 3 inferred again from the conduct of the aboriginal 4 communities. Have they ceased use of an area in order 5 to take up other pursuits incompatible with such 6 communal activities? And we say, of course, that is 7 the character of the evidence. The evidence is, and 8 your lordship has heard it, I would submit, throughout 9 the Attorney-General of Canada's presentation of the 10 evidence, a gradual moving away from these traditional 11 pursuits and doing other things, and often those other 12 things are incompatible with the aboriginal 13 traditional pursuit. Working full time in other 14 occupations does not allow working full time to earn a 15 living from trapping, hunting, and fishing. And as 16 early as the -- as the early 1950s Mr. Loring 17 documented that change and the reasons for it, and, in 18 our submission, it has simply continued. 19 THE COURT: Well then, would you say that Mr. Art Matthews, who 20 works full time in the Kitwanga filing room and has 21 done so for, I think, 13 years but who continues to be 22 a week-end trapper, is no longer trapping pursuant to 23 an aboriginal right? 24 MS. KOENIGSBERG: Yes, I think that inference is open to your 25 lordship on this analysis. On this analysis, and this 26 is distinct from a more piecemeal approach which is 27 available, it's possible to analyse this thing and 28 say, well, there are aboriginal rights still existing 29 on Black Acre but nowhere else around because a 30 handful of persons have actually continuously used a 31 particular area, but, in my submission, it is equally 32 and, in fact, perhaps a more compelling argument to 33 analyse the whole of the evidence and to say what is 34 it we are saying when we are protecting or saying 35 there is an aboriginal right to do X, and it is, in my 36 submission, a way of life, a use of the land necessary 37 to support a way of life, and, in my submission, that 38 has been long gone from the claim area. 39 THE COURT: Well, we've had the family allowance since 1941 or 40 1942, I think it was. 41 MS. KOENIGSBERG: There are a multitude of factors, my lord. 42 THE COURT: You would say that would be a factor in the 43 abandonment of an aboriginal -- 44 MS. KOENIGSBERG: Yes. 45 THE COURT: \u00E2\u0080\u0094 life and, therefore, aboriginal right? 46 MS. KOENIGSBERG: Yes, my lord. There's simply the indirect 47 effect of not doing something that you did -- that you 29072 Submission by Ms. Koenigsberg 1 learned from your father or grandmother and not doing 2 it for a generation and thus not teaching it to your 3 children, and the whole cycle of what's necessary to 4 maintain it as a way of life begins to fall away. It 5 is replaced by something else. 6 THE COURT: How does one know then whether there are aboriginal 7 rights or there are not aboriginal rights? 8 MS. KOENIGSBERG: Well, I think, my lord, that is not a very 9 easy question to answer and it's one that 10 unfortunately falls to your lordship's shoulders on 11 these facts, as enormous as they are, and on the law 12 as really uncharted in many of these ways, as it is. 13 However -- and this is where I say we've run into some 14 difficulty, is we have nothing to push against in the 15 sense that we do not have on this type of analysis the 16 position of the plaintiffs, but what I'm saying is 17 that there are a variety, if you will, of ways you can 18 analyse it. In substance, what we are saying today is 19 we've talked about earlier the variety of ways of 20 analyzing the evidence. We're submitting to you today 21 that this particular analysis is the one which on 22 balance we would submit makes the most sense of the 23 jurisprudence and the facts. 24 THE COURT: All right. I think we'll adjourn, Ms. Koenigsberg. 25 I just want to make a very brief note. All right. 26 Two o'clock. Thank you. 27 THE REGISTRAR: Order in court. Court stands adjourned until 28 two o'clock. 29 3 0 (PROCEEDINGS ADJOURNED AT 12:30 P.M.) 31 32 I hereby certify the foregoing to 33 be a true and accurate transcript 34 of the proceedings transcribed to 35 the best of my skill and ability. 36 37 38 39 4 0 41 Leanna Smith 42 Official Reporter 43 UNITED REPORTING SERVICE LTD. 44 45 46 47 29073 Submissions by Ms. Koenigsberg 1 (PROCEEDINGS RESUMED AT 2:00 P.M.) 2 3 THE COURT: Miss Koenigsberg. 