CONTENTdm
Delgamuukw Trial Transcripts
British Columbia. Court of Appeal
British Columbia. Supreme Court
application/pdf
1611 Submissions by Mr. Arvay 1 CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A. 2 3 Vancouver, B.C. 4 June 5, 1992. 5 6 THE REGISTRAR: In the Court of Appeal for British Columbia, 7 Friday, June 5th, 1992. In the matter of Delgamuukw 8 versus Her Majesty the Queen at bar, my lords. 9 10 MR. LOWES: My lords, we have another new face at the counsel 11 table. This is Miss Paula Graham, who will be with me 12 for the balance of the case. 13 TAGGART, J.A.: You're very welcome. 14 Yes, Mr. Arvay? 15 MR. ARVAY: My lords, at the outset this morning I would like to 16 take the opportunity to attempt to answer Mr. Justice 17 Lambert's questions of May 15th, 1992. I believe Mr. 18 Jackson characterized his response as tentative or 19 preliminary, or something of that sort. If what he 20 meant by that was that he was going to follow it with 21 a more considered and final response, that's not what 22 I mean when I say my submissions are tentative. They 23 would be tentative no matter how long I think I had to 24 spend on it, because the questions are very good 25 questions, they are fundamental questions, they are 26 very difficult questions to answer. 27 And so what I do provide to your lordships is our 28 best attempt, given the time frame that we had to work 29 on the questions, to assist your lordships in 30 addressing these fundamental points, which indeed are 31 at the core of the case, but for which, I confess, 32 there are no easy or simple answers. 33 We understood Mr. Justice Lambert to ask not two 34 questions, but three questions. And the -- in 35 paragraph one of our written submissions we have 36 distilled those three questions as follows: What 37 makes something a right? What makes something 38 aboriginal? The third question the other counsel did 39 not address but Mr. Justice Lambert did seek 40 information on is what differences, if any, exist 41 between aboriginal rights at common law and section 35 42 rights? And that is found, if any reference is 43 needed, in Mr. Justice Lambert's question at page 3, 44 line 28 he says: 45 46 "Finally, as an additional problem the answer to 47 the questions that I have asked have to be 1612 Submissions by Mr. Arvay 1 related to section 35 of the Constitution Act 2 and to the aboriginal rights there referred to, 3 which include rights under land claim 4 agreements, different in their nature perhaps 5 from aboriginal rights generally. The question 6 about whether aboriginal rights apart from 7 section 35 are the same as aboriginal rights 8 under section..." 9 10 Mr. Justice Lambert, there is a typographical -- 11 not a typographical error, there seems to be an error 12 or an omission in the transcripts, it says section 5, 13 I understood that to mean section 35. 14 LAMBERT, J.A.: I am sure that's right. 15 MR. ARVAY: So you said: 16 17 "The question about whether aboriginal rights 18 apart from section 35 are the same as 19 aboriginal rights under section 35, and perhaps 20 therefore whether section 35 controls what we 21 must regard as aboriginal rights seem to me to 22 be important also." 23 24 So we have attempted to answer the three 25 questions. We had a great deal of difficulty 26 attempting to answer question one as a distinct answer 27 to question two. It was very difficult to 28 disaggregate the term "aboriginal right" and answer 29 what is a right without thinking about it in the 30 context of aboriginal rights. And, indeed, in 31 fairness to Mr. Justice Lambert, I am -- I think you 32 have appreciated that, because in your question as 33 well, with respect to the first question when you said 34 "what makes something a right?" and I am reading now 35 from page 2 of your -- of the transcripts at line 26, 36 you say: 37 38 "I think my particular problem is two-fold: The 39 first question is what makes an activity, 40 custom, practice or institution into a right in 41 the context of aboriginal rights generally and 42 in the context of section 35 of the 43 Constitution Act? This question asks what 44 makes something a right?" 45 46 So your lordship appreciated, I believe, that it 47 is very difficult to -- it may be possible to answer 1613 Submissions by Mr. Arvay 1 the question in the abstract but it may not be very 2 helpful to answer the question in the abstract without 3 regard to the fact that the reason, without regard to 4 the fact that the question arises in a proceeding 5 which is searching for a meaning for aboriginal 6 rights. Your second question is asked, you say this 7 question -- sorry. The second question is: 8 9 "What makes an activity, custom, practice or 10 institution carried on by aboriginal peoples 11 into an aboriginal right? This question asked 12 what makes a right aboriginal?" 