"e3aa3c7b-5bfc-4276-bf56-d2707831d817"@en . "CONTENTdm"@en . "Delgamuukw Trial Transcripts"@en . "British Columbia. Supreme Court"@en . "2013"@en . "1990-05-08"@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/1.0018561/source.json"@en . "application/pdf"@en . " 25753 Submission by Mr. Jackson 1 Vancouver, B.C. 2 May 8, 1990 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, this 8th day of May, 1990, Delgamuukw versus 6 Her Majesty the Queen at bar, my lord. 7 THE COURT: Thank you. I thought we would sit from 9:00 to 8 10:00, from 10:15 to 11:15, and from 11:30 to 12:30, 9 if that's convenient. Mr. Jackson. 10 MR. JACKSON: Yes, my lord. I had started an analysis of the 11 various ways in which the competing systems of 12 authority or jurisdiction operated, so to speak, on 13 the ground in the course of the last century, and I 14 was at page 75 of the argument under the general 15 heading of education and social services. My lord, 16 evidence of the education of Gitksan and Wet'suwet'en 17 children by non-Gitksan and Wet'suwet'en educational 18 authorities has shown how in the past these 19 authorities have been used to repress important 20 elements of the Gitksan-Wet'suwet'en organized 21 society. 22 THE COURT: Well, how can I deal with that, Mr. Jackson? What 23 evidence is there of that? 2 4 MR. JACKSON: My lord \u00E2\u0080\u0094 25 THE COURT: A few people mentioned that in their particular case 26 that was so. 27 MR. JACKSON: Well, my lord, what I submit is that those 28 individual cases are, in fact, part and parcel of a 29 clearly established pattern of various educational 30 authorities seeking to change Indian values and 31 particularly Indian language. We're not asking your 32 lordship to make a ruling on that fact, nor are we 33 asking your lordship to cast blame or responsibility 34 one way or the other. The point of raising it is only 35 in the context to show how, in fact, the Gitksan and 36 Wet'suwet'en hereditary chiefs have sought to 37 accommodate and to incorporate their own educational 38 values and authority into that of other educational 39 authorities, and that is the purpose of this material, 40 my lord. It's not to ask your lordship to render 41 judgment one way or the other on the rights or wrongs 42 of what went on, but to point out that regardless of 43 what other authorities did the Gitksan and 44 Wet'suwet'en have sought to maintain and establish 45 their own core institutions in this area as in others. 4 6 THE COURT: But there's a whole body of young people who aren't 47 represented here, and I'd be making a declaration of 25754 Submission by Mr. Jackson 1 some sort that would affect them, if not bind them, in 2 their absence. 3 MR. JACKSON: My lord \u00E2\u0080\u0094 4 THE COURT: I don't see how I can do that. You see, I'm having 5 a terrible time bringing this part of your submission 6 into the area of justiciable issues. 7 MR. JACKSON: Well, let me see if I can explain, my lord, what 8 it is we are not asking you to do and what it is we 9 are asking you to have regard to in this body of the 10 evidence. Yesterday your lordship raised the question 11 would the declaration which the plaintiffs are seeking 12 in relation to a right to self-government, to govern 13 themselves, your lordship raised the question, well, 14 does that mean that the Education Act of British 15 Columbia somehow doesn't apply to them. 16 THE COURT: Yes. 17 MR. JACKSON: This evidence, my lord, I'm about to bring to your 18 lordship's attention is designed to show how, in fact, 19 hereditary chiefs have sought to work both within 20 their own system and within the educational systems of 21 both the province and the federal government. 22 THE COURT: But so has the Catholic Church, so has the Anglican 23 Church, so have the Jehovah Witnesses, so has the 24 Chinese community, so has all sorts of communities. 25 How is that to be expressed in a judgment of the 26 court? 27 MR. JACKSON: We say, my lord, that the evidence of what the 28 hereditary chiefs have done is not the same kind of 29 evidence as to what other voluntary associations, be 30 they church or be they school boards, parents' 31 associations, that the efforts of the hereditary 32 chiefs bespeak a long-held and transmitted 33 responsibility to have regard to the interests of 34 young people as the repository both of information, 35 heritage, and the hopes for the future. In that sense 36 it is distinctive, my lord. Aboriginal peoples, as 37 some of my colleagues have made before, are not the 38 same as other voluntary associations. Other voluntary 39 associations do not look to common law aboriginal 40 rights or any other kind of rights based upon pre- 41 existing matters prior to the assertion of sovereignty 42 to justify and found their rights to govern 43 themselves. 44 THE COURT: Well, I think that what I have to say, Mr. Jackson, 45 is that until I see what it is that you want me to 46 declare and the language of the order that would be 47 entered consequent upon such a declaration, I am 25755 Submission by Mr. Jackson 1 unable to understand your argument or to see how it 2 can properly be a submission that falls within the 3 area of justiciability even in a case as broad as this 4 one. I am just unable to comprehend the legal 5 consequences of what you're submitting. 6 MR. JACKSON: Well, my lord, let me try and put it this way. In 7 terms of this particular evidence in relation to what, 8 for example, Joan Ryan, Chief Hanamuxw, has done in 9 pursuit of her understanding of her responsibilities 10 as a hereditary chief, that is intended and is led as 11 evidence, and our submission is based upon that, are 12 intended to show that the hereditary chiefs have a 13 responsibility and an authority in the area of 14 training and education. The way in which that has 15 been exercised in the past has been in terms of 16 training in the areas of the oral histories, training 17 in the areas of particular patterns of knowledge and 18 understanding which relate Gitksan and Wet'suwet'en 19 people to the natural world to each other within a 20 kinship society. What we are saying is that those 21 responsibilities in a contemporary world extend also 22 to working out with other authorities, be they federal 23 or provincial, an accommodation so that the 24 traditional training of Gitksan and Wet'suwet'en 25 people is made relevant and contemporary in the 26 context of a modern world. 27 THE COURT: Well, are you asking for an order, a mandatory order 28 that the chiefs discharge that responsibility? 29 MR. JACKSON: No, my lord. What we are seeking is a declaration 30 which recognizes the rights of the chiefs to govern 31 themselves and their members of their houses in the 32 context of the way they have done to date in the 33 framework of non-coercive society. We are not seeking 34 a declaration which says that the Gitksan and 35 Wet'suwet'en have the exclusive responsibility in 36 relation to all matters pertaining to education and 37 that the province has no responsibilities in relation 38 to that. This evidence is designed to show how there 39 are \u00E2\u0080\u0094 40 THE COURT: But you said that they're entitled to govern 41 themselves and their members. 42 MR. JACKSON: Yes, my lord. 43 THE COURT: How can I make such an order in view of the 44 difficulty that -- the procedural difficulties about 45 persons under disability and the lack of what I would 46 say is a clear notice to all Gitksan members that this 47 is being sought? I don't think -- I don't think that 25756 Submission by Mr. Jackson 1 it is sufficiently pleaded to give rise to a 2 declaration. There may be, as I've said before, 3 Gitksans who -- Gitksan persons and Wet'suwet'en 4 persons who say, \"I don't want any part of what you're 5 talking about.\" I don't know whether there are or 6 not. 7 MR. JACKSON: Well, that is a point, my lord, we are going to 8 come back to, as I indicated last night, in response 9 to those other questions your lordship raised. 10 THE COURT: You see, I have evidence of a chief who said, \"I'm 11 not going to discharge my chiefly duties.\" He was 12 replaced. I think there's an example of one of that 13 kind. I forget who he was. But I am just unable -- I 14 am unable to come to grips with your proposition, and 15 I'd be less than fair if I didn't tell you so. But 16 you're entitled to go ahead -- 17 MR. JACKSON: Well, my lord \u00E2\u0080\u0094 18 THE COURT: \u00E2\u0080\u0094 and persuade me. 19 MR. JACKSON: I'm reluctant, obviously, to proceed in the 20 absence of some clear consensus as between us as to 21 the purpose of the evidence, and as I say, it is to -- 22 as is much of the evidence in this part of the 23 argument, which I started last night, it is not 24 intended to document any exclusivity of jurisdiction 25 in particular areas. 26 THE COURT: But, you see, that's the problem I have. If it's 27 not exclusive, then it seems to me anybody can do it, 28 and you don't need a declaration. Unless I make it 29 exclusive or unless I make it mandatory, well then, it 30 must be voluntary. 31 MR. JACKSON: But, my lord, the purpose of the declarations we 32 are seeking in this case are not declarations 33 primarily directed to other Gitksan and Wet'suwet'en. 34 Other Gitksan and Wet'suwet'en are not defendants in 35 this case. This case seeks declarations vis-a-vis 36 these defendants, and in that sense declarations of a 37 right to self-government have, we submit, direct 38 effect in terms of the conduct of the defendants in 39 how they deal with the plaintiffs either in the 40 context of negotiations or in any other context. And 41 the declarations of this court do not and will not 42 have a preclusive effect on the conduct of individual 43 Gitksan and Wet'suwet'en. 44 THE COURT: Well then, you are seeking an order that would 45 enjoin the defendants from interfering with the 46 authority of the chiefs to regulate the social 47 organization of the Gitksan and Wet'suwet'en people? 25757 Submission by Mr. Jackson 1 MR. JACKSON: Where to do so would be inconsistent with that 2 social organization. And there are many areas, my 3 lord. Yesterday you gave the example of traffic 4 regulations. There's nothing inconsistent with the 5 traffic laws which the provincial defendants have put 6 in place, nor with regulations which the federal 7 government have put in place in relation to airports, 8 for example, which somehow impede in any fundamental 9 or integral way the operations of the organized 10 society of the plaintiffs. 11 If I can go back to the education example, my 12 lord, the examples in the evidence of in the past how, 13 in fact, educational authorities, for example, have 14 sought to repress the speaking of native languages in 15 school, if that were to continue today, my lord, if 16 the province, for example, sought to do that, and, of 17 course, I'm not in any way suggesting the province 18 does seek to do that -- 19 MR. GOLDIE: I'm glad my friend acknowledges that, my lord, 20 because there is no evidence that in the educational 21 system any of these things which my friend is talking 22 about exist today. In fact, there is evidence that 23 the first integrated high school in British Columbia 24 is at Hazelton. There is evidence that there is a 25 development of the Gitksan alphabet in a primary 26 school. The ills, if one wants to speak of it that 27 way, and I don't choose that word, of yesterday have 28 no application when it comes to a declaration that has 29 a mandatory effect. 30 MR. JACKSON: My lord, I was -- my caveat there, not suggesting 31 that the province has done that or does that today, 32 was by way of illustration that if, as in the past, 33 that were to happen, if a provincial educational 34 authority were sought to be imposed upon the Gitksan- 35 Wet'suwet'en which was aimed at supressing their 36 language, then we would say that at that point the 37 province was, in fact, intruding in a very fundamental 38 way upon something integral to the organized society 39 of the Gitksan and Wet'suwet'en. 40 THE COURT: Aren't you, in effect, seeking to put an order of 41 this court above the Charter? Because if something 42 like that was done, if the School Act was amended to 43 say no Gitksan would be spoken in schools of British 44 Columbia, I would think there would be an immediate 45 Charter challenge, and they would first determine has 46 there been a right violated, and if there has, it 47 would then require whether it's a reasonable 25758 Submission by Mr. Jackson 1 limitation on that right, and a declaration would be 2 made accordingly. But if I make the declaration 3 you're seeking, it seems to me that at least the 4 second branch of the Charter investigation would be 5 foreclosed, perhaps even the first one. 6 MR. JACKSON: Well, my lord, Section 35 is placed outside of the 7 Charter. It was done so presumably for very good 8 reasons in that aboriginal rights, while they have a 9 common law base, have, in fact, a basis in terms of 10 pre-existing rights. The framers of the Constitution 11 Act presumably had good reason to locate Section 35 12 rights as something other than rights of freedom of 13 religion or freedom of association. And, of course, 14 the scope of Section 35 rights and the extent to which 15 they are subject to modification by federal/provincial 16 governments is the subject matter in particular case 17 law which Ms. Mandell will be addressing you on. 18 But again, my lord, the purpose of this evidence 19 is not to seek a declaration that the plaintiffs have 20 an exclusive right to set up their own schools to the 21 exclusion of the province. This evidence is being 22 brought to your lordship's attention to rebut the idea 23 that somehow the Gitksan and Wet'suwet'en social 24 system, the institutions of the Gitksan and 25 Wet'suwet'en have been overtaken, overshadowed to the 26 point of legal eclipse by provincial agencies. And to 27 that extent what I have sought to do, my lord, and if 28 I could take you to the evidence of Chief Hanamuxw at 29 page 82, I have tried to -- Chief Hanamuxw herself 30 related her experience as a teacher, not to the 31 development of an exclusive Indian education system. 32 THE COURT: But, Mr. Jackson, what troubles me so much is that 33 there's nothing to stop them from doing that. I 34 didn't mention a moment ago the Jewish community 35 operate their own schools, several of them, in 36 different branches of -- different degrees of 37 orthodoxy in that faith. The East Indian communities 38 have their own schools. The Japanese have their own 39 schools. As I said before, the Catholics, the 40 Italians, the Jehovah Witnesses. They all have the 41 rights which I think you are contending. No one 42 interferes with them, and if they did, I should think 43 the interference would easily be stopped. I think 44 that in order to give effect to your submission I 45 would have to have very great specificity as to what 46 provincial statutes you wish me to declare 47 non-operative to Gitksan persons. I just don't see 25759 Submission by Mr. Jackson 1 how I could deal with your proposition any other way. 2 MR. JACKSON: Well, my lord, that's something we will be coming 3 back to you on. In response to the question of why 4 can't the Gitksan do what other communities do in 5 terms of the communities you've identified, one of the 6 problems, and it's a problem which is identified by 7 Glen Williams in material which I've set out at page 8 86 through to 87, is that the efforts of the Gitksan 9 and Wet'suwet'en to set up their own school systems or 10 to introduce elements of their own distinctive values 11 into the school system has in the past been hampered 12 and is hampered today by the lack of an economic base. 13 I mean, those other communities, my lord, have by 14 virtue of being part of the mainstream society 15 resources available to them. Mr. Williams and other 16 witnesses have related the fact that if the 17 declarations which the plaintiffs seek in relation to 18 the resources of the territory are the subject of your 19 lordship's judgment, that will provide part of an 20 economic base upon which Gitksan and Wet'suwet'en can 21 build up their own distinctive institutions so that 22 they are economically and culturally self-sufficient. 23 The point of -- 24 THE COURT: But surely you're not asking me to make a 25 declaration that would give your clients an economic 26 base and then tell them how to -- 2 7 MR. JACKSON: No, my lord. 28 THE COURT: \u00E2\u0080\u0094 how to spend it? 29 MR. JACKSON: No. What I'm trying to relate is that there is a 30 relationship between the dispossession of the Gitksan 31 and Wet'suwet'en over the years and the undermining of 32 their resource base through alienations by the 33 provincial defendant. 34 THE COURT: I have no trouble with that because you're back to 35 land, and that I can deal with. 36 MR. JACKSON: But in this part of the argument, my lord, we are 37 trying to show how, in fact, the de facto inability to 38 make decisions as to the beneficial use of resources 39 does have, in fact, direct relationships to certain 40 social and economic problems of the plaintiffs, which 41 they have tried to address through their own 42 institutions, through seeking to accommodate their own 43 cultural values, their own institutional sources of 44 authority with those of the province. 45 The material, my lord, on the way in which the 46 education of young Gitksan and Wet'suwet'en has taken 47 place within a framework of attempted accommodation is 25760 Submission by Mr. Jackson 1 there for your lordship, and I intend at this point to 2 pass to something else. 3 THE COURT: All right. Thank you. I hope that I have not 4 indicated that or said anything that indicates that I 5 don't understand what you're submitting. It's just 6 that I have an enormous difficulty in grappling with 7 it in justiciable terms. 8 MR. JACKSON: Yes, my lord. I think, my lord, if I could just 9 refer you to the bottom of page 88, where Mr. Williams 10 sort of makes this point. Having talked about the 11 efforts of the Gitksan and Wet'suwet'en to build up 12 their own educational resources through training and 13 forestry management, fishery management, as well as 14 complimenting the work of Chief Hanamuxw in providing 15 native teachers with the distinctive kind of training 16 which is necessary to deal with the problems native 17 children face when confronting the educational system, 18 Mr. Williams said: 19 20 \"If we are given -- if we had our own land base 21 back...the chiefs and their house would be 22 responsible for providing housing to their own 23 people in their house and dealing with other 24 problems and ensuring that their house members 25 are dealt with and not to be suffering from 26 social and housing problems that we have today. 27 Their resources for them would be there. They 28 would have a good economic return from their 29 territories, which is rightfully theirs.\" 30 31 That's the solution that the chiefs discuss 32 extensively. So he is relating the perceived and real 33 economic and social problems of the plaintiffs to the 34 efforts of the chiefs to build up the technology, as 35 it were, of education to make it responsive to the 36 distinctive values of native people in the same way as 37 in coming to this court and seeking a recognition of 38 the inherent jurisdiction of the chiefs, in seeking a 39 recognition of their inherent rights to ownership of 40 the territory. The combination of that recognition 41 will, as it were, renew the strength and integrity of 42 the Gitksan and Wet'suwet'en houses. 43 My lord, at page 89 and the following pages the 44 argument tries to come to grips with some of the 45 evidence your lordship has heard regarding the efforts 46 of the plaintiffs in relation to land stewardship and 47 logging, and you'll recall evidence that there has 25761 Submission by Mr. Jackson 1 been the establishment of various logging activities 2 on Gitksan and Wet'suwet'en lands both in terms of 3 reserves and in relation to lands outside of reserves. 4 And if your lordship would look at page 91, I refer to 5 the evidence of Mr. Mathews, who testified as to the 6 establishment of the sawmill now owned by Westar on 7 the Kitwanga Reserve in 1970, and there are two things 8 which I will draw your lordship's attention to: that 9 that, even though it was established on a reserve, was 10 one done with the consultation of the hereditary 11 chiefs; and secondly, that it was done to deal with 12 the chronic problems of unemployment with which many 13 of the reserves were and continue to be afflicted. 14 At page 94, my lord, I also -- and the intervening 15 pages try to come to grips with and explain the 16 apparent conflict between Gitksan and Wet'suwet'en 17 working for a logging company which logs other houses' 18 territories and using the resources in the context of 19 the feast. A similar conflict or apparent conflict 20 between the existing system of authority and ownership 21 and the provincial system is identified at page 94 in 22 relation to the Moricetown logging and sawmill 23 enterprise, and your lordship will recall that that 24 logging operation started out using reserve lands. 25 When those lands proved inadequate to support the 26 continuing economic viability of the logging 27 operation, the band and the hereditary chiefs were 28 faced with the very great problem of how to continue 29 the business and maintain their own authority, 30 maintain their own ownership but given the fact that 31 no logging would be permitted by the province without 32 the obtaining of the requisite provincial permits, and 33 the evidence traces how, in fact, the band council, in 34 fact, did obtain a provincial timber sale licence. 35 And these pages of the evidence document how in coming 36 to that decision the band did not simply, as it were, 37 usurp the authority of the hereditary chiefs. This is 38 not an example of the traditional system having passed 39 away in the face of an overwhelming provincial 40 authority but rather is an example of how the band 41 council consulted with the hereditary chiefs; how, in 42 fact, the expanded logging operation, to the extent it 43 took place on Wah Tah K'eght, that's W-a-h, new word, 44 T-a-h K-'-e-g-h-t, on Wah Tah K'eght's territory, that 45 was done with consultation and with the express 46 consent and approval of Chief Wah Tah K'eght. 47 And at page 96 I have set out the evidence of 25762 Submission by Mr. Jackson 1 Chief Wah Tah Keg'ht, Henry Alfred, over on page 97, 2 where, in fact, he says that he did give consent, but 3 he did so in the very constrained circumstances facing 4 his people. He identifies the high unemployment, and 5 he identifies the fact that if he did not give 6 consent, the timber licence would have been granted to 7 someone else, and, therefore, the wealth and resources 8 of the Wet'suwet'en would have been drained away by 9 non-Wet'suwet'en, and, therefore, his decision to 10 allow the band council to apply for the licence to log 11 his territory was done, as it were, as a compromise. 12 It was consistent with a process of consultation and 13 seeking his authority, but in many ways the method of 14 logging, to the extent it involved clear-cut logging, 15 was not consistent with the ways in which the 16 Wet'suwet'en would have preferred and indeed the ways 17 in which they would log if their rights to ownership 18 of the territory were recognized by this court. And 19 I've set that out at page 97 and 98. 20 My lord, at page 100 -- at page 100, my lord -- 21 THE COURT: How is the sawmill doing? 22 MR. JACKSON: Mr. Grant, I think, is a better authority on the 2 3 sawmill. 24 MR. GRANT: I'm sorry, what is it? 25 THE COURT: At Moricetown. 26 MR. GRANT: What is it doing? 27 THE COURT: How is it doing? 28 MR. GRANT: It was burned, part of it was burned in a fire, but 29 it's operating, one part of it. It is functioning 3 0 now. 31 THE COURT: Sawmills seem to burn up with incredible regularity 32 in this province. 33 MR. GRANT: There's three mills that have burned in Hazelton in 34 the last year. 35 THE COURT: My dad had three mills burn out from under him in 36 three years. Fortunately, he didn't own any of them. 37 MR. JACKSON: Yes. Courtrooms have a better history of \u00E2\u0080\u0094 38 THE COURT: Yes, they do. Much more stable. 39 MR. JACKSON: -- maintenance in the face of adversity. 4 0 THE COURT: Yes. 41 MR. JACKSON: The material at page 100, my lord, deals with a 42 problem which your lordship has raised on various 43 occasions, and it relates to the way in which the 44 system of hereditary chiefs interacts with the band 45 councils. And my friends in their arguments have 46 submitted that in terms of an organized society, to 47 the extent that the tests of aboriginal title require 25763 Submission by Mr. Jackson 1 that there be an organized society, the character- 2 ization which the plaintiffs have placed upon their 3 organized society, insofar as it builds upon the 4 houses as the basic unit, is a mischaracterization and 5 that to the extent that there is a unit of organized 6 society, there's the bands, and to the extent there is 7 a governing body, it is the band councils as 8 established under the Indian Act. And this material, 9 my lord, seeks to bring together various parts of the 10 evidence in which witnesses have sought to explain the 11 way in which their existing system of authority, the 12 hereditary chiefs and the feast system, how that works 13 in relationship to the band councils, and what this 14 evidence shows, my lord, we say, is that the band 15 councils and the hereditary chiefs have worked in 16 balance, they have sought -- band councils have seen 17 their role as being limited to particular kinds of 18 responsibilities, particularly responsibilities to do 19 with life on the reserve and to do with community 20 services and amenities on the reserve, and that the 21 hereditary chiefs' responsibility has not been 22 replaced and supplanted by band councils, and that 23 those responsibilities relate primarily to the 24 territories outside of the reserves and matters 25 dealing with jurisdictional responsibility outside of 26 the reserves, but that even in relation to the 27 reserves there is co-ordination, and the band councils 28 look upon themselves as acting under the advice of and 29 as subordinate agencies to the hereditary chiefs. 30 And I've related there the evidence of James 31 Morrison, Vernon Smith, Ms. Wilson Kenni, and Alfred 32 Joseph, all of whom with experience both as band 33 councillors, in some cases chief councillors, and as 34 hereditary chiefs, are able to articulate the nature 35 of the relationship between their responsibilities on 36 the one hand as a band councillor, on the other hand 37 as an hereditary chief. And we say, my lord, that 38 there is no conflict between those, that the band 39 council system, even though it is not a system of the 40 plaintiffs' own making, is one which they have sought 41 to incorporate into and they have sought to make work 42 consistent with their existing systems of authority. 43 In the same way, my lord, we say that the 44 development of institutions such as the Gitksan and 45 Wet'suwet'en Tribal Council and the current Gitksan- 46 Wet'suwet'en office of hereditary chiefs are not new 47 developments which replace the central and fundamental 25764 Submission by Mr. Jackson 1 authority of the system of hereditary chiefs. 2 At page 105 and the following pages, and in 3 particular in terms of the evidence of Mr. Neil 4 Sterritt, which is set out at page 108, we say that 5 the Gitksan and Wet'suwet'en hereditary -- the Gitksan 6 and Wet'suwet'en Tribal Council operates as an 7 emanation or an extension of the hereditary chiefs and 8 that in the context of a government bureaucracy and 9 administration, such as the federal government, for 10 example, in terms of negotiating with the provincial 11 government, it has become necessary and useful for the 12 hereditary chiefs, given their number, to have an 13 agency, to have an arm of their jurisdictional system 14 which is able in a speedy and efficacious way to 15 interface and interact with governments which require 16 that kind of interaction. 17 And at page 108, my lord, I've set out the various 18 issues which Mr. Sterritt gave evidence about and how 19 he saw his role not as having a mandate to speak 20 instead of, but as a mandate to speak on behalf of and 21 subject to the direction of the hereditary chiefs. 22 My lord, at page 109 there is a section dealing 23 with the fishing by-laws, and the purpose of this 24 material is not, of course, to demonstrate some 25 preclusive or overriding jurisdiction in the 26 plaintiffs vis-a-vis the federal government. As your 27 lordship has made very clear, that is not an issue 28 raised on these pleadings and not an issue before your 29 court. 30 The purpose of providing your lordship with a 31 summary of this evidence -- and I should say, my lord, 32 that this evidence is also summarized in a variety of 33 judicial sources. In the Wale case, that's W-a-l-e, 34 the judgment of Mr. Justice Seaton reviews some of 35 this material. And Mr. Justice Joyal in a case which 36 is for the moment -- in the Robinson case, my lord, 37 also has reviewed some of the history of these 38 by-laws. So this material, while it has been spoken 39 to by witnesses, in particular, Mr. Glen Williams, is 40 evidence which your lordship could have regard to 41 outside of the context of this trial. 42 The purpose of this material, my lord, is to show 43 how in the development of a set of by-laws under the 44 Indian Act the Gitksan and Wet'suwet'en system of 45 authority has sought to use the by-laws not simply as 46 a recognition that the bands and the band councillors 47 have the exclusive authority in this area, but rather 25765 Submission by Mr. Jackson 1 how in developing the by-laws those by-laws were 2 worked on by the band councils in direct consultation 3 with the hereditary chiefs, and how the by-laws were 4 used because they were a recognized source of 5 authority, recognized, that is, by the federal 6 government, recognized by the provincial government by 7 virtue of the federal paramountcy doctrine, Section 8 91(24) of the British North America Act, and how the 9 band councils and the hereditary chiefs sought to use 10 the existing system available to them without 11 resorting to litigation, such as what has happened in 12 this case, and having worked through a set of by-laws 13 using existing mechanisms open to them, using their 14 best efforts, negotiating in good faith, complying in 15 every way with what they understood to be the demands 16 and requirements of other federal agencies. Having 17 got to that point, their ability to implement those 18 by-laws within the context of the recognized system 19 was, in fact, thwarted by the application of the 20 provincial defendant. 21 MR. GOLDIE: That was a relator action, my lord. My friend 22 knows the difference. 23 MR. JACKSON: Well, my lord \u00E2\u0080\u0094 24 THE COURT: Are you talking about Wale? 25 MR. JACKSON: Yes, my lord. I don't think we have to get into 26 the niceties of whether or not a relator action in 27 lending the imprimatur of the provincial defendant is 28 the act of the provincial defendant or otherwise. 29 That's not the point, my lord. My principal point is 30 that this was an effort by the plaintiffs to use 31 existing systems of authority, and it failed. 32 THE COURT: Well, Wale is under appeal to the Supreme Court of 33 Canada, is it not? It's been argued. 34 MR. JACKSON: Yes, my lord. 35 MR. GRANT: No. 36 THE COURT: Hasn't been argued. 37 MR. GOLDIE: It hasn't been argued. Leave was granted long ago, 38 but it hasn't been set down, my lord. 39 THE COURT: All right. Thank you. 40 MR. JACKSON: And, my lord, the materials at page 109 to 116 41 track that history. 42 THE COURT: I'm sorry, where? 43 MR. JACKSON: Page \u00E2\u0080\u0094 up to 116 from page 112. 4 4 THE COURT: 109 to 116. 4 5 MR. JACKSON: 109 to 116. 4 6 THE COURT: Thank you. 47 MR. JACKSON: My lord, the last part of the material which I 25766 Submission by Mr. Jackson 1 would read to your lordship deals with the 2 relationship of the present action to the plaintiffs' 3 system of authority. And at page 116 we say we end 4 this section of argument in a sense where we began, 5 with the question of the land and the competing 6 systems of authority pertaining to that land. It is 7 our submission that the present court action attests 8 to the consistency and vitality of the Gitksan and 9 Wet'suwet'en systems of authority in the face of a 10 governmental system of authority which has very 11 different goals and interests compared to those of the 12 plaintiffs. 13 Throughout the last century the Gitksan and 14 Wet'suwet'en have pursued a policy of asserting their 15 system of authority whenever possible, and 16 accommodating the alien system where necessary. The 17 present court action of the plaintiffs attests to the 18 will and commitment of the two peoples to stand firmly 19 for their aboriginal rights and duties vis-a-vis one 20 another, vis-a-vis other social groupings in the 21 greater society, and vis-a-vis the land itself. 22 This land title action is itself evidence of the 23 assertion of the hereditary system of authority in 24 face of other competing systems. And I've recited 25 there, my lord, what the late Ken Muldoe, Delgamuukw, 26 told this court. 27 28 \"An aboriginal rights package can be put on the 29 shelf to be forgotten or to be endlessly 30 debated at Constitutional conferences...We are 31 here to discuss territory and authority. When 32 this case ends and the package has been 33 unwrapped, it will have to be our ownership and 34 our jurisdiction under our law that is on the 35 table.\" 36 37 Ken Muldoe spoke to the court with the authority 38 of Delgamuukw, House chief of the Lax Se'el Clan of 39 Kispiox. He spoke with the authority that comes from 40 the accumulated experience of all those who have held 41 the name and the crests of Delgamuukw for generations 42 before him. The message given to the court by 43 Delgamuukw on behalf of the Gitksan, and Gisdaywa on 44 behalf of the Wet'suwet'en, was clear: \"We are here 45 to discuss territory and authority.\" 46 It is our submission that throughout the past 47 century the accumulated actions of the House chiefs, 25767 Submission by Mr. Jackson Submission by Mr. Rush 1 their members, and their various political 2 organizations have both demonstrated the vitality, 3 persistence, and flexibility of the hereditary system 4 of authority and the continuing efforts of the 5 plaintiffs to seek an accommodation with the reality 6 of government refusal either to accommodate or 7 recognize the Gitksan and Wet'suwet'en ownership of 8 land and the full social, legal, political, economic, 9 and spiritual authority that that ownership denotes. 10 My lord, that was the end of this part of the 11 submission. Mr. Rush is going to deal with the next 12 part of the argument, and I wonder if we could stand 13 down perhaps for just three or four minutes. 14 THE COURT: Well, I've made appointments to do things at ten 15 o'clock. 16 MR. JACKSON: Well, my lord \u00E2\u0080\u0094 17 THE COURT: I really object to sitting late at night and then 18 wasting time during the day. 19 MR. JACKSON: Mr. Rush is here. 20 THE COURT: Well, let's get going. I'd rather not adjourn. 21 MR. JACKSON: That's fine, my lord. 22 MR. RUSH: My lord, I'm in a position to proceed now. 2 3 THE COURT: Thank you. 24 MR. RUSH: And the next section of the plaintiffs' argument will 25 deal with the colonial period in the Colony of 26 Vancouver Island, of the mainland and the united 27 colonies prior to 1871. And I will pass up to your 28 lordship now Volume number 7 of the plaintiffs' 29 argument containing the first portion of that 30 argument, and I have an additional copy for the 31 recorder. 32 THE COURT: Thank you. I'm not entirely sure what this one is. 33 MR. RUSH: It's a second copy for the reporter. 34 THE COURT: Oh, for the reporter. Are we going to finish this 35 today? 36 MR. RUSH: I hope to finish this by noon. 37 THE COURT: Oh. I better not say a word. 38 MR. RUSH: My lord, this portion of the argument will review the 39 historical documents and evidence pertaining thereto 40 leading up to the establishment of the Colony of 41 Vancouver's Island through the colonial period and to 42 the point of union in 1871, following which Ms. 43 Mandell will make submissions to you regarding the 44 appropriate tests to be applied when viewing the 45 historical period and the proclamations and ordinances 46 of the historical period as to whether or not they 47 could be considered as affecting any form of 25768 Submission by Mr. Rush 1 extinguishment direct or implied. And it is our hope 2 that with the day's end we will have completed the 3 argument in those two parts. 4 Now, beginning, my lord, with the question of the 5 law applicable to aboriginal title in British Columbia 6 and, in particular, to the law applicable as at the 7 eve of the establishment of Vancouver's Island, our 8 submission is that when the British claims to 9 sovereignty over what is now British Columbia were 10 settled by the Treaty of Washington in 1846 the 11 fundamental principles of the common law in respect of 12 aboriginal peoples were the principles affirmed in the 13 Marshall decisions, which have their fullest 14 expression in the case of Worcester v. Georgia, in the 15 Treaty of Waitangi, and in the decision of the New 16 Zealand Supreme Court in R. v. Symonds. 17 Now, in Symonds the New Zealand Supreme Court 18 enunciated the principles of universal application 19 regarding the territorial rights of the Crown and the 20 aboriginal natives and in so doing affirmed the 21 following: 22 23 \"Whatever may be the opinion of jurists as to 24 the strength or weakness of Native title, 25 whatever may have been the past vague notions 26 of the Natives of this country, whatever may be 27 their present clearer and still growing 28 conception of their dominion over land, it 29 cannot be too solemnly asserted that it is 30 entitled to be respected, that it cannot be 31 extinguished (at least in times of peace) other 32 wise than by the free consent of the Native 33 occupiers. But for their protection, and for 34 the sake of humanity the Government is bound to 35 maintain, and the courts to assert, the Queen's 36 exclusive right to extinguish it.\" 37 38 This case was decided in 1847, two years before 39 the creation of the Colony of Vancouver's Island, by a 40 colonial court applying the common law applicable 41 throughout the British dominions. I just pause there, 42 my lord, to tell you that we have asserted at greatest 43 length in Mr. Jackson's argument our position 44 regarding the Symonds case, and we've discussed it 45 more fully, and that can be found in Volume 3 at page 46 116, and that's tab 10. 47 Now, my lord, what we say on 2 is that the 25769 Submission by Mr. Rush 1 principles referred to above recognize the pre- 2 existing rights of aboriginal peoples as to the 3 ownership of their territories and the right to 4 exercise full authority over their territories, 5 limited only by a restriction on alienation of their 6 territories to persons other than to the Crown or 7 persons authorized by the Crown. These principles 8 also recognize an underlying title in the Crown which 9 was limited by the obligation to acquire such lands as 10 the aboriginal peoples were willing to sell. Most 11 important, underpinning the legal relationship between 12 aboriginal rights and Crown rights was the principle 13 of aboriginal people's consent and Crown protection. 14 We say these principles were embodied in the 15 common law, and these principles constitute the legal 16 framework which was applicable to the Colony of 17 Vancouver's Island when established in 1849 and the 18 Colony of British Columbia when established in 1858. 19 We say these principles applied to what is now 20 British Columbia, and that it is evident from the 21 confidential memo given to the Foreign Office in March 22 of 1849. And I'll just deal with this briefly at this 23 juncture. 24 25 \"It must however be added that in parting with 26 the land of the island Her Majesty parts only 27 with her own right therein, and that whatever 28 measures she was bound to take in order to 29 extinguish the aboriginal title are equally 30 obligatory on the company.\" 31 32 Now, my lord, our position is that this is the 33 language of law. Here the principles guiding the 34 Company were to be in accordance with the common law 35 principles not only to part only with what title it, 36 that is to say the Crown, had by law, but also to 37 recognize the aboriginal title and to extinguish it by 38 whatever measures she was bound to take, and it 39 follows in accordance with the law. And these are 40 legal obligations consistent with Imperial 41 understanding of the law as it had developed in the 42 jurisprudence and the long history of Crown practice 43 and policy in treating with the Indian peoples of 44 North America. 45 Now, we say, my lord, that the same principles 46 applied to the Crown and to the Indians were confirmed 47 in the Royal Proclamation of 1763. And I repeat here 25770 Submission by Mr. Rush 1 in the next paragraph an argument we previously made 2 about the prospective application of Part IV of the 3 proclamation through the jurisdiction acts to the 4 territory which became known as Indian territory and 5 was New Caledonia, the territory of New Caledonia, 6 which eventually became British Columbia and the 7 Colony of British Columbia. 8 Over to 4, my lord. The Royal Proclamation and 9 the guarantees which it afforded to Indian peoples was 10 not an ordinary statute. The principles which it 11 affirmed codified fundamental rights for Indians, and 12 these rights were of a higher order than those created 13 by simple enactment and took on a constitutional 14 status. It was an Imperial law which operated as a 15 restriction on the legislative competence of colonial 16 legislatures. And colonial enactment which could be 17 read -- excuse me. Any colonial enactment which could 18 be read as being inconsistent with the Indian land 19 provisions of the proclamation had to be read to avoid 20 repugnancy with the Imperial law. The Royal 21 Proclamation of 1763 applied in this way to what is 22 known as British Columbia as at the time of the 23 establishment of the colonies of Vancouver's Island 24 and British Columbia. 