4 MS. KOENIGSBERG: My lord, we left off in the midst of the 5 argument on abandonment. And I was -- had already 6 drawn to your lordship's attention our submission that 7 voluntariness is a crucial part of the concept of 8 abandonment. We say on this analysis we argue that 9 the absence of evidence of specific use or occupation 10 of the vast majority of the claim area for hunting, 11 trapping or berry-picking is not a function of the 12 failure of the plaintiffs to meet a standard of proof. 13 It is testimony to the abandonment of a traditional 14 way of life. The plaintiffs do not now and have not 15 for many decades made their living from traditional 16 pursuits. 17 But reliance we say on these traditional pursuits 18 is no longer the mainstay of this culture. The 19 culture of the Gitksan and Wet'suwet'en, we submit, 20 from all of the evidence presented, is alive and well. 21 Rooted in the past, rich in its associations with 22 traditional pursuits, it has evolved into a culture 23 interweaving the Indian past with the Canadian 24 present. 25 I then would like to move on to the effect of the 26 Sparrow decision on the interpretation of section 35. 27 And I am dealing not with the issue that I have 28 already dealt with of its effect on the test for 29 extinguishment, and I already made submissions very 30 generally as to its relationship to the fiduciary 31 obligations or relationship between the Crown and the 32 Indians. But I would now like to address the effect 33 of section 35 on the government's rights to regulate 34 or extinguish existing aboriginal rights as of April 35 17, 1982. 36 It is submitted that it is clear from the decision 37 of the Supreme Court of Canada that aboriginal rights, 38 and there I mean the Sparrow decision, can be affected 39 by laws and regulations of both federal and provincial 40 governments. It is important to note each of the 41 paragraphs in the Sparrow decision which deal with 42 this subject. And these are found on pages 25, 26 and 43 29. And I would just like to turn to those, my lord, 44 and they are found in tab five of the Attorney General 45 of Canada's references to the argument. My lord, I 46 must say that before the Mitchell decision, which I'll 47 get to, the Sparrow decision left one on this topic 29074 Submissions by Ms. Koenigsberg 1 with almost a balance of probabilities as to what was 2 meant. But I will take you -- take your lordship 3 through it paragraph by paragraph leaving -- I mean, 4 concentrating, of course, only on those paragraphs 5 which in our submission bear directly on this issue, 6 and that is does the Province still have legislative 7 power. Page 25, the first full paragraph, the Court 8 said: 9 10 \"In response to the appellant's submission S. 11 35(1) rights are more securely protected than 12 the rights guaranteed by the Charter, it is 13 true that S. 35(1) is not subject to S.l of the 14 Charter. In our opinion, this does not mean 15 that any law or regulation affecting aboriginal 16 rights will automatically be of no force or 17 effect by the operation of S.52 of the 18 Constitution Act, 1982. Legislation that 19 affects the exercise of aboriginal rights will 20 nonetheless be valid, if it meets the test for 21 justifying an interference with a right 22 recognized and affirmed under S. 35(1) .\" 23 24 Stopping there. Speaking -- the Court in our 25 submission is speaking generally and could be taken to 26 mean both federal and provincial legislation. They go 27 on in the next paragraph: 28 29 \"There is no explicit language in the provision 30 that authorizes this Court or any court to 31 assess the legitimacy of any government 32 legislation that restricts aboriginal rights. 33 Yet, we find that the words 'recognition and 34 affirmation' incorporate the fiduciary 35 relationship referred to earlier and so import 36 some restraint on the exercise of sovereign 37 power. Rights that are recognized and affirmed 38 are not absolute. Federal legislative powers 39 continue, including, of course, the right to 40 legislate with respect to Indians pursuant to 41 S.91(24) of the Constitution Act, 1867. These 42 powers must, however, now be read together with 43 S. 35(1). In other words, federal power must 44 be reconciled with federal duty and the best 45 way to achieve that reconciliation is to demand 46 the justification of any government regulation 47 that infringes upon or denies aboriginal 29075 Submissions by Ms. Koenigsberg 1 rights. Such scrutiny is in keeping with the 2 liberal interpretive principle enunciated in 3 Nowegijick, supra, and the concept of holding 4 the Crown to a high standard of honourable 5 dealing with respect to the aboriginal peoples 6 of Canada as suggested by Guerin.