13 14 As I said, we find it very difficult to provide 15 you with an answer which is going to be very useful by 16 focusing in an abstract way on what makes something a 17 right. We have tried to answer that question in the 18 context of aboriginal rights in section 35 generally. 19 At paragraph 2 of our response we say that these 20 two inquiries are inextricably intertwined, just as 21 the nature of a right depends on whether it is a 22 contractual right, a constitutional right or a human 23 right, so too with aboriginal rights. The nature of 24 aboriginal rights may be distinct from the nature of 25 other rights, simply because they refer to aboriginal 26 people. 27 And I cite a quote from Donnelly, Universal Human 28 Rights: 29 30 "From where do we get human rights? The very 31 term 'human' rights points to a source: 32 humanity, human nature, being a person or human 33 being. Legal rights have the law as their 34 source, contractual rights arise from 35 contracts, and thus, apparently, human rights 36 have humanity or human nature as their source." 37 38 So we do say that what makes something an 39 aboriginal right is because it is unique to aboriginal 40 peoples. Indeed, we say that the right is unique, it 41 is sui generis, in at least three different ways: It 42 is unique in its source, it is unique in its content, 43 and, most importantly, it is unique in its 44 relationship to the state. 45 Now, having said that it's very difficult to answer 46 the question in a way which we think would be helpful 47 to your lordships, by just focusing on what makes 1614 Submissions by Mr. Arvay 1 something a right in the abstract, we have attempted 2 to do that, because Mr. Justice Lambert asked that we 3 perform some analysis of the jurisprudential 4 formulation of the rights. 5 Now, there is a vast body of literature on the 6 jurisprudential formulation of the rights. It would 7 be foolhardy for me particularly to attempt to present 8 to this court a coherent theory of rights that you 9 would accept, or would even purport to settle that 10 question, and so I don't attempt to do it. I confess 11 my limitations in that area, and all I can do for you 12 is to go back to what I understand to be basically the 13 two broad formulations of rights in our -- in the 14 Anglo-Canadian-American legal system, and present it 15 to you in the hope that that will assist in answering 16 the questions before the court. I say, however, that 17 I am not particularly optimistic that that inquiry 18 does assist very much, but I present it to you for 19 what it's worth. 20 And in the written response, at paragraphs six, 21 seven, eight and ten -- you didn't want to see what 22 was in nine -- we simply set out in almost an amalgam 23 form a summary of those two broad jurisprudential 24 formulations of right, which is positivism and natural 25 law. The one article that I really did enjoy, because 26 I understood it, was was an article by Prof. Owen 27 Theissen, who started off by saying that in terms of 28 positivism, is that a positivist is someone who sounds 29 very positive. And that's something that I will be 30 doing when I commence my submissions on remedies. But 31 it's not something that I am going to be doing in this 32 part -- these parts of my submissions. 33 In any event, I don't wish to belabour the point 34 of what are the two basic jurisprudential formulations 35 of rights. I think we all know that positivism is 36 essentially a conception of rights which provides that 37 they are the product of state action. Typically, it's 38 the legislature, but it's also the judiciary, the 39 judiciary can be the source of law, a source of 40 rights. Austin says they are rules established by 41 political superiors. 42 When I was reading a bit of Austin last night, I 43 found it quite amusing that after he got into about 44 three or four pages of his text on jurisprudence, he 45 says that he feared that he was going to be testing 46 the patience of his readers, looking down the line, 47 but he said that they should be cheerful or at least 1615 Submissions by Mr. Arvay 1 adopt some tolerance for him because it might be -- it 2 was him that had to perform the task of explaining his 3 theory of rights to them rather than vice versa. I 4 won't test your patience because I am simply going to 5 present to you, in the most summary fashion, what I 6 understand to be these two jurisprudential 7 formulations of rights and then move on. 8 So in paragraph 6 we summarize positivism as being 9 a legal right which is the product of legislative or 10 judicial action. And in the second jurisprudential 11 school of thought, which is natural law of theory, 12 postulates, I am at paragraph 8, that law is simply 13 not positive actions of the state but includes 14 explicit, normative considerations beyond mere legal 15 pronouncement. 