25 Now, my lord, we make another argument in the 26 further alternative, and that is if the common law and 27 the Royal Proclamation provisions regarding Indian 28 land rights and protection did not apply to and bind 29 the colony insofar as their policy and local laws 30 reflected, then we say there was a constitutional 31 convention operative in the colonies as of 1849 which 32 acted as a guarantee of Indian land rights and as a 33 limitation on the colonial statute-making power. 34 Constitutional convention stems from historical 35 constitutional usage and practice. And we take 36 support from Lord Denning's decision in R. v. 37 Secretary of State, where he applied the doctrine of 38 constitutional convention to find that according to 39 usage and practice the Crown in Canada became separate 40 and divisible according to the particular territory in 41 which it was sovereign. We'll submit further to you 42 on that point when Ms. Mandell addresses you. 43 By 1849 we say a constitutional convention in 44 respect to Indian land rights and how they were to be 45 dealt with in the colonies of Britain had developed 46 through long usage and practice, and the history of 47 this has been set out in the part of our argument 25771 Submission by Mr. Rush 1 dealing with the fundamental principles of aboriginal 2 law. 3 Now, my lord, moving to the next paragraph, 4 whether by the common law, the Royal Proclamation of 5 1763 or constitutional convention, the fundamental 6 principles of aboriginal rights and title applied to 7 the colonies of British Columbia, and whatever the 8 policy that was applied from time to time in the 9 colonies of British Columbia throughout the colonial 10 era, and indeed beyond, it could not be inconsistent 11 with these legal principles. 12 Now, my lord, I want to just pause here to raise 13 with your lordship the argument that is made by the 14 province here. And we say that their argument on the 15 colonial period commences from a flawed, fundamentally 16 flawed proposition, and we say one that's been 17 rejected by the courts. And I've set out where in 18 their argument that appears, and I'm just going to 19 cite in part what they say. At the bottom of 5: 20 21 \"It is axiomatic that the source of a right 22 which is enforceable against the Crown must be 23 found in an acknowledgment of the existence of 24 such a right, expressly, or from necessary 25 implication, express acknowledgment may be 26 found in an exercise of the Royal Prerogative 27 or in an Act of Parliament. Necessary 28 implication may arise from a course of conduct 29 by the Executive on behalf of the Crown.\" 30 31 Now, we say, my lord, this position was advanced 32 and adopted by the British Columbia Court of Appeal in 33 Calder, and it was rejected in the Supreme Court of 34 Canada by Mr. Justice Hall in Calder. And what he 35 said is this, after an extensive review of the 36 authorities: 37 38 \"The aboriginal Indian title does not depend on 39 Treaty Executive Order or Legislative 4 0 enactment.\" 41 42 And later, after reviewing Mr. Justice Blackburn in 43 Milirrpum, Mr. Justice Hall concluded: 44 45 \"It will be seen that he...\" 46 47 THE COURT: That's Blackburn, is it? 25772 Submission by Mr. Rush 1 MR. RUSH: Yes. 2 THE COURT: Yes. 3 MR. RUSH: 4 5 \"...fell into the same errors as did Mr. Justice 6 Gould, J, and the Court of Appeal. The essence 7 of his concurrence with the Court of Appeal 8 judgment lies in his acceptance of the 9 proposition that after conquest or discovery 10 the native peoples have no rights at all except 11 those subsequently granted or recognized by the 12 conqueror or discoverer. That proposition is 13 wholly wrong as the mass of authorities 14 previously cited, including Johnson v. M'Intosh 15 and Campbell v. Hall, establishes.\" 16 17 And, my lord, Mr. Jackson exhaustively reviewed 18 the decisions by Chief Justice Marshall in those 19 cases. 20 Now, the United States Supreme Court in Lipan 21 Appache came to the same conclusion as Mr. Justice 22 Hall. I want to cite briefly from this decision of 23 the United States Supreme Court. 24 25 \"The Claims Commission has found, however, that 26 even if the claimants had once possessed 27 aboriginal title to the lands, that right of 28 occupancy was lost after 1836 when Texas became 29 an independent country. The Commission 30 appeared to believe that the survival of 31 aboriginal title depends upon affirmative 32 recognition by the sovereign and that the 33 Republic 'did not accord the Indian[s] the 34 right of occupancy...'. 35 36 Without such a right to lands in Texas, at the 37 time of annexation, the tribes failed to prove 38 a necessary element of their cause of action 39 and were barred from recovery. 40 41 To the extent that the Commission and the 42 appellee believe that affirmative governmental 43 recognition or approval is a prerequisite to 44 the existence of aboriginal title, we think 45 they err. Indian title based on aboriginal 46 possession does not depend upon sovereign 47 recognition or affirmative acceptance for its 25773 Submission by Mr. Rush 1 survival.\" 2 3 My lord, a similar position was taken by Chief 4 Justice Dickson in Guerin where he made it very clear 5 that Indian title is an independent legal right. 6 7 \"Their interest,\" he said, \"in their lands is a 8 pre- existing legal right not created by Royal 9 Proclamation by Section 18(1) of the Indian 10 Act, or by any other Executive Order or 11 Legislative Provision.\" 12 13 And his lordship continued -- and these are passages, 14 my lord, that Mr. Jackson has referred you to already, 15 but I think they bear repetition. 16 17 \"It does not matter, in my opinion, that the 18 present case is concerned with the interest of 19 an Indian Band in reserve rather than with 20 unrecognized aboriginal title in traditional 21 tribal lands. The Indian interest in the land 22 is the same in both cases.\" 23 24 And what we say is there he acknowledges the pre- 25 existing character of the aboriginal right in the 26 land. 27 And we say at the top of 8, my lord, that 28 aboriginal title is a pre-existing legal right. It 29 does not depend on the express or implied 30 acknowledgment by the Crown for its existence. It 31 does not depend on the exercise of the Royal 32 Prerogative, an act of parliament or a course of 33 conduct. Once established as a matter of fact, as the 34 plaintiffs have done in this case, it endures until 35 extinguished with the consent, or in the alternative, 36 by clear and express statutory language. 37 THE COURT: I think we'll take the first adjournment now, Mr. 38 Rush. 39 MR. RUSH: Thank you, my lord. 40 THE REGISTRAR: Order in court. Court stands adjourned for a 41 short recess. 42 43 (PROCEEDINGS ADJOURNED AT 10:00 A.M.) 44 45 46 47 25774 Submi .ssion by Mr. Rush ereby certify the foregoin Lg to 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 1 be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability. Leanna Smith Official Reporter UNITED REPORTING SERVICE LTD. 25775 Submissions by Mr. Rush 1 (PROCEEDINGS RESUMED AT 10:20 a.m.) 2 THE COURT: Mr. Rush. 3 MR. RUSH: My lord, on page eight I now turn to the history of 4 the colonial period and I ask you first to look to 5 Part I entitled Recognition of Aboriginal Title in 6 British Columbia by Britain and Colonial Governments 7 Prior to 1871. And we say Great Britain's obligation 8 of recognizing aboriginal title and of purchasing 9 lands from Indians in North America was recognized and 10 affirmed in the Royal Proclamation. The Proclamation 11 provided that Purchases of lands from Indians were to 12 be made with the consent of the Indian ands were to be 13 made only in the name of the Crown. The fundamental 14 principles regarding Indian land rights were also 15 recognized and expressed in the common-law. The 16 Crown's obligations at law were extended to lands 17 which are now in British Columbia. And there is 18 now -- there is no evidence that the Crown's 19 obligations have been repudiated by the British Crown. 20 Now, I move to the second paragraph, my lord, on 21 nine. The following are examples on the basis of our 22 position that the law proclaimed in 1763, expressed in 23 the common law and carried out as Imperial policy 24 continued in force through the next century and was 25 directed specifically to Indian lands in what is now 26 British Columbia. 27 And I direct you first, my lord, to the secret 28 instructions to Captain Cook of 6 July 1776, and the 29 first paragraph on page -- or under this heading on 30 page nine gives some of the detail of the Captain 31 Cook's voyage. But I take you now to ten and the 32 passage of those secret instructions beginning about 33 halfway down, and I draw your lordship's attention to 34 this: 35 36 \"And if in your farther progress to the 37 northward, as hereafter directed, you find any 38 subjects of any of European prince or state 39 upon any part of the coast you may think proper 40 to visit, you are not to disturb them or give 41 them any just cause of offence, but on the 42 contrary to treat them with civility and 43 friendship.\" 44 45 Cook was further directed to take possession in the 46 name of the King, subject to the consent of the 47 natives, of any lands not previously discovered or 25776 Submissions by Mr. Rush 1 visited by any other European power. Only if the 2 lands were uninhabited, was Cook directed to take 3 possession in the name of the King. I direct your 4 attention to the emphasized portion, my lord: 5 6 \"You are also with the consent of the natives 7 to take possession in the name of the King of 8 Great Britain of convenient situations in such 9 countries as you may discover, that have not 10 already been discovered or visited by any other 11 European power\" 12 13 On his third voyage Cook explored what is now the 14 coast of British Columbia. And British claims to the 15 land rest in part on Cook's discoveries. And Cook's 16 instructions were in conformity with the Royal 17 Proclamation. 18 THE COURT: Were those first instructions with relation to his 19 third voyage as well? 20 MR. RUSH: They were in respect of all of his voyages, my lord. 21 THE COURT: All of his voyages? 22 MR. RUSH: Yes. 23 THE COURT: My memory has failed me, but did he come to the 24 northwest coast in his first and second voyage? 25 MR. RUSH: No. These instructions were issued in 1776 and he -- 2 6 THE COURT: All right. 27 MR. RUSH: He didn't reach \u00E2\u0080\u0094 2 8 THE COURT: All right. 29 MR. RUSH: \u00E2\u0080\u0094 the British Columbia coast until '78. 30 THE COURT: Yes. All right. So \u00E2\u0080\u0094 all right. 31 MR. RUSH: Now, my lord, similar instructions were issued to 32 Captain Nathaniel Portlock and George Dixon and in 33 1785 they were sent to set up trading establishments 34 at Nootka Sound on the west coast of Vancouver Island. 35 MR. GOLDIE: I don't think my friend intends to suggest the 36 instructions were from the same source. 37 MR. RUSH: I don't suggest that and I don't think it's \u00E2\u0080\u0094 it is 38 all suggested in the text before my friend. What I do 39 say, however, my lord, looking at the second paragraph 40 there: 41 42 \"Therefore, wherever it is necessary to 43 establish a factory,\" 44 45 And a factory was a trading station, 46 47 \"you are to purchase of the natives such tract 25777 Submissions by Mr. Rush 1 of land as you shall think best suited for the 2 purpose of trading, and for security, paying 3 them in the most friendly and liberal manner 4 for the same.\" 5 6 Now, my lord, just returning to Captain Cook for a 7 moment. The evidence is that Captain Cook did in fact 8 carry out the instructions issued to him with respect 9 to paying the natives who made claims in the territory 10 where he touched. And I give a number of references 11 here to that, and I'll just refer to the one of Mr. 12 King, who accompanied Cook, who reported that the 13 Indians \"made the Captain pay for the grass which he 14 cut at the village, although useless to themselves,\" 15 according to him. And I give other examples of where 16 Cook in fact made those purchases in accordance with 17 his instructions. 18 Now, British policy in 1790 to 1846 I will refer 19 to now. In those years Britain's claims in parts of 20 what is now British Columbia were contested by Russia, 21 Spain, and the U.S. In the course of those disputes 22 Britain asserted her claims to trade with the Indians 23 and to form establishments subject to the consent of 24 the natives. The policy of Britain to recognize 25 aboriginal title on the Northwest Coast was reiterated 26 in 1790 and asserted again in 1824. 27 And first, my lord, I direct you to a -- the issue 28 between Britain and Spain which has been called the 29 Nootka Sound controversy in 1790. And partway down 30 the next paragraph: On 16 May 1790 the British charge 31 d'affaires at Madrid delivered a memorial and 32 accompanying note to the court of Spain. And this is 33 what he said, and I just refer you to a few of these 34 passages. Merry, who was his name, was: 35 36 \"to represent in the strongest manner to the 37 Court of Spain that His Majesty has every 38 reason to expect from the justice and wisdom of 39 His Catholic Majesty\" 40 41 And then I refer you down to the bottom of the page, 42 my lord, third line from the bottom: 43 44 \"where the subjects of His Majesty have an 45 unquestionable right to a free and undisturbed 46 enjoyment of the benefits of commerce, 47 navigation and fishery, and also to the 25778 Submissions by Mr. Rush 1 possession of such establishments as they may 2 form, with the consent of the natives, in 3 places unoccupied by other European nations.\" 4 5 Now, the matter was eventually resolved by the Nootka 6 Conventions of 1793 and '94 whereby Britain and Spain 7 recognized mutual rights to trade with the natives and 8 to form establishments, neither European power 9 claiming the right to exclude the other. The 10 Conventions of 1793 and '94 did not purport to 11 extinguish aboriginal title. Both Spain and Britain 12 recognized native rights in the land. 13 Now, the competing claims of Britain and the U.S. 14 on the Northwest Coast were the subject of diplomatic 15 negotiations which extended over several decades 16 resulting in the Conventions of 1818, 1827 and 1846. 17 And I have set out the Convention of 1818 providing 18 for \"joint occupation\" and I make reference at the top 19 of page 15 to the Treaty of the 22nd of February in 20 1819, where the United States acquired Spanish claims 21 in the region. And the fact that this led to the 22 Convention first of 1818 and then of 1827. 23 But in 1824, during the course of discussions 24 between the United States and Britain over the joint 25 occupation of the area which was the Northwest Coast, 26 today Oregon, Washington and the lower end of 27 Vancouver Island, the British diplomats argued that 28 Britain's claims were superior to those formerly 29 asserted by Spain and now claimed by the United 30 States. The British Plenipotentiaries referred to the 31 16 May 1790 documents noted above to show what Britain 32 asserted and to show that this was long-established 33 British policy. Richard Rush was the American 34 diplomat who assisted in negotiations, and he wrote an 35 account of them that was published, and what he said 36 appears at the top of 16, my lord: 37 38 \"They referred to the note of the British 39 Minister to the Court of Spain, of May 16, 40 1790, in which Britain had not only asserted a 41 full right to an uninterrupted commerce and 42 navigation in the Pacific, but also that of 43 forming, with the consent of the natives, 44 whatever establishments she thought proper on 45 the North-west coast, in parts not already 46 occupied by other nations.\" 47 25779 passage I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Mr. Rush 1 And then the critical ask you to note: \"This had always been the doctrine of Great Britain, - from it nothing that was due, in her estimation, to other Powers, now called upon her in any degree to depart.\" The doctrine described by the British Plenipotentiaries in 1824 as having \"always been the doctrine of Great Britain\" stipulated that native consent is necessary before British establishments can be formed on the Northwest Coast. And this is a clear statement, we say, that native rights in land were recognized and that it was well settled in the law of Britain not to disturb the natives in the possession of their lands without consent. Now, my lord, Britain regarded native consent as an important part of its doctrine and continued to maintain that part of the doctrine. The importance of native consent was asserted in a British analysis of the claims to the Oregon Territory which was published in 1844. The author was a Mr. Thorn, who was called to the Bar of Lower Canada and was the first Recorder of Rupert's Land, and he was defending British claims here, and he reviewed the historical basis for the competing claims of Spain, Britain, and the United States. And I direct you to the passage that I bolded there, my lord, and he says: \"But there is a convention more decisive in its character than any treaty between foreign competitors, the consent of the aborigines themselves. Moreover, the consent of the natives ought to have the greater weight\" And he's referring here to the natives of the Northwest Coast. Now, my lord, I am take you to 18 and what I note here is that we are not concerned here with whether Thorn's assessment of Spanish and American relations with Indians was correct, whether his assessment of natives east and west of the Rockies was valid, or with the rectitude of his legal analysis. We rely on the material quoted above as a statement of British doctrine which is consistent with that of the British 25780 Submissions by Mr. Rush 1 Plenipotentiaries given twenty years earlier. 2 Now, I move down to the bottom of the page, my 3 lord, continuing the historical pattern. The \"joint 4 occupancy\" of the disputed territory on the Pacific 5 was finally ended by the Treaty of Washington in 15 6 June 1846 which fixed the boundary between British 7 territory and the United States at the forty-ninth 8 parallel. Neither the Conventions of 1818, 1827, nor 9 the Treaty of 1846 purported to extinguish aboriginal 10 title. 11 When sovereignty was settled in the disputed 12 territory north of the 49th parallel, British 13 sovereignty to what is now British Columbia was fixed. 14 The date of June 15, 1846 is the date of the assertion 15 of British sovereignty and the time at which we say 16 the Crown was obliged as a matter of law to acquire 17 aboriginal title from the Indian peoples of British 18 Columbia if they wished to deal with aboriginal lands. 19 The assertion of sovereignty was the principle 20 conquering European nations agreed upon among 21 themselves as a means of determining their own 22 potential competing interests to the lands of North 23 America. And I refer, my lord, here to Calder and 24 Guerin, both decisions adopted approved the language 25 of Marshall in Johnson and Mcintosh. And my lord, I 26 draw your attention to this passage of Johnson and 27 Mcintosh: 28 29 \"The exclusion of all other Europeans 30 necessarily gave to the Nation making the 31 discovery the sole right of acquiring the soil 32 from the natives, and establishing settlements 33 upon it. It was a right with which no European 34 could interfere. It was a right which all 35 asserted for themselves, and to the assertion 36 of which, by others, all assented.\" 37 38 And the principle which required the exclusion of all 39 competing European powers before the ability to assert 40 a lawful claim with attendant legal obligations was 41 discussed at length in Worcester and Georgia. And my 42 lord, I again set out the passage from Worcester and 43 Georgia which we have referred you to earlier. 44 Now, with the resolution of the southern boundary 45 of present-day British Columbia by the 1846 Treaty, 46 the United States ceded their claims in the area to 47 Great Britain and Great Britain's claim to sovereignty 25781 Submissions by Mr. Rush 1 was determined. From then on Britain was obligated 2 under law to deal with the Indians of British Columbia 3 as organized peoples in respect of their aboriginal 4 title 5 Now, my lord, I then refer you to a book published 6 by a Travis Twiss in 1846, and Mr. Twiss talked about 7 the importance of settlement as being a necessary 8 aspect, because the Spanish Crown had claimed the 9 entire Pacific Coast of North and South America but 10 had not formed any settlements. And what he said 11 was -- and he's commenting here as a political 12 scientist, but nevertheless I think it's significant: 13 14 \"A further accessorial right of settlement has, 15 in modern times, been recognized by the 16 practice of civilized nations in both 17 hemispheres, namely, a right of pre-emption 18 from the aboriginal inhabitants in favour of 19 the nation which is actually settled in the 2 0 country.\" 21 22 And then to the bottom of this, and he's writing in a 23 tract called The Oregon Question. He said: 24 25 \"The practice of European nations has certainly 26 recognized in the nation which has first 27 occupied the territory of savage tribes, that 28 live by hunting, fishing, and roaming habits, 29 the sole right of acquiring the soil from the 30 natives by purchase, or cession or conquest, 31 for purpose of establishing settlements. The 32 more humane spirit of the modern code of 33 nations seems disposed to reduce this right to 34 a right of pre-emption as against other 35 European nations.\" 36 37 Twiss was speaking after Johnson and Mcintosh and 38 after the Select Committee of the House of Commons had 39 tendered its report on New Zealand on July 29. 40 Now, I will just draw to your attention, my lord, 41 that that report, the New Zealand sub-committee 42 report, as well as its discussions, drafts and 43 evidence it considered made references to the concept 44 of accepting of native title as a concept so commonly 45 understood as to be a \"political axion.\" And I will 46 be referring to that in just a moment. 47 Now, my lord, I then set out that in the United 25782 Submissions by Mr. Rush 1 States, at this time, congressional enactments 2 recognized aboriginal title to land and the need for 3 congressional consent for alienation of such title. 4 And the Congressional Proclamation of 1783 expressed 5 the principles of the Royal Proclamation. I referred 6 this to your lordship before and I just draw your 7 attention to the underlined passages. 8 I then on page 23 refer your lordship to the Trade 9 and Intercourse Act and the Act to establish the 10 territorial government of Oregon, in 1848, and the 11 passages relating to aboriginal title there. And, my 12 lord, at the bottom of 23 I draw your attention that 13 in the United States at the same time a committee had 14 considered claims in the old Oregon territory as late 15 as 1852, and in the course of their deliberations they 16 noted, at the bottom of page 23: 17 18 \"The right to extinguish the possessory title 19 of the natives does not rest in the individual 20 discoverer, but in his government\" 21 22 And I draw your lordship's attention to the policy 23 that was applied with regard to the old territory of 24 Oregon as a result. 25 And I now ask you to move to the next paragraph 26 and point out to your lordship that after 1846 there 27 was considerable debate as to how settlement should be 28 effected on Vancouver Island. Britain was concerned 29 since they had no settlements north of the 49th 30 parallel and only a few Hudson's Bay trading posts. 31 Now, in a letter of June 9 of 1847 a Mr. Fitzgerald 32 who worked at the British Museum in London set out his 33 proposal for a settlement of Vancouver Island to Mr. 34 Hawes who was then the Under Secretary of State and no 35 doubt Mr. Fitzgerald's proposal was a competing one to 36 that of the Hudson's Bay Company. But it's worthwhile 37 to note as I do, my lord, at the top of 25 the 38 underlined passage that part of Fitzgerald's proposal 39 was \"the treatment with the natives for the 40 possession of their soil.\" And so he felt that it was 41 important to include a recommendation for dealing with 42 the Indians regarding their possession of the soil. 43 Now, following the Treaty of Washington, Britain 44 out of concern for the fact that British settlement -- 45 that the failure to establish British settlements 46 might result in American emigrants crossing the 49th 47 parallel and laying claim to the territory north of 25783 Submissions by Mr. Rush 1 the boundary established by the Treaty. Britain had 2 long held that that title could only be maintained 3 when there was an occupation of the country. The 4 Hudson's Bay Company asked for and finally in 1849 5 received a grant of Vancouver Island on condition that 6 the Company establish colonists there within a set 7 period. 8 And I move to 26, my lord, and note that the grant 9 to Hudson's Bay Company was made on January 13, 1849. 10 And they were given a revocable grant to the land of 11 Vancouver Island. The major condition of this grant 12 was declared to be the colonization of the Island. If 13 a Company failed to meet the conditions of the grant 14 the grant could be revoked. When the company's 15 license to trade terminated in 1859, the Government 16 could repurchase the land on reimbursing the Company 17 for its expenditures. 18 Now, my lord, the grant contains no mention of 19 Indians or aboriginal title to the land of Vancouver 20 Island. The absence of reference to the Indians is 21 explained in a Confidential memo about Vancouver 22 Island printed at the Foreign Office for perusal by 23 Cabinet in March 1849. The memo is explicit that the 24 land grant to the Company carried with it the same 25 burden of extinguishing that of aboriginal title as 2 6 that which rested on the Crown. And I draw your 27 attention to the following passage: 28 29 \"With regard to the Indians it has been 30 thought on the whole the better course to make 31 no stipulations respecting them in the grant. 32 Little is in fact known of the natives of this 33 island, by the Company or by any one else. 34 Whether they are numerous or few, strong or 35 week; whether or not they use the land for such 36 purposes as would render the reservation of a 37 large portion of it for their use important or 38 not, are questions which we have not the full 39 materials to answer.\" 40 41 And then over to 27, my lord: 42 43 \"It must however be added that in parting with 44 the land of the island Her Majesty parts only 45 with her own right therein, and that whatever 46 measures she was bound to take in order to 47 extinguish the aboriginal title are equally 25784 Submissions by Mr. Rush 1 obligatory on the Company.\" 2 3 Now, my lord, the final sentence of this passage 4 documents the Crown obligation to recognize and 5 extinguish aboriginal title to land in accordance with 6 the principles of the Royal Proclamation and the 7 common law. The Confidential Memorandum contains an 8 explicit reminder that the Queen can only give what 9 she has. The transfer of Vancouver Island to the 10 Hudson's Bay Company was held to carry with it the 11 unextinguished aboriginal title as a burden or legal 12 interest on the title asserted by the Crown. In 13 accepting the land of Vancouver Island from the Crown, 14 the Crown obligation to extinguish the aboriginal 15 title was to be assumed by the Company. 16 Now, my lord, the author of the Confidential memo 17 uses language like \"... she was bound to take in order 18 to extinguish... \" and in so doing we say indicates 19 the Crown's obligation was one arising in law. And 20 that law applied to Vancouver's Island and the 21 Company's dealings with native people there. Issue is 22 taken with this Confidential memo in the Province's 23 argument, my lord, and what I set out here is an 24 interpretation, if you will, of passages of the memo 25 which I say unequivocally demonstrates that it's an 26 internal briefing document to cabinet and from the 27 senior responsible Minister or his Administrative 28 Under Secretary. We say that as a hypothesized, if 29 this were a Parliamentary debate, there would be no 30 need to allude to the necessity of involving 31 Parliament in the establishment of the legal framework 32 for the Colony. Here, Cabinet, my lord, was being 33 advised what it could do as a matter of advice to the 34 King on its own and what it had to go to Parliament 35 for. And I set out the relevant passages there. 36 My lord, the language of the memo taken as a whole 37 shows nothing inconsistent with aboriginal title and 38 the Crown title living together. And I think this is 39 an important point. The memo acknowledges 40 pre-existing aboriginal title in the native people of 41 the Island and requires the Company to extinguish it, 42 as agent for the Crown, according to law. At the same 43 time the government endorses the colonizing plans of 44 the Company in so far as grants to settlers are made 45 of lands, the title to which the Crown is empowered to 46 give, that is to say, lands which have been ceded to 47 the Crown by the Indian people. The memo, and we say, 25785 Submissions by Mr. Rush 1 the decision-makers in Britain, saw the two titles as 2 compatible, and governed by the principles of the 3 common law and the Proclamation touching the Colony at 4 the time. 5 My lord, five months later a memo from the Hudson 6 Bay House, from Mr. Pelly to Mr. Douglas, states the 7 Hudson Bay's status as agent for the Crown in the 8 Colony, and I there set this out and I draw your 9 lordship's attention to the particular passages. 10 Now I take you to page 30, Recognition of 11 Aboriginal Title by the Hudson's Bay Company. In 12 September of 1849 Douglas advised his superiors at 13 Hudson's Bay House of the need to effect land 14 purchases from the natives. And, my lord, this I 15 think is an important despatch. In it Douglas says to 16 Barclay: 17 18 \"Some arrangement should be made as soon as 19 possible with the native Tribes for the 20 purchase of their lands and I would recommend 21 payment being made in the Shape of an annual 22 allowance instead of the whole sum being given 23 at one time; they will thus derive a permanent 24 benefit from the sale of their lands and the 25 Colony will have a degree of security from 26 their future good behavior. I would also 27 strongly recommend, equally as a measure of 28 justice, and from a regard to the future peace 29 of the colony, that the Indians Fisheries, 30 Village Sitis and Fields, should be reserved 31 for their benefit and fully secured to them by 32 law.\" 33 34 Now, my lord, why this is important is because you 35 will hear in argument from the Province that the 36 reserve-making policy only appeared upon the creation 37 of the Mainland of British Columbia, the Colony of the 38 Mainland of British Columbia somehow as though it was 39 a thought that emerged with Governor Douglas as at the 40 time of the creation of that Colony and that is simply 41 not so in the historical record. 42 This letter shows, as I indicate at the bottom of 43 page 30, that Douglas envisaged two key features to 44 the extinguishment of the Indian interest in land. 45 46 47 \"1. The lands of the native tribes were 25786 Submissions by Mr. Rush 1 to be purchased by some 2 'arrangement'\". 3 4 I say treaty. And: 5 6 \"2. That lands and fisheries would be 7 reserved for the benefit of the 8 native tribes and protected under 9 law.\" 10 11 And these were to remain, we say, as the two 12 intertwined features of Indian land policy throughout 13 the whole of the Colonial period. 14 In December Barclay, Secretary of the Hudson's Bay 15 Company, sent Douglas instructions regarding Company 16 policies with respect to colonization and sale of 17 land. Douglas was advised that the natives were to be 18 confirmed in the possession of certain of their lands 19 and he was directed to treat with the Indians for 20 extinguishment of their title to lands needed for 21 settlement. Now, I refer your lordship to this for 22 what Mr. Barclay says in the underscored portions and 23 I refer you specifically to the first paragraph: 24 25 \"With respect to the rights of the natives you 26 will have to confer with the Chiefs of the 27 tribes on that subject, and in your 28 negotiations with them you are to consider the 29 natives as the rightful possessors of such 30 lands only as they occupied by cultivation, or 31 had houses built on, at the time when the 32 Island came under the undivided sovereignty of 33 Great Britain in 1846.\" 34 35 He then goes on in the next paragraph to refer to 36 payment of the interest on signing the Treaty and then 37 in the next he refers to the House of Commons Select 38 Committee Report and the passage that I refer there, 39 refer your lordship to in the third line: 40 41 \"that 'the uncivilized inhabitants of any 42 country have but a qualified dominion over it, 43 or a right of occupancy only,\" 44 45 And so on. And then the next page, my lord, I direct 46 your attention to the underscored portion: 47 25787 Submissions by Mr. Rush 1 \"The natives will be confirmed in the 2 possession of their lands as long as they 3 occupy and cultivate them themselves, but will 4 not be allowed to sell or dispose of them to 5 any private person, the right to the entire 6 soil having been granted to the Company of the 7 Crown.\" 8 9 THE COURT: \"By the Crown.\" 10 MR. RUSH: \"By the Crown,\" thank you. Now, my lord, what we say 11 this document demonstrates as of December of 1849 is 12 the following. Barclay was right in -- in this 13 respect. The natives were the rightful possessors, 14 and in our argument that means owners of the land; 15 and, as such, necessarily had a proprietary interest. 16 He called it a \"qualified dominion\" and that's 17 language that he takes out of the Select Committee. 18 Secondly, the land of the Indians had to be purchased 19 with fair compensation. Thirdly, the means of 20 treating with the Indians was Treaty. And fourthly, 21 the Indians could only sell their proprietary title to 22 the Company, as agent for the Crown. 23 What we say Barclay was wrong about was the extent 24 of the lands \"possessed\" by the Indians, and he 25 restricted those lands to, quote, those \"occupied by 26 cultivation .... or had houses built on....\" And we 27 say, my lord, aboriginal lands were never so confined 28 by the law or by any Imperial statute. 29 Now, my lord, we have previously made the point in 30 our argument that Barclay's implication that the 31 rights of the natives were limited to only such lands 32 as they occupied by cultivation was not consistent 33 with the principles of the common law. And we have 34 shown how such a qualification when it appeared in 35 Massachussets law was specifically disapproved of, and 36 I give there where we make the argument and the cite, 37 my lord. 38 But furthermore, in Mitchell and U.S., in 1935, 39 the Supreme Court of the United States applied the 40 principles of the common law and unequivocally affirm 41 that: 42 43 \"Indian possession or occupation was considered 44 with reference to their habits and modes of 45 life; their hunting grounds were as much in 46 their actual possession as they clear fields of 47 the whites.\" 25788 Submissions by Mr. Rush 1 2 So we say that to this extent Barclay's letter did not 3 properly describe the extent of the Crown's legal 4 obligation to negotiate for the acquisition of the 5 Indian rights. 6 Now, my lord, Professor Hamar Foster considered 7 this letter in a recent article and the source of 8 Barclay's limited and mistaken view of aboriginal 9 rights, and he tracks it down to Barclay's 10 interpretation of the Select Committee, parliamentary 11 Select Committee on New Zealand. And in that report, 12 and I refer you to the fourth line of Mr. Foster's 13 article: 14 15 \"The problem was that the drafters of the 16 Treaty of Waitangi had guaranteed the Maori 17 'full, exclusive, and indisturbed possession of 18 their lands and ... fisheries ... so as long 19 as it is their wish and desire to retain the 20 same in their possession.' But the drafters 21 had not really understood that there was no 22 part of New Zealand, however remote, that was 23 that was not claimed by some tribe. The 24 missionaries and some elements of the Colonial 25 Office stood by the Maori interpretation, but 26 the New Zealand Company, a colonizing 27 enterprise whose Governor described the treaty 28 as 'a praiseworthy device for amusing and 29 pacifying savages for the moment' disagreed. 30 The Company's view was that the treaty should 31 be read as meaning that only land actually 32 occupied or cultivated by the Maori was subject 33 to aboriginal title, and that the remainder was 34 'waste', available to immediate colonization.\" 35 36 Now, I just pause there -- 37 MR. GOLDIE: I think my friend should read the next sentence 38 because it is not Barclay's misinterpretation. 39 MR. RUSH: Excuse me. I \u00E2\u0080\u0094 4 0 THE COURT: I have read it anyway. 41 MR. RUSH: Well, surely I am permitted the luxury, if I may, to 42 make my argument and make my pauses where I please and 43 not subject to my friend's comments. 44 MR. GOLDIE: Oh, please continue. 45 MR. RUSH: Well, thank you. 46 MR. GOLDIE: I will. 47 MR. RUSH: How generous of you. 25789 Submissions by Mr. Rush 1 MR. GOLDIE: I will continue to be generous. 2 MR. RUSH: That would be \u00E2\u0080\u0094 3 THE COURT: All right. Time, gentlemen. 4 MR. RUSH: My lord, my point here is that what we're dealing 5 with in this -- in the committee report is a dispute 6 between the New Zealand company and the colonial 7 administration which the Select Committee itself was 8 intended to review and did review and that was what 9 they were charged with in the course of their work 10 with the -- in the course of their work reviewing the 11 Treaty of Waitangi. 12 13 \"In 1844 the Select Committee adopted this 14 'settler' view of the treaty. And it is 15 therefore hardly surprising that Barclay, as 16 secretary of a firm (the Hudson's Bay Company) 17 about to embark upon a similar course of 18 action, would pass it on to Douglas.\" 19 20 Now, my lord, regarding the report of 1844 Mr. 21 Barclay, or rather Professor Foster continues in this 22 vein: 23 24 \"What is surprising, however, is that no one 25 seems to have noted that the Colonial Office 26 did not act upon the Select Committee's 27 recommendation.\" 28 29 THE COURT: Is he talking there about New Zealand? 3 0 MR. RUSH: Yes. 31 MR. GOLDIE: He. 32 THE COURT: Yes. 33 MR. RUSH: 34 35 \"Not only was the Committee itself far from 36 unanimous, three out of five witnesses who 37 testified before it had confirmed that the 38 Maori claimed all of New Zealand.\" 39 40 41 And then he goes on with regard to the military 42 capabilities of the native owners. But at the bottom 43 he says, my lord: 44 45 \"Hence the incompatibility of the wording of 46 the conveyancing form developed in New Zealand 47 (and adopted later in Vancouver Island) with 25790 Submissions by Mr. Rush 1 the narrow approach of the 1844 Select 2 Committee that so recommended itself to 3 Barclay.\" 4 5 Now, I point out here, my lord, at the bottom of 35 6 that the Select Committee was appointed \"to inquire 7 into the state of the Colony of New Zealand and into 8 the proceedings of the New Zealand Company and of 9 reporting their opinion thereupon to The House.\" The 10 Minutes and Resolutions of the Select Committee are 11 appended. And it appears at Exhibit 1184. Now, 12 following the tabling of the Report, my lord, there 13 was considerable Parliamentary debate in The House of 14 Commons. And there was a wide range of views 15 expressed about the nature and extent of the Indian 16 title to the soil of New Zealand. And the debates are 17 set out in Exhibit 1256-11, tabs 25 to 29. In the 18 attempt to limit the parameters with regard to Maori 19 title, comparisons and contrasts were made between 20 Maori and Canadian natives which argue for a wider 21 view of native title in Canada. Even with regard to 22 Maori, the discussions of how far the language of the 23 Waitangi Treaty is to be read contain arguments 24 against the narrow reading of native title in B.C. to 25 be restricted to actual village sites and gardens. 26 The point, however, is, my lord, that after all of 27 that debate and the various views expressed by the 28 Parliamentarians there, the Colonial Office did not 29 act on the recommendations of the Select Committee. 30 Now, we say that Barclay's purported limitation is 31 a misconception of the obligations of the Crown with 32 respect to dealing with native title. Such a 33 purported limitation of Indian right to \"cultivated 34 lands\" was contrary to the principles of the common 35 law. 36 THE COURT: Well, what are you saying there, Mr. Rush, that in 37 practice in New Zealand they didn't limit their 38 acquisitions to village sites? 39 MR. RUSH: Correct. But the company argued they should have. 4 0 THE COURT: Yes. 41 MR. RUSH: And what I say, my lord, that \u00E2\u0080\u0094 42 THE COURT: Well, I am sorry, the company did not limit their 43 acquisitions? 