\" 7 8 And in this paragraph in our submission, although the 9 focus is on the federal Legislative powers, 10 particularly because of 91(24), again general 11 statements are made, referring to the Crown and 12 sovereign power, which are terms which can include 13 both provincial and federal powers. Over on to page 14 26, first full paragraph: 15 16 \"Section 35(1) suggests that while regulation 17 affecting aboriginal rights is not precluded, 18 such regulation must be enacted according to a 19 valid objective. Our history has shown, 20 unfortunately all too well, that Canada's 21 aboriginal peoples are justified in worrying 22 about government objectives that may be 23 superficially neutral but which constitute de 24 facto threats to the existence of aboriginal 25 rights and interests. By giving aboriginal 26 rights constitutional status and priority, 27 Parliament and the provinces have sanctioned 28 challenges to social and economic policy 29 objectives embodied in legislation to the 30 extent that aboriginal rights are affected. 31 Implicit in this constitutional scheme is the 32 obligation of the legislature to satisfy the 33 test of justification. The way in which a 34 legislative objective is to be attained must 35 uphold the honour of Crown and must be in 36 keeping with the unique contemporary 37 relationship, grounded in history and policy, 38 between the Crown and Canada's aboriginal 39 peoples. The extent of legislative or 40 regulatory impact on an existing aboriginal 41 right may be scrutinized so as to ensure 42 recognition and affirmation.\" 43 44 And if we stop there, in our submission here again we 45 are clearly talking about both federal and provincial 46 legislation and the exercise of their powers. And in 47 our submission in this paragraph by grounding the 29076 Submissions by Ms. Koenigsberg 1 fiduciary relationship in the history and policy 2 between the Crown and Canada's aboriginal peoples, it 3 includes the Province as well. Next paragraph: 4 5 \"The constitutional recognition afforded by the 6 provision therefore gives a measure of control 7 over government conduct and a strong check on 8 legislative power. While it does not promise 9 immunity from government regulation in a 10 society that, in the twentieth century, is 11 increasingly more complex, interdependent and 12 sophisticated, and where exhaustible resources 13 need protection and management, it does hold 14 the Crown to a substantive promise. The 15 government is required to bear the burden of 16 justifying any legislation that has some 17 negative effect on any aboriginal right 18 protected under S.35(l).\" 19 20 Again, in our submission this clearly has to apply to 21 the Province, that it still can regulate and deal and 22 affect aboriginal rights and their exercise as long as 23 it meets the justificatory test, because aboriginal 24 people in Canada live within the provinces, and it is 25 often provinces who are indeed regulating and dealing 26 with the exhaustible resource. And in our submission 27 this case, of course, deals with fishing which is -- 28 which is generally subject to federal regulation and 29 that's why in some parts of it it is exclusively 30 talking about federal regulation. 31 If we go on, then, over to page 29, the second 32 full paragraph, the court is now dealing with the 33 justification test and they choose a provincial act: 34 35 \"The justification of conservation and resource 36 management, on the other hand, is surely 37 uncontroversial. In Kruger v. The Queen, the 38 applicability of the B.C. Wildlife Act to the 39 appellant members of the Penticton Indian Band 40 was considered by this Court. In discussing 41 that Act, the following was said about the 42 objective of conservation: 43 44 Game conservation laws have as their policy 45 the maintenance of wildlife resources. It 4 6 might be argued that without some 47 conservation measures the ability of 29077 Submissions by Ms. Koenigsberg 1 Indians or others to hunt for food would 2 become a moot issue in consequence of the 3 destruction of the resource. The 4 presumption is for the validity of a 5 legislative enactment and in this case the 6 presumption has to mean that in the absence 7 of evidence to the contrary the measures 8 taken by the British Columbia Legislature 9 were taken to maintain an effective 10 resource in the Province for its citizens 11 and not to oppose the interests of 12 conservationists and Indians in such a way 13 as to favour the claims of the former. 