16 And in paragraph 10 we say that there are 17 different conceptions of natural law. Some find the 18 source of natural law in God. Thomas Aquinas viewed 19 rationality as an expression of natural law which was 20 in turn an expression of God's will. Crucial to his 21 conception of natural law is the notion of "natural 22 inclinations and reason." Kantian scholars see the 23 source of natural law not in some divine source but in 24 self-reflection, in thought, in reason. 25 Now, the reason that these European conceptions of 26 rights may not be particularly helpful is because it's 27 difficult to transpose them to aboriginal systems, 28 aboriginal beliefs and aboriginal ideas of law. 29 Nevertheless, I try to seek out the source of 30 aboriginal law, using either positive law or natural 31 law conceptions. And so if you wanted to put a sub 32 heading in this written response prior to paragraph 33 12, you might say "the source of aboriginal rights." 34 Now, one of the only ways we can determine the 35 answer to the questions is simply to look to see what 36 judges have said about aboriginal rights. And that 37 may not be particularly instructive, unless the judges 38 who have expounded on aboriginal rights have thought 39 about the source in this way, by considering the 40 jurisprudential questions. But, nevertheless, we 41 consider that probably the only way we can determine 42 what makes something a right, an aboriginal right, is 43 to look to see what judges have said about it. 44 And in paragraph 12 I have referred you to a 45 passage that you have seen many times from Calder, Mr. 46 Justice Judson, he says that this is what aboriginal 47 title means. He says: 1616 Submissions by Mr. Arvay 1 2 "...the fact is that when the European settlers 3 came the Indians were there, organized in 4 societies, occupying the land their forefathers 5 have done for centuries." 6 7 WALLACE, J.A.: But did he say aboriginal title was synonymous 8 with aboriginal rights? 9 MR. ARVAY: No, that was the word he used, so it's the word I 10 will use now to be not necessarily coterminus with 11 aboriginal rights but certainly a subset of aboriginal 12 rights. 13 And in Guerin, Mr. Justice Dickson looked to 14 Calder, which he said: 15 16 "...recognized that aboriginal title was a legal 17 right which is derived from Indians' historic 18 occupation and possession of their tribal 19 lands." 20 21 He said it was an independent legal right that 22 pre-dated the Royal Proclamation. 23 WALLACE, J.A.: But didn't he say the title pre-dated the Royal 24 Proclamation at 335? 25 MR. ARVAY: Yes, I believe it was Indian title was a -- I think 26 he used the word Indian title was an independent legal 27 right that pre-dated occupation. That's right, my 28 lord. Again, I am not going to, for the purpose of 29 these submissions, make a distinction between Indian 30 title and Indian rights or aboriginal rights. 31 WALLACE, J.A.: But the point I am trying to make is whether a 32 right can exist pre-contact until -- can a right exist 33 until it's recognized by the European community? 34 MR. ARVAY: That's exactly the inquiry. 35 WALLACE, J.A.: And this seems to say it's a pre-existing right, 36 and I don't know how it can be pre-existing a system 37 that recognizes it. 38 MR. ARVAY: Yes. It's our -- at least it's an argument. Again, 39 I am sort of reluctant to cast it as a position, 40 because I think it can only be an argument. The 41 argument is, is that if it was an independent legal 42 right which pre-existed contact, let alone 43 sovereignty, then the source of the right is not in 44 Colonial law, let alone Canadian law, the source of 45 the right must be in aboriginal law. And so the 46 position we take in this paper is that that is a 47 partial answer to my lord's question, which is what 1617 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Mr. Arvay makes a practice a right in terms of an aboriginal right, is the source of the right, is aboriginal law. If it pre-dated contact, it can't find -- and yet we call it a legal right, an independent legal right, it must find its source in aboriginal law. Now does that mean that the source of aboriginal rights are founded on a conception of positive law or natural law? It can be either. It can be founded on positive law, so long as you're prepared to recognize that aboriginal law, aboriginal systems of law, qualify as being laws in the Austinian conception of rights, as a positive law. And it seems to me you can. It's a bit forced but you can. Likewise, you could probably say that the source of aboriginal rights, given that they pre-date contact and come from a system of law which is very different from, very