44 MR. RUSH: The company argued that they should \u00E2\u0080\u0094 that the 45 Treaty of Waitangi should not be interpreted in such a 46 broad way as to apply -- as to be applied to all the 47 lands claimed by the various Maori peoples and that it 25791 Submissions by Mr. and Rush 1 should be limited to their village sites 2 3 4 5 6 7 THE COURT 8 9 10 11 12 13 14 15 16 17 MR. RUSH: 18 19 20 21 THE COURT 22 MR. RUSH: 23 THE COURT 24 25 26 MR. RUSH: 27 28 29 30 31 32 33 THE COURT 34 35 MR. RUSH: 36 THE COURT 37 MR. RUSH: 38 THE COURT 39 MR. RUSH: 40 41 42 43 44 45 46 47 cultivated fields. They were trying to narrow the soil to which they say the Maori people had their aboriginal title and that is an interpretation which many, including many of the Parliamentarians, took issue. And that was the point I've : I am not sure -- you will have to forgive my unfamiliarity with actual practice in New Zealand in the 1840s. I am not sure still what you mean when you say the Colonial Office did not act on the recommendation. As I understood it the company had this charter that allowed them to go out and acquire land for settlements, I gather. And are you saying that the company did not operate in accordance with that narrow interpretation when you say the Colonial Office told them that they must or -- No. What I am saying is that the Colonial Office despite what the Select Committee said in its report to Parliament did not act on those recommendations in respect of Vancouver Island. : All right. Thank you. And I say -- : So your passage there at the end of that top paragraph on page 34 does not refer to the Colonial Office's actions in New Zealand at all? Well, my lord, I think it -- there has been decades of controversy over the reach of the Treaty of Waitangi, and it may well be that the Colonial Office did not act in respect of those recommendations as well, but the proposition I am advancing here is that so as far as Vancouver Island went, they did not act on them. : Well, I get the meaning from your sentence by adding the words qua B.C. at the end of that sentence. Yes. : And that's what you intend to do. Yes. That's correct. : Thank you. Now, my lord, the Douglas treaties provide further support, in my submission, for the point that I have just emphasized with your lordship about the state of -- the state of the way the Crown dealt with Indian lands in Vancouver's island. The fourteen Douglas treaties made by James Douglas with Indians for cession of certain lands were initiated because the Indians had distinct notions of property rights and Douglas recognized the need to 25792 Submissions by Mr. Rush 1 make formal arrangements with the natives and 2 compensate them for the use of their land. 3 Now, I want to pause here, my lord, because he 4 made arrangements to deal with the whole of their 5 land, not with the village sites and cultivated 6 fields. His recommendations were in conformity with 7 the fundamental principles of the Crown to recognize 8 aboriginal title and to extinguish such title through 9 treaties of land cession and payment for land. As 10 noted in the Confidential Memo on Vancouver Island 11 quoted above, the Hudson's Bay Company assumed the 12 obligation for extinguishing aboriginal title along 13 with its acceptance of the grant of Vancouver Island. 14 Each of the treaties negotiated by Douglas contained 15 similar language. And my lord, I have set out the 16 treaty of one of them dealing with the Swengwhung 17 Tribe in the Victoria Peninsula, and I just take you 18 to 38. Now, my lord, a map was prepared by Wilson 19 Duff and published in a treatise entitled the \"Fort 20 Victoria Treatise.\" And that's exhibited at 1039-23 21 and it shows schematically the territories which were 22 ceded under the first nine treaties made by Douglas at 23 Fort Victoria. The map outlines what was described as 24 the boundaries in each of the nine treaties, and they 25 are depicted as being contiguous, though perhaps not 26 complete, and encompassing the whole area claimed by 27 the Indian nation. The map shows what the treaty 28 describes namely that what was ceded was not just 29 their village sites or cultivated places but their 30 entire territories. And that's confirmed by Duff's 31 article, which I have exhibited as well. And, my 32 lord, this interpret -- this view of the treaties was 33 confirmed in Bartleman. 34 Douglas reported on the making of these treaties 35 to Mr. Archibald Barclay on May 16, 1850, and I take 36 you to the top of page 39, my lord. And the third 37 line down Douglas says: 38 39 \"After considerable discussion, it was 40 arranged, that the whole of the their lands, 41 forming as before stated the District of 42 Victoria, should be sold to the company, with 43 the exception of Village sites, and enclosed 44 fields, for a certain remuneration to be paid 45 at once to each member of the tribe.\" 46 47 The point here is that the whole of the territory, my 25793 Submissions by Mr. Rush 1 lord, and I add this to the argument, that the whole 2 of the territory of the natives was sold and not just 3 the village sites and enclosed fields. And that was 4 clearly understood in Douglas' treaty made with the 5 people around Arro Strait to Point Albert on the 6 Strait of De Fuca. 7 Now, the Hudson's Bay Company responded to Mr. 8 Douglas on August 16, 1850 and said this: 9 10 \"The Governor and Committee very much approve 11 of the measures you have taken in respect of 12 the lands claimed by the natives - you will 13 receive herewith the form of contract or deed 14 of conveyance to be used on future occasions 15 when lands are to be surrendered to the company 16 by the native tribes.\" 17 18 Now, I take you over to page 40, my lord. On March 19 18, 1852, Douglas advised Barclay of the following: 20 21 \"... I thought it advisable to purchase the 22 whole of the Sanitch country, as a measure that 23 would save much future trouble and expense. I 24 succeeded in effecting that purchase in a 25 general convention of the tribe; who 26 individually subscribed the deed of sale,\" 27 28 And so on. Now, on the next paragraph, my lord, later 29 on December 6, 1852, Douglas expresses to Barclay that 30 he is \"glad to learn that the purchase of the Sanitch 31 country, has met with the approval of the governor and 32 committee.\" And we say this is clear approval by the 33 company for Douglas' treaty-making on Vancouver 34 Island. Now, I pause here, my lord, to add that 35 Douglas knew full value -- fully well the full value 36 of the lands which he was purchasing and that's 37 evident by the reports that he made concerning the 38 area around Fort Victoria, and I have set them out 39 here, my lord. And what follows is the observations 40 he made about the cultivation of clover and of Kamass 41 and the growth of clover and camas, he reports that 42 potatoes thrive. Douglas is there speaking about the 43 area which is now the City of Victoria. Much later in 44 December 3, 1888 Joseph McKay, who was a witness to 45 those early Douglas treaties, said: 46 47 \"You will remember that the districts for which 25794 Submissions by Mr. Rush 1 the Indians received payments in blankets were 2 the main producers of the Kamass root for the 3 whole surrounding country.\" 4 5 And I point out at the bottom of page 41 that camas 6 bulbs were a staple diet for many Indian groups and 7 that's noted by Professor Turner. She documents the 8 importance of aboriginal harvesting of camas. Mr. 9 Wayne Suttles -- Dr. Wayne Suttles indicates that 10 camas was viewed as a special property of the Saanich 11 people and traded with the Katzie in the lower Fraser 12 Valley. 13 Now, my lord, it's evidence that camas was 14 considered a valuable commodity and there is no 15 question that Douglas' payments were made as 16 consideration for the relinquishment of the interest 17 which the peoples in the southern portion of Vancouver 18 Island had in their land. When he negotiated the 19 treaties he purchased the territory and as well gave 20 valuable consideration. The information -- that 21 information was available to the Colonial Office in 22 Britain. The information as well about the nature of 23 the country in the southern point of Vancouver's 24 Island was made available to the Colonial Office as 25 well, and that's evident in a document entitled 26 \"Documents Relative to Warre and Vavasour's Military 27 Reconnaissance\" and I set out there their reporting to 28 the Colonial Office. 29 Now, I take you to page 44, my lord. Subsequent 30 correspondence relating to the Douglas treaties shows 31 that Douglas, his superiors at the Hudson's Bay 32 Company in England, the first governor of Vancouver 33 Island, Richard Blanshard, and the third Earl Grey of 34 the Colonial Office all understood these treaties to 35 be in conformity with the Crown's obligations of 36 recognizing aboriginal title and of extinguishing such 37 title with the consent of the Indians, by payment for 38 the land. And I set out a series of correspondence 39 that demonstrates that. And I draw your attention to 40 Blanshard's letter of February 18, 1851. He refers to 41 the figures in dollars for goods paid to the Indians 42 to extinguish their title to the land about Victoria 43 and the manner of accounting for the value of those 44 goods. 45 Hawes, at the Colonial Office, on behalf of Earl 46 Grey, wrote to Pelly at Hudson's Bay House in London 47 on June 26, 1851, and said this: 25795 Submissions by Mr. Rush 1 2 \"I am directed by Lord Grey to acknowledge your 3 letter of the 12th of this month, acknowledging 4 mine of the 4th transmitting extracts of a 5 Despatch from Governor Blanshard on the subject 6 of the goods paid to the Indians to extinguish 7 their Titles to land in Vancouver's Island.\" 8 9 The letter shows that it was read by Merivale, 10 Hawes and Grey of Colonial Office. The Colonial 11 Office was fully aware of the Douglas treaties and 12 approved of them. 13 Now, my lord, in part because of the expense 14 involved in making surveys and in paying for the land, 15 it was decided to treat with the Indians for the 16 conveyance of aboriginal title only in those 17 localities where settlement was imminent or where 18 resources or development plans made in expedient to 19 buy Indian rights. 20 Douglas considered that if the Indians were paid 21 in advance, and settlement did not occur for several 22 years, the payments might be forgotten and new demands 23 might be made at the time settlement began. For this 24 reason Douglas declined to treat with the Cowichan and 25 other Indians for their lands, and that's set out in 26 Douglas' letter to Barclay of May 16, 1850. 27 Now, from the outset, my lord, Douglas anticipated 28 that purchase of Indian rights to land would be made 29 on the mainland as well as on Vancouver Island. And 30 that's evident by Douglas' letter to Yale at the 31 Hudson's Bay Company post at Fort Langley. And he 32 refers in part, he says: 33 34 \"In consequence of orders to that effect from 35 England, I have been lately engaged in buying 36 out the Indian rights to the lands.\" 37 38 And then farther down he says: 39 40 \"I mention this circumstance as your Indians 41 will no doubt be claiming for payment for their 42 lands also but; that can be settled by and by.\" 43 44 THE COURT: He's talking about Vancouver Island still, though, 45 is he? 46 MR. RUSH: He's talking about the mainland. 47 THE COURT: Think so? 25796 Submissions by Mr. Rush 1 MR. RUSH: Yes. Because Yale is located at Fort Langley on the 2 Fraser. 3 THE COURT: Yes. Yes. 4 MR. RUSH: Now, my lord, I include a section on the Hudson's Bay 5 Company as Agent of the Crown in response to what I 6 perceive to be an argument by the Province to the 7 effect that the -- there was doubt that Douglas acting 8 for the Hudson's Bay Company acting as Agent for Crown 9 that he was acting solely either for himself or for 10 the Hudson's Bay Company's interests. And what I've 11 done here is to set out the references to the fact 12 that it was clear that Douglas was acting as Agent for 13 the Crown. And I refer you to 47, firstly to the 14 statements made by Edward Ellice in 1856, and there 15 was -- those appear at the top of 48, and I draw your 16 attention to the fact, my lord, that Ellice at that 17 time said: 18 19 \"It was also considered that the company were 20 from their position better acquainted with the 21 Indian races than any other persons; and that 22 they would be best able to make any 23 arrangements which might be necessary with the 24 tribes occupying Vancouve Island as the charter 25 cannot, of course, interfere with the rights of 26 the aborigines.\" 27 28 And farther down, my lord, Ellice continued: 29 30 \"'They have been vested with the property of 31 the land' (as Lord Grey expressed it in the 32 House of Lords) 'as trustees of the duties of 33 the government.\" 34 35 Now, the above statement of Ellice, quoting Sir Earl 36 Grey, sets out Ellice's understanding, and Ellice's 37 concurrence, that the Company acted as agent of 38 Imperial policy with respect to the lands. 39 Further support is found in 1859 for what -- a 40 notice that was published in the Victoria Gazette by 41 the Colonial Crown's solicitor, and that notice is 42 found at the bottom of 49, and it states in part -- 43 THE COURT: Before you do that, Mr. Rush, I am sure there is 44 Duff's map that had the first nine treaties. 4 5 MR. RUSH: Yes. 46 THE COURT: Is there a collection somewhere of the other five? 47 MR. RUSH: My lord, in Duff's article all of the treaties are 25797 Submissions by Mr. Rush believe they are all mapped as 1 there set out and I 2 3 THE COURT 4 MR. RUSH: 5 6 7 THE COURT 8 MR. RUSH: 9 THE COURT 10 11 MR. RUSH: 12 THE COURT 13 MR. RUSH: 14 15 16 17 18 19 20 21 22 23 24 25 26 THE COURT 27 28 MR. RUSH: 29 30 THE COURT 31 32 MR. RUSH: 33 34 THE COURT 35 MR. RUSH: 36 37 38 39 40 41 42 43 44 45 46 47 well. : Yes. All right. No. Excuse me. Just the southern Vancouver Island treaties are mapped, but the others are identified as -- : All right. -- their location. : I can find them in that same reference as you mentioned about the first nine? Yes, that's right, my lord. : Thank you. Just drawing your attention to the notice at the bottom of 49 where it says in part, the underscored portion: \"And whereas, the title to said land commonly known as the Indian Reservation is vested in Government, and that no sale, alienation or encumbrance of any part or portion thereof has been made to any person or persons\" So clearly that notice acknowledges that that reserve was purchased by the Hudson's Bay Company for the Government. : Is it convenient to take the next adjournment, Mr. Rush? My lord, I wonder if I could just -- well, I'd like to finish this section. : I am sure Miss Laara is happy to accommodate in that regard. Well, I'll try to -- I don't intend to go through this chapter and verse, my lord. : All right. Just referring you to the bottom of page 50: Douglas' response to the House of Assembly of Vancouver Island on February 5 is wholly consistent with a view that he considered that in making the treaties with the Indians for cession of their lands that he acted as agent of the Crown. And this is borne out, my lord, by what he had to say on 51 and I direct your attention to paragraphs two and three and then to the final underscored paragraph: \"It may further interest the House to know that the Title to those Lands is vested in the Crown, and that the Indians of themselves can 25798 Submissions by Mr. Rush 1 convey no Title to any part of their Reserves 2 either by sale or lease.\" 3 4 And then, my lord, I draw your attention that the 5 language of the treaty states that the land is sold by 6 the Indians to the Hudson's Bay Company. There is no 7 language in the treaty about title being in the Crown, 8 or about the Indians being unable to sell or lease the 9 land in the Reserve. And it is reasonable, therefore, 10 to conclude from Douglas' characterization of the 11 treaty that he understood it to be in conformity with 12 the principles regarding native title. 13 And then, my lord, I draw your attention to 14 Douglas' advising the Colonial Office and their 15 acknowledgment of the Gazette notice. And then at the 16 bottom of 52 I refer you to the fact that Douglas' 17 address was proposed by the Speaker of the House in 18 which he referred to the Douglas agreement with the 19 Songhee Indians as a \"treaty.\" 20 And then, my lord -- and I set out that on that 21 passage at the top of 53. But then I direct your 22 lordship's attention to the bottom paragraph of 53 23 which concludes this section in which in my submission 24 completely disposes of any issue as to who Douglas was 25 acting on behalf of when he made the treaties. The 26 Court of Appeal in Claxton and Saanichton Marina laid 27 to rest any suggestion that the Hudson's Bay Company 28 wasn't acting as agent for the Crown in concluding 29 treaties with the Indians, and at page 83 said 30 \"...that position is untenable,\" and this applied to 31 all of the agreements or treaties negotiated by 32 Douglas. 33 THE COURT: Is that what the Court said or is that what you 34 argue? 35 MR. RUSH: No, my lord. That's not -- that is my argument and 36 it's what the court said. 37 THE COURT: All right. That's what you say the court said. 38 MR. RUSH: Well, I believe I was faithful to the language of the 39 decision. 4 0 THE COURT: All right. 41 MR. RUSH: Thank you, my lord. I can take the break then. 42 4 3 (PROCEEDINGS ADJOURNED) 44 45 46 47 25799 Submissions by Mr. Rush 1 2 I hereby certify the foregoing to 3 be a true and accurate transcript 4 of the proceedings transcribed to 5 the best of my skill and ability. 6 7 8 9 10 11 Laara Yardley, 12 Official Reporter, 13 UNITED REPORTING SERVICE 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 25800 Submissions by Mr. Rush 1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS) 2 3 SUBMISSIONS BY MR. RUSH: 4 5 MR. RUSH: On page 54, my lord, turning to the recognition of 6 aboriginal title in the Mainland Territory, 1858, I 7 want to draw your attention to three critical 8 despatches which provide evidence of Imperial policy 9 regarding native title specific to the mainland of 10 British Columbia. 11 Now, these three despatches are set out here, 12 Labouchere to Douglas, February 1, 1858; Lytton to 13 Douglas, 31 July, 1858; and Carnarvon to Douglas, 14 April 11, 1859. 15 Now these despatches, my lord, are expressions of 16 Indian title by officers of the Crown in England. And 17 they are important because of their timing, repetition 18 as well as content. 19 Now, my lord, taken together, these despatches, 20 firstly, contain language showing British policy 21 recognizing native title rights to land on mainland 22 B. C, prior to, at and after the establishment of the 23 mainland colony. So the timing there is significant. 24 The first of these, and I will be discussing them each 25 in turn. The first of these expresses, (a) natives 26 have rights to be recognized, parameters or contents 27 not yet clearly defined; (b) Natives cannot part with 28 soil absent Crown consent, and I say strongly implying 29 natives have title rights to land to start with. And 30 number two above, expresses, (a) that natives have 31 rights in land; and, (b) can be given up with native 32 consent; and, (c) must be compensated. Number three 33 expresses that natives have rights in land; and (b), 34 must be compensated by the Crown. 35 Now, taken together these despatches express three 36 essential elements entailed in Indian title: Native 37 interests in land capable of being parted with to the 38 Crown for compensation to be extinguished with consent 39 of natives. And, second, the three despatches are 40 authored by three separate officers of the Colonial 41 Office. Now, it is important to note, my lord, 42 that -- to note that of the three key despatches, only 43 one, that is, number two, is included in the document 44 relied upon by the province in Papers relating to the 45 affairs of British Columbia, which is Exhibit 1142. 46 It's been acknowledged by the province, Papers was not 47 a complete compilation of all despatches between the 25801 Submissions by Mr. Rush 1 Colonial Office and the governor. The omission of a 2 despatch from Papers is not because they were somehow 3 unimportant or not to be weighed as heavily as others, 4 but more likely for what they tended to show. 5 The first despatch, number one, pre-dates 6 establishment of B.C. as a colony and ante-dates the 7 first entries on Papers. And our last despatch, 8 number three, responded to events concerning the 9 Songhees reserve in Victoria, although the policy was 10 distinctly expressed as applying to Vancouver Island 11 and British Columbia. 12 Now, my lord, we say that these three official 13 despatches relate specifically to Indian title on the 14 mainland. There were other despatches dealing with 15 the Indian Reserve system and with Indians generally, 16 but as part of the common law and the common 17 understandings of the Colonial Office, it was not 18 necessary to constantly refer to Indian title. 19 Douglas was reminded of it by Labouchere on the first 20 needful occasion before the colony of B.C. was 21 established. He was reminded again by Lytton on the 22 eve of the establishment of the colony, 31 July, 1858, 23 and finally triggered by a question of title at 24 Songhees, Douglas was reminded by Carnarvon of the 25 policy of Her Majesty's government as to Indian title 26 both on Vancouver Island and in the Colony of British 27 Columbia. That Douglas did not proceed with monetary 28 compensation on the mainland is clearly related to 29 physical restraints, there as well as on Vancouver 30 Island. 31 Now, with those introductory words, I want to turn 32 now to the consideration of each of these despatches. 33 My lord, the long-standing policy of Great Britain to 34 recognize native title was explicitly enunciated with 35 regard to the mainland in the despatch I will now 36 refer you to. Before the mainland colony of British 37 Columbia was created, there was concern that British 38 interests might be jeopardized by an anticipated 39 influx of Mormon settlers from Utah. Secretary of 40 state for the Colonies Labouchere wrote to Douglas, 41 who was by this time governor of Vancouver Island and 42 the nearest officer of the Crown, and he noted that 43 while the aprehended immigration may not take place, 44 Her Majesty's Government were of the opinion -- and I 45 take you to the second paragraph -- 46 47 \"Should they apply for admission to occupy any 25802 Submissions by Mr. Rush 1 portion of the northwestern territory 2 peacefully and as a community or in scattered 3 communities: You will remember that the soil 4 of this territory belongs to the Crown, subject 5 to such rights as may be recognized in the 6 Indian tribes (who are not authorized to part 7 with the soil without the permission of the 8 Crown).\" 9 10 And then he goes on to -- with his despatch. 11 Now, my lord, a draft of this despatch, including 12 the language set out in boldface, had been approved by 13 the Foreign Office and by the secretary of state for 14 the Colonies, Henry Labouchere. Hammond was permanent 15 head of the Foreign Office under secretary for Foreign 16 Affairs, and we say this shows the wide circulation of 17 the letter to various government offices in London. 18 Now the foregoing instructions sent to Douglas show 19 that the views of Her Majesty's Government in 1858, 20 with respect to the mainland area of what is now 21 British Columbia, were consistent with the principles 22 of aboriginal title recognized and expressed in common 23 law and in the Royal Proclamation. Aboriginal title 24 and rights was recognized and could only be 25 surrendered to the Crown. And, clearly, if natives 26 can part with soil, they must have rights of title in 27 the soil. 28 My lord, within a few months, faced not with the 29 anticipated Mormon settlers but with an influx of 30 foreign gold seekers, the Imperial Government was 31 forced to alter its plans and somewhat hurriedly to 32 establish the mainland colony of British Columbia. 33 Again, aboriginal title was recognized and the need 34 for land cession treaties noted. 35 Now, just before I go to that, my lord, I want to 36 draw your attention to the fact that between February 37 1st, 1858 and July 31st, 1858, there were a number of 38 despatches between Douglas and the Secretary of State. 39 The province relies on some of these in its argument. 40 These despatches, however, must be read in light of 41 Labouchere's instructions that natives have rights in 42 the soil and they are not authorized to part with 43 those rights without Crown permission. 44 None of the despatches relied on by the province 45 repudiate the instructions of the Colonial Office 46 through Mr. Labouchere. For his part, Douglas 47 reported on the state of affairs in the gold fields. 25803 Submissions by Mr. Rush 1 The Colonial Office wished assurances that there would 2 be regular government in the gold country. Now, the 3 province argues that Douglas formulated a policy in 4 three despatches of this period: June 10, 15 and 26. 5 A reading of these despatches does not bear out that 6 conclusion. On June 10, Douglas gave a brief 7 narrative of what he -- gave what he called \"a brief 8 narrative of my proceedings and the information 9 gathered...\" 10 On June 15, he conveyed information omitted on his 11 observations of the gold regions. On June 26th, he 12 reported on the regulations established in furtherance 13 of the Crown instructions set out on February 1st, 14 1858, the previous Colonial Office despatch to which I 15 have drawn your lordship's attention. By this, we 16 say, it is evident that Douglas was mindful of the 17 Colonial Office's instructions. On the eve of the 18 establishment of the mainland colony, Douglas was 19 again instructed about the recognition of aboriginal 20 title and the need for land cession treaties. 21 Now, I go to that now, my lord, and part way 22 through the next paragraph I point out that by 23 despatch dated 31 July, 1858, Secretary of State for 24 the Colonies, Sir Edward Bulwer Lytton, wrote to 25 Douglas sending him instructions and advising him of 26 Indian policy for the new colony. And he says at the 27 top of 61. 28 29 \"I have to enjoin upon you...\" 30 31 And I ask your lordship to be mindful of that 32 language, I think: 33 34 35 \"...to consider the best and most humane means 36 of dealing with the Native Indians. The 37 feelings of this country would be strongly 38 opposed to the adoption of any arbitrary or 39 oppressive measures towards them.\" 40 41 Then he goes, farther down, about ten lines from 42 the bottom: 43 44 \"Let me not omit to observe, that it should be 45 an invariable condition, in all bargains or 46 treaties with the natives, for the cession of 47 lands possessed by them, that subsistence 25804 Submissions by Mr. Rush 1 should be supplied to them in some other shape, 2 and above all, that it is the earnest desire of 3 Her Majesty's Government that your early 4 attention should be given to the best means of 5 diffusing the blessings of the Christian 6 Religion of civilization among the Natives.\" 7 8 9 These instructions, my lord, and in Papers, where 10 it is located, to be found in Exhibit 1142, this 11 document or despatch is referred to as general 12 instructions. These instructions leave no doubt that 13 the Imperial authorities contemplated the making of 14 land cession treaties with the native people of the 15 mainland Colony of British Columbia, and it is worth 16 noting that the draft of the above despatch had been 17 the subject of a lengthy minute by Carnarvon which 18 resulted in changes to the contents. The language 19 regarding land cession treaties was not questioned nor 20 was it changed. 21 In August, 1858, my lord, the mainland colony was 22 formed and the need for land cession treaties with the 23 natives was one of the first orders of business noted. 24 Now, I simply wish to pause here, my lord, to say 25 that the Lytton despatch simply reiterates for the 26 mainland what was the existing policy, in our 27 submission, for the Colony of Vancouver Island. And, 28 in our submission, it was a continuous policy 29 involving the two aspects of the purchase of land of 30 this -- the aboriginal title to which was resonant in 31 the native people by cession and the setting aside of 32 reserves for their use and security. 33 Now, my lord, following the establishment of the 34 Colony of British Columbia, in one of the despatches, 35 dated September 2nd, 1858, Lytton to Douglas, Lytton 36 had occasion to refer to his despatch of July 31st. 37 Now, my lord, I go into this at this juncture because 38 it is a matter that's raised by the province. And I 39 draw your attention to this despatch which says, in 40 part, on page 62: 41 42 \"In my despatch of 31 July, No. 6, I directed 43 your attention to the treatment of the native 44 Indians in the country which had it has so 45 recently decided to establish as a British 46 colony. I regard that subject as one which 47 demands your prompt and careful consideration.\" 25805 Submissions by Mr. Rush 1 2 Then he transmits a copy of a letter from the 3 Aborigines Protection Society invoking the protection 4 of Her Majesty's Government on behalf of these people. 5 And he goes on: 6 7 \"I readily repeat my earnest injunction to you 8 to endeavour to secure this object. At the 9 same time, I beg you to observe that I must not 10 be understood as adopting the view of the 11 society as to the means by which this may be 12 best accomplished.\" 13 14 Enclosed with this despatch, my lord, was the 15 Aborigine Protection Society letter. I wish to draw 16 your attention to two parts of it. The first part, in 17 chronological sequence, is set out here in part: 18 19 \"It would seem that a treaty should promptly be 20 made between the delegates of British authority 21 and the chiefs and their people, as loyal, 22 just, and pacific as that between William Penn 23 and the Indians of Pennsylvania, but that more 24 stringent laws should be made to ensure that 25 its provisions be maintained with better faith 26 than what was carried out on the part of the 27 whites.\" 28 29 Later in the Aborigine Protection letter this 30 passage follows: 31 32 \"To accomplish the difficult but necessary task 33 of civilizing the Indians and of making them 34 our trusty friends and allies, it would seem to 35 be indispensable to employ in the various 36 departments of government a large proportion of 37 well-selected men, more or less of Indian 38 blood, who might not only exert a greater moral 39 influence over their race than we could 40 possibly do, but those recognized positions 41 among the whites would be some guarantee that 42 the promised equality of races should be 43 realized. The adoption of these or similar 44 measures would, we believe, propitiate the 45 goodwill of the Indians; and instead of 46 obstructing the work of colonization, they 47 might be made useful agents in peopling the 25806 Submissions by Mr. Rush 1 wilderness with prosperous and civilized 2 communities, of which they one day might form a 3 part.\" 4 5 6 Now, my lord, when Lytton indicated in his letter 7 of September 2nd, 1858, \". . .that I must not be 8 understood as adopting the views of the society as to 9 the means by which this may be best accomplished\", he 10 was referring here to Chesson's proposal, Chesson 11 being in the Aborigine Protection Society, to install 12 Indians in government departments as a way of exerting 13 influence over their tribe members. To read Lytton's 14 comment in any other way would mean that Lytton was 15 renouncing what he had instructed on July 31st, 1858, 16 three days earlier, which was: \"It should be an 17 invariable condition in all bargains or treaties with 18 the Natives for the cession of land promised them, 19 that subsistence should be supplied to them.\" 20 Now, my lord, this is significant because the 21 province argues that this is evidence that Lytton 22 intended to refer to the proposal made by the 23 Aborigines Protection Society that treaties should be 24 promptly made between the delegates of British 25 authority and the chiefs and the people. And I say 26 that a reading of the despatch from Lytton of 27 September 2nd, 1858 cannot be read as referring to 28 that particular proposal but rather refers to that 29 second proposal, with regard to the installation of 30 Indians in government departments. And I say this 31 obviously, my lord, because it would make no sense 32 three days later to resile from, in this manner, 33 direct instructions to Douglas that he ought to take 34 cession treaties from the people. 35 MR. GOLDIE: What is the three days that you refer to? 36 MR. RUSH: Between July 1st, 1858 to September 2nd, 1858. 37 Excuse me, my friend draws my attention to the 38 fact that the -- I jumped a month, my lord, my friend 39 correctly draws my attention to the fact that it's not 40 three days but a period of just over a month. 41 THE COURT: July 31st to September 2nd? 42 MR. RUSH: That's right. 43 MR. GOLDIE: I was afraid the calendar was being abrogated. 44 MR. RUSH: It doesn't detract in the slightest from the argument 45 I make, my lord, that in that period of time Lytton is 46 not resiling from a position that he had taken on July 47 31st, and this will become evident in a moment when in 25807 Submissions by Mr. Rush 1 fact the same instructions are repeated in April of 2 1859. 3 Now, my lord, I say further at the bottom of page 4 63, if it was Lytton's intention to so resile from the 5 instructions made to Douglas on July 31st, 1858, he 6 could have said quite directly, if that was what he 7 intended. On November 5th, when Douglas responded to 8 Lytton, he, Douglas, referred to the Chesson letter 9 and he said the following, top of 64: 10 11 \"I shall not fail to give the fullest effect to 12 your instructions on that head as soon as the 13 present pressure of business has somewhat 14 abated. I may, however, remark that the native 15 Indians tribes are most protected in all their 16 interests to the most utmost extent of our 17 present means.\" 18 19 20 Now here, my lord, the instructions referred to by 21 Douglas are those of Lytton's of 31 July, 1858, and 22 what I say is that the present means that he is 23 referring to must refer to the financial capacity of 24 the new Colonial Government to give effect to the 25 instructions from Lytton. 26 Mr. Justice Hall commented on this despatch in 27 Calder, and he concluded: 28 29 \"A further observation in respect of the letter 30 of instructions of July 31, 1858...\" 31 32 And he there sets it out, 33 34 \"...having in mind the use of the word 'cession' 35 in this context, how can it logically be said 36 that the Imperial Government has not at the 37 time recognizing that the natives had something 38 to cede? What they had to cede was their 39 aboriginal right and title to possession of the 40 lands subject to the Crown's paramount title.\" 41 42 The Imperial Government, through Lytton, recognized 43 that native people on the mainland of British Columbia 44 had an aboriginal title to lands and that title could 45 be ceded by treaty with the native inhabitants. 46 On December 30, 1858, Lytton asked Douglas whether 47 it might be feasible to settle the Indians permanently 25808 Submissions by Mr. Rush 1 in villages and whether Douglas had thought the 2 natives might consent to a small direct tax, the 3 proceeds of which would be spent strictly and solely 4 for their benefit. And I draw your attention to the 5 passage of Lytton to Douglas. 6 Lytton does not suggest in this passage that 7 settlement in villages would abrogate aboriginal 8 title. Douglas relied, on March 14th, 1859, in a 9 lengthy despatch -- sorry. Excuse me, Douglas replied 10 on 14 March 4, 1859 in a lengthy despatch outlining 11 for his proposals for the Indian people in British 12 Columbia. He thought that the Indians could be 13 settled in self-supporting permanent villages on lands 14 secured to them as reserves. These communities could 15 be self-supporting in one of two ways: In districts 16 where land was valuable, a portion of those reserves 17 not required for Indian use could be sold or leased, 18 thus creating capital for Indian settlement. In 19 districts where the white population was sparse and 20 the land unproductive, the Indians would be able to 21 continue to support themselves as hunters and 22 fishermen. Douglas also proposed that each family 23 would be assigned a distinct portion of the reserved 24 land for their use, but for the present they would be 25 without power to sell or otherwise alienate the land. 26 His idea in assigning separate portions in the reserve 27 was to foster individual effort and earnings to 28 encourage individual Indians or families to invest 29 such earnings in \"the purchase of property apart from 30 the reserve, which would be left entirely at their own 31 disposal and control.\" 32 Now, the management of reserves, according to this 33 plan, can be seen with Douglas's despatch to Lytton on 34 March 14th, 1859. And here he says, my lord, about 35 the fourth or fifth line down: 36 37 \"Respecting the course I propose to adopt in the 38 disposal and management of the land reserved 39 for the benefit of the Indian population at 40 this place, the plan proposed being briefly 41 thus: that the Indians should be established 42 on that reserve and the remaining unoccupied 43 land should be let out on a lease at an annual 44 rent to the highest bidder and that the whole 45 proceeds arising from such leases should be 46 applied to the exclusive benefit of the 47 Indians.\" 25809 Submissions by Mr. Rush 1 Douglas's suggestion related directly to Lytton's 2 questions regarding the feasibility of permanently 3 settled communities and how these might be supported. 4 Neither Lytton nor Douglas suggested that reserves 5 would abrogate the requirement of the Crown to deal 6 with original -- aboriginal title rights or to 7 purchase lands from the natives. Douglas's suggestion 8 that natives could be encouraged to purchase land 9 outside the reserves clearly contemplated that 10 aboriginal title to such lands had first been 11 extinguished. 12 Now, in setting out his suggestion for leasing of 13 reserve lands, Douglas used an example of the reserve 14 at Victoria, and this reserve was established under a 15 land cession treaty with the Songhees in which they 16 had been paid for land to which they claimed. 17 Now, my lord, I will ask you to go over to page 68, 18 and I want to direct your attention now to the third 19 of the three despatches. 20 The Imperial obligation to recognize aboriginal 21 title and to compensate the Indians for surrender of 22 title was reiterated by Lord Carnarvon in a despatch 23 dated 11 April, 1859. And I point out, my lord, that 24 this is, of course, after Lytton's suggestions and 25 Douglas's response made on March 14th, 1859. And what 26 Carnarvon says is this, and I begin with the sentence: 27 28 \"In the case of the Indians of Vancouver's 29 Island...\" 30 31 And here is the critical part, my lord, 32 33 \"...and British Columbia, Her Majesty's 34 Government earnestly wish that when the 35 advancing requirements of colonization press 36 upon lands occupied by members of that race, 37 measures of liberality and justice may be 38 adopted for compensating them for the surrender 39 of the territory which they had been taught to 40 regard as their own.\" 41 42 43 The Crown requirement of recognizing aboriginal 44 title and extinguishing it by purchase was clearly 45 enunciated in the above despatch by Carnarvon as 46 applying to both Vancouver Island and the mainland 47 Colony of British Columbia. The fact that no treaties 25810 Submissions by Mr. Rush 1 were concluded in the mainland colonies, has led some 2 to assert that Imperial policy regarding aboriginal 3 title was different from the colonies of Vancouver 4 Island and British Columbia, that aboriginal title was 5 never recognized on the mainland. This conclusion is 6 wholly unwarranted. Even without the above clear 7 documentation to the contrary, it is patent that it 8 would not have been feasible to pay the Indians on 9 Vancouver Island for their land and to deny equal 10 treatment to Indians on the mainland. The Indians on 11 the Island and mainland were closely connected, were 12 in constant contact, and would have regarded 13 differential treatment as unacceptable. 14 Now, my lord, what I do here then is to set out the 15 recognition by the government, the Colonial Office, of 16 the close ties and contacts between the Indian peoples 17 of Vancouver's Island and the mainland, and I make 18 reference to the post journal at Fort Langley and on 19 the Fraser River. I draw your attention at the bottom 20 of 69 to the fact that the Saanich people travelled to 21 Vancouver Island and had a summer fishing village at 22 Point Roberts on the mainland, and I draw attention to 23 your lordship on page 70 to the fact that George 24 Simpson reported in 1829 from Fort Langley that: 25 26 \"Its permanent occupants, however being few in 27 number, are intimidated by the large and 2 8 powerful bands that come to the river from 29 Vancouver's Island.\" 30 31 And I say, my lord, that this is demonstrative of 32 the fact that there is no question that the Colonial 33 Office was fully aware of the close ties and contacts 34 between the Indians on the mainland and at Fort 35 Langley, and the Indians on Vancouver's Island. 36 Now, my lord, on 71, I summarize the importance of 37 Carnarvon's despatch to Douglas of 11 April, 1859. 38 THE COURT: That's the third one? 39 MR. RUSH: Yes. And I say, it was virtually identical to the 40 instructions given by Lytton to Douglas on the eve of 41 the formation of the mainland colony on 31 July, 1858. 42 THE COURT: That's number two? 43 MR. RUSH: That's number two. It clearly expresses that natives 44 have rights in the land, and that they must be 45 compensated by the Crown when they surrender -- 46 surrender being the language of the despatch -- their 47 territory, also the language. This despatch applied 25811 Submissions by Mr. Rush 1 to both Vancouver Island and the mainland colony. And 2 fortunately, my lord, Carnarvon's instructions came 3 after the passing of the act to establish the Colony 4 of British Columbia, after Douglas's commission and 5 after Douglas's instruction with regard to the 6 mainland colony. The instructions to Douglas of 7 September 2nd, 1858, were not intended to supersede 8 the instructions of Douglas of July 31, 1858. 9 THE COURT: That's number one? 10 MR. RUSH: That's number \u00E2\u0080\u0094 no. No, my lord. 11 THE COURT: That's number two? 12 MR. RUSH: That's number two. Both Lytton's instructions of 13 July 31, 1858, number two, and Carnarvon's 14 instructions of April 11, 1859, number three, were 15 intended to be complementary to the Douglas 16 instructions of September 1, 1858, and expressly 17 acknowledged the existence of Indian title to land in 18 the mainland colony. 19 Viewed against the background of Carnarvon's 20 instructions of April 11, 1859, number three, and the 21 timing of those instructions, Mr. Justice Hall in 22 Calder we say was right in characterizing the Lytton 23 instructions of July 31, 1858, number two, as further 24 instructions in the sense of being additional and 25 complementary instructions to Douglas. That they were 26 instructions is plain from the words, \"I have to 27 enjoin upon you\" and as well from the reference in 28 Papers to general instructions. 29 Now, my lord, I turn now to a consideration of the 30 instrumentalities in establishing the mainland colony 31 in 1858. And I say that, at the bottom of 72, that 32 the Colony of B.C. was established by an act to 33 provide for government of British Columbia on the 2nd 34 of August, 1858, and no doubt, my lord, here is where 35 my three days calculation arose because it was three 36 days after 31 July, 1858, that the British parliament 37 enacted an act to provide for government of British 38 Columbia. 