14 15 While the 'presumption' of validity is now 16 outdated in view of the constitutional status 17 of the aboriginal rights at stake, it is clear 18 that the value of conservation purposes for 19 government legislation and action has long been 20 recognized. Further, the conservation and 21 management of our resources is consistent with 22 the aboriginal beliefs and practices, and, 23 indeed, were the enhancement of aboriginal 24 rights.\" 25 26 We say as a result of reviewing those paragraphs in 27 their context, it is our submission that a careful 28 analysis of the Sparrow decision supports the 29 following conclusion: Both the Federal and Provincial 30 legislative and executive acts may infringe upon 31 aboriginal rights if the legislation or executive act 32 can meet the justificatory test. This analysis in our 33 submission is supported by the most recent decision of 34 the Supreme Court of Canada in Mitchell and Peguis 35 Indians. 36 THE COURT: Well, that submission really walks around the whole 37 issue of extinguishment, does it not? 38 MS. KOENIGSBERG: Yes, it does. 39 THE COURT: It says don't worry about extinguishment. Worry 40 about whether legislation or regulation or I suppose 41 executive action can reasonably be carried out without 42 unduly disturbing aboriginal rights or is the test 43 without touching them at all? 44 MS. KOENIGSBERG: No, my lord, it's a two-prong test. The first 45 part of the test is: are you interfering with the 46 aboriginal right with your legislation. Or -- 47 THE COURT: Let's take clear-cut logging. That interferes with 2907E Submissions by Ms. Koenigsberg 1 aboriginal rights to hunt, does it? 2 MS. KOENIGSBERG: It does on the evidence, yes. And I say on 3 the evidence, because I am sure there is a theory that 4 it doesn't. But we have to take the evidence as it is 5 and that is that at least some of the plaintiffs have 6 said it does. 7 THE COURT: Yes. All right. But temporarily. In a sense of \u00E2\u0080\u0094 8 MS. KOENIGSBERG: Well, yes. I think it's difficult to describe 9 that as temporary, because the evidence is how -- we 10 only have non-precise, very general evidence as to, 11 for instance, how long it takes to regenerate, what 12 effect -- we have no evidence on what effect the 13 regeneration is. The only evidence we have is that in 14 some instances some plaintiffs said because of the 15 clear-cut I cannot exercise my right. 16 THE COURT: But we also have the evidence of Mr. \u00E2\u0080\u0094 was it 17 Hatler? 18 MS. KOENIGSBERG: Yes. 19 THE COURT: Who said that the best arrangement for wildlife 20 enhancement is cleared land by fire or by logging. 21 MS. KOENIGSBERG: Yes. 22 THE COURT: And so the \u00E2\u0080\u0094 and he talked about the growth of the 23 forest cover, and I don't think I am precluded from 24 attributing nature's ability to this case, nature can 25 regenerate forest cover -- ground cover, rather. 26 Well, let's take outside 25 years. And that seems -- 27 that's a long time for forest cover. Now, do you say 28 that that would be precluded, that clear-cut logging 29 would still be -- well, you haven't got to your second 30 test, but -- 31 MS. KOENIGSBERG: The second part of the test is \u00E2\u0080\u0094 32 THE COURT: Yes. 33 MS. KOENIGSBERG: \u00E2\u0080\u0094 as I understand it, as one pieces it 34 together, you look at the incidents of the aboriginal 35 right. You break it down into its constituent parts 36 and look at exactly how it's exercised and the context 37 in which it's exercised, and then you determine if 38 that interference is such that it -- well, and then 39 you look -- then I think you have to determine the 40 extent of the interference. And assuming that there 41 is a clear interference, then you have to look at can 42 it be justified. There is no evidence, my lord, that 43 would allow for justification in that test in this 44 instance. And I am advised that the actual evidence 45 of Dr. Hatler was that only certain species such as 46 moose do well in clear-cuts, not animals that are 47 trapped. So I suppose