foreign to European systems of law, that it is founded more on a natural rights conception of the law. Does that make it any less legitimate? Only if you reject natural law as a legitimate source of law and rights. But aboriginal scholars have described their rights in ways which suggest that they are founded on more of a natural rights conception rather than positive law conception. And I have, in paragraph 14 of my written response, a quote from an aboriginal scholar, and he says this. He says: "What are aboriginal rights? They are the law of the Creator. That is why we are here. He put to..." That is obviously wrong. That quote, by the way, is attached to the material you have. TAGGART, J.A.: I think "he put us to use." MR. ARVAY: "He put us in this land; he did not put the white people here. He put us here with our families, and by that I mean bears, the deer and the other animals. We are the aboriginal people and we have the right to look after all life on this earth. We share land in common, not only among ourselves but with the animals and everything that lives in our land. It is our responsibility. Each generation must fulfill its responsibility under the law of the Creator. Our forefathers did their part now we 1618 Submissions by Mr. Arvay 1 have to do ours. Aboriginal rights mean 2 aboriginal responsibility, and we were put here 3 to fulfill that responsibility." 4 5 One might say that that's a natural rights 6 conception of aboriginal law. We say, in paragraph 7 15, that, however, the court should be slow to 8 conclude that in any certain way, because that quote 9 itself suggests that the aboriginal legal systems 10 might collapse a distinction to the extent that their 11 positive laws are expressive of a natural ordering. 12 But we get this far, we look to cases like Guerin 13 and Calder and say that if aboriginal title, Indian 14 title, perhaps a subset of aboriginal rights, is an 15 independent legal right which finds its roots in 16 something that happened before contact, then the root 17 of aboriginal rights is aboriginal law. And I can't 18 tell you what the root of aboriginal law is, because, 19 of course, not only is it because I don't know whether 20 it's positive or based on a positive conception of the 21 law or natural rights conception of the law. We just 22 don't know enough about aboriginal law or aboriginal 23 legal systems. But in order to recognize it as a 24 right in -- in order to recognize an aboriginal 25 practice, rather, as an aboriginal right, we say you 26 don't have to have proof that the practice is 27 authorized or blessed by some aboriginal legal system, 28 it would be very difficult for any aboriginal people, 29 I think, to prove that a particular aboriginal 30 practice is traced to some law, traced to some 31 aboriginal law, so we don't require that proof. Plus 32 it might be very dangerous for our courts to purport 33 to rule on whether something is an aboriginal law or 34 not. There is a real danger, a risk of 35 misinterpretation of their systems. So we say in 36 order to satisfy, in order to answer the question of 37 whether a practice is a right, you have to be 38 satisfied that the practice comes from an organized 39 society, that evidence of the aboriginal people living 40 in an organized society is sufficient evidence that 41 they had some kind, some system of law. And, 42 therefore, that's enough to make a connection 43 between -- that's enough to allow you to conclude that 44 the practice is a right. 45 MACFARLANE, J.A.: It comes from and is recognized by an 46 organized society? 47 MR. ARVAY: Yes, comes from and is organized by an organized 1619 Submissions by Mr. Arvay 1 society. And I will try to do that again. When you 2 ask what makes a practice into a right in the sense of 3 an aboriginal right, we say it's not just enough that 4 aboriginal people were engaging in this practice, not 5 all practices can be a right. And yet it's too much 6 to ask aboriginal people to prove that there were 7 aboriginal laws which said that this thing that they 8 were doing was a right. So we say that the 9 compromise, and it's a compromise, proof that they 10 lived in an organized society is sufficient to prove 11 that the practices that they engaged in were rights. 12 WALLACE, J.A.: So that analysis turns then on its 13 characterization by the aboriginal society, not by 14 European society? 15 MR. ARVAY: I think we have to be very sensitive to the 16 aboriginal peoples' understanding of what is or is not 17 a right, which practice does or does not qualify as a 18 right. What we -- we add what is really a gloss, I 19 suppose, on what makes an aboriginal practice a right. 