39 On September 2nd, 1858, Letters Patent appointing 40 Douglas as governor over the colony and its 41 dependencies, and instructions no James Douglas were 42 issued. As well, on September 2, 1858 an order-in- 43 council empowering the Governor of British Columbia to 44 make laws and to provide for the administration of 45 justice in the said colony was issued. 46 There is nothing on the face of these statutes and 47 instruments which abrogates or limits the application 25812 Submissions by Mr. Rush 1 of the Imperial common law, nor the operation of the 2 Royal Proclamation of 1763, to the mainland. In fact, 3 the instructions to Douglas expressly enjoined him 4 from making any law \"...of an extraordinary nature and 5 importance, whereby our prerogative or the rights and 6 properties of our subjects residing in our said 7 colony... may be prejudiced.\" The fundamental 8 principles of aboriginal rights continued into the 9 mainland colony and were applicable there. 10 Now, my lord, I am going to consider the 11 commission, the instructions and the act in turn. 12 First the commission. The Letters Patent appointed 13 James Douglas governor and commander-in-chief over the 14 colony of British Columbia. Among other things, the 15 commission empowered Douglas: 16 17 \"to make, ordain, and establish all such laws, 18 institutions, and ordinances as may be 19 necessary for the peace, order and good 20 government of our subjects and others residing 21 in our said colony and its dependencies.\" 22 23 On the strength of this, the province argues that 24 Douglas had the fullest \"amplitude\" of powers to make 25 laws in respect of the mainland colony of British 26 Columbia. The province argues that Douglas, like an 27 autocrat, could make what laws he pleased. Douglas's 28 power and his commission, however, was limited by one 29 major proviso. After the foregoing the commission 30 goes on: 31 32 \"...provided that such laws, institutions and 33 ordinances are not to be repugnant but, as near 34 as may be agreeable, to the laws and statutes 35 of our United Kingdom of Great Britain and 36 Ireland.\" 37 38 Furthermore, my lord, in the same Letters Patent 39 but earlier in sequence, this section is to be found: 40 41 \"And whereas we have ordered and authorized, 42 empowered and commanded our governor to make 43 provision for the administration of justice...\" 44 45 And I ask you to go down to the underscored 46 portion: 47 25813 Submissions by Mr. Rush 1 \"...subject to all such rules and regulations as 2 shall be prescribed in and by our instructions 3 under our signet and Sign Manual accompanying 4 our said commission or by any future 5 instructions as aforesaid.\" 6 7 8 Now, Douglas's laws could not, therefore, derogate 9 or be repugnant to the laws of the United Kingdom, 10 including the common law in any Royal prerogative. 11 Douglas did not have an unfettered jurisdiction by 12 this commission to make whatever laws he pleased. He 13 wasn't a viceroy or, for that matter, an autocrat. 14 The common law -- as reflected in Symonds -- and the 15 law of the Royal commission -- as reflected in the 16 Royal Proclamation of 1763 -- could not be abrogated 17 by laws made in the Colony by Douglas. 18 Let me go back to the commission, my lord. 19 Commission further advised Douglas that: 20 21 \"We do by these presents require and enjoin you 22 that in making all such laws, institutions and 23 ordinances, you do strictly conform to and 24 observe the rules, regulations and restrictions 25 which are or shall be in that respect, 26 prescribed to you by our instructions under our 27 Royal Sign Manual and signet accompanying this 28 our commission, or by any future instructions 29 as aforesaid.\" 30 31 32 THE COURT: Is that not the same quote as on the previous page 33 or is it just re-stated? 34 MR. RUSH: My lord, this language appears more than once in 35 the \u00E2\u0080\u0094 36 THE COURT: Well, I can look at it anyway. 37 MR. RUSH: And as is evident by the next passage in those 38 commissions -- excuse me, in that commission, such 39 \"further instructions\" were referred to in paragraph 40 two \"by us or through one of our principal Secretaries 41 of State.\" 42 THE COURT: But did not all his laws have to be approved by the 43 Imperial parliament? 44 MR. RUSH: No, not all. Some were confirmed by the Queen. 45 THE COURT: Yes. All right. I am sure you will come to it. 46 MR. RUSH: Yes, I am coming to that, my lord. 47 The point that I make here is that the laws were 25814 Submissions by Mr. Rush 1 subject to instructions, not only the instructions 2 that were given to him as of September 2nd, 1858, but 3 such other future instructions as would have been 4 given to him \"by our principal Secretaries of State.\" 5 By this, the commission provides for future 6 instructions to Douglas through the Colonial Office, 7 Secretaries of State. This was the normal means by 8 which instructions were transferred to colonial 9 governors. Such instructions were conveyed to Douglas 10 by Carnarvon's letter of April 11, 1859, number three. 11 Further, nothing in the commission suggests that prior 12 instructions were to be superseded or negated by the 13 commission. The general instructions of 31 July, 14 1858, continued to apply. And that's number two, my 15 lord. And you will recall that by the transfer letter 16 of September 2nd, 1858, Lytton referred to and 17 incorporated the general instructions of July 31, 18 1858. 19 Now, I refer to one further relevant passage in the 20 Letters Patent and it is Roman VII: 21 22 \"You are as much as possible, to observe in the 23 passing of all laws, that each different matter 24 be provided for by a different law.\" 25 26 And then going on to the underscored part: 27 28 \"...and that no law whatever be suspended, 29 altered or continued, revived or repealed by 30 general words, but that the title and date of 31 such law so suspended, altered, continued, 32 revived or repealed, be particularly mentioned 33 and expressed in the enacting part.\" 34 35 Alteration or repeal of laws could not be done in 36 general words. Such was required to be done 37 specifically. 38 Now, my lord, the instructions accompanying the 39 commission provided for some more detailed 40 instruction. Now, by Article V, Douglas's 41 instructions were subject to his receiving \"any future 42 instructions as aforesaid\", and they were not intended 43 to be self-limiting. I draw your attention to article 44 XVIII, Douglas was prohibited from making: 45 46 \"Any law of an extraordinary nature and 47 importance whereby our prerogative, or the 25815 Submissions by Mr. Rush 1 rights and property of our subjects residing in 2 our said colony, or the trade and shipping of 3 our United Kingdom and its dependencies may 4 being predjudiced.\" 5 6 The instructions, therefore, were not to prejudice 7 or impinge upon prerogative instruments. 8 THE COURT: Is that what you intend to say, Mr. Rush, \"the 9 instructions therefore were not prejudiced\" or was it 10 \"the law to be passed educates were not to prejudice\"? 11 MR. RUSH: The laws, my lord, the laws were not to prejudice or 12 impinge upon prerogative instruments, such as the 13 Royal Proclamation. The article makes it clear 14 that -- and I should say, again, my lord, the laws 15 were not to derogate from the Royal Proclamation. In 16 this respect it is a provision which is in accord with 17 the general law regarding prerogative instruments. 18 Furthermore, by this article Douglas could not make 19 laws prejudicing \"rights and property of our subjects 20 residing in our said colony.\" In this the native 21 title rights of the aboriginal people, surely subjects 22 of the Crown, could not be affected by land laws or 23 other proclamations or instruments made by Douglas in 24 making laws for the colony. 25 Now, let me turn to the third of the three 26 instrumentalities, a copy of an act to provide for the 27 government of British Columbia was transmitted to 28 Douglas by despatch from Lytton August 14th, 1858. In 29 it Douglas is authorized to continue to act before the 30 arrival of his commission and instructions. And there 31 was a time lapse, my lord, between the transmittal of 32 the statute for the creation of the mainland colony 33 and the transmittal of Douglas's commission and 34 instructions. And what Lytton says here, Douglas is 35 authorized to continue to act and to \"take without 36 hesitation such steps as you may deem absolutely 37 necessary for the government of the territory and as 38 are not repugnant to the principles of British law.\" 39 And I simply point that out as instructions, my lord, 40 which are consistent with the language of the 41 commission. And Douglas received the act in that 42 despatch on October 21, 1858. 43 Now, my lord, with regard to this act, the province 44 argues that the act deemed the mainland colony of 45 British Columbia to be a settled colony. And this 46 appears to be in support of their argument that the 47 colony of British Columbia was a settled colony by 25816 Submissions by Mr. Rush 1 force of law. The province's argument is founded on 2 the \"whereas\" clause of of the enactment and the 3 opening words of this provide: 4 5 \"Whereas diverse of Her Majesty's subjects and 6 others, have by the licence and consent of Her 7 Majesty, resorted to and settled on certain 8 wild and unoccupied territories of the 9 northwest coast of North America.\" 10 11 12 The act makes no other reference to \"settled\" or 13 \"unoccupied\" territories. And we say it does not by 14 the force of its enacting power, declare \"deemed\" the 15 territories or the colony to be settled. We say it is 16 a thin thread indeed for the province to say the 17 Colony of British Columbia was a \"settled\" colony in 18 the Blackstonian tradition on the basis of the 19 assertion, clearly erroneous, in the recitation 20 clause. It was not true that the territory of the 21 northwest coast or the territories were \"wild\" or 22 \"unoccupied\". Certainly, if there were any such 23 territories they were isolated and scattered, not the 24 whole of what was known \"by the designation of New 25 Caledonia\". Simpson himself said there were some 26 80,000 inhabitants in New Caledonia, mostly Indians. 27 Whatever was in the minds of the British Parliament 28 when these worlds were used, they were certainly 29 misguided as to the reality on the ground. The land 30 was not wild and it was occupied by many and diverse 31 Indian peoples. 32 Now, the argument that the colony of British 33 Columbia was a settled colony, and hence no rights 34 flowed to its native denizens as a matter of 35 constitutional interpretation, not only ignores the 36 reality on the ground but it also, in our submission, 37 is a revival of old constitutional principles which 38 had no relevance to the changing conditions of a 39 colony with an Indian occupied land. The province's 40 fiction that the colony of British Columbia was a 41 \"settled\" colony is particularly controverted by the 42 pre-1858 conduct of Douglas while governor of 43 Vancouver's Island in treating with the native people 44 there. Further, the Colonial Office clearly wanted 45 Douglas to treat with the Indian people on the 46 mainland in the same way, as evidenced by the February 47 11, 1858 despatch from Labouchere, which is number 25817 Submissions by Mr. Rush 1 one. In short, my lord, the 1858 act to provide for 2 the government of British Columbia says nothing about 3 the status of the colony of the mainland under 4 constitutional law. 5 Now, I want to deal more directly with the 6 characterization of the colony. The law applicable to 7 the mainland colony of British Columbia was the same 8 law that applied to Vancouver's Island. The legal 9 principles relating to aboriginal title are founded in 10 the common law and were recognized and affirmed in the 11 proclamation. And these principles pre-existed the 12 establishment of the mainland colony and applied to it 13 upon its creation, and we have made this argument on 14 the basis of the review of the commission, the 15 instructions and the act. 16 Now the characterization, my lord, of the mainland 17 colony as settled, is, we say, irrelevant in terms of 18 the existence of aboriginal title. Aboriginal title 19 does not depend for its existence on the 20 characterization of the colony. The case law does not 21 consider the distinction between a settled, conquered 22 or ceded colony to be relevant. And this is, I think, 23 apparent from Mr. Justice Hall's decision, his 24 decision in Calder after citing Chief Justice Marshall 25 in Johnson and M'Intosh. And he said at the top of 2 6 81, my lord: 27 28 \"The dominant and recurring proposition stated 29 by Chief Justice Marshall in Johnson and 30 M'Intosh is that on discovery or on conquest, 31 the aborigines of newly founded lands were 32 conceded to be the rightful occupants of the 33 soil with a legal as well as a just claim to 34 retain possession of it and to use it according 35 to their own discretion.\" 36 37 38 This proposition was adopted with approval by the 39 Supreme Court of Canada in Guerin. Chief Justice 40 Dickson said this: 41 42 \"The principle of discovery which justified 43 these claims gave the ultimate title in the 44 land in a particular area to the nation which 45 had discovered and claimed it.\" In that 46 respect at least the Indians' rights in the 47 lands were obviously diminished but their 25818 Submissions by Mr. Rush 1 rights of occupancy and possession remained 2 unaffected.\" 3 4 THE COURT: Does he mean that by discovery? 5 MR. RUSH: Yes, unaffected by discovery. 6 THE COURT: Yes. Thank you. 7 MR. RUSH: And this point I think is made next, my lord, after 8 citing Johnson and M'Intosh Chief Justice Dickson 9 said: 10 11 \"The principle that a change in sovereignty over 12 a particular territory does not in general 13 affect the presumptive title of the inhabitants 14 was approved by the Privy Council in Amodu 15 Tigini...\" 16 17 18 I didn't include the cite because we have set it 19 out before but he then sets out the Amodu Tigini 20 principle. 21 Now, my lord, it is our proposition that the 22 characterization of the colony as settled for the 23 purposes of determining the aboriginal title or rights 24 of the native inhabitants is really irrelevant, that 25 on the basis these principles, once discovered, the 26 presumption that the inhabitants have title is 27 accepted as given. And I think that is fully borne 28 out by the authorities to which I have directed your 29 lordship. 30 Now in addition to that -- and I am on the bottom 31 of 81, my lord -- we have argued that the Royal 32 Proclamation is a major prerogative legislation which 33 applied to the Mainland Colony of British Columbia, as 34 part of the Crown's constituent power. And I have 35 directed your lordship to where we make the argument 36 in volume two. As such, it could be invoked in 37 relation to all British colonies, regardless of the 38 mode of acquisition. The creation of the mainland 39 colony by statute empowered Douglas to make ordinary 40 laws in relation to the colony but did not preclude 41 the Crown's constituent power exerciseable on the 42 basis of the principles set out in the Proclamation. 43 The law-making power authorized by Douglas must be 44 viewed in the light of the commission and instructions 45 to Douglas, and these constrained the governor's power 46 in such a manner as to avoid repugnancy to the British 47 common law and the extant Royal prerogatives. I also 25819 Submissions by Mr. Rush 1 draw your lordship's attention to another feature of 2 the act establishing the colony and that is that it 3 replaced the Jurisdiction Acts of 1803 and 1821, and I 4 have made that submission to you, and that it replaced 5 those acts so far as they extended to the Indian 6 territories which was part of the New Caledonia. 7 I go down to the bottom of 82 and I refer your 8 lordship to the bottom paragraph. At the beginning of 9 January, 1860, laws were passed by the colony of 10 British Columbia with regard to the disposal of lands 11 in the mainland colony. A proclamation regarding 12 lands on the mainland was issued on 4 January, 1860. 13 A further proclamation regarding the survey of town 14 and agricultural lands was proclaimed by Douglas on 15 January 20, 1860. Following these proclamations, 16 Governor Douglas addressed the matter of aboriginal 17 title on the mainland. 18 And at the opening session of the Legislative 19 Council and House of Assembly, Douglas addressed the 20 members of government on the need to extinguish 21 aboriginal title in the district which had recently 22 been opened for settlement. Here he says, my lord: 23 24 \"The House of Assembly will have to provide 25 means for extinguishing, by purchase, the 26 native title to the lands in the districts of 27 Cowitchan, Chemainis, and Salt Spring Island, 28 which are now thrown open for settlement. The 29 purchase should be effected without delay as 30 the Indians may otherwise regard the settlers 31 as trespassers and become troublesome.\" 32 33 34 MR. GOLDIE: My friend is not suggesting that that was the 35 Legislative Council and House of Assembly of the 36 mainland? 37 MR. RUSH: My lord, Douglas was governor of the mainland at the 38 time, and on March 1, 1860, this address was made to 39 the House of Assembly in Vancouver's Island and was 40 dealing with those districts of Cowitchan, Chemainis 41 and Salt Spring Island. The point of putting it here, 42 my lord, is to place it in the context of the land 43 ordinances that were passed earlier in January of 44 1860. 45 MR. GOLDIE: With respect to the mainland. 46 MR. RUSH: My lord, my friend no doubt is going to make a 47 strident argument or a strong argument, with regard to 25820 Submissions by Mr. Rush 1 a distinction -- 2 MR. GOLDIE: Maybe both. 3 MR. RUSH: Probably both. -- distinction between the mainland 4 and Vancouver's Island. I say it's a wholly false 5 distinction. Douglas wasn't wearing one hat one day 6 and another hat the next day. Douglas didn't divide 7 his brain into two parts. Douglas had responsibility 8 for the Vancouver's Island and the mainland and when 9 the laws were passed in respect of -- the land laws in 10 respect of the mainland, your lordship cannot be 11 unmindful of what he is saying about the necessity to 12 extinguish title on Vancouver's Island. 13 Now, the significance of that follows in respect of 14 the legal opinion made by Judge Begbie about the 15 mainland. In 1859, a report was made by a man by the 16 name of Captain Clarke. This has become to be called 17 the Clarke Report. It was made to the undersecretary 18 of State for the colonies and it proposed a detailed 19 policy for the disposition of lands in the new 20 mainland colony. Captain Clarke's suggestion were 21 based on his experience in Australia. And aboriginal 22 title was dismissed in his report in a single sentence 23 by him, and in his proposal it was assumed that the 24 aboriginal title had been extinguished under the 25 heading \"Proposed Land Scheme\" Clarke proposed a 26 scheme as follows, and he sets it out and he presumes, 27 and I draw your lordship's attention to the 28 underscored provision: 29 30 \"...and that no aboriginal title exists or if 31 any, that it has been extinguished, and 32 separate provisions made for them.\" 33 34 He is here referring to the mainland. The Clarke 35 report was sent to Governor Douglas for review. 36 Douglas gave it to Judge Begbie for his legal 37 analysis. Begbie at that time was considered one of 38 the leading legal authorities. He was probably the 39 only leading legal authority in British Columbia at 40 the time. He had been sent out from England to be the 41 first judge of the new mainland colony. And writing 42 from New Westminster under date of April 30, 1860, 43 Begbie reviewed the Clarke report at some length and 44 he remarked on the necessity to define Indian reserves 45 so that it could be known which lands were available 46 for preemption or purchase. Begbie unequivocably 47 rejected Clarke's assumption aboriginal title existed 25821 Submissions by Mr. Rush 1 in British Columbia, stating the following: 2 3 \"Notwithstanding the great length of these 4 observations I feel it proper to make further 5 observations, seriatum, upon many of Mr. 6 Clarke's proposed sections which I have taken 7 the liberty of numbering in pencil. S. 1: - 8 From this view I differ, in the case of 9 ordinary agricultural lands, as already 10 mentioned. 11 - I may also observe that the aboriginal title 12 is by no meanings extinguished. Separate 13 provision must be made for it and soon: though 14 how this is to be done will require some 15 consideration. From the friendly intercourse 16 with the natives however, no serious difficulty 17 is to be apprehended.\" 18 19 And I cite where that may be found, my lord. 20 Significantly, earlier in the same report, Douglas 21 acknowledged that he drafted the Proclamation of 22 January 4th, 1860. That is, Judge Begbie acknowledged 23 that he drafted the proclamation, and he said: 24 25 \"On the occasion of the drafting of the 26 proclamation of 4 January I wish to codify the 27 land system in many respects - to define what 28 should be considered town and suburban sites, 29 what are the definite situation of government 30 and Indian reserves.\" 31 32 Now by this, my lord, it is clear that Judge Begbie 33 drafted the land Proclamation of January 4, 1860, 34 applying to the mainland and when he did so, he 35 obviously had in mind that the aboriginal title on the 36 mainland was by no means extinguished. Judge Begbie's 37 report upon Captain Clarke's proposals makes it clear 38 that, as a matter of law, he saw no inconsistency 39 between recognizing aboriginal title and the necessity 40 for its extinguishment. And at the same time, the 41 making of a law defining what should be considered 42 part of the land system in this he was right. Laws 43 providing for land system in the colony could be 44 established for the purpose of dealing with the land, 45 subject to the recognized aboriginal title and the 46 requirement for the Crown to extinguish it. 47 Most important, my lord, is that Newcastle wrote to 25822 Submissions by Mr. Rush 1 Douglas on December 6th, 1868 advising him of the 2 Queen's sanction of the Pre-Emption Act. In this 3 Newcastle thanks Begbie for his report. Newcastle's 4 acknowledgement, and the Queen's confirmation, must be 5 taken as concurrence of Begbie's opinion that 6 aboriginal title had not been extinguished on the 7 mainland. Their actions were taken with the full 8 understanding that aboriginal title -- as a matter of 9 law -- was recognized and extant in the mainland 10 colony. 11 The 1860 Proclamation allowed for the acquisition 12 of unsurveyed Crown lands by pre-emption. And the 13 province argues that because the Proclamation received 14 the Queen's \"sanction\" in December of 1860 that the 15 issue of its vires ceased to be constitutional 16 possibility. 17 Now, my lord, I am going to go into a response to 18 that particular argument and it might take somewhat 19 longer than the few minutes remaining before the 20 luncheon break. I suggest this might be an 21 appropriate time to break off. 22 THE COURT: All right. You are running a little behind, Mr. 23 Rush. 24 MR. RUSH: Yes, I am. I will do my best to make up after lunch. 25 THE COURT: All right. 2 o'clock. 26 2 7 (PROCEEDINGS ADJOURNED FOR LUNCH) 28 29 30 31 32 33 I hereby certify the foregoing to be 34 a true and accurate transcript of the 35 proceedings herein to the best of my 36 skill and ability. 37 38 39 40 41 Wilf Roy 42 Official Reporter 43 44 45 46 47 25823 Submission by Mr. Rush 1 (PROCEEDINGS RECONVENED AT 2:00 P.M.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Rush. 5 MR. RUSH: My lord, I was at the bottom of 86 \u00E2\u0080\u0094 6 THE COURT: Yes. 7 MR. RUSH: -- directing your attention to the Province's 8 argument about the proclamation of January of 1860, 9 and the Province observes that the proclamation 10 received the Queen's sanction, as they call it, on 11 December 6th, 1860, and that the issue of its vires at 12 that point ceased to be a constitutional possibility. 13 If the proclamation of January 4, 1860, purported 14 to extinguish aboriginal title, which is a 15 construction which its language does not bear, we say, 16 any such attempt by Douglas to do so was beyond his 17 powers. Further, if anything was attempted in 18 pursuance of the proclamation, it was ultra vires. 19 Now, Douglas' powers, my lord, were set out and 20 confined in his commission and instructions, and he 21 could not legislate beyond the powers conferred on 22 him. And I rely on a passage from Sir Berridale Keith 23 in his Responsible Government in the Dominions, and 24 I've directed your lordship's attention to this. And 25 I want to advise you that I've handed up a recent, new 26 and much thinner series 3 of authorities, and this 27 extract is taken from Volume Roman 22, tab 10. 28 I will just point out, my lord, that Mr. Berridale 29 Keith observes that: 30 31 \"The Governor of a colony in ordinary cases 32 cannot be regarded as a viceroy. Nor can it be 33 assumed that he possesses general sovereign 34 power. His authority is derived from his 35 commission and limited to the powers thereby 36 expressly or impliedly entrusted to him.\" 37 38 And Sir Keith relies on Musgrave v. Pulido, which is 39 also in our series 3. 40 At the bottom of 87, the doctrine of invalidity on 41 grounds of repugnancy applies to the Imperial law in 42 the colonies. There is no basis for an exception for 43 those colonial acts receiving express confirmation 44 from Britain. They remain, for purposes of review, 45 colonial acts and subject to the overriding authority 46 of Imperial legislation directed at the colonies. 47 There is no good reason for suggesting that a 25824 Submission by Mr. Rush 1 confirmation in Britain should operate so as to give 2 validity to a colonial enactment which is void by 3 reason by repugnancy to an Imperial statute, a 4 prerogative legislative enactment or the common law of 5 the same effect applying to the colonies. 6 Keith comments that the doctrine of confirmation 7 \"would not be accepted by Courts at the first time -- 8 THE COURT: Present time. 9 MR. RUSH: -- would not be accepted by the Courts at the present 10 time as validating a measure per se illegal.\" This 11 accords with a 1737 opinion of the Crown Law Officers 12 holding that an act of colonial assembly, even if 13 confirmed by the Crown, would not create a monopoly on 14 trade with the Indians inhabiting the colony. And 15 there, my lord, I refer you to a footnote in Dr. 16 Slattery's work, the opinion of Ryder, Attorney- 17 General Ryder, and Strange dated July 28, 1737. 18 In Naden the Privy Council in relation to a 19 section of the Criminal Code of Canada purporting to 20 annul the Royal Prerogative to grant special leave 21 held the section invalid as being inconsistent with 22 the Imperial Judicial Committee Acts and, therefore, 23 invalid under Section 2 of the Colonial Laws Validity 24 Act, 1865. 25 Now, my lord, we say that confirmation is given to 26 legislation on its face. Where such legislation does 27 not contain express words indicative of an intention 28 to extinguish, wholesale, aboriginal property rights 29 throughout a colony, the Queen cannot be taken to have 30 confirmed this. It's a rule of statutory construction 31 that a statute should not be deemed to extinguish or 32 take away a right of property without compensation 33 unless it appears by express words or plain 34 implication that it was the intention of the 35 legislature to do so. We cite Western Countries Rail. 36 Given that the Imperial confirmation does not alter 37 the authority of colonial legislation, confirmed 38 colonial laws are subject to the same limits as those 39 which were not confirmed. 40 Insofar as the proclamation of January 4, 1860 41 goes and, for that matter, land legislation in the 42 Colony of British Columbia purporting to or at least 43 said to extinguish aboriginal title, it was ultra 44 vires the terms of the constitution of the colony, 45 firstly, as being inconsistent with instructions 46 issued to the governor; and secondly, inconsistent 47 with Part IV of the Royal Proclamation of 1763, which 25825 Submission by Mr. Rush 1 formed part of the constitution of the mainland. 2 THE COURT: I'm sorry, when you say formed part of the 3 constitution of the mainland, is there a specific 4 reference or is that -- 5 MR. RUSH: This is to the argument that we made that the Royal 6 Prerogative is a prerogative legislative enactment. 7 THE COURT: There's no specific mention of it, I think. 8 MR. RUSH: No, no, save that the \u00E2\u0080\u0094 9 THE COURT: You said by implication. 10 MR. RUSH: Well, save for the fact, my lord, that there was a 11 reference that there could -- that no law could be 12 repugnant to a prerogative instrument that I believe 13 was held, if my memory serves me correctly, in the 14 commission of Governor Douglas. 15 THE COURT: Yes. 16 MR. RUSH: Now, my lord, I'm moving to the historical train of 17 events now, and I'm directing your lordship's 18 attention to October 9, 1860, and October 25th, 1860, 19 and Douglas reported to Newcastle at this time on a 20 journey which he had taken through part of southern 21 British Columbia. And the Province makes much of this 22 journey. And here what I've done, my lord, on page 90 23 is to set out the general reportage of this journey 24 made by Governor Douglas. 25 On 91 what I do is I summarize our view of these 26 despatches. In these despatches Douglas indicates, 27 firstly, the route through which he was travelling was 28 \"exclusively occupied by the native Indian tribes.\" 29 Those are his words. 30 Secondly, Douglas was not making, we say, a 31 general policy statement to be applicable throughout 32 the colony. If he were, why would he choose Rock 33 Creek to make it? He was clearly responding to local 34 concerns and demands. His was a political expression 35 to answer local expedience. 36 Douglas does not report in these two despatches 37 that the native people to whom he talked were making 38 any particular demands of him in respect of their land 39 but rather sought assurances regarding the forced 40 removal of native people from their native homes into 41 distant reserves, something that they were aware about 42 in southern Oregon. 43 THE COURT: Where do you understand Rock Creek is? I know a 44 Rock Creek that's east of Osoyoos. 45 MR. RUSH: This would be not east of Osoyoos, my lord. This 46 would be between Lytton and Cayoosh. 47 THE COURT: Oh, in there. All right. Cayoosh then being 25826 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submission by Mr. Rush 1 Lillooet. MR. RUSH: Yes. MR. GOLDIE: I think it's after he was at Lytton, my lord. He went from Lillooet to Lytton and then to Rock Creek, I believe. MR. RUSH: It is after Lytton. THE COURT: Between Lytton and \u00E2\u0080\u0094 MR. RUSH: And Lillooet it must be. MR. GOLDIE: No. THE COURT: Mr. Goldie says no. Where do you think it is, Mr. Goldie? MR. GOLDIE: I think it's pretty close to the place you're talking about, my lord, because that's where he was going to, Fort Colville, which is just downstream, so to speak, of Rock Creek. THE COURT: Yes. The Rock Creek I knew as a boy is on the old Kettle Valley Railway. MR. GOLDIE: Yes. THE COURT: Well, it's between Osoyoos and Midway. MR. GOLDIE: Midway. It's very close to the border. THE COURT: All right. Well, we have an issue, a geographic issue here. My lord, my reading of the document doesn't place Douglas anywhere near that far east. It's a long way to go if he was only gone from the 9th to the 25th. That's right. And also he's reporting on meeting with Indian peoples in the Fraser Valley, and he's not reporting on meeting -- Lower canyon. The lower canyon, that's right. Yes. All right. Well, it will be a fascinating endeavour to find out where he was. My lord, at the bottom of 91, Douglas expressed a version of his plan to establish reserves including inter alia as much land as they required for their support. At no time in his reports did he disavow aboriginal title to the land. In fact, on a reading of it I say he impliedly accepts it. And at no time did he reject in the course of these reports Lytton's instructions to bargain or treat with the native people. The expressions by Douglas here to establish reserves for the native people in the southern part of British Columbia and later the establishment of reserves must be seen against the backdrop of the preexisting aboriginal title of the native people to MR. RUSH: THE COURT: MR. RUSH: THE COURT MR. RUSH: THE COURT MR. RUSH: 25827 Submission by Mr. Rush 1 their lands. Reserves established to deal with 2 the question of white settlement and Indian ownership 3 of aboriginal lands on the ground. There were a 4 number of non-Indian people in the interior. 5 Co-existence was seen where there was no ready 6 conflict. The establishment of reserves did not 7 negate the aboriginal title to the land. 8 Now, my lord, I'm moving to 1861 and 9 communications from the Vancouver Island House of 10 Assembly and the responses of Douglas and of the 11 Emigration Office in Britain. And we say that these 12 show that the British Crown continued to recognize 13 aboriginal title and the need to purchase such title 14 before the land could be offered by the Crown to 15 settlers. 16 In 1861 the Duke of Newcastle, who by then had 17 replaced Lytton as Secretary of State -- in a letter 18 of transmittal to the Duke of Newcastle, and I'm a 19 little farther down here, my lord, Douglas noted that 20 the natives expected that settlement would proceed 21 only with their consent and that failure to make 22 proper arrangements might result in a clear and 23 imminent public danger. 24 And I draw your lordship's attention to the first 25 paragraph, and I'll specifically read from the second. 2 6 Number 3: 27 28 \"Knowing their feelings on that subject, I made 29 it a practice up to the year 1859...\" 30 31 \"(after B.C. established\" is my note. 32 THE COURT: That's yours. 33 MR. RUSH: That's my note. 34 THE COURT: That's Mr. Rush's note. All right. 35 MR. RUSH: 36 37 \"...to purchase the native rights in the land in 38 every case prior to the settlement of any 39 district; but since that time in consequence of 40 the termination of the Hudson's Bay Company's 41 Charter and the want of funds, it has not been 42 in my power to continue it.\" 43 44 And then he carries on, my lord. 45 And over on 94, in item number 7, he says, and I 4 6 quote: 47 25828 Submission by Mr. Rush 1 \"...but the difficulty may be surmounted by 2 means of an advance from the Imperial 3 Government to the extent of 3,000 pounds, to be 4 eventually repaid out of the Colonial Land 5 Fund.\" 6 7 So this was a matter of attempting to deal with the 8 purchase of title by a proposal he made of an advance 9 of monies from the Imperial Government. 10 Now, Mr. Justice Hall in Calder considered this 11 despatch, and he said at the bottom of 94 of my 12 argument: 13 14 \"...The limitation on the right of an aborigine 15 to hold land in fee simple has no bearing 16 whatsoever on the right of the aborigine to 17 remain in possession of the land which has been 18 in the possession of his people since time 19 immemorial. Governor Douglas knew that he had 20 no right to take Indian lands without some form 21 of compensation. He understood instructions in 22 that regard. This is clear from paragraphs of 23 his letter to the Colonial Secretary dated 24 March 25, 1861.\" 25 26 My lord, on 95 the question really turned to the 27 issue of financing, and the request for aid in 28 financing purchase of aboriginal title was reviewed by 29 the Emigration Office in London. Every one of the 30 written minutes concerning this matter expressed 31 concurrence with Douglas and the House of Assembly in 32 Victoria regarding the need to purchase aboriginal 33 title. Further, it is clear that the need to purchase 34 the aboriginal title was seen as necessary not only in 35 the Colony of Vancouver Island, but in the mainland 36 colony of British Columbia. The following minute of 37 the colonial office illustrates the point, and I think 38 it's an important point, my lord, because the issue 39 arises out of the desire of Governor Douglas to deal 40 with the purchase of aboriginal title on Vancouver 41 Island, but the response from the colonial office is 42 in respect of the mainland and the Vancouver Island. 43 And Mr. Elliot says in this minute: 44 45 \"The early settlement of this matter is of much 46 importance. I frequently am called upon to see 47 at this office persons of all classes, desirous 25829 Submission by Mr. Rush 1 of settling in Vancouver Island or British 2 Columbia, and one of the questions proposed to 3 me is generally how the claims of the natives 4 to land were arranged; to which I have had to 5 answer that I concluded they would have to be 6 brought up.\" 7 8 MR. GOLDIE: Bought up. 9 MR. RUSH: 10 11 \"...bought up. But this has not been quite 12 satisfactory to an enquiring settler, who, 13 before he leaves these shores naturally desires 14 to know exactly & positively what he may expect 15 in the acquisition of land in the Colony he has 16 selected as his residence. Therefore if these 17 Indian claims could be fairly extinguished the 18 arrangement would facilitate immigration.\" 19 20 And he's there, my lord, talking about immigration to 21 the mainland and to the island. 22 Now, my lord, the transmittal letter from 23 Helmcken, speaker of the house, to Governor Douglas 24 refers to the petition \"Praying for the extinction of 25 aboriginal title\" passed by the House of Assembly. 26 And the petition sent to the colonial office provided, 27 and I've set that out, and I just direct your 28 lordship's attention to paragraph number 1: 29 30 \"...That many colonists have purchased land at 31 the rate of one pound sterling per acre in 32 districts to which aboriginal title has not yet 33 been extinguished.\" 34 35 THE COURT: That's out of order, isn't it? This is February 36 6th, 1861. Those other documents were the 25th of 37 March, 1861. 38 MR. RUSH: These are responsive documents, my lord, but I'm 39 drawing now your attention to the document that was 40 sent to them to be responded to. And it's the -- this 41 is the petition that Mr. Elliot commented upon. 42 THE COURT: Oh, I see. Yes. All right. 43 MR. RUSH: The disagreement between London and Victoria 44 concerned which government should finance the payments 45 to the Indians. The government in England declined to 46 place this burden upon the British taxpayer, claiming 47 that the local government should raise the revenue. 25830 Submission by Mr. Rush 1 The local government claimed that it could not do so. 2 The House of Assembly alleged that fiscal 3 responsibility for extinguishing native title to 4 public lands in the colony rested with the home 5 government. Douglas, however, promised that the funds 6 would be a loan to be repaid out of colonial land 7 revenues when settlers were able to pay for the land. 8 He clearly contemplated that title to lands not 9 reserved to Indians would be purchased with their 10 consent as settlement proceeded. 11 Now, the Emigration Office in Britain was 12 concerned that every colony could make a similar claim 13 on the home government for assistance in extinguishing 14 native title. There was also concern that a loan from 15 the treasury or the money market could only be made at 16 disadvantageous rates at that time. There was 17 concurrence that eventually the loan would have to be 18 repaid by the colony, but there was little information 19 available regarding the status and future of land 20 revenues in the colony. 21 Now, part of the correspondence that was generated 22 by the Newcastle petition was a letter from a Mr. 23 Murdoch, one of the land and immigration commissioners 24 in London, to Sir Frederick Rogers. This acknowledges 25 the despatch from the governor of Vancouver Island and 26 the petition on the subject of the extinction of the 27 native title to lands in the colony. And I refer you, 28 my lord, to the first few lines. He says: 29 30 \"The Assembly represents that nearly three years 31 ago many colonists purchased land over which 32 the native title had not yet been extinguished, 33 at the rate of one pound per acre.\" 34 35 And I take you over to the next page, and he 36 points out that: 37 38 \"...the existence of native title has deterred 39 many persons from settling on the Island.\" 40 41 And then Murdoch went on to say: 42 43 \"The only question is the source from which the 44 money should in the first instance be 45 obtained.\" 46 47 And then he goes into a consideration of whether it 25831 Submission by Mr. Rush 1 should be a loan or whatever. 2 And then I take you to the bottom of page 98, my 3 lord. The unanimous opinion at the Emigration Office 4 that the aboriginal title had to be purchased resulted 5 in an appeal to the treasury for fiscal assistance. 6 This, however, was turned down because of the 7 assertion of the Victoria Legislature that the home 8 government was liable for the cost of extinguishing 9 aboriginal title. 10 And then I point to the fact, my lord, that there 11 was correspondence between the second commissioner of 12 the Emigration Office and Sir Frederick Rogers, who 13 was then permanent Under-Secretary of State for the 14 colonies, October 4th, 1861, and this makes it clear 15 that the failure to acquire funds from the treasury 16 was in no way a repudiation of British policy that 17 aboriginal title had to be purchased, but rather an 18 assertion that the colony was liable for the costs. 19 And I direct your attention to paragraph 2, my 20 lord, the bolded section. 21 22 \"The circumstances of the case and the 23 importance and practical economy of 24 extinguishing the aboriginal title on the lands 25 in question as early as possible, are fully set 26 forth in Mr. Murdoch's report,\" 27 28 the one I just referred you to a moment ago. 29 And then I direct your attention, my lord, to 30 paragraph 3 at the bottom. 31 32 \"Their Lordships moreover consider that the 33 Governor's best course would be to follow his 34 previous practice of purchasing the native 35 rights over such land only as was immediately 36 required for settlement, and not on so large a 37 scale at once as to require that a loan should 38 be raised for the purpose.