if that's so, and I have no 29079 Submissions by Ms. Koenigsberg 1 reason to doubt that that's so, it points up the 2 importance of going through this rather minute 3 inspection of both sides of the coin, that is the 4 actual -- the actual exercise, broken down into 5 incidents of that exercise against what actually is 6 taking place in terms of the legislated use and 7 determining if they can live together. An example I 8 bring your lordship back to is the Sioui case. Again, 9 once they reached an analogous analysis of having the 10 religious rights in the Provincial park, they analysed 11 the right, the religious right, they analysed all 12 aspects of the Provincial park regulations and found 13 that they could live together with minor inconvenience 14 to each. 15 THE COURT: Well, your first test was are you interfering. What 16 do you say your second test is? 17 MS. KOENIGSBERG: Can it be justified if you are. And the 18 Sparrow decision, and I think it's fairly clear that 19 the, if you will, aboriginal perspective must be taken 20 into consideration in determining if you are 21 interfering. In the Sparrow example these are the 22 kinds of facts that the court was sending this matter 23 back to have determined because they didn't have the 24 evidence. On those facts they want to look at how 25 important to the exercise of the right in its cultural 26 sense is the actual way in which it's exercised if 27 that should be prescribed. 28 THE COURT: All right. Well, you would say, then, that 29 clear-cut logging would be an interference? 30 MS. KOENIGSBERG: Yes. 31 THE COURT: And what would you say about the second test? Is 32 there any way it could be justified? 33 MS. KOENIGSBERG: Well, my lord, I don't think I \u00E2\u0080\u0094 I don't 34 think that on the evidence that we have one could 35 answer that question. 36 THE COURT: All right. Is there any form of logging that you 37 say could be answered or could be tested with a result 38 saying that you are not interfering? 39 MS. KOENIGSBERG: Oh, yes. I think that there is evidence here 40 that would allow an analysis of -- and I'm talking 41 specific evidence given by a plaintiff as to where - 42 it's pretty meagre - as to where they were exercising 43 this right. And let's say it's hunting and let's say 44 that your lordship has determined that that's an 45 aboriginal right, the exercise of an aboriginal right, 46 and a clear-cut, and the evidence -- if the evidence 47 can stand that they can still hunt moose, then there 29080 Submissions by Ms. Koenigsberg 1 is no conflict. The clear-cut continues and the 2 aboriginal right to hunt continues. 3 THE COURT: I have trouble with -- I am not sure whether I am 4 supposed to be a strict constructionist or I am 5 supposed to be a mediator here, but certainly you 6 can't hunt moose while the clear-cut logging is going 7 on. And if it's a right, then you can't do it if it 8 interferes and it can't be justified, or do you say 9 you look at after the clear-cut is finished and say 10 what will the result be? 11 MS. KOENIGSBERG: Believe me, I understand the kinds of problems 12 your lordship is having. These are the kinds of 13 problems that we have had trying to analyse these 14 things. And again, then it becomes a choice. One has 15 to start back one step in my submission to make 16 decisions and have things follow from it. If -- if 17 you look at legislations and its intent from its 18 obvious effect, then you would say it cannot live on 19 the evidence with the exercise of any other use of the 20 land at the time it's being undertaken. Then you say 21 that's an extinguishment. 22 THE COURT: Well, what if the Indian can follow his aboriginal 23 pursuits somewhere else? 24 MS. KOENIGSBERG: In my submission if you find it's a 25 non-exclusive right, then you have not extinguished it 26 with that kind of activity. You haven't extinguished 27 it with much of any activity. You have to -- you have 28 to obliterate the ability to use any reasonably 29 proximate area to exercise that right to say that you 30 have in fact extinguished that right. Because if it 31 can still be exercised a mile away and there is any 32 kind of reasonable evidence that it could be exercised 33 a mile away and would be exercised a mile away, then 34 there is no extinguishment. I don't see how that can 35 meet the test. And in a sense that is the importance 36 of this