20 We say that the practice not only must find its source 21 in some organized society, but it also must be a 22 practice which is integral to their distinctive 23 culture. That may be the best evidence that we would 24 have, that what they were doing is important enough to 25 be characterized as a right, absent proof that there 26 is an aboriginal law out there which says that 27 something we wouldn't think is a right. So when we 28 talk about the source of aboriginal rights, yes, we 29 say the original source is aboriginal law. We can't 30 ignore the fact that judges, courts, are putting 31 glosses on that law and deciding whether and when 32 something is a right, and so the source of aboriginal 33 rights is not only aboriginal law but is the common 34 law. Every time a court opines on aboriginal rights, 35 to some extent that becomes the source of the right. 36 But what we are trying to do is get back to the root. 37 We say the root is probably aboriginal law and the 38 best evidence of the law is the practice. And in 39 order to ensure that the practice, even in the 40 aboriginal society's conception of rights, is a right, 41 we say that the practice must be tied closely, 42 integrally to their distinctive culture. And, yes, we 43 should be sensitive to the aboriginal society's idea 44 of what is integral and what is not. 45 Now, to answer the question, then, what makes an 46 aboriginal practice a right we say it is aboriginal 47 law. And in order to be satisfied that there is an 1620 Submissions by Mr. Arvay 1 aboriginal law, we need some proof that the aboriginal 2 people lived in an organized society. And 3 furthermore, the best evidence of whether the 4 aboriginal practice is a right is the practice 5 integral to their distinctive culture. 6 One wonders what would happen if someone from Mars 7 came to Canada and British Columbia and asked -- and 8 he wanted to know or she wanted to know, what makes 9 something a right in our society, if they didn't land 10 on the lawn of the legislative buildings, or if they 11 landed on the lawns of the legislative buildings in 12 Victoria they might know, it is all there. 13 MACFARLANE, J.A.: Might never know. 14 MR. ARVAY: Sorry? 15 MACFARLANE, J.A.: Might never know. 16 MR. ARVAY: Might never know. But that would be the obvious 17 source of the right. But they might wander around the 18 community to get a sense of what practices seem to be 19 really important to the culture, and those practices 20 may well be considered rights in our culture. So 21 probably would understand we have a right not to be 22 assaulted and robbed, but other things that we do 23 which are less fundamental wouldn't qualify as a 24 right. To some extent that's what we are doing. It's 25 impossible to go back to pre-contact times in any 26 meaningful way, so we use proxies. And aboriginal 27 practice is our proxy for aboriginal rights. 28 Now, to answer the question what makes a right 29 aboriginal, and again I appreciate that there is an 30 overlap. Forgive me, I just have a very hard time 31 separating the two questions. But what makes a right 32 aboriginal we say is because it's unique to aboriginal 33 people. And that prompts the next question, well why 34 is it unique to aboriginal people? And to some extent 35 it may be because of the content, the practice, but I 36 don't think that's the complete answer. Because there 37 are also many things that aboriginal people do or did, 38 practices, which non-aboriginal people do or did, the 39 right to hunt and fish, for instance. There may be 40 aboriginal practices which of course are distinctive 41 to aboriginal communities: feasts, potlatches, those 42 things. But I don't think we can limit aboriginal 43 rights to practices which are unique to aboriginal 44 people. And so I say that the -- probably the 45 fundamental reason about why aboriginal rights are -- 46 one of the fundamental reasons why aboriginal rights 47 are unique is in their inter-relationship with the 1621 Submissions by Mr. Arvay 1 state. 2 It is because aboriginal rights find their source 3 in aboriginal law, something that pre-dated contact, 4 that you cannot find in the right any conception how 5 it inter-relates with the state. The colonial state 6 is foreign to any system of aboriginal law. And so 7 you -- if you ask, if someone says that aboriginal 8 rights create some sort of protection against the 9 colonial state, I say that can't be so if you accept 10 the premise that the source of aboriginal rights is 11 aboriginal law, for the obvious point that the 12 colonial authority wasn't around in pre-contact times 13 when the aboriginal law was created. And so what 14 makes an aboriginal right somewhat unique is in the 15 fact that it doesn't have within it any protection 16 from the state. It doesn't have within it any fetter 17 on state power, on colonial state power. 