\" 39 40 And then I ask your lordship to look at paragraph 41 4, the bolded part -- or the underlined part. 42 43 \"The result will be that the opportunity will be 44 lost of extinguishing the Native Title on very 45 moderate terms, and that faith cannot be kept 46 with the persons to whom the Government sold 47 the land 3 years ago without endangering the 25832 Submission by Mr. Rush 1 peace of the country.\" 2 3 Now, my lord, at the bottom of the page, in the 4 fall session of 1861 the Vancouver Island House of 5 Assembly reopened discussion on the need to purchase 6 aboriginal title to land. No response had been 7 received to the petition for funds to extinguish 8 aboriginal title which had been sent to England in 9 March. 10 Newcastle's response to the March petition is 11 dated October 18th, 1861, and he wrote to Douglas 12 concurring in the need to extinguish native title, but 13 directed that the House of Assembly would have to vote 14 funds for the purpose. And I direct your attention to 15 the first few lines of the insert and then the first 16 few lines of the second paragraph of Newcastle's 17 despatch, where he says: 18 19 \"I am fully sensible of the great importance of 20 purchasing without loss of time the native 21 title to the soil of Vancouver Island...\" 22 23 Now, my lord, what I say this series of 24 correspondence indicates is the following on 102. 25 First, it was James Douglas' practice to purchase the 26 lands belonging to the Indians on Vancouver Island 27 \"with the full consent of the proprietary tribes.\" In 28 this he acknowledged Indian title to their lands. 29 That this practice lasted until 1859, when the colony 30 ran out of money, as he says, \"to defray the most 31 indispensable wants of Government.\" This \"practice\" 32 was in accord with the subsisting law, namely, that 33 Indian title to their lands had to be purchased with 34 consent, by treaty, and that the sale of Indian land 35 could only be made to the Crown. Now, this practice 36 and, I say, the law underpinning it was recognized to 37 be applicable not only to the Colony of Vancouver 38 Island but also to the mainland, and that was 39 recognized by the officers in the colonial office in 40 Great Britain. 41 No one in the colony, my lord -- and I'm at number 42 5 here. No one in the colony, not Douglas nor 43 Helmcken, and no one in the colonial office in London 44 drew any distinction between the Colony of Vancouver's 45 Island and the mainland colony. There was no 46 perceived difference between the two colonies as to 47 the recognition of title and the requirement to 25833 Submission by Mr. Rush 1 extinguish that title through purchase. The sole 2 issue was who should pay. 3 A stalemate resulted on the question. And this 4 did not mean, however, that the obligation to purchase 5 native title to the soil was no longer required or 6 that the law had altered. If the colonial office did 7 not recognize aboriginal title in the mainland colony, 8 or at all, Newcastle could have said so. He said 9 nothing which would even suggest that the Crown did 10 not recognize Indian title as existing in the 11 colonies. 12 As a matter of law, the Crown recognized Indian 13 title and the need to extinguish it by purchase and 14 with consent, and we say this is plain in the 15 correspondence. As a matter of practice, the colony 16 could not discharge its obligations, though 17 recognizing it had to. The reserve-making practice 18 which emerged was not a substitute for extinguishing 19 title but an expedient in the face of continued 20 settlement pressure to do so, a feature of the 21 colonial policy going back to the Douglas treaties. 22 My lord, this correspondence does not suggest that 23 the colonial laws or the conduct of the colony in 24 setting up reserves extinguished the pre-existing 25 title of the Indians. If they thought that they were 26 extinguishing title, one would have thought they would 27 have said so. As the address from the House of 28 Assembly showed, settlement was allowed to proceed 29 before the Indians were paid for their land, and that 30 was the same on the mainland. 31 Now, moving to 1862, my lord, the government in 32 Victoria thus was faced with a dilemma. It was to 33 carry out Imperial obligations to recognize aboriginal 34 title and to purchase land from the Indians with their 35 consent. At the same time the Victoria government 36 lacked the funds to carry this out, or rather, did not 37 control revenues from the sale of lands. By March of 38 1862 Indian patience was wearing thin and action had 39 to be taken to extinguish title in areas of the Island 40 where settlement was progressing. The governor 41 addressed the legislative bodies on the subject. And 42 I there, my lord, set out the address which is 43 reported in the Victoria Colonist. 44 Now, there were articles in the local press which 45 called for the extinguishment of aboriginal title, and 46 the article in the British Colonist on March 21st, 47 1862, entitled \"Indian Title\" followed on the receipt 25834 Submission by Mr. Rush 1 of the answer to the Duke from the Duke of 2 Newcastle. And, my lord, I make reference to that and 3 the subject of the consideration to be paid for the 4 extinction of the Cowichan titles. 5 Now, in the last paragraph of 105, the newspaper 6 extracts to which I have made reference explain the 7 problem that the government faced. The government of 8 the colony had planned to raise the money for paying 9 for the extinguishment of native title in the Cowichan 10 Valley by taking it out of the installment payments 11 that the land purchasers in that area would pay to the 12 government for the land. It developed that the people 13 who were intending to settle there as farmers did not 14 have cash and were paying up part of their 15 installments by working on the roads. They weren't 16 going to be able to raise the money to pay the Indians 17 because the installments were coming in as labour. 18 And this was the dilemma which the colony faced. 19 The March 1862 estimates included 2,000 pounds for 20 the extinction of aboriginal title. The House did not 21 have control of the public lands, and members did not 22 want to vote funds until land revenues were under 23 their control. And that's apparent in the report of 24 the British Colonist of March 31st, 1862, and I'll 25 just direct your lordship's attention to the opening 26 lines. 27 28 \"Mr. Helmcken said it was perfectly absurd for 29 the House to vote money towards the extinguish- 30 ment of the aboriginal titles when it had no 31 control of the land fund...\" 32 33 And then the observations of Mr. Ring and Mr. Harris 34 and so on are reported, and I've underscored those for 35 your lordship's attention. 36 Over on to 107, my lord. We draw your lordship's 37 attention to the fact that public notices were printed 38 in the newspapers which advised that monies to pay for 39 the extinguishment of aboriginal title would be taken 40 from the payments made by settlers in certain 41 districts, and that's evident by, again, the 42 underlined portions of the notice which appeared in 43 the British Colonist. And, my lord, while this is 44 dated December 9th, 1861, there were, in fact, similar 45 ads that ran in papers throughout the period. 46 Now, the House of Assembly voted funds to pay for 47 Indian lands in 1863, and according to newspaper 25835 Submission by Mr. Rush 1 accounts, the amount of over $9,000 was voted by the 2 House of Assembly to defray costs of extinguishing 3 aboriginal title in the Cowichan and Chemainus 4 districts in 1863. Pressure was mounting in terms of 5 settlement, and there were also certain hostilities 6 between Indians and non-Indians. 7 A series of editorials in the British Columbian, 8 which was a New Westminster newspaper circulating on 9 the mainland, and the British Colonist and Victoria 10 Daily Chronicle linked the hostile feelings of Indians 11 towards whites with the government's failure to pay 12 the Indians for their lands. 13 And what I've done on 109 over to 110, my lord, is 14 to set out the extracts from the various newspapers. 15 And then on to 110. What we conclude from this, 16 my lord, is that three of the most important 17 newspapers of the day on the Island and on the 18 mainland carried numerous articles and editorials 19 decrying the failure of the government to treat with 20 the Indians for the extinguishment of native title. 21 Public opinion, then as now, was divided on the issue, 22 but there is no question that a large constituency in 23 the colonies recognized the existence of aboriginal 24 title and an obligation to compensate the Indians for 25 lands which they claimed. The action of the House of 26 Assembly in voting funds for this purpose was 27 supported by a vocal segment of the community on both 28 the Island and the mainland. The actions of voting 29 funds as well as the general reporting that the 30 Indians had been promised compensation document the 31 continuing recognition of native title. 32 Now, on 111, my lord, in further support of our 33 proposition of recognizing -- colonial recognition of 34 aboriginal title, I draw your lordship's attention to 35 a letter from the surveyor-general of the colony, Mr. 36 Pemberton, to William Young, and I direct you to the 37 underscored portion. 38 Now, at the bottom of 111, both the House of 39 Assembly and the Legislative Council of Vancouver 40 Island recognized the need to extinguish title as an 41 ongoing government obligation which would continue in 42 future years. This is made explicit in their 43 responses to a proposition for union of the Colony of 44 Vancouver Island and the Colony of British Columbia 45 and of control of Crown revenue in return for a 46 permanent civil list. The following extract is taken 47 from an address of the Legislative Assembly 25836 Submission by Mr. Rush 1 transmitted through the speaker, J.S. Helmcken, and 2 it's dated February 9, 1864. My lord, the part I'd 3 like to direct your attention to is bolded in the 4 fourth paragraph. 5 6 \"...there is reason to believe that the Revenue 7 from this source will in future years be less: 8 whilst a considerable sum will be requisite for 9 the extinction of the aboriginal title...\" 10 11 This was made in the context of knowledge -- or rather 12 of the proposal for the union of the two colonies. 13 On 113, my lord, I draw your attention to the 14 speech of the president of the Legislative Council of 15 May 3rd, 1864. And the Legislative Council resolved 16 to concur in the general tenor of the resolutions, and 17 one of the reasons adduced was cited in this despatch. 18 19 \"Because the amount of money necessary to be 20 paid to Indians to extinguish the aboriginal 21 title to portions of the Land will absorb a 22 considerable sum of the proceeds of the Sales 23 thereof.\" 24 25 Now, my lord, the colonial government recognition 26 of the need to extinguish title is clearly documented 27 not only in the official records of the Legislative 28 Council, House of Assembly, and the Crown Lands 29 Committee, but also in the correspondence of the Lands 30 and Works Department in 1864. And I draw your 31 lordship's attention to a letter from J.D. Pemberton 32 of the Lands and Works Department penned to the 33 colonial secretary recommending a source of funds for 34 the extinguishment of aboriginal title in the district 35 dated 8 August 1864. 36 Now, the situation with regard to the non- 37 extinguishment of native title in the Cowichan 38 district had been festering for several years. 39 Settlers were unwilling to remain on their claims 40 because the Indians had become restive over the delay 41 in having the aboriginal title purchased. The 42 following petition by landowners gives a sense of the 43 unsatisfactory state of affairs, a fact which was 44 regularly aired in both the mainland and Island press 45 between 1860 and 1864. And, my lord, I direct you to 46 the last paragraph on 115 as evidence of the 47 dissatisfaction voiced by these petitioners. I 25837 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. RUSH: THE COURT MR. RUSH: Submission by Mr. Rush 1 also -- THE COURT: You don't have a date for this. I noticed that, my lord, and I will -- yes. I cite a further petition on page 117. I believe it was in 1864, but I'm not certain of that, and I will endeavour to check that exhibit for you. Okay. This is a petition, is it? Yes, that's a petition from the landowners of the District of Cowichan. I should point out to your lordship that, as I do on page 117, that this wasn't the first time that the petitioners submitted a petition, and I set out another petition of May the 10th, 1863. Now, my lord, on January 29, 1864, Douglas was still governor of the colony, and as governor he addressed the first session of the first Legislative Council in British Columbia. GOLDIE: That's the mainland colony you're referring to, is it? RUSH: Yes. GOLDIE: Yes. RUSH: It says that in the next sentence. He opened the mainland Legislative Council. GOLDIE: Excuse me. I don't like to interrupt my friend, but I want to be clear that he's making a distinction between Douglas whom he's been speaking about and to whom these petitions were addressed, who is the governor of Vancouver Island, and when my friend says Douglas was still governor, I want to be clear that he's referring to still governor of the mainland. THE COURT: Did he not leave both positions at the same time? MR. GOLDIE: The petitions were addressed to him in his capacity as governor of Vancouver Island. THE COURT: The ones just mentioned, yes. Yes. All right. He was governor of both at this time, my lord. All right. He opened the first mainland Legislative Council, and this was reported in the British Colonist, which in turn had taken their article from the British Columbian, a mainland newspaper published in New Westminster. And at the opening of this council Governor Douglas said, and I set out his comments, and what he says, my lord, on the top of 118 is that the lands themselves -- excuse me -- MR. MR. MR. MR. MR. MR. GOLDIE THE COURT: MR. RUSH: THE COURT: MR. RUSH: 25838 Submission by Mr. Rush 1 \"The Indians themselves have no power to sell or 2 alienate these lands, as the title will 3 continue in the Crown and be hereafter conveyed 4 to trustees, and by that means secure to the 5 several tribes as a perpetual possession. That 6 measure is not, however, intended to interfere 7 with the private rights of individuals of the 8 native tribes or to incapacitate them, as such, 9 from holding land.\" 10 11 Now, in this address, my lord, Douglas makes it 12 clear that the \"plan of forming reserves of land\" was 13 \"to secur[e] them against encroachment of settlers.\" 14 He says that the Indians \"have no power to sell or 15 alienate these lands, as the title will continue in 16 the Crown...\" Douglas does not say that the reserves 17 were intended as an extinguishment of Indian title. 18 He does not say that there was no title and that the 19 reservation of land was a function of the governor's 20 grace. In fact, he suggests the contrary by saying 21 that the Indians have no power to alienate, a 22 provision which could only be in recognition of the 23 common law requirement that native people were 24 prohibited from selling land directly to third 25 parties. 26 Now, Crease's comments are set out next, my lord, 27 and I move to the middle paragraph. Douglas retired 28 in 1864 and Arthur Kennedy was appointed governor of 29 Vancouver Island, and Governor Kennedy made a formal 30 address to assembled Indians in Victoria, and his 31 address is there set out. 32 Now, my lord, I take you over to 120, and this 33 deals with aboriginal title, mainland colony, 1865. 34 Concerns about the need to extinguish aboriginal title 35 by agreement with the Indians, payment of compensation 36 to them for their lands, and reservation of lands for 37 their exclusive use were a continuing concern in the 38 mainland colony as well as in Vancouver Island. 39 Settlement was being retarded on the mainland because 40 arrangements had not been made with the Indians 41 regarding their lands. 42 Philip Nind, a member of the Legislative Council 43 in 1863 and magistrate, wrote to the colonial 44 secretary in 1865 urging that the government 45 extinguish Indian land claims above Kamloops and in 46 its vicinity. And the passage I direct you to in 47 particular is on 121, and it begins with the bolding, 25839 Submission by Mr. Rush 1 my lord. 2 3 \"...I believe the only method of settling this 4 matter satisfactorily and with equity to both 5 Indians and whites will be for the Government 6 to extinguish the Indian claims, paying them 7 what is proper for so doing, and giving them 8 certain reservations for their sole use.\" 9 10 The above statement, made in 1865, is consistent 11 with long-settled British principles that aboriginal 12 title should be extinguished by purchase from the 13 natives, with their consent, and that some part of 14 their land should be secured to them for their 15 exclusive use. There is no suggestion in Nind's 16 report of an understanding that the establishment of 17 reserves would do away with the requirement to 18 extinguish aboriginal title nor that it would obviate 19 the need to compensate the Indians for surrender of 20 lands. 21 Now, moving to the united colony, 1867 and 1868, 22 in 1867, my lord, after union of the two colonies, the 23 legislature was still debating the issue of how to 24 extinguish aboriginal title. The failure to do so was 25 recognized as an impediment to settlement and a cause 26 of conflict between Indians and settlers, but the 27 costs of making general surveys prior to settlement 28 were seen as an obstacle to resolve the issue. In 29 February 1867 the Legislative Council discussed the 30 need to survey the Indian reserves of the colony in 31 order to avoid conflicts between settlers and Indians 32 and the outstanding problem of the unextinguished 33 aboriginal title. The discussion was precipitated by 34 a motion brought by Mr. Robson, who was seeking 35 reduction in the size of the Indian reserves in the 36 lower Fraser River area. 37 And, my lord, I draw your attention to the fact 38 that the report indicates Trutch's presence during 39 this debate. And the second to last paragraph 40 indicates that the Honourable Crease opposed the 41 motion as the question was fraught with difficulty and 42 danger. What is attributed to him is this. 43 44 \"The Indians were particularly sensitive of 45 their rights as original possessors of the soil 46 and were entitled to the greatest 47 consideration. The honourable gentleman had 25840 Submission by Mr. Rush 1 not made out a case and it was unwise to press 2 it on the Government.\" 3 4 And then the British Colonist further reported of 5 this debate at the bolded paragraph on 123. 6 7 \"(The) Honourable Wood showed the difficulties 8 that stood in the way of the settlement of the 9 aboriginal title to lands, and the critical eye 10 with which any acquisition of title would be 11 watched at home and in the Colony.\" 12 13 Now, my lord, none of the discussion involved a 14 denial of aboriginal title or a denial of the need to 15 deal with aboriginal title. Crease had been appointed 16 Attorney-General of the mainland of British Columbia 17 in 1861 and continued in the post until union with 18 Vancouver Island, when he became Attorney-General of 19 the united colony. He reminded the council of the 20 rights of the Indians as original possessors of the 21 soil. Southgate raised the issue of compensating the 22 Indians for extinguishing title, and Wood noted that 23 the manner in which aboriginal title was acquired 24 would be watched in England as well as in the colony. 25 Now, my lord, Trutch, who participated in the 26 discussion later in 1870, denied that government had 27 ever recognized aboriginal title. 28 Now, moving to the next full paragraph, my lord, 29 Joseph Trutch had been appointed Chief Commissioner of 30 Lands and Works in 1864, and he radically altered 31 Indian reserve policy at the local level following 32 Douglas' retirement. Trutch was hostile to any idea 33 of Indian rights in land and assiduously worked to 34 reduce the size of the Indian reserves which had been 35 established during the Douglas regime. In a 36 memorandum written in August 1867 to the acting 37 colonial secretary in Victoria, Trutch stated his view 38 that the Indian reserves which had been set out along 39 the lower Fraser by McColl during Douglas' tenure were 40 too extensive, and Trutch recommended that the 41 reserves should be reduced in size. And I've set out 42 the passages there, and I direct your attention to the 43 second paragraph, my lord, on page 125. 44 Enclosed in that report was Mr. William McColl's 45 own report of May 16, 1864, where he was -- he is 46 reported to have been instructed by Douglas that the 47 Indians were to have as much land as they wished and 25841 Submission by Mr. Rush 1 in no case to lay off a reserve under a hundred acres. 2 Now, my lord, moving to the middle paragraph or at 3 least to the paragraph at the bottom of the page, 4 dissatisfaction at Cowichan continued because no 5 action had been taken to pay the Indians for their 6 lands. A long letter to the editor of the British 7 Colonist made a number of recommendations for 8 government action in Indian affairs and drew attention 9 to the festering situation at Cowichan, and that's set 10 out. 11 On 127, in 1869 a controversy developed over 12 leasing of land on the Songhees Reserve in Victoria. 13 Trutch, as Commissioner of Lands and Works, prepared a 14 report on the history of the Victoria Indian Reserve. 15 And in this report he noted the following, and it's of 16 some significance, I think, my lord. He said: 17 18 \"It is certain that the tract of land known as 19 the Songish Indian Reserve, was formally set 20 apart by the competent authority of the 21 Hudson's Bay Company's Agent, acting on behalf 22 of the Crown,\" 23 24 at least Mr. Trutch concedes that they were acting on 25 behalf of the Crown, 26 27 \"for the perpetual use and benefit of the 28 Indians of that tribe; and that land is now 29 held in trust by the Crown, acting under a 30 solemn obligation, as guardian of the rights of 31 the Indians in this respect.\" 32 33 And then he goes on to consider the making of the 34 treaty. 35 36 \"When the first settlement was made at Victoria 37 by the Hudson's Bay Company, the Songish 38 Indians, composed of many families or septs, 39 possessed by occupation the whole south-eastern 40 portion of Vancouver Island...and in 1850 the 41 possessory rights of the various families of 42 this tribe in the lands claimed by them, were 43 purchased by Sir James (then Mr.) Douglas, 44 Governor of the Hudson's Bay Company...by 45 written agreement...\" 46 47 So, my lord, in December the 30th, 1869, Trutch 25842 Submission by Mr. Rush 1 officially reported that the Douglas treaties were for 2 the purpose of purchasing possessory rights of the 3 Indians and that the Indians possessed their rights by 4 occupation. He further stated that Douglas acted as 5 agent for the Crown in negotiating the treaties. Two 6 weeks later he characterized the nature and purpose of 7 the treaties rather differently. In fact, in direct 8 contradiction of the plain language of the agreements, 9 and his own reporting of them, Trutch styled the 10 payments made to the Songhees and other Indians as 11 presents made for the purpose of securing their 12 friendly relations. 13 THE COURT: You don't have a date for that. It's two weeks 14 after. 15 MR. RUSH: Yes. I'm coming to that, my lord. 16 THE COURT: After December 30th, I guess. 17 MR. RUSH: Yes. 18 THE COURT: All right. 19 MR. RUSH: I'll be coming to that. In January of 1870. 20 MR. GOLDIE: Oh. That's the reference, is it? 21 THE COURT: Yes. 22 MR. RUSH: The Province argues that the reserve-making policy 23 initiated by Douglas in the mainland colony became the 24 only policy of the united colony. The assumption 25 behind this is that there was only one policy in 26 relation to Indians, which was not true, and that the 27 policy was intended only to be carried out in the 28 mainland, which was not true. This state of affairs 29 before and after union of the colonies in 1866 may be 30 summarized in this way. The law applicable to both 31 Vancouver Island and British Columbia was the same. 32 The Crown recognized Indian title to aboriginal lands; 33 it required that the title to the land be 34 extinguished, with consent, by purchase and that the 35 Indian interest in the land was inalienable except to 3 6 the Crown. 37 The policy implemented by Douglas on Vancouver 38 Island was to make treaty with the Indians in 39 conformity with the fundamental principles set out in 40 #1. Although he never expressed himself in those 41 words, his conduct in establishing the treaties on 42 Vancouver Island and continuing a practice (and 43 pressing) for the extinguishment of recognized title 44 of Indian land was in accord with what the principles 45 and law affecting the treatment of Indians was. 46 At no time was treaty-making considered restricted 47 to Vancouver Island, as the documents referred to 25843 Submission by Mr. Rush 1 above show. 2 A plan of making reserve allocations of land 3 \"occupied\" by the Indians was implemented to deal with 4 the conflicts between settlement and Indian possession 5 of land, and this was part of the existing policy of 6 the colonies to recognize title. 7 Reserve-making grew out of the financial inability 8 of both colonies to purchase Indian title. The 9 extinguishment of aboriginal title was deferred. 10 At no time was it intended, nor did anyone say 11 (until Trutch in 1870) that Indian title to lands on 12 Vancouver Island and the mainland did not exist. 13 Upon union of the colonies there was one policy in 14 place. The policy was to extinguish aboriginal title 15 in addition to making reserves as settlement 16 proceeded. Reserves would be established until title 17 could be extinguished. 18 The united colonies could not take action or pass 19 laws that were repugnant to British law and the Royal 20 Proclamation. Douglas was constrained by his 21 commission and instructions. Proclamations or 22 ordinances passed in the two colonies and steps taken 23 as a matter of practice in those colonies were invalid 24 to the extent that they were repugnant to or 25 inconsistent with the requirement to recognize 26 aboriginal title of Indian people to the soil and to 27 purchase from them their land by treaty of land 28 cession. Alternatively, we say, the derogation or 29 extinguishment of Indian title could only be 30 accomplished by clear, plain and express language. 31 Now, my lord, on page 131 I begin a section 32 dealing with the Colonial Laws Validity Act, and here 33 we set out an argument with regard to the application 34 of this act, and our proposition regarding it is set 35 out in paragraph 1. Now, we ask your lordship to 36 refer to this, but depending on time, we may return to 37 this in more detail. For the time being, my lord, I 38 ask you to look at that, but I shall now direct you 39 ahead to page 146. Excuse me, 145. 40 This picks up Trutch's letter or memorandum. In 41 1869, prior to British Columbia's entry into union 42 with Canada, several efforts were made by private 43 individuals and by churchmen to call attention to what 44 many regarded as the unsatisfactory situation 45 regarding aboriginal title in the colony. A Victoria 46 attorney, Sebright Green, on June 24, 1869, wrote to 47 the Aborigines Protection Society in London seeking 25844 Submission by Mr. Rush 1 assistance for the Indians and citing, among other 2 things, the failure of the local government to deal 3 with aboriginal title in the Cowichan district. His 4 letter was forwarded to the colonial office and 5 Secretary of State Granville sent a copy to Governor 6 Musgrave for his review and comment. Musgrave 7 solicited a response from Joseph Trutch. 8 Trutch wrote a lengthy reply for transmittal to 9 the colonial office defending his Indian land policy. 10 Trutch denied that aboriginal title had ever been 11 recognized in British Columbia, interpreted the 12 Douglas treaty payments as merely gifts in support of 13 amity, and asserted that the Cowichan had never asked 14 to be paid for their lands and never been promised any 15 payment. 16 In the response that he wrote for the colonial 17 office Trutch said that his knowledge of these matters 18 was based on ten years' residence in the colony as 19 well as a review of the government records. A 20 resident of ten years would place him in the colony 21 during the period 1860 to 1868, when editorials, 22 articles, and letters to the editor in both mainland 23 British Columbia and Vancouver Island newspapers were 24 castigating government for delays in extinguishing the 25 aboriginal title. The Cowichan area figured 26 prominently in the newspaper accounts both in the 27 Island and the mainland. The press also published the 28 debates in the legislature regarding extinguishment of 29 Indian land title, and these discussions centred not 30 on the rectitude of the policy (although there were 31 dissenters), but rather on the source of the funds to 32 buy out the aboriginal title. As noted, Trutch was 33 present at such debates. 34 Now, in 1870 Trutch wrote in his \"Memorandum on a 35 letter treating of condition of the Indians in 36 Vancouver Island...\" with respect to Indian land 37 matters as follows, and I've set out a good deal of 38 this, my lord. 39 THE COURT: This is his response to the Sebright Green letter? 40 MR. RUSH: That's right. And, my lord, I invite your lordship 41 to read the whole of it, and no doubt my friends will 42 be referring you to passages that they would ask you 43 to read. 44 MR. GOLDIE: I second my friend's invitation, my lord. 4 5 THE COURT: Thank you. 46 MR. RUSH: Well, that's nice to know. Maybe the motion will be 47 passed. 25845 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submission by Mr. Rush 1 MR. GOLDIE: Yes. THE COURT: If you're agreed then, perhaps I don't need to read it. MR. RUSH: My lord, what I ask you to do is to look at the part on 147 which is bolded. THE COURT: I'll read at least that much. MR. RUSH: All right. The paragraph that I direct you to here, my lord, is Trutch saying: \"But the title of the Indians in the fee of the public land, or of any portion thereof, has never been acknowledged by Government, but, on the contrary, is distinctly denied.\" Now, he makes no distinction there between Vancouver Island, my lord, and the mainland. And I say, with respect to Mr. Trutch, that that's clearly contrary to the record. \"In no case has any special agreement been made with any of the tribes of the Mainland...\" Well, so far as we have been able to determine, that seems to be so. \"...for the extinction of their claims of possession -- but these claims have been held to have been fully satisfied by securing to each tribe as the progress of the settlement of the country seemed to require -- the use of sufficient tracts of lands for their wants for agricultural and pastoral purposes.\" There he concedes that the native people had claims to the soil of the land, but, my lord, with respect, I say there is no evidence that in the colonial office or in the colony itself that it was -- that these claims had been held to have been fully satisfied by securing to each tribe as the progress of the settlement of the country seemed to require the use of sufficient tracts of land. I say that's completely without any support in the record. He then goes on to state: \"In 1850 and 1851 shortly after the settlement at Victoria by the Hudson Bay Company at that time grantees from the Crown of the whole of 25846 Submission by Mr. Rush 1 Vancouver Island with full executive powers of 2 Government their agent Governor Douglas made 3 agreements with the various families of Indians 4 then occupying the South Eastern portion of the 5 Island for the relinquishment of their 6 possessory claims in the district of country 7 around Fort Victoria in consideration of 8 certain blankets and other goods presented to 9 them.\" 10 11 And then he says, my lord: 12 13 \"But these presents were - as I understand - 14 made for the purpose of securing friendly 15 relations between the Indians and the 16 settlement of Victoria then in its infancy - 17 and certainly not in acknowledgment of any 18 general title of the Indians to the lands they 19 occupy.\" 20 21 That sentence stands in complete contradiction to 22 the statement which he had made not two weeks earlier 23 in 1869 to the effect that these lands, my lord, 24 December 30th, 1869, possessed by occupation of the 25 Songhees Indians the whole south-eastern portion of 26 Vancouver Island and that these lands were purchased 27 from the various families of the tribes in the lands 28 claimed by them. 29 THE COURT: What would you call the south-east portion of 30 Vancouver Island, the Saanich Peninsula? 31 MR. RUSH: Yes. 32 THE COURT: I suppose south-east would mean the east half of the 33 Island, would it? 34 MR. RUSH: I would think so. Well, the south-east half of the 35 Island. 36 THE COURT: South-east half of the Island would take you up to 37 and including beyond Nanaimo. 38 MR. RUSH: Well, I don't think that would accord with the facts, 39 my lord. These treaties were near the southern tip of 40 Vancouver Island. 41 THE COURT: You mentioned around Fort Victoria somewhere. 42 MR. RUSH: Yes. 43 THE COURT: All right. Is it convenient to take the afternoon 44 adjournment, Mr. Rush? 45 MR. RUSH: Yes, my lord. 4 6 THE COURT: All right. 47 THE REGISTRAR: Order in court. Court stands adjourned for a 25847 Submission by Mr. Rush 2 3 4 5 6 7 1 short recess, I hereby certify the foregoing to be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability. 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 Leanna Smith Official Reporter UNITED REPORTING SERVICE LTD. 25848 Submissions by Mr. Rush 1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 2 3 THE COURT: Mr. Rush. 4 MR. RUSH: My lord, I am in the middle of 148. Just dealing 5 with Mr. Trutch's memo. Trutch made no mention of the 6 fact that Douglas made treaties with Indians at 7 Nanaimo and Fort Rupert as well as those near 8 Victoria. His characterization of the purpose of the 9 compensation paid does not accord well either with the 10 explicit language of the treaties or with Douglas' own 11 report of his actions. And I've set out, my lord -- I 12 have repeated in fact Douglas' reporting to Barclay of 13 May 16, 1850 of the establishment of those initial 14 treaties with the Songhees. 15 Douglas reported that he had purchased tracts of 16 land for which he paid compensation. And there is no 17 mention in the treaties or in his report that the 18 natives were given presents or gratuities for the 19 purpose of peace or friendship, as suggested by 20 Trutch. 21 Furthermore, when the tracts of land ceded under 22 the eleven treaties concluded at Fort Victoria in 1850 23 and '52 are examined, it is seen that Douglas sought 24 to extinguish aboriginal title to contiguous tracts of 25 land from the city -- excuse me, the vicinity of Point 26 Sherringham (east of Sooke on the Strait of Juan de 27 Fuca) to and including the entire Saanich Peninsula. 28 Despite Trutch's denial, this certainly looks like 29 \"acknowledgement of a general title of the Indians to 30 the lands they occupy.\" And I'd like to refer your 31 your lordship to Wilson Duff's map, my lord, which is 32 to be found at Exhibit 1039-23. Just ask Madam 33 Registrar to pass that up to you. It bears on the 34 question that you asked of me just prior to the break. 35 Wilson Duff outlined in the inset the area 36 encompassing the Songhees territories and what he did 37 was to set out, albeit incompletely, the areas that 38 were encompassed with respect to the individual 39 treaties with the individual nations or tribes of the 40 Songhees people. And there you can see by reference 41 to the name the specific areas that are mentioned with 42 regard to the eleven treaties. And you can see, my 43 lord, that the -- when you refer to the Songhees 44 territories they are on the south eastern portion of 45 Vancouver Island. 46 THE COURT: I don't see Songhees on this except in the inset. 47 MR. RUSH: They are all Songhees, my lord. 25849 Submissions by Mr. Rush 1 THE COURT: They are all 2 MR. RUSH: 3 THE COURT 4 MR. RUSH: 5 6 7 8 9 THE COURT 10 11 MR. RUSH: 12 THE COURT 13 MR. RUSH: 14 THE COURT 15 MR. RUSH: 16 THE COURT 17 18 MR. RUSH: 19 20 21 THE COURT 22 23 MR. RUSH: 24 THE COURT 25 26 MR. RUSH: 27 THE COURT 28 MR. RUSH: 29 30 31 32 33 THE COURT 34 35 MR. RUSH: 36 THE COURT 37 MR. RUSH: 38 39 THE COURT 40 MR. RUSH: 41 42 43 44 45 46 47 They are all Songhees people. : I see. And you can see that southeastern Vancouver Island showing the areas covered by Fort Victoria treaties inset former Songhees territories. Each one of these peoples' subgroups, if you will, are members of the Songhees people. : And they were all -- these treaties were made in 1850 and 1851? 1850 through '52. : Thank you. And this is -- 1039-23, my lord, : Ten \u00E2\u0080\u0094 1039. Exhibit 1039-23. And that \u00E2\u0080\u0094 : Yes. Thank you. It doesn't show how far inland they go, does it? Well, it does not, my lord, because this was -- this was Duff's best effort to track the language that is contained in the treaties. : Although his inset suggests that it includes most of downtown Victoria? Oh, yes. : And of course, some considerable more than that and even the west half of San Juan Island. Yes. : All right. Thank you. Yes. My lord, Miss Mandell informs me that in Regina and Bartleman the treaties of the Songhees extended all the way up to the Gulf Islands, into the Gulf Islands, and included the waterways and the intervening territory. : That's a judicial interpretation of the treaties, is it? It's a judicial consideration of one of the treaties. : Bartleman? Yes. Regina and Bartleman. I think we've made reference to it in our material, my lord. : Yes, I have seen it before. Now, I'm on -- my lord, I'm on 150 now. I take it you -- I repeat Trutch's comments with regard to the Cowichan and I refer you to the fact on page 150 that Douglas had reported that the Cowichan wished to enter into a land cession treaty at the time the initial treaties were made, but he declined to do so, at that time, because no immediate settlement was planned in the Cowichan Valley. Douglas explained that he 25850 Submissions by Mr. Rush 1 thought it was better that payment for land should be 2 made at the time that settlement commenced; otherwise 3 the Indians might forget the treaty arrangements. And 4 I give your lordship the reference there. 5 Trutch may not have known of the 1850 letter from 6 Douglas to Barclay. However, he could hardly have 7 been unaware of the long-standing issue of payment to 8 the Cowichan for their lands. And it is evident from 9 the editorials, letters to the editor, the petition 10 from purchasers of land at Cowichan, the land notices 11 in the British Columbia Gazette, budget estimates to 12 extinguish Cowichan aboriginal title, and other 13 government records cited earlier in this section that 14 it was common knowledge among both government 15 officials and the general public that the Cowichan had 16 demanded payment for their lands and that they had 17 been promised such payment. 18 Furthermore, Trutch's assertions are at variance 19 with reports and documents prepared by Pearse in 1866 20 and 1869 which were deposited in the records of the 21 Lands and Works Office. Trutch claimed that his 1870 22 response prepared for transmission to the Colonial 23 Office was based on a review of such documents. In 24 1866 Pearse had reported that it would be necessary to 25 pay for the -- pay the Cowichan for their lands. In 26 1869 he reported to Trutch that the Douglas treaties 27 extinguished aboriginal title to land payment in 28 blankets. Pearse had served as Colonial Surveyor 29 since 1851 and thus his views were entitled to notice 30 and rebuttal if Trutch had reason to think that they 31 were ill founded. 32 Trutch made no reference to such records or views 33 in his 1870 report. It will be recalled that Governor 34 Musgrave had requested Trutch to prepare the 1870 35 report in response to a request for information from 36 the Colonial Office. This request was made in 37 consequence of mounting publicity in England of the 38 Cowichan situation in particular and of 39 dissatisfaction with the Indian affairs in Vancouver 40 Island generally. 41 Now, my lord, on 152 and over to 153, Dr. Barbara 42 Lane was asked in her direct-examination what tools 43 that she brought to bear in order to evaluate the 44 significance of the passages contained in Trutch's 45 memorandum, and she there sets out the many historical 46 references and the historical record to which she 47 would make reference in her evaluation of that 25851 Submissions by Mr. Rush 1 particular memo. She went to on to discuss in her 2 evidence the comments made by Governor Musgrave which 3 was attached to the transmittal to Earl Granville at 4 the Colonial Office. And at the bottom of 153 I draw 5 your lordship's attention to Musgrave's comments. I 6 set them out and particularly I draw your attention to 7 the closing words: 8 9 \"... and I now enclose a memorandum from that 10 officer upon the subject. From other sources 11 of information I have every reason to believe 12 Mr. Trutch's statements to be correct.\" 13 14 Now, in his letter Musgrave makes no mention of the 15 other sources of information. And it's hard to 16 imagine what he was referring to exceot those very 17 same documents that were available to and must have 18 been known to Trutch. There was no other documentary 19 material that was available to Musgrave that would 20 have supported such an erroneous conclusion. 21 Now, Dr. Lane was asked about Musgrave's 22 statements in his transmittal letter of January 29, 23 1870. And she was asked if in her review of the 24 documentary record whether she had been able to find 25 other sources of information to which Governor 26 Musgrave made reference or to which he had referenced 27 at the time of making his statement and her reply was: 28 29 \"I made a diligent effort to search the 30 documentary records which would have been 31 available at that time and is still extant and 32 is available to us to discover if there were 33 any written records to which Governor Musgrave 34 referred that I might be able to refer myself. 