very specific site to site, use to use 37 analysis. You can't answer the -- at one level you 38 cannot answer these questions in the absence of very 39 specific evidence. And at another level it becomes an 40 impossible task and you have to step back and say what 41 does the preponderance evidence demonstrate. And in 42 our submission that's really the argument that we're 43 making to your lordship on abandonment. You're faced 44 with an issue of let's assume we accept the concept of 45 abandonment as applying and even the factors that we 46 have suggested must be taken into account to determine 47 if there has been an abandonment, then we have 29081 Submissions by Ms. Koenigsberg 1 evidence of probably fewer than a handful of 2 plaintiffs who actually continuously have used a given 3 area for trapping, for instance, as a way of life, 4 even just to earn a living. 5 THE COURT: Well, on Mr. Wolf's submission that's in the last 25 6 years. 7 MS. KOENIGSBERG: Yes. 8 THE COURT: Since 1951. 9 MS. KOENIGSBERG: Yes. 10 THE COURT: All right. So that's more than 25 years. 11 MS. KOENIGSBERG: Yes. If you accept the test. If you simply 12 say I'm going to now apply, I accept that abandonment 13 as a concept applies to aboriginal rights, it 14 extinguishes where I find it to have occurred, the 15 facts are here and it has occurred, you know, in some 16 place, then you are faced with a few areas within the 17 claim area, within this vast area, in which you have 18 no abandonment because you have continuous use. 19 THE COURT: But isn't \u00E2\u0080\u0094 20 MS. KOENIGSBERG: But the overwhelming preponderance of the 21 evidence is that that pursuit as a communal way of 22 life has been abandoned. 23 THE COURT: But isn't 39 years a short time in the assessment of 24 the aboriginal right? 25 MS. KOENIGSBERG: In my submission in the absence of any other 26 factors to look at, yes. I think it's very hard to 27 look at just a number. But if you look at the number 28 in the context of everything else that's going on, it 29 becomes meaningful in my submission. So meaningful 30 that in my submission you can make a very good case 31 that there can be abandonment after only 20 years or 32 one generation, because we're talking about a way of 33 life and we're talking about aboriginal rights is 34 grounded. Their meaning is to pursue a particular way 35 of life and a protection. I mean, that was the 36 policy. To protect that way of life until there was 37 something else there. And my submission what the 38 overwhelming evidence is that something else has been 39 there. It's been there for decades and decades. We 40 then have the specific evidence that there has been an 41 abandonment of trapping as a way of life from the 42 plaintiffs. They don't use the word abandon, but they 43 say they haven't trapped since the early 50's. And 44 it's no longer related to the price of furs. And so, 45 my lord, it's in the face of that evidence that you 46 put together with the number of years that I'll ask 47 you to draw that inference and supports the concept. 29082 Submissions by Ms. Koenigsberg 1 But in my submission if we had nothing but 20 years it 2 would be a very hard inference to draw that there was 3 abandonment. 4 THE COURT: You say it wouldn't be argument if somebody would be 5 working for 20 years in that time for the Kitwanga 6 sawmills? 7 MS. KOENIGSBERG: That's right. 8 THE COURT: Even though he was trapping on weekends? 9 MS. KOENIGSBERG: Yes. In my submission, your lordship is 10 engaging in exactly the kind of analysis that has to 11 go on however, because maybe on those two facts your 12 lordship says well, yeah, really I think there is 13 still some attachment there. But suppose that you 14 have the additional fact that that person's children 15 are not trapping. Then we have an additional factor 16 which points to the abandonment of a way of life, 17 because that way of life is grounded in the social 18 structure, in every aspect of the life. And once the 19 whole social economic basis for that way of life 20 begins to fall apart, it's simply not pursued. 21 THE COURT: All right. Thank you. You are going to Mitchell? 