18 Now, you might say, well, even an aboriginal -- 19 even in pre-contact times there were various 20 aboriginal communities, nations, and an aboriginal 21 people or nation may have a law which prevents other 22 aboriginal nations from invading their space, invading 23 their territory. In this particular case, that wasn't 24 proven. But even accepting for the sake of argument 25 that an aboriginal nation does have a law which 26 protects its community, its people from invasion from 27 strange or other aboriginal communities or nations, 28 that doesn't translate into a right which protects an 29 aboriginal community against colonial power, colonial 30 authority. Because once you accept the sovereignty of 31 the colonial authority, which my friends do, you can't 32 accept the sovereignty of the colonial authority and 33 at the same time recognize that the aboriginal right 34 places a fetter on the colonial authority's sovereign 35 power, which seems to me to be a contradiction in 3 6 terms. 37 Aboriginal nations may have competed on some level 38 of equality. But aboriginal nations do not compete 39 with the colonial authority as sovereign nations. So 40 we say that, and I am at paragraph 19, in paragraph 19 41 of my argument, in the last sentence, aboriginal 42 rights in existence at the time of sovereignty place 43 no or minimal correlative duties on colonial authority 44 -- on colonial authority, and the common law of 45 aboriginal title prior to 1982 reflected this fact. 46 Indeed -- rather not indeed, we call aboriginal rights 47 a right, an independent legal right, because it is 1622 Submissions by Mr. Arvay 1 rooted in an aboriginal system of law. But we 2 recognize it, the common law recognizes it as being a 3 legal right in our system. But all that means, in my 4 submission, is that the state is prepared to give some 5 protection to the aboriginal people, to give some 6 recognition to the aboriginal right by ensuring that 7 it receives some protection from the state by the 8 state, when there are any encroachments on that right 9 by third parties, but not the state. In other words, 10 the state, by recognizing it as a legal right, its 11 roots may be in aboriginal law, but it's recognized as 12 a legal right in our system, it's a legal right in our 13 system because its given some protection. But the 14 protection that the aboriginal people enjoy by having 15 an aboriginal right is not protection from the 16 sovereign, from the state, it is protection from third 17 party interests, other aboriginal and non-aboriginal 18 people. And that's the common law. The common law is 19 that aboriginal people can look to the state for 20 protection to endorse their rights, but aboriginal 21 people cannot rely on their rights to fetter sovereign 22 power. 23 Mr. Bell's interpretation of the Royal 24 Proclamation yesterday, in my submission, is entirely 25 correct. The Royal Proclamation is an example of the 26 state providing protection to aboriginal people, their 27 rights, from the settlers, but not in any way 28 suggesting that the state had somehow fettered its 29 sovereign power to deal with its land or the people or 30 with its subjects. 31 It may be that the state has imposed through the 32 courts some minimal correlative duty on itself vis-a- 33 vis aboriginal people, and that might find expression 34 in the law of extinguishment. But before the state is 35 to be said to have extinguished aboriginal rights, 36 there must be an expression of the sovereign, which is 37 clear and plain, which is a clear and plain expression 38 of intent to extinguish the aboriginal right. 39 Chief Justice McEachern, and Mr. Justice Dickson 40 in Guerin as well, found some fiduciary relationship 41 between the state and aboriginal people as being yet 42 perhaps another fetter, to some extent, on the state. 43 But the fundamental proposition is that if the source 44 of the right is the aboriginal law, then we can't find 45 in the aboriginal law any fetters on the colonial 46 power, the sovereign authority. If there have been 47 any fetters placed on the colonial authority, it has 1623 Submissions by Mr. Arvay 1 been by the sovereign himself or herself, through the 2 instrumentalities of the state, and as well the 3 courts, and we say that such limits are very minimal. 4 I find it useful in this part of my submissions, 5 because it ties into what I am going to be saying 6 shortly, to make two -- to make this observation at 7 paragraph 21, that while any correlative duties 8 superimposed on the aboriginal law by the common law 9 state were, therefore, minimal, and I refer to the 10 extinguishment test, the historical record does reveal 11 that "European" states, albeit in varying degrees, 12 attempted to "negotiate" the co-existence of the 13 aboriginal right within the non-aboriginal society by 14 way of treaties. We don't say that this in any way 15 imposed a duty on the state to enter into treaties. 