35 I was unable to find in any records that I have 36 searched anything that would support the 37 veracity of the allegations made in the 38 memorandum. I did find a number of records 39 from the government's own holdings of that era 40 which appear not to conform to Mr. Trutch's 41 characterization, but I didn't find any that 42 would have supported it or supported the 43 various contentions made or statements made.\" 44 45 Now, my lord, as we have noted, the Colonial Office 46 anticipated formal purchases of aboriginal title on 47 the mainland. Implementation of this part of the 25852 Submissions by Mr. Rush 1 policy was held in abeyance during the early years of 2 the new Colony and had not been acted upon when 3 Douglas retired in 1864. The obligation to pay the 4 Indians for extinguishment of their title was never 5 repudiated by the British or by the Colonial 6 government. Trutch's assertions in 1870 that 7 government had never recognized aboriginal title is 8 simply not in accord with the official directions 9 contained in despatches to Douglas from the Colonial 10 Office. 11 Now, our summary is this: The documentary review 12 of the record shows recognition of Indian rights in 13 land by Britain and by Colonial government officers of 14 Vancouver Island, the mainland Colony of British 15 Columbia and the United colony. The documents cited 16 span nearly a hundred years. 17 In these documents the Indian rights are referred 18 to interchangeably as \"aboriginal title,\" and I give 19 the source, \"native title\" and \"aboriginal title.\" 20 The record reveals a long-standing recognition of 21 the fundamental principles regarding aboriginal title 22 that include the following elements: 23 (a) aboriginal title should be extinguished when 24 lands are opened for development or 25 settlement, 26 (b) Indians can only cede their title to the 27 Crown or with the permission of the Crown, 28 (c) Indian lands should be purchased by the 29 Crown or agents acting on behalf of the 30 Crown, 31 (d) These purchases of land should be by treaty 32 or agreement, 33 (e) Indian consent is a necessary component to 34 such arrangements, 35 (f) Lands sufficient to their needs are to be 36 reserved for the use of the Indians. 37 Now, these principles, we say, are documented in 38 official statements and actions from the earliest 39 British presence on the Northwest Coast through the 40 mid-nineteenth century. Between 1850 and '54, 41 fourteen treaties were made with Indians in several 42 districts of Vancouver Island. By means of the these 43 treaties, the Hudson's Bay Company, acting as agents 44 for the Crown, purchased Indian lands. 45 THE COURT: Is that right, Mr. Rush? 1850 and 1854 fourteen 46 treaties were made in several districts of Vancouver 47 Island? I thought some were in Nanaimo. 25853 Submissions by Mr. Rush of Vancouver Island. 2 THE COURT: 3 MR. RUSH: 4 THE COURT: 5 6 MR. RUSH: 7 THE COURT: 8 MR. RUSH: 9 10 THE COURT: 11 12 MR. RUSH: 13 14 15 THE COURT: 16 17 18 19 MR. RUSH: 20 THE COURT: 21 22 23 MR. RUSH: 24 25 THE COURT: 26 MR. GOLDIE 27 THE COURT: 28 29 30 MR. RUSH: 31 THE COURT: 32 MR. GOLDIE 33 MR. RUSH: 34 THE COURT: 35 MR. RUSH: 36 THE COURT: 37 38 MR. RUSH: 39 40 THE COURT: 41 MR. RUSH: 42 43 ] 44 45 46 47 THE COURT: 1 MR. RUSH: Yes. Several districts They are all in Vancouver Island? All right Yes. All right. Well, I got one other little problem here. I thought there was one here -- There is a point, too, my lord, if I can respond. There is another one here somewhere. Yes. Treaty eight in the Northeast corner and we will be addressing your lordship on that. What about the one on the island that's been the subject of some litigation. There is a treaty at Fort Rupert, which is on the Northeastern part of the island, and treaties at Nanaimo. Yes. But there is a gentleman paid $100,000 for an island from MacMillan Bloedel and it's been the subject of some litigation. Wasn't that covered by a treaty? No, my lord. It's not? All right. I seem -- I thought I recalled somewhere that there was a treaty involved in that. No, my lord. I think that you are referring to the factual matrix of the Meares Island case. No, no. : Is it Lyell Island you're talking about? No, no. It's a poor little logger who paid $100,000 to MacMillan Bloedel and there is an injunction against him. Yes. That's Deer Island, my lord. Deer Island, yes. : Deer Island, yes. And that involved the Fort Rupert treaty. So it did involve the Fort Rupert treaty? Yes. And that was one of the Douglas treaties. I had an idea that it was not far from -- was it Alert Bay or not that far north? It's on the mainland -- excuse me, my lord, it's on Vancouver Island across from Alert Bay. Yes. All right. My lord, just one other point. I have the submission that we make here on 156 is that the treaties were made with Indian in several districts of Vancouver Island. My point about Bartleman is that that's not to be confined to the land mass of Vancouver Island but it includes islands in the Gulf. Yes. Yes. 25854 Submissions by Ms. Mandell 1 MR. RUSH: And as well as the fisheries and waterways in the 2 Gulf. 3 THE COURT: Yes. 4 MR. RUSH: And my lord, the Bartleman reference is in our 5 authorities at Volume 8 roman -- excuse me Volume VII, 6 tab 40. 7 THE COURT: Thank you. 8 MR. RUSH: Now, at the bottom of page 156 I conclude with these 9 records, my lord: The record is clear that subsequent 10 land purchases were contemplated on Vancouver Island 11 and that the British Crown expected land purchases to 12 be effected by treaty or other agreement in the 13 mainland Colony of British Columbia as well. The 14 documents show that the anticipated land purchases 15 were held in abeyance because of financial constraints 16 and other concerns, although land reserves were made. 17 In 1870 Trutch claimed that aboriginal claims to 18 land were held to have been fully satisfied by the 19 setting aside of Indian reserves as settlement 20 progressed. There is nothing in the documentary 21 record to support this contention, nor is there (apart 22 from Trutch) a repudiation of the requirement to 23 extinguish aboriginal title in any official documents 24 from 1776 to 1870. 25 The operative law in the Colonies of Vancouver 26 Island, British Columbia and the United Colonies was 27 to recognize aboriginal title in the colonies and for 28 the Crown to purchase lands from Indians, with their 29 consent. This was recognized and enunciated in the 30 Royal Proclamation, in other eighteenth century 31 documents and crystallized in the common law. 32 And these principles, we say, were in effect with 33 respect to the lands now known as British Columbia at 34 least as early as 1776 and continued to be Imperial 35 policy thereafter. 36 Now, my lord, this concludes the documentary -- 37 our argument on the documentary review up to 1871. We 38 will now turn the focus of the argument to a 39 consideration of the applicable law as it touches on 40 the ordinances and proclamations in the Colonial 41 period. And I will ask Miss Mandell to address you on 42 that. 4 3 THE COURT: Thank you. 44 MR. RUSH: Thank you. 45 MS. MANDELL: My lord, my colleague David Patterson is with me 46 at counsel table. 47 THE COURT: Thank you. Mr. Patterson. May I say before you go, 25855 Submissions by Ms. Mandell 1 Mr. Rush, that at some time I would be grateful if you 2 could give me a list of all the counsel that have 3 appeared with you on this case so that I can be sure 4 and get everyone mentioned in the list of counsel 5 appearing on the case and the same to Mr. Goldie and 6 perhaps Mr. Wolff can ask Mr. Macaulay to do the same 7 thing. I think I know them all, but I could have 8 forgotten somebody way back and I hate to leave 9 somebody's name out of a case like this. 10 MS. MANDELL: My lord, I might mention that Mr. Patterson 11 appeared once before and his name appeared for months 12 thereafter on the transcript, so I can appreciate your 13 comments that people seem to -- My lord, I am handing 14 up to your lordship the portions of the argument which 15 I'll be addressing and -- 16 THE COURT: Thank you. 17 MS. MANDELL: \u00E2\u0080\u0094 provide one for Madam Registrar for the 18 Reporter. 19 THE COURT: So that I will know how many questions I can ask 2 0 without usurping your time unduly, how long do you 21 think you are going to be with these 80 odd ages, 90 22 pages? 23 MS. MANDELL: What are we doing? We are going to sit until 24 four? 25 THE COURT: Till four and then from about 5:30 until seven I 26 understand. 27 MS. MANDELL: I am going to try and finish. 2 8 THE COURT: Yes. 29 MS. MANDELL: Yes. I am going to try and finish. You can still 30 ask questions, but I am going to try and finish. 31 THE COURT: All right. Thank you. 32 MS. MANDELL: Thank, my lord. I'd like to focus us out of the 33 documents for a minute and ask you to turn your mind 34 to Exhibit 9A and 9B. And why I ask you to turn to 35 the territories is at this point the argument is 36 addressed to what the requirement is in law for the 37 Crown to indicate its intention to extinguish the 38 aboriginal title which has been displayed on maps 9A 39 and 9B and which has been the subject of much evidence 40 over the course of the last three years. And when we 41 are examining the different ordinances and the 42 different proclamations which the Province has alleged 43 have extinguished aboriginal title, I would ask you to 44 measure the tests which are being contended for 45 against the very many discrete and distinct House 46 boundaries which have been forged over time, the 47 acquisition of crests which you have heard much about 25856 Submissions by Ms. Mandell 1 which arise through the experience of their ancestors 2 of the plaintiffs on the territory, the migrations 3 which you have heard so much about where Houses have 4 merged and divided and villages have formed and 5 settled in one place and then moved to another 6 location as circumstances dictated, the two thousand 7 or more place names which are throughout the maps 9A 8 and B, the evolution and enforcement of the laws 9 against trespass, and I'd like you to also have in 10 your mind the names of the chiefs, Delgamuukw, Wah tah 11 ghet, chiefs names which have been passed for 12 centuries through one chief to another, each of the 13 chiefs being responsible for the caring for the 14 territory within their House boundaries, and the 15 granting of access rights to members of their House 16 and to others of their kinship relationships who are 17 part of the overall relationships of the feast. And 18 we say that this is really not in the abstract but in 19 the concrete what the test which we are arguing for is 20 about. What does it take for those peoples' rights on 21 that land to be extinguished in law? And I ask you to 22 keep that -- 23 THE COURT: But surely the test is what is the test for the 24 extinguishment of the then chief at the time of the 25 alleged extinguishment, surely. Not the test for what 26 extinguished the present chiefs' alleged right. 27 MS. MANDELL: Well, I say that the test is the same in both 28 cases. There is going to -- what we are asking and 29 what the defendant Province is asking for your 30 lordship to determine at this time is that there were 31 certain ordinances between -- and proclamations passed 32 in the preconfederation period which had the effect of 33 extinguishing title, and in so doing what they are 34 urging upon you is a test that can be applied for the 35 extinguishment of aboriginal rights. And what we're 36 asking you to do is to keep firmly placed in your mind 37 that there are people and lands involved. It's true 38 from what you have said that if the Province's 39 submission were to be accepted, we are talking about 40 the extinguishment of the ancestors of our plaintiffs' 41 rights in a certain period of time, but we are also at 42 the same time addressing the fact that you've seen 43 these rights as they have been expressed on the ground 44 from the time of contact, before that time and to the 45 present. And it's those rights that these pieces of 46 legislation are being pitted against to say that they 47 were extinguished. 25857 Submissions by Ms. Mandell 1 THE COURT: Yes. 2 MS. MANDELL: And I might also ask you to keep firmly in mind at 3 the same time what was said by Mr. Justice Hall in 4 Calder when he pointed out the words of Tysoe, Mr. 5 Justice Tysoe at the Court of Appeal, and he at page 6 206 in his judgment said in this regard, quoting Mr. 7 Justice Tysoe: 8 9 \"It is true as the Appellants have submitted 10 that nowhere can one find express words 11 extinguishing title.\" 12 13 And I have put that quote at page 178 of the argument, 14 but I wanted at this point to advance it to your 15 lordship up front. And you can find that -- you can 16 find that at 178. 17 THE COURT: 178, yes. Thank you. 18 MS. MANDELL: What we have, and I'll be later addressing it in 19 more specific detail, is a series of legislative 20 enactments which primarily provide for the 21 establishment of the government and the colony, the 22 sale of lands in the colony, the importation of the 23 civil and criminal laws of England, and the union of 24 British Columbia with Canada. And in all this 25 legislation there is not to be found a single 26 provision addressing either of the existence of 27 aboriginal title nor providing for its extinguishment. 28 Now, I'm reading at page 159. 2 9 THE COURT: Yes. 30 MS. MANDELL: Mr. Rush and Mr. Jackson have already submitted at 31 length the plaintiffs' first argument is that 32 legislation ought not to be construed as extinguishing 33 aboriginal title in the absence of Indian consent. 34 This is a proposition as part of the common law. It's 35 the plaintiffs' alternative submission, and it is a 36 submission fully in the alternative, that 37 extinguishment of aboriginal title could only be 38 effected by express legislative enactment 39 demonstrating a \"clear and plain\" intention to 40 extinguish title. The onus is on the defendant Crown 41 to prove extinguishment. 42 Now, this was, as your lordship is aware, the 43 subject of the divided court in Calder. Mr. Justice 44 Hall after reviewing the cases in support of the 45 Nishga's position that aboriginal title could be 46 extinguished \"only by specific legislation,\" concluded 47 at page 210: 25858 Submissions by Ms. Mandell 1 2 \"It would, accordingly, appear to be beyond 3 question that the onus of proving that the 4 sovereign intended to extinguish the aboriginal 5 title lies on the respondent and that intention 6 must be 'clear and plain.'\" 7 8 THE COURT: I am sure you notice that comment by Mr. Justice 9 Corey in that judgment that Mr. Willms gave us 10 yesterday. 11 MS. MANDELL: I wasn't here yesterday. I haven't read the 12 transcript yet. 13 THE COURT: Well, there is a -- there is a phrase in there that 14 surprised me because the Supreme Court of Canada has 15 been very very careful ever since Calder to leave open 16 this question, but Mr. Justice Corey in one perhaps 17 flowaway line said -- commented that there was a 18 question of whether the title had been extinguished 19 actually or inferentially. 20 MS. MANDELL: Is this the selling \u00E2\u0080\u0094 the recent Supreme Court 21 of -- 22 THE COURT: Yes. I doubt if it's a considered pronouncement. 23 MS. MANDELL: That was to do with the section 12 of the Natural 24 Resource Transfer Agreement. 25 THE COURT: Yes. But he is talking about extinguishment of 26 aboriginal rights. 27 MS. MANDELL: I will have to read it. I haven't read the 2 8 judgment in detail. 29 THE COURT: You'll want to press I'm sure that it's a casual \u00E2\u0080\u0094 30 MS. MANDELL: A casual \u00E2\u0080\u0094 31 THE COURT: -- statement made per incuriam. 32 MS. MANDELL: Well, of course it certainly can't be the ratio of 33 the case because there was treaties and there was the 34 transfer treatment agreement and so on. 35 MR. GOLDIE: I am sure my friend can put it in the same category 36 as Mr. Justice Dickson's comments in Guerin. 37 THE COURT: Or Mr. Justice Hall's in Calder. 38 MS. MANDELL: Oh, I don't think so. 39 THE COURT: Mr. Justice Hall's is the ratio of his judgment. 40 MR. GOLDIE: Oh, yes. 41 THE COURT: Yes. Well, it's just something when you mentioned 42 it that I thought I should comment that I read the 43 judgment last night and I was surprised to find it 44 stated somewhat -- what I thought somewhat casually, 45 with the greatest respect. 46 MS. MANDELL: Mr. Justice Judson held that the extinguishment of 47 aboriginal title can be implied insofar as: 25859 Submissions by Ms. Mandell 1 2 \"The sovereign authority elected to exercise 3 complete dominion over the lands in question, 4 adverse to any right of occupancy which the 5 Nishga Tribe might have had, when, by 6 legislation, it opened up such lands for 7 settlement, subject to the reserves for land 8 set aside for Indian occupation.\" 9 10 And it's our submission that the test enunciated by 11 Mr. Justice Hall that legislative extinguishment of 12 aboriginal title can be only found on proof of a clear 13 and plain intention to extinguish is the correct test 14 and this Court should reject the proposition that 15 extinguishment can be implied. 16 Now, we draw support, subject to what I have to 17 say further about the cases that your lordship 18 mentions, from all of the cases which have been 19 decided since Calder both in this country and that of 20 the United States. 21 The Supreme Court of Canada has stated that the 22 Crown will be held to \"strict proof\" of 23 extinguishment. 24 And this was part of the case, the reasoning of 25 the case in Simon, where as your lordship will recall 26 there had been a treaty of 1752 between the British 27 Crown and the Micmacs, and the Crown argued that the 28 treaty extinguished native rights in lands outside of 2 9 the reserve. And the argument was advanced by the 30 Crown that absolute title in the land covered by the 31 treaty lies with the Crown and therefore the Crown has 32 the right to extinguish any Indian rights in the land. 33 And further, the Crown through occupancy by the white 34 man has in effect extinguished native rights. And you 35 will recall that in that case it was a case where a 36 man from the Micmac nation was charged with well on a 37 road, a Provincial road, with a gun and the question 38 was whether or not the hunting rights recognized and 39 affirmed by the treaty were part of the fabric of 40 right that he could rely upon as against the 41 application of Provincial law. The -- and what the 42 Crown was asserting is that extinguishment had 43 occurred in a sense by implication, that is there had 44 been the settlement throughout the area and that the 45 highway was certainly part of the Provincial domain 46 and that the Crown had the right to extinguish 47 following the treaty. And the court refused to give 25860 Submissions by Ms. Mandell 1 effect to this argument of implied extinguishment: 2 3 \"Given the serious and far-reaching 4 consequences of a finding that a treaty right 5 has been extinguished, it seems appropriate to 6 demand strict proof of the fact of 7 extinguishment in each case where the issue 8 arises.\" 9 10 And then quoting Santa Fe: 11 12 \"'Extinguishment cannot be lightly implied.' 13 14 It is impossible for this Court to consider the 15 doctrine of extinguishment in the air; the 16 respondent must anchor that argument in the 17 bedrock of specific lands.\" 18 19 THE COURT: Is that the Supreme Court of Canada? 2 0 MS. MANDELL: Yes. 21 THE COURT: I have some trouble with the proposition that a 22 Court can say it's extinguished and another Court can 23 come along and say in different facts it's not 24 extinguished. 25 MS. MANDELL: Well, that may be \u00E2\u0080\u0094 that may be an important 26 factor in reading the decision that your lordship has 27 referred me to and I'm going to have to go into it and 28 see how it comes about. I do know that there has been 29 this aberration in all Indian law in my opinion when 30 people -- when the courts have looked at cases arising 31 out of the Prairie Transfer Agreements, because there 32 was a very unique and different Constitutional 33 arrangement which the Federal Government and the 34 provinces agreed to through the Transfer Agreements 35 which the courts in Cardinal and others have held -- 36 have changed the normal Constitutional division of 37 powers between the Federal and Provincial Governments, 38 at least as it relates to the application of the 39 Wildlife Act on Indian people. And so I suspect that 40 when we read this judgment it's going to conform to 41 the pattern of the Prairie provinces, but may not 42 necessarily conform to the pattern throughout the rest 43 of the country. 44 THE COURT: All right. 45 MS. MANDELL: In the case of Regina versus Paul at the Court of 46 Appeal La Forest, Mr. Justice La Forest, as he then 47 was, found that although a railway line which was 25861 actually 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Ms. Mandell 1 authorized by statute passed, and must have been contemplated as passing through the reserve, the Indian interest in reserve land was not thereby abrogated. And this is a case, my lord, where in the usual way where the railway lines seem to get the Red Sea parted for what they want to do, there was legislative provision for the railway line to take on a certain pathway and it did and it happened to go through the reserve and the statute so authorized it, but the Court of Appeal said that the Indian interest in reserve land was not thereby abrogated. After quoting the statement of Mr. Justice Hall to the effect that an intention to extinguish must be \"clear and plain,\" Mr. Justice La Forest continued: \"This appears to be a special application of the general presumption that the Legislation does not, in the absense of clear words, intend to interfere with vested rights....\" \"The presumption against interference with vested rights to which I have just referred goes further. When a taking is, in fact, unauthorized -- \" THE COURT: No. That says \"authorized.\" MS. MANDELL: I am sorry: \"-- authorized by statute, it is presumed that compensation will be paid:... This, like the presumption against taking, must apply with additional force to the taking of Indian lands because this affects the honor and good faith of the Crown.\" And I should just advise your lordship that the Supreme Court of Canada expressly did not decide the question as it's been raised here by Mr. Justice La Forest but indicated that it might hold as Mr. Justice La Forest did, unless the Indian interest was one of enjoyment and occupation only. And I could also here address to you the case of our B.C. Court of Appeal in Surrey Peach Arch, which has been quoted with approval throughout the country, where there the B.C. Court of Appeal said that the Indian interest was more than enjoyment and occupation but included a reversionary interest even when the use and occupation aspect of 25862 Submissions by Ms. Mandell 1 the title was in the hands of another person. It was 2 ninety-one twenty-four lands. It was lands that were 3 conditionally surrendered. And in the course of the 4 judgment it was held that they didn't fit under the 5 definition of reserve in the Indian Act, but were 6 ninety-one twenty-four lands. 7 MR. GOLDIE: I am obliged to my friend. I couldn't remember 8 whether those were reserve lands or otherwise, my 9 lord. 10 MS. MANDELL: They were ninety-one twenty-four lands but not 11 reserve lands. 12 The suggestion -- recent decisions of the Surpeme 13 Court of the United States, and we will be referring 14 to some of them later, have reaffirmed and applied the 15 test of \"plain, clear\" express extinguishment. And 16 the two most recent ones which have applied the test 17 are the Oneida case and the Dann case and I have given 18 to your lordship the references in our material. 19 The suggestion that both Hall and Judson expounded 20 the same test for extinguishment is erroneous. In 21 Baker Lake Mr. Justice Mahoney concluded: 22 23 \"To say that the necessary result of 24 legislation is adverse to any right of 25 aboriginal occupancy is tantamount to saying 26 that the legislator has expressed a clear and 27 plain intention to extinguish that right of 28 occupancy. Justices Hall and Judson were, I 29 think, in agreement on the law, if not its 30 application in the particular circumstances.\" 31 32 A reading of their judgments discloses that Mr. 33 Justice Hall and Judson were not in agreement in fact 34 on the law insofar as two distinct tests for 35 extinguishment are advanced. In the Supreme Court of 36 Canada in the Paul case the courts agreed: 37 38 \"In Calder, ... two views,\" 39 40 not one, as Mr. Justice Mahoney suggests, 41 42 \"... two views were expressed as to what was 43 necessary to show that the sovereign intended 44 to extinguish aboriginal title. Mr. Justice 45 Judson thought that alienation and other acts 46 inconsistent with the existence of an 47 aboriginal title was sufficient Mr. Justice 25863 Submissions by Ms. Mandell 1 Hall...was of the view that such an intention 2 must be 'clear and plain.'\" 3 4 THE COURT: But isn't it possible to be clear and plain by 5 inconsistent acts? 6 MS. MANDELL: Well, we say no. We say that that's an implied 7 extinguishment and if your lordship will bear with us, 8 we say that there has to be something expressed in the 9 statute. 10 THE COURT: Well, I can see the difference between express and 11 inferential, but I don't see -- I could see how \"clear 12 and plain\" could stand together with \"implied.\" 13 MS. MANDELL: We say that there has to be some legislative -- 14 THE COURT: You say it has to be expressed. 15 MS. MANDELL: Expression. That's right. It has to be an 16 expression. Now -- 17 THE COURT: It can't just be implied. 18 MS. MANDELL: It can't be implied. And if I could ask your 19 lordship just to turn to the next page and to the next 20 cession, I am going to give some examples of clear and 21 plain language which has been held by the courts 22 either through statute or through Order-in-Council or 23 through judicial comments to be capable of effecting 24 extinguishment. I'll first refer to the words of Mr. 25 Justice Hall where he had before him a body of 26 primarily the same enactments that your lordship will 27 consider. And he said that: 28 29 \"If the Colony had intended extinguishing the 30 aboriginal title to public lands...it could 31 have easily have said 'aboriginal title to 32 public lands in the Colony is hereby 33 extinguished.' No such enactment or one with 34 language to like effect was ever passed.\" 35 36 Now, there is other examples of \"clear and plain.\" 37 I refer to the treaties and the first set of treaties 38 which are not the modern land claims agreements but 39 which were the ones primarily enacted in Ontario and 40 through the provinces were almost -- almost without 41 exception confirmed by Order-in-Council. And the 42 wording of the treaties, and I've taken the wording as 43 it was stated in the treaty which was the numbered 6 44 Treaty considered by the Supreme Court of Canada in 45 Horse, and at page 164 the Indians in the treaty, and 46 this is the Plain and Wood Cree people: 47 25864 Submissions by Ms. Mandell 1 \"... cede, release, surrender and yield up to 2 the government of the dominion of Canada for 3 Her Majesty the Queen and Her successors 4 forever, all their rights, titles, and 5 privileges whatsoever, to the lands included 6 within the following limits,\" 7 8 And then there is a description of the lands which are 9 surrendered. And we say that's pretty clear and 10 pretty plain and pretty express. 11 Now, all of the modern land claims agreements 12 carry similar provision. And if I could first refer 13 you on page 165 to the Alaska Native Claims 14 Settlement Act, all three provisions (a) to (c) are 15 examples of clear and plain language, but I've 16 underscored (b) as an examples of it: \"All aboriginal 17 tiles, if any.\" So whether we are still in a debate, 18 they may or may not exist: 19 20 \"All aboriginal titles, if any, and claims of 21 aboriginal title in Alaska based on use and 22 occupancy, including submerged land underneath 23 all water areas, both inland and off shore, 24 and including any aboriginal hunting and 25 fishing rights that may exist, are hereby 26 extinguished.\" 27 28 And in exchange, Congress compensated the Alaskan 29 Indian people collectively with about $962.5 forty 30 million of acres of land in fee simple. The James Bay 31 agreement, section 3: 32 33 \"All native claims, rights, titles and 34 interests, whatever they may be, in and to the 35 Territory, of all Indians and all Inuit, 36 wherever they may be, are hereby 37 extinguished,...\" 38 39 And it's the same wording in the Western Arctic 4 0 Claims Settlement Act. 41 The Lipan Apache case and the Mabo and State of 42 Queensland case are recited there also at this stage 43 in the argument for examples of clear and plain 44 language. In the Lipan Apache case which was cited -- 45 THE COURT: I wonder, Miss Mandell, if we shouldn't adjourn now 46 before you -- 47 MS. MANDELL: Carry on. page case 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 25865 Submissions by Ms. Mandell 1 THE COURT: There is only a one- MS. MANDELL: I can do the point in about two minutes. THE COURT: All right. You can finish that. MS. MANDELL: Finish the point then we will stop. THE COURT: Yes. MS. MANDELL: In the Lipan Apache case the Court of Claims considered the issue of what acts constitute extinguishment of title. And in that case it was determined that aboriginal title existed in the Lipan Apache people when Texas entered statehood in 1845. Now, in a debate which is going to ring familiar as it happened in the St. Catherine's Milling case in Canada, the State said well, we have got the underlying fee, therefore we can extinguish title. And in the same way as the division of power occurs here it occurs there. The Federal Government had the responsibility of extinguishing aboriginal title and not the Province. And there was -- the Texas Legislature, pursuant to its thought power that it could extinguish title, passed an act which declared, and it's at the underscored portion of the page: It recognized no title at all in Indian tribes within the state of Texas. And that's a clear and unequivocal Legislative intent. And what the Court of Claims did was say that while that was clear and express, the state of Texas had no power to do it. And so the title was not extinguished on that case. And in the State of Queensland case, what happened there was that the Queensland Parliament passed a 1984 act purporting retrospectively to abolish all rights and interests the plaintiffs may have owned and enjoyed before its enactment in the territory. And if you will turn to page 168 I've highlighted some of the ways in which the act was worded. In (a): \"The island were vested in the Crown and right of Queensland -- \" This is for the purpose of removing any doubt as to who has what: \"The islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown in Queensland for the purposes of section 30 and 40 of the Constitution Act.\" 25866 Submissions by Ms. Mandell 1 2 Stated in paragraph 5, no compensation payable, and 3 5(b) : 4 5 \"in respect of any right, interest or claim 6 alleged to have existed prior to the annexation 7 of the islands to Queensland or in respect of 8 any right, interest or claim alleged to derive 9 from such a right, interest or claim, or 10 (c) by reason of any provision of this Act.\" 11 12 Now, we say that that's -- that language and court 13 also said clearly and expressly and plainly 14 extinguishes title. In this case the Act was found 15 ineffective as against the Indian people because it 16 was violative the Racial Discrimination Act, but we 17 cited here to demonstrate an example of what the 18 courts and the cases have seen to be clearly plain and 19 express language. And that's an appropriate time, my 20 lord, for the break. 21 THE COURT: All right. We will resume at 5:30 and you want to 22 go until about 7 o'clock. 23 MS. MANDELL: Okay. 24 THE COURT: And if you're close we will stay and finish. 25 MS. MANDELL: Okay. 26 2 7 (PROCEEDINGS ADJOURNED AT 4:00 P.M.) 28 29 I hereby certify the foregoing to 30 be a true and accurate transcript 31 of the proceedings transcribed to 32 the best of my skill and ability. 33 34 35 36 37 38 Laara Yardley, 39 Official Reporter, 4 0 UNITED REPORTING SERVICE LTD. 41 42 43 44 45 46 47 25867 Submissions by Ms. Mandell 1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS) 2 3 SUBMISSIONS BY MS. MANDELL: 4 5 THE COURT: Miss Mandell. 6 MS. MANDELL: My lord, in reply to your question about the 7 Person case, it's at page 20 of the judgment which got 8 miraculously moved over by the commuter by pressing a 9 button. 10 THE COURT: Yes. 11 MS. MANDELL: At the outset, two established principles must be 12 borne in mind: First, the onus of proving either 13 express or implied extinguishment lies upon the 14 Crown.\" Then he cites Simon and Calder. \"Secondly, 15 any ambiguities in the wording of the treaty must be 16 resolved in favour of the Indian people. And he cites 17 Nowegijick. What we take from this is that in citing 18 Simon it was clearly held that there was express 19 extinguishment required and Calder which cited the 20 debate, what he is saying is that whatever the 21 principle is he is not there attempting to resolve it, 22 the point he is stating, which is so, is that the onus 23 of proving either expressed or implied, whatever that 24 is, lies upon the Crown. And then he cites the -- 25 THE COURT: I would expect the Crown would accept that. 26 MR. GOLDIE: I do. 27 THE COURT: The point of my raising it was just in passing that 28 he says express or implied. 29 MS. MANDELL: I think he is just saying he is not resolving the 30 debate and he cited Calder in support. 31 MR. GOLDIE: The best I can do with that, I will agree that he 32 didn't expressly say he was resolving the debate of 33 implicit extinguishment. 34 MS. MANDELL: However, we do say when you look at the cases 35 which have been decided after Calder, the weight of 36 authority overwhelmingly is on the side of express 37 extinguishment and you notice he cites Simon and that 38 is the position of the court in that case. 39 THE COURT: But Symonds \u00E2\u0080\u0094 I am sorry, that's Simon? 4 0 MS. MANDELL: Simon. 41 THE COURT: All Simon said is that it had to be clear. 42 MS. MANDELL: Simon said it can't be lightly implied, in the 43 air, bedrock of land. And then after that La Forest 44 and Paul and the two U.S. cases Oneida and Dan. 45 I am at page 169. My lord, we say that Mr. Justice 46 Judson's decision was fundamentally in error and I 47 address that on four separate points. First is that 25868 Submissions by Ms. Mandell 1 he mis-characterized the nature of aboriginal title, 2 he mis-characterized the test, he misconceived the 3 relationship between aboriginal title and Crown title, 4 and, finally, that his lordship's reasons are 5 inconsistent with principles of statutory 6 construction, of which he considered none in the body 7 of his judgment. 8 If I could begin by describing the mis- 9 characterization of the nature of title, both Mr. 10 Justice Judson and Hall present two different 11 characterizations of title. Mr. Justice Hall presents 12 what I say is a full and ample definition whereas Mr. 13 Justice Judson presents a de minimis one. Mr. Justice 14 Hall described the Nishga claim to be in the nature 15 of: 16 17 \"...a usufructary right and a right to occupy 18 the lands and to enjoy the fruits of the soil, 19 the forest, and of the rivers and streams...\" 20 \"...the right to remain in possession 21 themselves and to enjoy the fruits of that 22 possession.\" 23 24 In contrast, Mr. Justice Judson describes 25 aboriginal title to be simply the permission of whites 26 that Indians occupy certain lands. And he is there 27 following the Tee-Hit-Ton case. 28 Since Calder, the more ample definition of 29 aboriginal title has been affirmed by the Supreme 30 Court of Canada. In Guerin, Mr. Justice Dickson 31 described the Indians' interest in their land as a 32 pre-existing right, and you have been referred to that 33 quote, and he characterized the title as an interest 34 in land to be sui generis. 35 Now, in the further decision of the Supreme Court 36 of Canada, in the case of Regina versus or CP versus 37 Paul, the Supreme Court considered the nature of the 38 interest in land as a proper first step to considering 39 the issue of extinguishment. And, he said, this is 40 the -- this is the judgment of the court: 41 42 \"Before turning to the jurisprudence on what 43 must be done in order to extinguish the Indian 44 interest in land, the exact nature of that 45 interest must be considered.\" 46 47 And I pause here to state that it matters how the 25869 Submissions by Ms. Mandell 1 interest is characterized when the question of 2 extinguishment is considered. Because if, as was done 3 with Mr. Justice Judson, the interest is of a minimal 4 nature and not a property right and not -- has no 5 proprietory interest to it, if it's a very hardly 6 recognizable shadowy sort of thing, then the test for 7 extinguishment would be certainly less stringent than 8 if, as Mr. Justice Hall described it, it was a right 9 in the land and to enjoy the fruits and the possession 10 of the produce of the land. 11 Now, the court in Paul set up the problem and they 12 cited first the St. Catherines Milling case, and I am 13 just going to read from the underscored passage: 14 15 \"This has at times been interpreted as meaning that 16 Indian title...\" 17 THE COURT: Whose language is this? 18 MS. MANDELL: This is the court's, the Supreme Court of Canada, 19 and I forget the judge. It was unanimous. 20 THE COURT: I have an idea that it was La Forest, but I am not 21 certain. 22 MS. MANDELL: No, he was at the Court of Appeal. 23 THE COURT: He was in the Court of Appeal. All right. 24 MS. MANDELL: 25 26 \" This has at times been interpreted as meaning 27 that Indian title is merely a personal right 28 which cannot be elevated to the status of a 29 proprietary interest so as to compete on an 30 equal footing with other proprietary interests. 31 However, we are of the opinion that the right 32 was characterized as purely personal for the 33 sole purpose of emphasizing its generally 34 inalienable nature.\" 35 36 He quotes A. G. Quebec and A. G. Canada, and says 37 that the inalienability feature was, later in the 38 paragraph \"...a protective measure for the Indian 39 population lest they be persuaded into imprudent 40 transactions.\" And the court in Paul quotes the court 41 in Guerin, first Madam Justice Wilson: 42 43 \"The bands do not have the fee in the lands; 44 their interest is a limited one. But it is an 45 interest which cannot be derogated from or 46 interfered with by the Crown's utilization of 47 the land for purposes incompatible with the 25870 Submissions by Ms. Mandell 1 Indian title, unless, of course, the Indians 2 agree.\" 3 4 And you have been referred to the decision of Mr. 5 Justice Dickson on this point. But at page 172 I 6 simply want to direct to your attention again to the 7 underscored passages where Mr. Justice Dickson 8 describes it as \"a unique interest in land\", and 9 that's in the middle of the quote at 172, and he then 10 concludes that the \"Indians have a legal right to 11 occupy and possess certain lands, the ultimate title 12 to which is in the Crown.\" 13 The court reviews Mr. Justice Judson's statements 14 in Calder as to the origin of aboriginal rights, \"... 15 when the settlers came, the Indians were there, 16 organized in societies...\" And then concludes at the 17 underscored passage at 172: 18 19 \"The inescapable conclusion from the Court's 20 analysis of Indian title up to this point is 21 that the Indian interest in land is truly sui 22 generis. It is more than a right to enjoyment 23 and occupancy although, as Dickson, J. pointed 24 out in Guerin, it is difficult to describe what 25 more in traditional property law terminology.\" 26 27 I should just advise you that in CP versus Paul, 2 8 the judgment is delivered by the court. 2 9 THE COURT: All right. They do that sometimes when they are 30 embarrassed. 31 MS. MANDELL: That mysterious pet judge. 32 THE COURT: Mysterious manifestation. 33 MS. MANDELL: We say then that the characterization which Mr. 34 Justice Judson posed of aboriginal title, has been 35 decidedly overtaken by the authorities of the Supreme 36 Court of Canada. And at this point in our submission 37 we say that it's an error in his judgment which 38 influenced the final outcome of his conclusions that 39 extinguishment can be lightly implied -- or could be 4 0 impliedly concluded. 41 Now, the second error is that he misconceived the 42 nature of the test. And I am at page 173. In Calder, 43 Mr. Justice Judson reviewed the proclamation and 44 ordinances and despatches relied upon, I say, by the 45 provincial defendant and approved Mr. Justice Gould's 46 conclusion that they showed a unity of intention to 47 exercise and the legislative exercising of absolute 25871 Submissions by Ms. Mandell 1 sovereignty over all the lands of British Columbia, a 2 sovereignty inconsistent with any conflicting 3 interest, including aboriginal title. I am always 4 struck by the word conflicting because it's not, in my 5 submission, that aboriginal title is a conflicting 6 interest, it's a compatible or a co-existing interest, 7 and it's indicative of the perception of aboriginal 8 title by Mr. Justice Judson and Mr. Justice Gould that 9 there is something necessarily conflicting about the 10 aboriginal interest in the land. 11 Anyways, Mr. Justice Judson relied on the Santa Fe 12 case to support his finding that extinguishment could 13 occur by implication through the operation of the 14 named instruments. And I am not going to take you to 15 the first quote of the Santa Fe case, it was not 16 mentioned and Mr. Rush -- and ought to have been in 17 the analysis that the rights do not have to be 18 recognized by the Crown in order for them to exist, 19 that they are pre-existing rights. And Mr. Justice 20 Judson and Mr. Justice Hall both quoted the Cramer 21 case, which is the authority and the starting point of 22 that discussion. 23 But having so done that, Mr. Justice Judson then 24 goes on to say: 25 26 \"Extinguishment of Indian title based on 27 aboriginal possession is of course a different 28 matter. The power of Congress in that regard 2 9 is supreme. The manner, method and time of 30 such extinguishment raises political not 31 justiciable, issues.