22 MS. KOENIGSBERG: Yes, my lord. Now, the Mitchell case deals 23 with taxation and garnishment. And I'm not going to 24 go through the facts, but I think it's important to 25 put the submissions, the parts to your lordship in 26 some context. And the specific part of this decision 27 that I would like to read to your lordship and which I 28 say very clearly support propositions that I have been 29 putting forward on the Provincial power to regulate 30 and affect aboriginal rights after section 35 or after 31 1982 are contained in Chief Justice Dickson's decision 32 in this case. Now, Chief Justice -- all of the 33 justices agreed on the result, but it was a six-to-one 34 split on the reasons why, with Chief Justice Dickson 35 being the dissenter. It is a dissent decision on the 36 reasons why. And it evolved around interpreting -- 37 the real dissent evolved around the interpreting of 38 the words \"Her Majesty\" in section 90 of the Indian 39 Act. And all justices agreed that \"Her Majesty\" or 40 \"The Crown\" may very well mean Provincial or Federal 41 depending on the context. And the split centred 42 around when one would say that it meant both 43 Provincial and Federal. And Mr. Chief Justice Dickson 44 in the reasons -- and there are lengthy reasons, but 45 his decision is at the end. And going from the 46 back \u00E2\u0080\u0094 47 THE COURT: Yes, I have it. 29083 Submissions by Ms. Koenigsberg 1 MS. KOENIGSBERG: \u00E2\u0080\u0094 I'm looking at page 21 of his reasons. And 2 I say that though he is dissenting, his reasons here 3 are not central to his dissent. They are reasons in 4 support of his position. There is no reason to 5 believe that the other justices wouldn't have agreed 6 with these reasons. They simply would have said it 7 wouldn't apply to section 90. So with that caveat on 8 it I would like to read this part and it's page -- 9 it's about four paragraphs. Beginning on page 21 he 10 says: 11 12 \"While this appeal does not involve the 13 interpretation of a treaty, I find it helpful 14 to consider the aboriginal perspective in 15 illustrating the ambiguity of 'Her Majesty' in 16 S. 90(1) (b) . Nowegijick dictates taking a 17 generous liberal approach to interpretation. 18 In my opinion, reference to the notion of 19 'aboriginal understanding', which respects the 20 unique culture and history of Canada's 21 aboriginal peoples, is an appropriate part of 22 that approach. In the context of this appeal, 23 the aboriginal understanding of 'the Crown' or 24 'Her Majesty' is rooted in pre-Confederation 25 realities. The recent case of Guerin took as 26 its fundamental premise the 'unique character 27 both of the Indians' interest in land and of 28 the historical relationship with the Crown.' 29 That relationship began with pre-Confederation 30 contact between the historic occupiers of North 31 American lands (the aboriginal peoples) and the 32 European colonizers (since 1763, 'the Crown'), 33 and it is this relationship between aboriginal 34 peoples and the Crown that grounds the 35 distinctive fiduciary obligation on the Crown. 36 On its facts, Guerin only dealt with the 37 obligation of the federal Crown arising upon 38 surrender of land by Indians and it is true 39 that, since 1867, the Crown's role has been 40 played, as matter of the federal division of 41 powers, by Her Majesty in right of Canada, with 42 the Indian Act representing a confirmation of 43 the Crown's historic responsibility for the 44 welfare and interests of these people. 45 However, the Indians' relationship with the 46 Crown or sovereign has never depended on the 47 particular representatives of the Crown 29084 Submissions by Ms. Koenigsberg 1 involved. From the aboriginal perspective, any 2 federal-provincial divisions that the Crown has 3 imposed on itself are internal to itself and do 4 not alter the basic structure of 5 Sovereign-Indian relations. This is not to 6 suggest that aboriginal peoples are outside the 7 sovereignty of the Crown, nor does it call into 8 question the divisions of jurisdiction in 9 relation to aboriginal peoples in federal 10 Canada. 11 One can over-emphasize the extent to which 12 aboriginal peoples are affected only by the 13 decisions and actions of the federal Crown. 