16 Treaty making at all times would be consensual and 17 voluntary by both parties. But it does perhaps give 18 us another idea of how to conceptualize the aboriginal 19 right. It was the right of a collective. It was a 20 right which required co-existence of aboriginal and 21 non-aboriginal society. A treaty was one way of 22 giving expression to the right. 23 Now, up to this point I say the source of 24 aboriginal rights is aboriginal law, and to some 25 extent the common law. But in 1982 we say something 26 very important happened which altered both the nature 27 of the right, the source of the right, as well as the 28 content of the right. In 1982 the Constitution now 29 added -- is a source of aboriginal rights, 30 notwithstanding the fact that it uses the language of 31 recognizing and affirming existing aboriginal rights, 32 we can't deny that the Constitution is yet another 33 source, another layer of -- another source to the 34 aboriginal right and it affected its very nature in an 35 important way, because it added an external dimension 36 to the right that it didn't enjoy before. It now gave 37 the right some power against the state. It said that 38 the aboriginal right could be used to fetter state 39 power. And that obviously comes out of the Sparrow 40 decision. 41 As well, I say, because it's going to be apropos 42 what I am going to be dealing with next in paragraph 43 24, that because the right now has not only a 44 collective dimension but an external dimension, and 45 because the right doesn't fit easily in a non- 46 aboriginal society, the importance of treaty making is 47 heightened, is emphasized. And I say that the 1624 Submissions by Mr. Arvay 1 inclusion of treaty rights and other rights obtained 2 by land claim agreements in section 35 is a further 3 indication that the interests in section 35 is 4 designed to protect includes this unique mix of 5 communication and negotiation. I will come back to 6 that later. 7 I also add, at paragraph 25, that not only did the 8 constitution affect the nature of the right by giving 9 a collective dimension, it may well have affected the 10 content of the right. And this is apropos your 11 question, Mr. Justice Lambert, about what's the 12 relationship between section 35 rights and common law 13 rights? I am not certain about this, but I think the 14 answer is that there is no longer any need to talk 15 about common law aboriginal rights. Whatever was a 16 common law aboriginal right is now constitutionalized. 17 The only way you would come to an opposite conclusion 18 is if you said that section 35 rights were limited to 19 land based rights. We say aboriginal rights are sui 20 generis rights in respect of land. But they may, 21 section 35 may go beyond that to talk about certain 22 practices, religious practices, for instance. I don't 23 know for sure, and I don't know whether we need to 24 deal with it in this case. If section 35 is limited 25 to land-based rights, then the common law of 26 aboriginal rights still has some place. But if it's 27 not, then the common law has been subsumed into 28 section 35, which is why we call this case, we have 29 characterized this case as a constitutional case, 30 because given the province's very important concession 31 that there has not been a blanket extinguishment of 32 aboriginal rights, it means that any rights that 33 survived to 1982 have now been constitutionalized. 34 Chief Justice McEachern didn't have to worry about 35 section 35 because he said they never made it to 1982. 36 We say they made it to 1982. Exactly where, exactly 37 what the content of which is certainly in dispute, but 38 they in large part made it to 1982. So if section 35 39 is -- now subsumes the common law of aboriginal 40 rights, the other thing the constitution did, it may 41 well have affected the content, not just the nature 42 but the content of the right because the constitution 43 requires us to eschew any static formulation of the 44 right. We have to allow the right to evolve. 45 Now, that's a very difficult question as to how it 46 evolves and at what rate and when evolution turns into 47 transformation. We say an important consideration in 1625 Submissions by Mr. Arvay 1 the content and the extent to which it should be 2 allowed to evolve is the extent to which historically 3 it was exercised by -- the practice was one which one 4 was engaged in by an aboriginal people in an exclusive 5 and extensive way. 6 We say the challenge for the court, indeed the 7 parties, is to find an expression of the right that is 8 true to its historical origin, but at the same time 9 ensures the continued culture and existence of the 10 aboriginal peoples and not just at some bare existence 11 but in an important, in a healthy, strong way. We say 12 that doesn't equate into a constitutional right to use 13 any of the territory in the claim as they see fit. 14 But it might translate into greater freedom to use 15 those areas which historically were used by them 16 exclusively and extensively, then it might, in those 17 parts of the territory where the use was non- 18 possessory, sporadic, which on the evidence seems to 19 be much of the territory. 