\" 32 33 34 And he quotes the cases that are there cited: 35 36 \"'The exclusive right of the United States to 37 extinguish' Indian title has never been 38 doubted. And whether it be done by treaty, by 39 the sword, by purchase, by the exercise of 40 complete dominion adverse to the right of 41 occupancy, or otherwise, its justness is not 42 open to inquiry in the courts.\" 43 44 45 Now, that's what Mr. Justice Judson relied upon in 46 continuing to decide as he did as to the effect of the 47 statutes. 25872 Submissions by Ms. Mandell 1 If I could move you to page 196, I think I can make 2 the point by reference to a later portion of the 3 argument. The Santa Fe case. 4 THE COURT: What page? 5 MS. MANDELL: Page 196. The Santa Fe case, which is the quote 6 taken from it by Mr. Justice Judson, is set out at 7 page 196, and the court -- the conclusion of Santa Fe 8 is not supportive of the portion of the quote which 9 was taken by Mr. Justice Judson. In that case the 10 court concluded that the creation of a reserve, a 11 reservation by an Act of Congress, did not extinguish 12 aboriginal title. And the quote: 13 14 \"We search the public records in vain for any 15 clear and plain indication that Congress in 16 creating the Colorado River reservation was 17 doing more than making an offer to the Indians, 18 including the Walapais, which it was hoped 19 would be accepted as a compromise of a 20 troublesome question. We find no indication 21 that Congress by creating that reservation 22 intended to extinguish all of the rights which 23 the Walapais had in their ancestral home. That 24 Congress could have effected such an 25 extinguishment is not doubted. But an 26 extinguishment cannot be lightly implied in 27 view of the avowed solicitude of the Federal 28 Government for the welfare of its Indian 29 wards...the rule of construction recognized 30 without exception for over a century has been 31 that 'doubtful expressions, instead of being 32 resolved in favour of the United States, are to 33 be resolved in favour of a weak, defenceless 34 people, who are wards of the nation...'\" 35 36 And so on and so on. I will just ask you to finish 37 the quote. 38 If I could take you -- leave your finger at 196 39 because I am going to return back to it, but go back 40 to 174. In the case of Lipan Apache, the court 41 recited the statement which was cited by Judson in 42 Santa Fe, but went on to address the manner in which 43 extinguishment must occur. And that extinguishment 44 must be clear and plain. You will see the quote read 45 earlier into the record as the first part of the 46 quotation cited above and attributed to the Santa Fe 47 case, and then to the underscored passage: 25873 Submissions by Ms. Mandell 1 2 \"While the selection of a means is a 3 governmental prerogative, the actual act (or 4 acts) of extinguishment must be plain and 5 unambiguous. In the absence of a 'clear and 6 plain indication' in the public records that 7 the sovereign 'intended to extinguish all of 8 the claimants' rights' in their property, 9 Indian title continues.\" 10 11 And if I could ask your lordship to return again to 12 page 196, and I will here attempt to demonstrate that 13 the Lipan Apache case, as it, in our submission, 14 properly recited the rule in Santa Fe, has been 15 accepted in our court. 16 And I am at the bottom of page 196. 17 THE COURT: Yes, so am I. 18 MS. MANDELL: The Supreme Court of Canada has approved the 19 language in Sante Fe in support of the requirement 20 that there be strict proof of the extinguishment, 21 contrary to the use of the language by Mr. Justice 22 Judson. In the Simon case the court said that it: 23 24 \"...seems appropriate to demand strict proof of 25 the fact of extinguishment in each case where 26 the issue arises. As Mr. Justice Douglas said 27 in United States and Sante Fe, 'extinguishment 28 cannot be lightly implied.'\" 29 30 The test set out by Mr. Justice Hall that the 31 intention to extinguish must be clear and plain is 32 with reference to the language in Santa Fe as it was 33 applied in the Lipan Apache. On the issue of whether 34 the Republic of Texas had extinguished the 35 pre-existing rights the Lipan Apache court held: 36 37 \"In the absence of clear and plain indication in 38 the public record that the sovereign intended 39 to extinguish all of the claimants' rights in 40 their property, aboriginal title continues...\" 41 42 Now, at page 197 to page 201, I set out the facts 43 and the arguments which were presented to the court in 44 the Lipan Apache case. And I am not going to take 45 your lordship again through it, I think Mr. Jackson 46 has in part, but I do want you to, in reading this, 47 note that there were a number of arguments raised, all 25874 Submissions by Ms. Mandell 1 of which asked the court to imply extinguishment 2 through a number of different methods. For example, 3 at page 198, the argument raised was that there had 4 been a refusal to ratify a treaty, which it was argued 5 by the United States illustrated the Republic of Texas 6 policy of extinguishing rights and the court of claims 7 rejected this argument. 8 And then at page 199, and I am looking in the 9 middle of the quotation, there was an act of the 10 Republic of Texas which: 11 12 \"...did authorize the president to survey vacant 13 lands on which all the 'friendly Indians' 14 within the Republic shall be placed as soon as 15 circumstances permit.\" 16 17 And it was argued that that act which authorized 18 the president to survey lands and set them up as 19 reserves constituted an act of extinguishment and this 20 was rejected by the court. 21 And, finally, at page 199, it was argued that the 22 government intended to extinguish title because it was 23 evident through a series of trading posts that they 24 were attempting to foster trade and commerce and to 25 provide a flexible line for settlement to occur. And 26 again the court rejected this as being evidence of 27 extinguishment. 28 And finally at page 200, the court contended with 2 9 the argument advanced to it that the -- there was a 30 number of policy statements which were made from time 31 to time where it was clear that there was a non- 32 recognition of title, and the court looked at the 33 historical record and said that the history is 34 decidedly against the argument, but also that they 35 would not accept policy statements as being proper -- 36 I am just trying to get the language -- basically they 37 said it's not proper for there to be reliance placed 38 on policy statements to support the extinguishment of 39 title. And that's found within the quote on page 200, 40 and I won't read it to your lordship. 41 Finally, at page 201, the second major case which 42 was relied upon by Mr. Justice Judson in forming his 43 test was the Tee-Hit-Ton case. And I know that Mr. 44 Jackson has spoken about Tee-Hit-Ton at great length, 45 but if I could here add that the decision was denying 46 that compensation was -- the decision was with respect 47 to whether or not compensation was due under the 5th 25875 Submissions by Ms. Mandell 1 Amendment. That was the issue of the case. The case 2 did not concern the question of extinguishment. And 3 at the bottom of page 201, whether a right is 4 compensatable and whether a right is extinguished are 5 separate and distinct questions. A right may be 6 extinguished by compensation but the fact that a right 7 is not compensatable does not automatically mean that 8 that right is non-existent. 9 Now, at the bottom of page 202, I direct your 10 lordship to the fact that Tee-Hit-Ton has not been 11 cited by the Supreme Court of the United States in any 12 of its recent decisions discussing aboriginal title 13 and extinguishment. And I draw to your attention both 14 the Dan and the Oneida case. 15 If I could return you back to page 174, our 16 conclusion on this point is that Mr. Justice Judson, 17 as I have stated, applied the wrong test based on the 18 cases which he relied upon. I would, though, like to 19 also reconcile the argument of consent with the 20 argument of express extinguishment in this way, and I 21 say what could be clearer and plainer that the Indian 22 people and the Crown both intended there to be 23 extinguishment than a treaty, where both parties are 24 at the table and they agree with what they each 25 understand each other to be stating. And I say that 26 that that is by far the clearest and plainest 27 indication of consent and, in the alternative, I have 28 already advanced legislative enactments which we say 29 are also clear and plain. 30 The third error which we say Mr. Justice Judson 31 fell into is that he misconceived the relationship 32 between aboriginal title and Crown title. And, my 33 lord, I will be addressing you on this in greater 34 detail tomorrow when we talk about the relationship of 35 the -- how aboriginal title fits into the scheme of 36 federalism. But I wanted here to remind you of the 37 statements made by Johnson and M'Intosh, which were 38 referred to your lordship this morning, that the title 39 was to the exclusion of all other Europeans, and it 40 necessarily gave to the nation making the discovery, 41 the sole right of acquiring the soil from the natives 42 and establishing settlements upon it. It was a right 43 which no European could interfere with. And we say 44 that the statement of the common law all along 45 recognized two estates, that being an estate of the 46 Crown, based upon discovery, and an estate of the 47 Indians, which was the title capable of being 25876 Submissions by Ms. Mandell 1 extinguished. And we say that those titles are 2 compatible and have been held to be so by the courts 3 for a long time and Mr. Justice Judson wrongly 4 accepted the trial judge's conclusion that there was a 5 unity of intention where the sovereignty which was 6 exercised by the acts was inconsistent with any, as he 7 put it, conflicting interest. 8 Now, I will be addressing the particulars of the 9 Proclamation in more detail later, but with respect to 10 the issue of the land proclamations, basically all 11 these proclamations did was they first declared that 12 the lands, mines and minerals in the colony belonged 13 to the Crown and then they set out conditions for the 14 sale and pre-emption of lands. 15 We say that legislation declaring that the lands in 16 the colony belong to the Crown in fee is not 17 determinative of extinguishment, since it has long 18 been established that aboriginal title is capable of 19 co-existing with the ultimate ultimate title of the 20 Crown. And I refer you to the St. Catherines Milling 21 case, which I will be describing in more detail 22 tomorrow, where the Privy Council dealt with the issue 23 of whether the beneficial interest in lands ceded by 24 the 1873 treaty, became vested in the province or in 25 the Dominion. And in discussing the relationship 26 between the Crown title and aboriginal title, in the 27 ceded territory, Lord Watson says: 28 29 \"The Crown has all along had a proprietary 30 estate in the land upon which aboriginal title 31 was a mere burden. The ceded territory was at 32 the time of the union lands vested in the Crown 33 subject to 'an interest other than that of the 34 province in the same' within the meaning of 35 section 109.\" 36 37 The principle of aboriginal title co-existing with 38 Crown title has constantly been restated in Canadian 39 law. 40 THE COURT: Consistently. 41 MS. MANDELL: Consistently. Thank you. In my haste to get out 42 the door, I have to slow down. 43 THE COURT: You can constantly read that as consistently. 44 MS. MANDELL: In the Guerin case, nearly a century after the 45 decision in the St. Catherines Milling, Mr. Justice 46 Dickson noted again that \"Indians have a legal right 47 to occupy and possess certain lands, the ultimate 25877 the Crown 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Ms. Mandell 1 title of which is in ,\" This principle of co-existence has been traditionally pronounced in the United States, and we cite the Symonds and Tamaki and Baker case. My lord, if I could here pause and remind you of the submissions made by Mr. Rush this morning, and I will refer you to the page where he makes them, but not ask you to go back there, and he is speaking at page 27 of the grant of Vancouver Island to the Hudson's Bay Company. And you will recall that the grant makes no mention of aboriginal title but that the confidential memo says that the Crown in parting with the lands, parts only with her right in the land, and that the decision makers in Britain saw two titles, that of the Indian people and that of the Crown as compatible and governed we say by the principles of the common law. So while there was no express mention of aboriginal title in the grant, there was certainly a recognition by the Crown, we say, that the two titles could co-exist. And similarly -- THE COURT: Can the Crown take away with one hand what it has given with another? As a matter of construction, does -- can the Crown make a grant which comes to be construed as what it has done, and then is the court limited by what one of the parties volunteered was the meaning of all this? Surely, the grant must be construed as a matter of law, doesn't it? MS. MANDELL: The grant itself? THE COURT: Yes, without regard to the gratuitous or voluntary comments of parties that were involved in the transaction? MS. MANDELL: Well, there is three things to say about that: One is that the issue before the court here is not the grant, it's the legislation which sets up the power to make the grant. And that's, I think, a very different thing than if there was actually a grant issued. The second is that the grant itself -- THE COURT: Was there not a grant? MS. MANDELL: No, we are not looking at grants, we are looking at acts. THE COURT: I mean when -- I thought that the Imperial Crown granted Vancouver Island to the Hudson's Bay Company? MS. MANDELL: I am sorry. There was a grant, that's right, there was a grant of Vancouver Island to the Hudson's Bay Company. But the issue is whether or not the silence on the question of aboriginal title can be 25878 Submissions by Ms. Mandell 1 construed as having extinguished it. And your 2 lordship will recall the discussion around, for 3 example, the Cowichan lands referred to by Mr. Rush 4 this morning, where the government issued grants to 5 settlers where aboriginal title had not yet been 6 extinguished. And the controversy arose because the 7 settlers said we want you to you extinguish the title 8 and give us not just what you've got but what the 9 Indians have as well. 10 THE COURT: What's been troubling me, not seriously but it's 11 been crossing my mind with a lot of this evidence, is 12 whether or not as a matter of law, I can, or I am 13 required to pay any attention to what the parties said 14 they had in their minds when I am considering what 15 they have done. And in commercial law, one wouldn't 16 be able to do that. If A and B enter into a contract, 17 then in the absence of something like mutual mistake, 18 the intentions of the parties unexpressed is of no 19 consequence. 20 MS. MANDELL: Well, in this case what you're being asked to do 21 is to construe whether or not acts which are silent on 22 the question of aboriginal title can be, by virtue of 23 all of the surrounding documents, can be construed as 24 intending the extinguishment of aboriginal title. 25 That's the difference between a commercial 26 transaction, where you have got to consider the nature 27 of the transaction between the parties to determine 28 whether the rights are there. But this is a case 29 of -- that, at this point in the argument, is one of 30 statutory construction. And can you construe these 31 acts as providing the legal framework for the 32 extinguishment of aboriginal title? 33 THE COURT: One of the problems we judges have is we have to 34 recognize our peers will look critically on what we 35 have done, and I can see Miss Southin saying, how can 36 you ever pay any attention to all of all these learned 37 gentlemen? Look at their actual deeds and their 38 actual grants. And don't worry about all the 39 gratuitous comments that they made along with them. 40 MS. MANDELL: I think that if I were talking to Madam Justice 41 Southin I would say to her that you are not looking at 42 the grants, you are looking at the acts and if the 43 act \u00E2\u0080\u0094 44 THE COURT: You mean the statutes? 45 MS. MANDELL: The statutes. You are looking at the 46 proclamations and the ordinances and you are asking 47 yourself whether or not these proclamations and 25879 Submissions by Ms. Mandell 1 ordinances are sufficiently expressed to divest Indian 2 people of their pre-existing legal rights. 3 THE COURT: All right, then what difference does it make what 4 the -- even the colonial secretaries said and enclosed 5 the documents? I can understand the instructions, 6 those stand on a different footing. This is a passing 7 thought, don't trouble yourself with it unless you 8 think it's something you should give some thought to. 9 MS. MANDELL: It's something probably we should respond to on 10 reply, because what we are doing is anticipating the 11 argument of the provincial Crown that in spite of the 12 fact that there is nothing said on the face of these 13 statutes which expressly extinguish aboriginal title, 14 in spite of that you can read under these acts and see 15 that that's what the parliament primarily intended, 16 and we say that if you are going to read under the 17 acts to see what parliament intended, we say that 18 there was an expression of the existence of aboriginal 19 title and not an expression that it was intended to be 20 extinguished. 21 THE COURT: All right. Just another question that's whirling 22 around in my head, as to how much attention I can pay 23 to all these observations and comments and 24 recognitions, I think is the word that I have been 25 hearing a lot of, that somebody recognized something, 26 and I am wondering how much attention I should pay to 27 what people recognized. 28 MS. MANDELL: Well, I would be very happy if at the end of the 29 day you looked at the ordinances and the proclamations 30 and the statutes and asked yourself, is there an 31 express intention here to extinguish? Is that what's 32 going on? If the answer to that is no, I say you 33 don't have to go further than that, because that's the 34 express intention as expressed through the ordinances. 35 THE COURT: My next question is, is it the intention that 36 counts? 37 MS. MANDELL: Is it intention? That's what the cases say. I 38 will get to that, actually. There is a very good 39 discussion that by La Forest. 40 THE COURT: I have to pay attention to what he says. 41 MS. MANDELL: You do? 42 THE COURT: Yes. 43 MS. MANDELL: I am at page 176 and I simply draw to your 44 lordship's attention there that Mr. Justice Hall had 45 no difficulty in finding the co-existence between the 46 ordinances and proclamations and despatches, and 47 aboriginal title, and I am not going to read to you 25880 Submissions by Ms. Mandell 1 his conclusion on that but I urge you to adopt it. 2 Finally, the last point which we say where we argue 3 that Mr. Justice Judson erred was that his decision is 4 inconsistent with principles of statutory 5 construction. And I must say that I was taken aback 6 in reading Mr. Justice Judson's decision again that 7 there was no mention of any principles of statutory 8 construction in reviewing the ordinances and the 9 proclamations. And I say that this is a fundamental 10 error. And had he applied the presumptions which are 11 embodied in the law, in our submission he couldn't 12 have found, as he did, that there could be an implied 13 extinguishment. 14 I don't have to remind your lordship of what Mr. 15 Jackson and Mr. Rush have submitted, that at the time 16 when the colony was formed, the case of Regina versus 17 Symonds had already held that it can not be too 18 solemnly asserted that it, that is aboriginal title, 19 is intended to be respected. 20 I also ask your lordship to review the cases relied 21 upon here by Mr. Justice Hall in Calder at page 208 22 and 209, where he relied on the Symonds case and also 23 on the Lipan Apache case, for the presumption that the 24 British Crown intended to respect rights and that when 25 the Indian people came under the British sovereignty 26 they were entitled to assert their aboriginal rights 27 as a legal right. That's in his judgment at page 208 28 and 209. I haven't referred to it in our argument. 29 And again Mr. Justice Dickson, who recited the same 30 proposition a little bit more strongly in Guerin, and 31 I will refer you to page 81 of Mr. Rush's argument, 32 where he recited there that quote. 33 Mr. Justice Judson interpreted the colonial 34 legislation to find an implied legislative intent to 35 extinguish. And we say that this finding is 36 inconsistent with the rules of statutory construction. 37 The first rule that we ask your lordship to 38 consider is that only express legislative statements 39 support the taking away of a vested right. And we 40 here draw to your attention Craies that defined who -- 41 where the rule is defined: 42 43 \"Express and unambiguous language appears to be 44 absolutely indispensable in statutes passed for 45 the following purposes: Imposing a tax or 46 charge; conferring or taking away legal rights, 47 whether public or private; excepting from the 25881 Submissions by Ms. Mandell 1 operation of or altering clearly established 2 principles of law.\" 3 4 And we say that the principle expressed in Craies 5 makes clear that the rule is applied in areas of major 6 importance and we submit that the extinguishment of 7 aboriginal title is both the taking away of a legal 8 right and also altering clearly established principles 9 of law. 10 Now, if I could take you to the bottom of page 178, 11 the second rule of construction which we say ought to 12 have been applied is that where possible the statute 13 is to be construed to give reasonable effect to it. 14 And I rely upon Mr. Justice La Forest, as he then was, 15 in the Estabrooks Pontiac case, where -- you remember 16 that case was a discussion of the extent to which a 17 lien created under the Social Service and Federal Tax 18 Act for an amount of tax collected by a vendor applies 19 to property owned by someone other than the vendor. 20 So he was dealing with the question of the application 21 of basically a law which could expropriate somebody's 22 property without so stating it expressly. He says: 23 24 \"There is no doubt that the duty of the courts 25 is to give effect to the intention of the 26 Legislature as expressed in the words of the 27 statute. And however reprehensible the result 28 may appear, it is our duty if the words are 29 clear to give them effect. This follows from 30 the constitutional doctrine of the supremacy of 31 the Legislature when acting within its 32 legislative power. The fact that the words as 33 interpreted would give an unreasonable result, 34 however, is certainly ground for the courts to 35 scrutinize a statute carefully to make 36 abundantly certain that those words are not 37 susceptible of another interpretation. For it 38 should not be readily assumed that the 39 Legislature intends an unreasonable result or 40 to perpetrate an injustice or absurdity.\" 41 42 And we submit that to interpret the words used in 43 the colonial legislative enactments to mean that 44 extinguishment of aboriginal title was effected must 45 assume that the Imperial Parliament and/or the 46 Colonial legislative \"intends an unreasonable result 47 or to perpetrate an injustice or absurdity.\" 25882 Submissions by Ms. Mandell 1 We say that the best example of this is the 2 conclusion of Mr. Justice Tysoe in Calder in the Court 3 of Appeal. And having set out the provisions of the 4 land legislation, concluded: 5 6 \"As a result of these pieces of legislation the 7 Indians of the colony of British Columbia 8 became in law trespassers on and liable to 9 actions of ejectment from lands in the colony 10 other than those set aside as reserves for the 11 use of the Indians.\" 12 13 As noted by Mr. Justice Hall: 14 15 \"Any reasoning that would lead to such a 16 conclusion must necessarily be fallacious. The 17 idea is self destructive. If trespassers, the 18 Indians are liable to prosecution as such a 19 prosecution which reason itself repudiates.\" 20 21 THE COURT: What's he talking about there? 22 MS. MANDELL: He is talking about the fact \u00E2\u0080\u0094 23 THE COURT: What prosecution can there be for trespass? 24 MS. MANDELL: What prosecution \u00E2\u0080\u0094 25 THE COURT: Trespass is a civil law, it's founded in damages. 26 Is there an offence of trespass? 27 MS. MANDELL: Yes, I thought it was also a provincial offence. 28 THE COURT: Well, it may be a provincial offence. It doesn't 29 matter. 30 MR. GOLDIE: I don't think unoccupied Crown land it's an 31 offence, my lord. 32 THE COURT: With the greatest respect, Mr. Justice Hall is 33 perhaps overstating the proposition. He didn't need 34 to go that far to hurt Mr. Justice Tysoe's feelings I 35 am sure. 36 MS. MANDELL: I feel compelled to defend Mr. Justice Hall \u00E2\u0080\u0094 37 THE COURT: I have thought -- In first year law we were taught 38 the sign \"Trespassers Will Be Prosecuted\" is legal 39 nonsense. And I have always had that view that it is 40 a legal nonsense. 41 MR. GOLDIE: If unaccompanied by damage. 42 THE COURT: Well, prosecution is not a term that applies to 43 trespass I was taught in first year law. 44 MS. MANDELL: Although \u00E2\u0080\u0094 45 THE COURT: Or unless it's an offence somewhere that could be 46 prosecuted. It sounds in damages, for which the word 47 prosecution is not an appropriate term. 25883 Submissions by Ms. Mandell 1 MS. MANDELL: We will find out. 2 THE COURT: I would be glad if you would. Disabuse me of a 3 misconception I have carried for 40 years. 4 MS. MANDELL: I hope \u00E2\u0080\u0094 5 MR. GOLDIE: We will be assisting in that regard, my lord, and I 6 can tell my friend what the answer is. 7 THE COURT: But as I say I don't think you should trouble 8 yourself. I don't think anything turns on it. 9 MS. MANDELL: I am concerned here with the point that I believe 10 Mr. Justice Hall eloquently made, and that is that 11 reason repudiates that the Indian people who have 12 lived and occupied and possessed that territory since 13 time immemorial, could be dispossessed without there 14 being a word mentioned about that in some act and 15 suddenly become trespassers on the land which they 16 were living. 17 THE COURT: Mr. Justice Hall could have made his point just as 18 easily and just as well, if he had said that the 19 Indians be liable to an action for damages. That 20 would have been just as serious. 21 MS. MANDELL: However \u00E2\u0080\u0094 22 THE COURT: And the slightest bending of a blade of grass would 23 be damages. That's all it would take, as I understand 2 4 my common law. 25 MS. MANDELL: Well, my lord, the result which Mr. Justice Hall 26 said reason would repudiate, is what happened not 27 before Confederation but after Confederation, when the 2 8 governments, the provincial government took the view 29 that there was no aboriginal title remaining. And 30 between pages 180 to 185 I set out some but not all of 31 the evidence which shows how the Wet'suwet'en people 32 were treated after Confederation, as trespassers on 33 their land. And we say, in a proposition which reason 34 repudiates. 35 And I will just take you quickly through the effect 36 on the land if the interpretation urged by the 37 province and which was decided upon by Mr. Justice 38 Judson could be construed as being effective. 39 In the Cee Tait, Basil Michell described his life 40 there, and there were four houses, a smokehouse a 41 storage cache and a Laksilyu totem pole. 42 MR. GOLDIE: I object to the -- to this evidence, which as I 43 understand it, relates to this South African War Land 44 Grant Act, being used to construe colonial ordinances. 45 I understood this section dealt with the construction 46 of these ordinances. 47 THE COURT: I think what Miss Mandell is doing is showing the 25884 Submissions by Ms. Mandell 1 absurdity of the construction of these -- of this 2 language, that from which she thinks -- she says the 3 province contends, she is showing that if the province 4 is right then these people could have either been 5 prosecuted or sued for damages. 6 MR. GOLDIE: Well, that arose out of the South African War Land 7 Grant. 8 THE COURT: A different statute. 9 MR. GOLDIE: Yes, passed in 1901, under which people were 10 granted rights in land which were taken to be in 11 competition with these people. Now, how that has got 12 anything to do with the proper construction of the 13 ordinances which the province, which the colony passed 14 between 1858 and 1871, I cannot see. I put it more 15 strongly, my lord, I say that this history, with which 16 I will be dealing when I deal with the South African 17 War Land Grant, cannot be used to construe statutes 18 which were passed years before. 19 MS. MANDELL: Well, Mr. Goldie is right that I don't say that 20 this -- these actions which occurred to these 21 Wet'suwet'en people, flowed out of the pre- 22 Confederation ordinances, but we do say that in 23 applying the test that Mr. Justice La Forest described 24 in the Estabrooks Pontiac, the effect of the 25 construction which is being urged upon your lordship, 26 as to how these statutes could be construed, creates 27 or perpetrates an injustice, and in our view creates 28 an absurdity, an unreasonable result, and the result 29 which it creates was illustrated by the actions taken 30 after Confederation, where the Wet'suwet'en people 31 were in fact treated as trespassers on their own land. 32 THE COURT: Well, what you're entitled to say, I suppose, is 33 that these Wet'suwet'en people had aboriginal rights 34 to these lands and that should have protected them 35 even from the South African Land Grant legislation, 36 unless that legislation can be said to have 37 extinguished your aboriginal rights. 38 MS. MANDELL: We will say that too, but what we are saying here 39 is that if your lordship will accept the fact that the 40 pre-Confederation land ordinances could extinguish 41 aboriginal title, without so stating that, and treat 42 the Indian people as trespassers on their land, we can 43 show you the injustice that that construction will 44 create because such a result, that is Indian people 45 treated as trespassers on their land was before you in 46 the evidence and you have, in a sense, evidence before 47 you which Mr. Justice Hall thought that reason would 25885 Submissions by Ms. Mandell 1 repudiate, but which you can very clearly see as would 2 be the result of the construction which is being urged 3 upon you about implied extinguishment. 4 THE COURT: Well, I think I understand what you're saying. I 5 think what Mr. Goldie is saying that you don't need 6 this evidence, which springs -- which relates to 7 conduct which springs out of totally different 8 legislation in order to make your point, that -- 9 MS. MANDELL: We don't need this evidence. We would like to use 10 it in argument. 11 THE COURT: Well, there is another factor here that doesn't 12 really relate to your argument, that is the South 13 African Land Grant legislation. 14 MS. MANDELL: That's true, we are not saying there is a perfect 15 cause and effect between the evidence and the 16 interpretation, but we are saying that you can see 17 through the evidence the effect of the application of 18 the rule which is going to be urged upon you by the 19 provincial defendant, through the acts which occurred 20 to the Wet'suwet'en people. 21 THE COURT: What you have got to say is if they had been ejected 22 because of the colonial ordinances it would be an 23 absurdity. 24 MS. MANDELL: And an injustice. 25 MR. GOLDIE: If that's the argument, I will deal with that. 26 THE COURT: All right. I am not going to stop you, Miss Mandell, 27 I think, however, that the argument loses some of its 28 force because the conduct you are complaining about 29 sprung from different legislation. 30 MS. MANDELL: I accept that imperfection of it. 31 Basil Michell's life at Cee Tait he described in 32 some detail, and I am not going into all of it, there 33 was, as I said, four houses, approximately 50 horses 34 and cows, the family grew potatoes, planted turnips 35 and in the fall they fished for trout, salmon was put 36 in cache houses where they were stored, trapping was 37 done in the winter and people built winter houses out 38 of spruce bows. And Basil described it as a village. 39 He described that when Josephine, who is his 40 sister, was a baby, as he put if \"still in diapers\", 41 her family and the other Wet'suwet'en families living 42 there, women and children were evicted from their 43 homes and he described the families who were evicted 44 and he said that when the officials came to remove his 45 family, his father and George Naziel's father 46 resisted, he said, \"When the of white people came, 47 they had a scuffle with my father Lame Artthur Michell 25886 Submissions by Ms. Mandell 1 and George Naziel's father.\" 2 Then at page 182, when Basil's family went to 3 Hagwilget to fish in the spring, Lame Arthur and 4 George's father were both arrested and put into jail, 5 and Basil described as a child visiting his father: 6 7 \"We used to go down to Old Hazelton and watch 8 him work. They had him working on the 9 streets...I was unable to talk to him because 10 the police were watching them at all times 11 while they were working.\" 12 13 And while his father and his uncle were in jail 14 they survived on salmon, they lived in a tent and he 15 says: 16 17 \"It was in the fall. I remember the leaves were 18 turning yellow. We lived in the tent during 19 the winter as well as the fall and then in the 20 spring my father had built a cabin next to 21 where the tents were and that's where we moved 22 in the summer time.\" 23 24 25 The horses which had been at Barrett Lake were 26 grazed at Hagwilget and he says that after his family 27 was evicted: 28 29 \"They burnt the buildings down and after that we 30 never went back again.\" 31 32 And Mr. Rush read to you his final statement about 33 that, how he felt when the cabins were burnt in the 34 opening. I should just say when we were taking the 35 commission evidence of Basil Michell, that's all he 36 wanted to talk about. He tolerated us for the rest of 37 his questions but he really wanted to get this story 38 out. It's something he held on to for 65 years. 39 Other Wet'suwet'en people were also, as Basil put 40 it, \"chased off the land.\" And I will just identify 41 as page 184 the testimony of Emma Michell. She 42 testified that Canyon Creek was taken away from Jimmy 4 3 Thomas: 44 45 \"That land at Canyon Creek was taken away for 46 nothing by the white people... they chased them 47 out; they never paid nothing for the land... it 25887 Submissions by Ms. Mandell 1 is located in the direction of Drift Wood Creek 2 on the other side of the highroad...there is a 3 big farm out there the white man has that 4 place.\" 5 6 And Johnny David's father also had a house taken: 7 8 \"When he died the white people burnt it down and 9 they kicked me off.\" 10 11 He said: 12 13 \"I received a letter from him telling me to get 14 off the land.\" 15 16 This was from Mr. Loring. But he says there was 17 going to be other land given but he says it wasn't. 18 At page 185, Round Lake Tommy, this is Johnny David 19 talking: 20 21 \"He was a very good man, worked hard and when he 22 was kicked off his land some of the non-Indian 23 people took Round Lake Tommy to an area East of 24 Houston where he was given a small portion of 25 land.\" 26 27 And then we say at page 185, that the experience 28 of these Wet'suwet'en elders could not have been the 29 intended result of a reasonable interpretation of 30 instruments which did not expressly extinguish the 31 rights to the land and where the colonial government 32 of the day had no real knowledge even of their 33 existence or their relationship to the land. 34 We say that the court must scrutinize each 35 enactment carefully to make certain that the words 36 used are not susceptible of another interpretation. 37 And we say that there are certain presumptions 38 which the court could and should apply when construing 39 enactments which may be susceptible of another 40 interpretation. 41 And we say, at page 186, that there is another 42 interpretation that the words of these colonial 43 enactments are to be interpreted only as extinguishing 44 aboriginal title, and we say that they are certainly 45 susceptible equally to the interpretation, and we say 46 the preferred interpretation, because there is nothing 47 said in them, that aboriginal title was not mentioned 25888 Submissions by Ms. Mandell 1 and was not considered and was not extinguished. And 2 we rely upon basically two areas, both of which have 3 been submitted to you, that legislation declaring that 4 the lands and mines in the colony belong to the Crown 5 is not determinative of extinguishment in light of the 6 co-existence of Crown title. And then all of the 7 material which was submitted to you this morning by 8 Mr. Rush, which we say also shows that there is no 9 necessary intention expressed in the act that title is 10 to be extinguished. 11 At the bottom of page 186, this is actually what I 12 was going to refer you to when you asked that question 13 earlier, when a statute is reasonably susceptible to 14 two meanings, the courts will, in order to determine 15 the intent of the legislature, invoke certain 16 presumptions. And in the Estabrooks case, Judge La 17 Forest said, these presumptions: 18 19 \"...were designed as protection against 20 interference by the state with the liberty or 21 property of the subject, hence it was 22 'presumed' in the absence of a clear indication 23 in the statute to the contrary, that parliament 24 did not intend prejudicially to affect the 25 liberty or the property of the subject.\" 26 27 And I refer you to the Western Counties case where 28 express and unambiguous language in a statute is 29 required to show the legislative -- to show the 30 legislative intent to take away legal rights. It's 31 not enough to show that what is authorized will take 32 away the rights, it must also be shown that the 33 legislature authorized the thing to be done, despite 34 its interference with existing rights. I will refer 35 to that case later, but the facts of it were that he 36 claimed a right of possession which -- to a railway 37 and was, at Confederation, argued that there was 38 nothing mentioned in the act which he said took away a 39 vested right and the act was not read so it was -- 40 even though the effect of it might have been to take 41 away the right, it wasn't implied. 42 The presumption discussed in Estabrooks Pontiac, 43 was -- the rationale for it was stated, and again Mr. 44 Justice La Forest says: 45 46 \"This scarcely means that the courts should 47 attempt to reframe statutes to suit their own 25889 Submissions by Ms. Mandell 1 individual notions of what is just or 2 reasonable. However, legislative supremacy is 3 not all there is to the constitution. In 4 determining whether a statute is just and 5 reasonable, the courts can derive considerable 6 assistance from the nature and origins of our 7 political organization as a parliamentary 8 democracy.\" 9 10 Then he goes on to say that we place a high premium 11 on individual liberty and private property. And at 12 the bottom of the quote: 13 14 \"Indeed, for a time after the English 15 Revolution, the English courts appeared to be 16 prepared to hold statutes that invaded rights 17 of this kind invalid. 18 With the complete realization of the 19 implications of parliamentary supremacy, this 20 type of judicial approach, of course, 21 disappeared. But the original foundations of 22 our governmental organization remained as a 23 legacy in a number of presumptions designed, as 24 Driedger notes at page 137, 'as protection 25 against interference by the state with the 26 liberty or property of the subject'. 'Hence\", 27 he adds, 'it was \"presumed\" in the absence of 28 clear indication in the statute to the 29 contrary, that Parliament did not intend to 30 affect the liberty or property of the subject'. 31 One of these presumptions is that a statute 32 should not, in the absence of clear words, be 33 construed as taking the property of an 34 individual without compensation. This, of 35 course, frequently arises in expropriation 36 cases but it is not limited to these.\" 37 38 You will see he is talking about in construing 39 statutes, and that's what we are here talking about. 40 THE COURT: What do think he means by the English Revolution, 41 1688? 42 MS. MANDELL: That's what I would think and say. 43 THE COURT: How much longer are you going to be? 44 MS. MANDELL: I think I can do it in half an hour. 45 THE COURT: All right. I think we are going to change 46 reporters. I think we will take whatever time is 47 necessary to do that. 25890 Submissions by Ms. Mandell 1 2 (PROCEEDINGS ADJOURNED FOR SHORT RECESS) 3 4 5 6 7 8 9 I hereby certify the foregoing to be 10 a true and accurate transcript of the 11 proceedings herein to the best of my 12 skill and ability. 13 14 15 16 17 Wilf Roy 18 Official Reporter 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 25891 Submission by Ms. Mandell 1 (PROCEEDINGS RECONVENED AT 6:35 P.M.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Ms. Mandell. 5 MS. MANDELL: Thank you. My lord, you've been here since 9:00 6 in the morning. Are you still here? 7 THE COURT: Oh, I don't feel bad while I'm here. It's when I 8 leave that I don't feel so good. I miss you people 9 when we adjourn. 10 MS. MANDELL: Empty-nest anxiety. 11 THE COURT: You're at 18 8? 12 MS. MANDELL: I'm at 188. I was in the middle of the Estabrooks 13 case, and I referred -- am referring to the 14 presumption against interference with vested rights, 15 and I note that Mr. Justice La Forest refers to the 16 Manitoba Fisheries case where the court extended the 17 concept of vested right to include loss of goodwill 18 and argued -- supported the argument that the 19 plaintiff was entitled to compensation. And he 20 referred to the A.G. v. Dr. Keyser's Royal Hotel case, 21 which was also relied on in the Manitoba Fisheries 22 case, and also the B.C. Medical Association case. And 23 the underscored passage I ask you to note: 24 25 \"The Legislature cannot fairly be supposed to 26 intend, in the absence of clear words showing 27 such intention, that one man's property shall 28 be confiscated for the benefit of others, or of 29 the public, without any compensation being 30 provided for him in respect of what is taken 31 compulsorily from him.