14 Part and parcel of the division of powers is 15 the incidental effects doctrine according to 16 which a law in relation to a matter within the 17 competence of one level of government may 18 validly affect a matter within the competence 19 of the other; as recently stated in Alberta 20 Government Telephones v. Canada, 'Canadian 21 federalism has evolved in a way which tolerates 22 overlapping federal and provincial legislation 23 in many respects.' As long as Indians are not 24 affected qua Indians, a provincial law may 25 affect Indians, and significantly so in terms 26 everyday life. Section 88 of the Indian Act 27 greatly increases the extent to which the 28 provinces can affect Indians by acknowledging 29 the validity of laws of general application, 30 unless they are supplanted by treaties or 31 federal law. This fluidity of responsibility 32 across lines of jurisdiction accords well with 33 the fact that the newly entrenched S. 35 of the 34 Constitution Act, 1982, applies to all levels 35 of government in Canada.\" 36 37 In my submission the other justices would -- there is 38 no reason to believe they would not have agreed with 39 that general analysis. Their disagreement with the 40 Chief Justice, which is extremely well laid out in the 41 reasons of Mr. Justice La Forest, centred around the 42 interpretation of S. 90(1)(b), and why in the 43 circumstances it should not be read to include the 44 Provincial Crown. And in my submission that Mitchell 45 decision, that analysis by Chief Justice Dickson makes 46 it crystal clear that after 1982 provincial laws of 47 general application and provincial laws which can 29085 Submissions by Ms. Koenigsberg 1 apply ex proprio vigore still apply, but they are 2 going to have to meet the justificatory test. And it 3 is also authority for the proposition that the 4 fiduciary relationship, which seems now to be 5 described as almost a floating charge, is one which 6 surrounds the Crown's dealings with aboriginal people 7 when it becomes crystalized and could be said to have 8 applied and still apply to the provincial power when 9 it is exercised in relevant circumstances. And in my 10 submission all of that really was presage, though it 11 may not be so clearly in the Sparrow decision. Those 12 are all my submission. 13 THE COURT: All right. Thank you. 14 MS. KOENIGSBERG: And I think that closes the Federal Crown's 15 case. 16 THE COURT: All right. Thank you. I should note that memorable 17 event. 18 MR. MACAULAY: May I say errors and omissions excepted, my lord. 19 THE COURT: Oh, yes. All right. Mr. Plant and Mr. Willms, have 20 you got anything to tell me? 21 MR. WILLMS: My lord, we'll \u00E2\u0080\u0094 there will be a submission 22 tomorrow morning at 10 o'clock on the counterclaim. 23 THE COURT: Yes. All right. Any idea how long it will take? 24 MR. WILLMS: Well, my lord, I can't say. There has \u00E2\u0080\u0094 it will 25 deal with the misconception of the counterclaim to 26 start with, and that's what it will be focussed on to 27 begin with. 28 THE COURT: That will certainly be helpful. 29 MR. WILLMS: We will have a common understanding of what the 30 counterclaim really is. That will help the 31 plaintiffs. 32 THE COURT: Yes. All right. You don't know whether Miss 33 Mandell should be ready to proceed tomorrow or maybe 34 she doesn't want to do so anyway? 35 MS. MANDELL: My lord, we are expecting to start first thing 36 Thursday morning. 37 THE COURT: All right. Well, you have got all day then. All 38 right. You will keep in mind, Mr. Willms, that I have 39 to be at a funeral tomorrow from -- away from here 40 from 12:30 to 2:30 and in view of that you don't think 41 we should start early? 42 MR. WILLMS: I don't think it's necessary, my lord. 43 THE COURT: Yes. All right. Thank you. 10 o'clock tomorrow 44 morning. Thank you. 45 46 (PROCEEDINGS ADJOURNED UNTIL WEDNESDAY, JUNE 27, 1990 47 AT 10:00 A.M.) 29086 Submissions by Ms. Koenigsberg 1 2 3 I hereby certify the foregoing to 4 be a true and accurate transcript 5 of the proceedings transcribed to 6 the best of my skill and ability. 7 8 9 10 11 12 Laara Yardley, 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"@en . "Trial proceedings"@en . "British Columbia"@en . "KEB529.5.L3 B757"@en . "KEB529_5_L3_B757_1990-06-26_01"@en . "10.14288/1.0018502"@en . "English"@en . "Uukw, Delgam, 1937-"@en . "Indigenous peoples--Canada"@en . "Oral history"@en . "Wet'suwet'en First Nation"@en . "Vancouver : University of British Columbia Library"@en . "Vancouver : United Reporting Service Ltd."@en . "Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/"@en . "Original Format: University of British Columbia. Library. Law Library."@en . "[Proceedings of the Supreme Court of British Columbia 1990-06-26]"@en . "Text"@en .