\" 32 33 And I say that this is particularly apt when the 34 construction urged upon you by the Province is that in 35 the absence of clear words showing an intention the 36 property of the Indian people will be confiscated for 37 the benefit of others, and we say that that's 38 definitely not what the legislation should be read to 39 suppose. 40 And he says finally at page 188: 41 42 \"The principle I have described is fundamental. 43 It is a constitutional principle in the British 44 sense.\" 45 46 Now, the B.C. Court of Appeal described the 47 \"expropriation rule\" in the following terms in the 25892 Submission by Ms. Mandell 1 B.C. Medical Association case: 2 3 \"I think the rule may be divided into three 4 parts. The first is that the property of the 5 subject cannot be taken by the Crown without 6 some form of authorization. The second is that 7 the authorization must be clear. If there is 8 any ambiguity about whether the Crown may take 9 the subject's property, the authorization must 10 be construed in favour of the subject. The 11 third is that, even if the authorization 12 clearly permits the taking of the subject's 13 property, there is a presumption, based on 14 justice and fairness, that the Crown will pay 15 compensation... That presumption can only be 16 rebutted by a clear contrary intention in the 17 authorization.\" 18 19 And I say that what all the out-of-statute 20 evidence is, if it's to be given any weight at all, is 21 really the last statement in the B.C. Medical 22 Association case. It's evidence to rebut a 23 presumption, and we say that the presumption is that 24 there was no intention to extinguish. It's not 25 stated. It's certainly not implied. We say by the 26 words used, and I'll get to that in a minute, there 27 has to be some clear contrary intention to move the 28 case in another direction. And we say that we've 29 raised what Mr. Rush has done this morning in answer 30 to what we expect the Province will be raising on this 31 point. 32 I just wanted to note one other thing before 33 passing over the B.C. Medical Association case. It's 34 not in the material, but I notice that one of the 35 considerations taken by Mr. Justice Lambert in 36 deciding that the legislation intended to deal with 37 the issue of doctors' fees was that the court noted 38 that there was a close proximity of the legislation to 39 the dispute in issue, and we say that the close 40 proximity is anything but what you have in this case, 41 where the pre-Confederation ordinances had, we submit, 42 at that time no direct relevance to the issue of 43 extinguishment. Nobody put them together, and it 44 really wasn't until the Calder case advanced that we 45 first saw this being raised as an argument some -- I 46 don't know -- 50 or 60 or 70 years later, and now 47 we're being faced with it again, and that there is no 25893 Submission by Ms. Mandell 1 close proximity between the statute which is said to 2 extinguish and the actual acts of extinguishment which 3 are being complained of. Or even the theory of 4 extinguishment is not brought together until quite a 5 large number of years later. 6 We say that aboriginal title is fundamentally a 7 legal right. Express words are required to show the 8 legislative intent. Indirect abrogation of the right 9 is not enough. And this is where I then refer to the 10 Western Countries case again and Lord Watson's 11 statement: 12 13 \"...In order to take away the right it is not 14 sufficient to show that the things sanctioned 15 by the Act, if done, will of sheer physical 16 necessity put an end to the right, it must also 17 be shown that the Legislature have authorized 18 the thing to be done at all events, and 19 irrespective of its possible interference with 20 existing rights.\" 21 22 And in that case the act in question was silent with 23 respect to the respondent's rights. 24 25 \"...the Privy Council found it impossible to 26 find from that silence an intent to terminate 27 the respondent's temporary right of 28 possession).\" 29 30 The same presumption was applied in the Paul case, 31 and I have discussed that above. 32 And the reason for the strict statutory 33 construction and the application of these presumptions 34 was again explained in Estabrooks. 35 36 \"...What these presumptions ensure is that a law 37 that appears to transgress our basic political 38 understandings should be clearly expressed so 39 as to invite the debate which is the life blood 40 of parliamentary democracy.\" 41 42 And we say that if aboriginal title in the 43 colonial period was to be extinguished, then the 44 democratic process should have brought the issue in 45 focus, debated it and something clearly stated so in 46 the legislation. 47 Now, the last presumption which ought to have been 25894 Submission by Ms. Mandell 1 considered by Mr. Justice Hall we say ought to be 2 considered by this court is that there are particular 3 principles with respect to statutory interpretation 4 which apply in interpreting Indian treaties and 5 statutes, and these have been followed by our highest 6 courts repeatedly for a long time. And the rule which 7 was stated in the cases: \"In approaching the terms of 8 a treaty,\" and this is Taylor and Williams, \"the honor 9 of the Crown is always involved and no appearance of 10 'sharp dealings' should be sanctioned.\" 11 In finding that the hunting rights of the Micmac 12 were protected by the Treaty of 1752, Mr. Justice 13 Dickson said: 14 15 \"Such an interpretation accords with the 16 generally accepted view that Indian treaties 17 should be given a fair, large and liberal 18 construction in favor of the Indians. This 19 principle of interpretation was most recently 20 affirmed by this Court in Nowegijick...I had 21 occasion to say the following... 22 23 That would be nice. 24 25 \"'It is legal lore that, to be valid, exemptions 26 to tax laws should be clearly expressed. It 27 seems to me, however, that treaties and 28 statutes relating to Indians should be 29 liberally construed and doubtful expressions 30 resolved in favor of the Indians,'\" 31 32 and quotes Jones and Meehan. 33 34 \"'...it was held that Indian treaties \"must...be 35 construed, not according to the technical 36 meaning of [their] words...but in the sense 37 that they would naturally be understood by the 38 Indians. 39 40 And Nowegijick was interpreting a provision of the 41 Indian Act. That was a taxation provision, and it was 42 interpreting a statute, and that's where this rule was 43 stated. 44 Simon was applying it with respect to a treaty, 45 the same principle of interpretation. And we say that 46 the same canons of the construction applied to treaty 47 rights also applied when interpreting -- also apply 25895 Submission by Ms. Mandell 1 when interpreting legislation purporting to extinguish 2 aboriginal rights. A treaty confirms pre-existing 3 aboriginal rights and the rationale underlying the 4 rules of interpretation are applicable to treaty 5 rights equally to aboriginal rights. And the fact 6 that the treaty confirms pre-existing aboriginal 7 rights was stated by the court in Simon, and I've 8 recited the passage. And I could also at this point 9 ask you to note that the same was stated by our Court 10 of Appeal in White and Bob, where there the treaty 11 recognized and affirmed hunting rights which were 12 stated to be also recognition of pre-existing 13 aboriginal rights. 14 THE COURT: Was that a Treaty 8 case, White and Bob? 15 MS. MANDELL: White and Bob was a Douglas treaty. 16 THE COURT: Douglas treaty. Yes. 17 MS. MANDELL: In 1985 the U.S. Supreme Court in affirming the 18 principle that an intention to extinguish Indian 19 rights must be clear and plain explained the rationale 20 underlining the canons of construction. The court 21 considered the argument that certain treaties between 22 the Oneidas and the U.S.... ratified the state of New 23 York's unlawful purchase of the Oneidas' land in 1795. 24 And the court stated: 25 26 \"The canons of construction applicable in Indian 27 law are rooted in the unique trust relationship 28 between the United States and the Indians. 29 Thus, it is well established that treaties 30 should be construed liberally in favour of the 31 Indians,...with ambiguous provisions 32 interpreted to their benefit,...'absent 33 explicit statutory language,'...this Court 34 accordingly has refused to find that congress 35 has abrogated Indian treaty rights...The Court 36 has applied similar cannons of construction in 37 non-treaty matters. Most importantly, the 38 Court has held that congressional intent to 39 extinguish aboriginal title must be 'plain and 40 unambiguous and will not be lightly implied.'\" 41 42 And this rationale has been adopted by our court in 43 Bartleman and Nowegijick. 44 We say that these principles form the backdrop 45 against which every legislative enactment relied upon 46 by the Crown must be interpreted. So we repeat the 47 errors of Mr. Justice Judson, and I won't say it 25896 Submission by Ms. Mandell 1 again. 2 We say that Mr. Justice Mahoney in the Baker Lake 3 case misread the test for extinguishment and found in 4 the judgment of Hall -- found in the judgment of Mr. 5 Justice Hall and instead approved the test of 6 extinguishment by implication. And we've already said 7 to you earlier that we think he erred. 8 The only other case which bears on this question 9 is the Bear Island decision, and this is Mr. Justice 10 Steele -- Steele's approach, which adopted the Baker 11 Lake approach in a sense. And our critique of the 12 case is found at page 193 to 195. 13 THE COURT: Of which volume? Of this volume or \u00E2\u0080\u0094 14 MS. MANDELL: Of this argument, page 193 to 195. 15 THE COURT: Oh, I'm sorry. 16 MS. MANDELL: We're just carrying right on. 17 THE COURT: I'm sorry. 18 MS. MANDELL: I would ask your lordship to read it. I think 19 it's -- I think the critique is very -- it's self- 20 evident that at this point in the argument we say that 21 in Baker -- that if there isn't an intention expressed 22 to open up lands for settlement and in so doing 23 extinguish aboriginal title, you can't, as Mr. Justice 24 Steele did, argue that simply the intention to open up 25 the land for settlement constitutes an extinguishment 26 of title. We say that it's just extinguishment in the 27 air and that it's ungrounded certainly in the honour 28 of the Crown, it's ungrounded in the statutory 29 construction that we've urged upon you, and that we 30 say that aboriginal rights don't simply vanish without 31 there being some applicable legal principle and that 32 there's simply none provided by Mr. Justice Steele, 33 and we say that he's just wrong. 34 At page 195 we summarize our analysis of his 35 judgment, that the position implicitly accepted by Mr. 36 Justice Steele is that as long as there's no Indian 37 resistance then the Crown can proceed in whatever 38 manner it may choose and over time the actions of the 39 Crown become legally entrenched and legally effective. 40 This approach is analogous to that adopted by Mr. 41 Justice Tysoe in Calder in finding that after the 42 Crown enacted land legislation the Indians became, in 43 effect, trespassers. It is submitted that the Supreme 44 Court of Canada has clearly rejected this kind of 45 approach as being acceptable today in the judicial 46 determination of questions of aboriginal title and 47 extinguishment, and we rely upon Simon. 25897 Submission by Ms. Mandell 1 THE COURT: What would you say about trespass with respect to 2 land Crown granted to a private citizen? You would 3 say that wouldn't be trespass either? 4 MS. MANDELL: In the pre-Confederation period? 5 THE COURT: Let's assume that pre-Confederation but under these 6 colonial ordinances a Crown grant of a piece of 7 territory was given to -- let's make it the worst 8 possible scenario -- given to a white man. He goes 9 into occupation, starts to farm it. You would say 10 that there wouldn't be trespassing there either? 11 MS. MANDELL: Well \u00E2\u0080\u0094 12 THE COURT: You say that the Indian with his aboriginal right 13 could ignore the Crown grant? 14 MS. MANDELL: Well, we deal with exactly that situation in the 15 next -- in the next point of the argument. 16 THE COURT: All right. 17 MS. MANDELL: But if I can just summarize \u00E2\u0080\u0094 18 THE COURT: I'm hung up on trespassing because I'm not sure it's 19 a helpful factor to induce into the discussion. 20 MS. MANDELL: Well, let me take it on then. I'd like to turn to 21 the next part, which is the analysis of colonial 22 enactments. And, my lord, I don't intend to take you 23 enactment by enactment through. 24 THE COURT: Where do you start there? 25 MS. MANDELL: This is on page 204. 2 6 THE COURT: Yes. Thank you. 27 MS. MANDELL: I don't intend to take you through them all. They 28 roughly divide out into four major areas. One is, as 29 Mr. Rush referred to this morning, acts which provide 30 for the establishment of governments and the 31 appointments of governors and the introduction of 32 English law, and he has already submitted to you that 33 it's our position that those acts brought in with them 34 English law. There was nothing expressly stated about 35 the extinguishment of title, and to the extent that 36 English law was brought in, we say the common law 37 applicable to the recognition of aboriginal title 38 existed in the colony. 39 The second kind of enactments are ones concerning 40 land. And if I could ask you to turn to page 211, 41 this is a land ordinance, the second of which was 42 considered by Mr. Justice Judson, and one which the 43 Province in its summary rests on to argue that it's 44 certainly an important part of the matrix of the 45 demonstration of the sovereign intent to extinguish. 46 And we note first that two months after this 47 proclamation Carnarvon wrote to Douglas regarding 25898 Submission by Ms. Mandell 1 Imperial policy to compensate the Indians on Vancouver 2 Island and the mainland, and you heard submissions 3 about that this morning. 4 And then if you could turn to page 212, this is 5 one of the sections which is relied upon by the 6 Province, and the proclamation contains 14 numbered 7 declarations. And you can see that it's not very 8 lengthy, but it is a discussion of the method to be 9 pursued with respect to the alienation and acquisition 10 of agricultural lands and of lands proposed as sites 11 for towns in the new colony of British Columbia and 12 certain other matters. 13 Now, one of the sections says, and I read: 14 15 \"All the lands in British Columbia, and all the 16 Mines and Minerals therein, belong to the Crown 17 in fee.\" 18 19 And the Province argues that this is illustrative of 20 the lack of ability of the ordinance to recognize 21 Indian title. 22 And I wanted to take you back to page 167 for a 23 minute, of the argument, and remind you of the way in 24 which the -- a more expressed statement of the same -- 25 to this same end was stated in the Queensland 26 legislation, which we submit is a much more expressive 27 idea, the fact that such a statement could take away 28 Indian title, where they said that \"the islands were 29 vested in the Crown in right of Queensland freed from 30 all other rights, interests and claims of any kind 31 whatsoever.\" And we say that, turning back to page 32 212, that if the expression that all lands in British 33 Columbia were to exclude aboriginal title and not to 34 be compatible with the -- both titles existing, as the 35 St. Catherines Milling case said, then they could have 36 done it, but they didn't. 37 Now, if you could go to page 214, we say that when 38 the Crown said that all the lands in British Columbia 39 and all the mines and minerals belonged to the Crown 40 in fee, they were stating what Mr. Justice Hall said 41 they were stating, which is simply a statement of the 42 common law, and that there -- the definition of Crown 43 lands as including Indian title and as burdened by 44 Indian title is reflected by a review of some of the 45 other ordinances which were passed in the same period. 46 And I refer you to an ordinance respecting Indian 47 reserves. And just so you didn't have to copy it, 25899 Submission by Ms. Mandell 1 I -- or go to the - did. It's just to save us 2 having to get all the exhibits. And you'll see that 3 Crown land is defined as being an Indian reserve or 4 settlement. And we say that there is nothing magic 5 about the Crown stating that all lands and all mines 6 and minerals belong to the Crown in fee, that there is 7 within the language of other ordinances the argument 8 which we advance, and that is that it wasn't intending 9 to say that all interests -- by defining it as Crown 10 land all aboriginal interests are not included. 11 And I refer you to a second ordinance in the same 12 period, which -- 13 MR. GOLDIE: I'm sorry, I didn't quite get the point that you 14 are making with respect to the ordinance respecting 15 Indian reserves. Are you saying that the definition 16 of Crown lands -- 17 MS. MANDELL: Includes Indian reserves. 18 THE COURT: Doesn't that say any Crown Lands which happen to be 19 Indian reserves or settlements are such and such? 20 MR. GOLDIE: That's what I've taken it to be, and I wanted to 21 make sure that my friend is taking another meaning. 22 MS. MANDELL: I'm saying that \u00E2\u0080\u0094 23 THE COURT: I think it says if anybody does any damage to Crown 24 lands which -- it says being Indian reserves, I think 25 which happen to be Indian reserves or settlements -- 26 MS. MANDELL: Well, I think \u00E2\u0080\u0094 27 THE COURT: -- then certain things would happen. 28 MS. MANDELL: There's no question that this is an act relating 29 to Indian reserves. 30 THE COURT: Yes. But I don't think it's a definition of all 31 Crown lands as Indian reserves. 32 MS. MANDELL: Oh, it's certainly not a definition of all Crown 33 lands in the province, but what it does demonstrate is 34 that in defining Crown lands in the province the 35 Province also defines Crown lands as including Indian 36 reserves where there's no doubt that they're -- 37 THE COURT: You're saying that Indian reserves are said to be 38 Crown lands? 39 MS. MANDELL: That's right. 40 THE COURT: Yes, I think it says that. 41 MS. MANDELL: Thank you. 42 MR. GOLDIE: I hope there's no dispute about that. All that a 43 reserve is in colonial days was Crown land which was 44 withdrawn from the pre-emption laws. That's what 45 reserve meant in the colonial days. They were always 4 6 Crown lands. 47 MS. MANDELL: But there was also a recognition that as Indian 25900 Submission by Ms. Mandell 1 settlements there was a co-existing Indian title which 2 we say underlined the Crown title, and by including in 3 the \u00E2\u0080\u0094 4 THE COURT: Underlaid or overburdened? 5 MS. MANDELL: Overburdened. 6 THE COURT: Both, I suppose. 7 MS. MANDELL: Definitely both. The second is the game 8 ordinance, and I only here point out that by the game 9 ordinance certain selling, hunting and so on, and 10 possession of animals, \"shall be construed to prevent 11 bona fide Settlers in Country Districts from killing 12 or getting such Game at any season for their own 13 consumption...\" And we say that as Indians clearly 14 hunted for their own consumption it is logical to 15 assume that the Crown in enacting this land use 16 legislation did not intend that it applied to Indians 17 in the exercise of their aboriginal rights but was an 18 instrument relating to land which applied to the 19 settler use only. 2 0 And I might remind your lordship at page 4 9 in the 21 argument advanced to you by Mr. Rush this morning that 22 in the notices which were published describing the 23 Indian Songhees Reserve title to the land was said 24 commonly to be known as the Indian reserve, and -- I'm 25 sorry, I'm just going to try and quote what was said 26 in the notice. \"Title to the said land commonly known 27 as the Indian reserve vested in the government.\" And 28 Douglas described the title in the Indian reserves as 29 title vested in the Crown. And we say that throughout 30 the period there was a recognition of the co-existence 31 of Indian title as being described generically as part 32 of the title of the Crown, and the provision which 33 vests the title in the Crown doesn't exclude 34 aboriginal title. 35 Now, we say, secondly, that in reviewing these 36 land legislative ordinances there is nothing 37 inconsistent with the co-existence of aboriginal title 38 and the Crown adopting a policy and a method to 39 provide an orderly scheme to alienate lands for 40 settlement. Britain continued to direct that treaties 41 were to be concluded with the Indians. The colonial 42 government could expect to acquire land available for 43 sale or settlement unburdened by the Indian title. 44 And I just wanted to remind you of the Cowichan -- 45 again of the Cowichan petition, where the title was 46 purchased while aboriginal title had not been 47 extinguished, that is, land had been granted where 25901 Submission by Ms. Mandell 1 there had been no extinguishment of aboriginal title, 2 and the settlers took their land and hoped and waited 3 for the extinguishment finally of aboriginal title. 4 And they, the settlers, were granted the land which 5 they were granted under a scheme to alienate lands for 6 settlement, which we say is perfectly within the vires 7 of the colony to conceptualize. 8 To argue, as the provincial defendant does in 9 their summary, that a statutory method to achieve a 10 system of land legislation extinguishes aboriginal 11 title is to refuse the reasoning of the Supreme Court 12 of Canada in Simon that extinguishment can take place 13 \"in the air.\" There is no bedrock of specific lands 14 here referred to. You've got basically people -- 15 you've got land legislation providing a system by 16 which land will be alienated, but you have for your 17 consideration no specific land grants which the 18 Province says, in fact, alienated land, and we say 19 that's contrary to Simon. 20 In fact, few, if any, grants were made in the 21 Gitksan-Wet'suwet'en territory until after 22 Confederation, and I in reviewing the evidence 23 couldn't find any, but I say \"few\" because maybe one 24 might come up somewhere. The mainland was essentially 25 occupied by Indians. Mr. Justice Hall in Calder noted 26 the political and social conditions prevailing in the 27 colony as described by Mr. Justice Tysoe. 28 29 \"The first white child was born at Fort Langley 30 on the mainland on November 1, 1857.\" 31 32 The ancestors of the plaintiffs could and did 33 continue in the exercise of their aboriginal rights 34 without any impact on the ground to the exercise by 35 them of their rights by any of the land legislation 36 argued by the provincial defendant as having the 37 effect of extinguishment. Nor, we've said, does the 38 land legislation on its face extinguish. 39 Now if I can address the point which you raised 40 about what about land grants. Any inconsistency which 41 might arise between aboriginal title and the assertion 42 of Crown title may occur if pursuant to the statutes 43 Crown grants were granted to non-Indian people who in 44 fact sought to dispossess the plaintiffs' ancestors. 45 At that point it may be argued by the plaintiffs that 46 the British Columbia government did not have the 47 authority to make the grants in derogation of their 25902 Submission by Ms. Mandell 1 rights and the grants ultra vires, or it might be 2 argued by the Crown that the grants which dispossessed 3 the Indians in their possession of their land 4 extinguished aboriginal title. These arguments are 5 not made before this court regarding the legislation 6 in the pre-Confederation period. And I say except 7 that if you find an implied intention to extinguish, 8 Mr. Rush has argued to you that such was outside 9 Douglas' authority and would be ultra vires on that 10 account. 11 The decision of the Supreme Court of Canada in 12 Smith addressed this issue. By an 1844 act, which was 13 entitled \"An Act to Regulate the Management and 14 Disposal of Indian Reserves in the Province,\" 15 pre-Confederation, a law was -- this is another case. 16 They set up reserves, an act was passed to regulate 17 how some of the reserve land was to be disposed of, a 18 law was enacted to establish a method to survey and 19 sell reserve lands in New Brunswick to settlers. Mr. 20 Justice Le Dain summarized its provisions. 21 THE COURT: Just a moment, please, Ms. Mandell. I think we're 22 going to change reporters. 23 MS. MANDELL: I'm going to be 15 more minutes or 10 at the most. 24 THE COURT: Yes. All right. We'll change reporters then. 25 26 (PROCEEDINGS ADJOURNED AT 7:05 P.M.) 27 28 I hereby certify the foregoing to 29 be a true and accurate transcript 30 of the proceedings transcribed to 31 the best of my skill and ability. 32 33 34 35 36 37 Leanna Smith 38 Official Reporter 39 UNITED REPORTING SERVICE LTD. 40 41 42 43 44 45 46 47 25903 Submissions by Ms. Mandell 1 (PROCEEDINGS RESUMED AT 7:08 P.M. ) 2 3 THE COURT: Miss Mandell, why don't we say you can go to 7:30 so 4 you won't have to be quite so fast. 5 MS. MANDELL: We are at page 216 and it's in the case of Regina 6 vs. Smith where the discussion of the 1844 Act is set 7 out. I am sorry, Mr. Goldie points out that I am 8 talking about the Federal Court of Appeal's decision 9 and not the Supreme Court of Canada. 10 THE COURT: All right. 11 MS. MANDELL: That's right. 12 THE COURT: All right. Thank you. 13 MS. MANDELL: A law was enacted to establish method to survey 14 and sell lands in New Brunswick to settlers. Mr. 15 Justice Le Dain summarizes its provisions: 16 17 \"The Act provided for the survey of reserves 18 and for the sale or lease of parts of them for 19 settlement, as well as for the appointment of 20 Commissioners in each country in which reserves 21 were -- \" 22 23 It should be: 24 25 \"situate 'for the purpose of -- '\" 26 27 I don't know what that is. \"Looking after -- \" sorry, 28 I don't know what that word is after \"reserves.\" 29 THE COURT: \"Looking after.\" 30 MS. MANDELL: 31 32 \"'looking after...and superintending the survey 33 and sale thereof as may from time to time be 34 directed by Lieutenant Governor to be sold 35 under the provisions of this Act, and also to 36 look after the interest of the Indians 37 generally of the Counties in which such 38 Reserves are situate, and to prevent 39 trespassing thereon.'\" 40 41 And then the Act was replaced. So through the Act, 42 and the provisions of it are set out at the page that 43 I've identified, there was provisions made for 44 surveying the reserves and for selling them to 45 settlers, the preamble of the Act stated that it was 46 desirable that more land be opened up for settlers and 47 there was basically a scheme set out which we say is 25904 Submissions by Ms. Mandell 1 somewhat parallel to the Land Acts of British Columbia 2 where there was a scheme established to alienate 3 lands. 4 The Court held that the Act could not have 5 extinguished the Indian title as it was \"a mere 6 adoption of a policy reflected in the Act of 1844 that 7 land in the Reserve should be sold to settlers.\" And 8 we parallel that to the land ordinances which we say 9 is an adoption of a policy that land be sold to 10 settlers, and like the 1844 Act, prescribed a method 11 for so doing. Mr. Justice Le Dain added that if lands 12 had been sold, and Letters Patent issued 13 extinguishment would occur. He was not addressing the 14 question whether the grants would be ultra vires the 15 Province. 16 And so we say here that, and in answer to your 17 question, my lord, that you are not concerned with the 18 actual effect of a grant on the land which, according 19 to the Supreme Court in Simon if you are looking at 2 0 extinguishment that would be something which you 21 should consider. You are concerned, however, with 22 Acts which permit, and as Mr. Justice Hall said, the 23 language is both permissive and it's also general, 24 which permit for a scheme of land alienation, the 25 actual grants of which and the effect of those grants 26 aren't before your lordship. And we say that there 27 may be an argument and we contended for what the 28 positions might be if the pre-Confederation 2 9 extinguishment argument were framed in terms of 30 settlers with grants actually on the ground 31 dispossessing, we say that the Crown could rely upon 32 Smith and probably Simons and may be able to argue for 33 a extinguishment on that basis. We on the other hand 34 would argue that the grants are ultra vires, but that 35 isn't what you are here dealing with. 36 And we say that this argument is applicable to all 37 of the land legislation relied upon the Provincial 38 defendant in the pre-Confederation period. And we 39 cite quite a few of the ordinances that all pertain to 40 issues of preemption and land and granting of land and 41 more titles vesting in the -- more recitations of the 42 provision that the title vests in the Province. 43 Finally, we say that there is nothing inconsistent 44 with the existence of aboriginal title and the Colony 45 or the Imperial Parliament electing to set aside land 46 in the Colony as Indian reserves. And if I could just 47 ask you to turn back to page 213, because this is 25905 Submissions by Ms. Mandell 1 the -- another feature of the February 14 Proclamation 2 which continues throughout the land legislation which 3 the Province asks you to consider. It's here stated 4 that anticipatory reserves of land for the benefit and 5 support of the Indian races will be made for that 6 purpose in all the districts of British Columbia 7 inhabited by native tribes. And this changes, the 8 wording of this provision changes throughout the 9 period, but the basic text of it is that there is a 10 provision for the reservation of land and later the 11 prohibition against the granting of land which is so 12 reserved. And we say that there is nothing 13 inconsistent with this provision and the existence of 14 aboriginal title. 15 And if I could ask you to turn to page 218. In 16 the case of A.G. Ontario and A.G. Canada, which is the 17 Royalties case, Mr. Justice Idington said: 18 19 \"A line of policy begotten of purdence, 20 humanity and justice adopted by the British 21 Crown to be observed in all future dealings 22 with the Indians in respect of such rights as 23 they might suppose themselves to possess was 24 outlined in the Royal Proclamation of 1763... 25 26 That policy adhered to thenceforward, by those 27 responsible for the honour of the Crown led to 28 many treaties whereby Indians agreed to 29 surrender such rights as they were supposed to 30 have in areas respectively specified in such 31 treaties. 32 33 In these surrendering treaties there generally 34 were reserves provided for Indians making such 35 surrenders to enter into or be confined to for 36 purposes of residence.\" 37 38 And Mr. Justice Idington stated that the policy was 39 intended to apply to British Columbia. And you'll 40 recall the discussion by Mr. Rush this morning at page 41 30 in his argument wherein referring to the September 42 1848 Douglas to Barclay letter, Mr. Douglas 43 recommended that he would both set up a process to 44 conclude treaty and he also recommended, as he put it, 45 equally as a measure of justice and from a regard to 46 the future peace of the Colony that Indian fishing 47 village sites fields should be reserved for their 25906 Submissions by Ms. Mandell 1 benefit and fully secured to them by law. 2 And we say whether reserves were set up before 3 treaty or whether they were set up after treaty is not 4 significant. Of significance is that the Crown from 5 its earliest contact and compacts with the Indians set 6 aside lands as reserves. And I can refer your 7 lordship to any of the basic texts - Native Rights in 8 Canada, or any of those beyond which starts the 9 reserve history as early as the Jesuits in Quebec or 10 the Quebec and Ontario area in the 1600s. The 11 reserves afforded protection to the Indians and the 12 settlers against unwanted interference from each other 13 on the frontiers and also enabled missionaries and 14 teachers to educate and convert the Indians at a 15 convenient location. 16 The perceived responsibility to convert and 17 educate the Indians by the Church and the Crown has 18 been reflected extensively both in the evidence of 19 this case and in the general public domain. And I 20 wanted to remind your lordship of Mr. Rush's 21 discussion at page 61 of his argument where he speaks 22 about the despatch from Lytton to Douglas on July 31, 23 1858. And he was in -- again the two policies of 24 protecting through or the policy of protecting through 25 reserving lands and also securing title through 26 treaties was talked about by Lytton, and he said to 27 Douglas that the early attention should be given to 28 the best means of diffusing Christian religion and of 29 civilization among the natives. And again, Lytton to 30 Douglas in 1858, which is at page 65 of Mr. Rush's 31 material, again stresses the convenience of the 32 placement of Indian people on reserves for 33 civilization and protection. And I cite an 34 inelegeantly expressed ordinance to amend the laws of 35 evidence, which is an Act of the Colonial period which 36 demonstrate the perceived need of the Indian people 37 for the knowledge of God and for civilization as they 38 put it. 39 We say that reserves did not extinguish title, and 40 we'll argue this point in greater depth tomorrow, 41 but -- and I refer to the Santa Fe case here where you 42 have already seen that the courts there said that 43 there has to be an express intention that the reserves 44 extinguish title for that to take place. And in fact, 45 the establishment of reserves provides a means for the 46 Crown to protect aboriginal title in those locations. 47 And I have already referred you to the ordinance 25907 eserves, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Ms. Mandell 1 respecting Indian and what that ordinance did was to provide a very speedy method for dispute resolution between Indians and settlers which wasn't complicated and didn't require the use of the courts. It was a convenient way to protect the Indians in certain locations. We say that the protective aspect of the Crown's legislative domain over Indians also extended to legislation in other areas and we've cited the ordinances to protect violations of Indians graves and the ordinances to prohibit the sale of intoxicants. So in this whole general discussion with respect to reserves, we say that the Colonial government and the Imperial government together legislated with respect to the honour of the Crown in its dealings with the Indians and there was both Indians and Indian lands which it legislated in relation to and that this was within its authority and certainly there was nothing inconsistent about legislation in this area and the extinguishment of aboriginal title. I have one of further point to make before 7:30 and it is with respect to the 1860 Proclamation. Mr. Justice -- sorry. I was -- Mr. Rush referred to it this morning and this Proclamation is made much of by the Provincial defendant in arguing that it's a good example, in fact the example that aboriginal title was expressed in clear and plain language. Again, you've got your usual Indian reserve exemption, Indian reserve clause. And if I could turn you to page 221, this is an ordinance which is a little bit more detailed in its provisions for the preemption of unsurveyed agricultural land in British Columbia, and it does provide for the sale of unsurveyed agricultural land by private contract. Each of these land ordinances seems to become more sophisticated and this is a slightly more sophisticated version of the one we've just looked at. At page 221 the defendant Province argues that assuming the criteria for extinguishment adopted by Mr. Justice Hall in Calder the history of this land ordinance, it should read, is proof of plain and clear sovereign intention to extinguish. They rely on two main points. First, they argue that the scheme of providing land for preemption and settlement is inconsistent with aboriginal rights. And we have already addressed this point above. They further argue that the history surrounding 25908 Submissions by Ms. Mandell 1 this Proclamation indicates that the existence of 2 aboriginal title in British Columbia was raised in the 3 consideration of the ordinance. The Province states 4 in its summary that Captain Clarke, an officer with 5 experience in land matters in Australia, stated in a 6 report to the Colonial office his assumption that no 7 Indian title exists or if it does it's been 8 extinguished in British Columbia. Further, Judge 9 Begbie forwarded to the Colonial office a report while 10 the land ordinances were under review which stated his 11 observation, and it should be his opinion, on Captain 12 Clarke's assumption with respect to aboriginal title 13 in British Columbia that it, aboriginal title, \"is by 14 no means extinguished.\" 15 The Province argues that since both Douglas and 16 the Colonial office had considered both opinions on 17 the existence of aboriginal title in British Columbia 18 and as the Proclamation of January 4, 1860 is silent 19 on the question of aboriginal title, the existence of 20 aboriginal title in British Columbia was considered by 21 Britain and evidenced by the fact that it was not 22 included in the land ordinance, the title was 23 extinguished by that instrument. 24 With respect, we say the silence in the ordinance 25 on the question of aboriginal title does not 26 constitute a \"clean and plain extinguishment\" 27 according to the criteria of Mr. Justice Hall. It was 28 Mr. Justice Hall's view that if the Colony intended to 29 extinguish aboriginal title: 30 31 \"... it could have easily have said 'aboriginal 32 title to public lands in the Colony is hereby 33 extinguished.' No such enactment... was so 34 stated.\" 35 36 Mr. Justice Hall's criteria makes sense in light of 37 the evidence which was apparently not before the Court 38 in Calder that the Colonial Office had two conflicting 39 opinions before it that aboriginal title existed in 40 British Columbia. And I might here note that this is 41 not a new debate. Mr. Rush referred to the debate on 42 the Maori land at page 35 and 36 of his submission 43 which the full force of the existence of aboriginal 44 title or not was debated too. 45 We say that if the British Parliament was intent 46 on extinguishing aboriginal title or putting to rest 47 the conflicting debate, what better opportunity than 25909 Submissions by Ms. Mandell 1 in stating so expressly in the Land Ordinance of 1860. 2 And we say it had before it two conflicting opinions. 3 It apparently was before its consideration as the 4 Province argues and if it was something which needed 5 to be put to bed we say it could have so easily done 6 it by including the section which Mr. Justice Hall 7 suggests should be added. And I might here add that 8 you'll recall that in 1861 the Colonial Legislature 9 asked the British government for funds to extinguish 10 aboriginal title one year later, and we say why didn't 11 the parliament then say rather than to say we have no 12 money, why didn't they say we've extinguished it? It 13 all happened in 1860, one year earlier so you don't 14 have to worry about this. And we say that this is the 15 reason why we have to have look for clear and plain 16 language and that is because if you -- if there isn't 17 clear and plain language, we don't know that that was 18 the intent of parliament, and it has to be so 19 expressed to divest Indian people of their rights. 20 I have three more minutes, my lord, and I think 21 that what I'd like to do in summary is to simply ask 22 your lordship to read the Ordinance by Ordinance 23 description of what went on in the Colony as we've 24 stated it between pages 204 and 244. I've addressed 25 the main points which in our view are selected to 26 address the range of issues covered by the Ordinances. 27 And I wanted at page 239 to 244 to ask you to in 28 particular read the conclusions which I'll only be 29 repeated myself now if I were to summarize. I would, 30 though, like to finally submit to you that the issue 31 of extinguishment before Confederation is by these 32 land Ordinances is a major point upon which the 33 Provincial defendant relies. I'll be speaking to you 34 tomorrow about Union and the effect on aboriginal 35 title and the respective powers of the parliaments and 36 Federal and Provincial after Union. It's our 37 submission that if aboriginal title survived the 38 Union, which we say it did, that there is no power in 39 the Provincial parliament or Provincial legislature 40 after Union to so extinguish aboriginal title. And 41 you'll recall the admission made by the parties in the 42 Calder case as expressed by Mr. Justice Hall that the 43 Federal Government had done nothing after 44 Confederation to extinguish aboriginal title. It's 45 our submission that if throughout all this period you 46 are to go beyond the statutes, Ordinances and 47 proclamations which you we urge you not to do, that 25910 that there is is no 2 3 4 5 6 THE COURT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Ms. Mandell 1 even if you do we say obvious clear intent to extinguish which rebuts the presumptions which we say favour us that in the absence of clear and express language these Ordinances can be construed as affecting extinguishment. All right. Thank you. I have a list here that suggests that we are going to reconvene tomorrow at 9:30 and we're going to continue more or less as today until 5:30 and then we're going to have a two hour session in the evening from seven to nine. All right. Thank you. Look forward to seeing some of you tomorrow morning at 9:30 then. Thank you. (PROCEEDINGS ADJOURNED UNTIL MAY 9, 1990 at 9:30 A.M.) I hereby certify the foregoing to be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability. Laara Yardley, Official Reporter, UNITED REPORTING SERVICE LTD."@en . "Trial proceedings"@en . "British Columbia"@en . "KEB529.5.L3 B757"@en . "KEB529_5_L3_B757_1990-05-08_01"@en . "10.14288/1.0018561"@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 1990-05-08]"@en . "Text"@en .