20 So in summary, my lords, if you ask me what makes 21 something a right in the context of aboriginal rights, 22 we say aboriginal law, the common law, the 23 constitution at various stages of our history. And in 24 answer to the question what makes a right aboriginal, 25 we say because it's unique to aboriginal people. And 26 to answer the question, well what makes it unique to 27 aboriginal people, we say before 1982 is probably its 28 fragility vis-a-vis the state, and after 1982 is its 29 considerable strength as compared to rights of other 30 cultural and ethnic groups and, indeed, other common 31 law rights. 32 I don't know if that's been very helpful, my lord, 33 but that's my attempt to answer your question. 34 TAGGART, J.A.: Thank you, Mr. Arvay. It might be convenient to 35 take the morning break and then you can get yourself 36 organized for more plebian pursuits. 37 3 8 MORNING BREAK 39 40 TAGGART, J.A.: Yes, Mr. Arvay? 41 MR. ARVAY: My lords, for the purpose of my submission, I have 42 adopted the radical idea that I am going to use my 43 factum as my speaking notes. 44 TAGGART, J.A.: Extraordinary. 45 MACFARLANE, J.A.: Shocking. 46 TAGGART, J.A.: We are on the Delgamuukw case, are we? 47 MR. ARVAY: I am at tab 7 of my factum. I have prepared three 1626 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Mr. Arvay volumes of the called white books, W-5, 6 and 7. There are no exhibits, transcripts references or anything in those three volumes. All there are are the excerpts from the cases that are referred to in this part of the factum, so that you have some -- just for convenience of the court they are at least in three volumes rather than 30 or how many there are. Where I have added a new case I have put in the entire case with a couple of exceptions, because the entire case wasn't added to the general book of authorities. My lord, my job today is to endeavour to persuade you to decide only part of this case, part of the issues on the appeal, to stop short of completing what otherwise, in an ordinary case, would be your job. But to say to you that you should feel comfortable in doing that because we are not asking you to decide only part of the case and to go home and wash your hands of the case. We are asking you to decide part of the case, to adjourn, and to retain jurisdiction, not necessarily you individually on the bench, but for this court to retain jurisdiction in the event that the parties need to come back to you to have you complete the task. I will argue, my lords, that what I am asking you to do is a principled approach to constitutional and public law, law making, adjudication. But I confess to you that I do not have any clear precedent to support what we ask you to do. HUTCHEON, J.A.: It may require a statutory amendment to the Court of Appeal Act. MR. ARVAY: In my submission, it does not. In my submission, you have jurisdiction to do this and, in my submission, there are strands of authority to support what I am going to ask you to do. All there is not is a case that I can point to which precisely supports our submission. I was reminded by a quote that I saw some years ago where a judge challenged Rufus Kohape(?), the famous Massachusetts lawyer, to cite a precedent for his argument before the court, and he replied: "I will look it up, your honour, and endeavour to find a precedent if you require it, though it would seem a pity that the court would lose the distinction of being the first to establish so just a rule." LAMBERT, J.A.: I would like to pursue the point that's just been made by Mr. Justice Hutcheon just for a second. MR. ARVAY: Sure. 1627 Submissions by Mr. Arvay 1 LAMBERT, J.A.: There is always the possibility that you might 2 not persuade us that we have the jurisdiction to do 3 that. If there were legislation empowering us to do 4 it then the point would be beyond doubt. But if we 5 were to conclude that we don't have the power to do 6 it, we can't just create such a power out of thin air, 7 then once we have rendered a decision to that effect, 8 the legislation, if legislation were thought 9 desireable, it couldn't affect this case, our decision 10 having already been rendered. I just thought I would 11 mention it in pursuit of the point Mr. Justice 12 Hutcheon has raised. 13 MR. ARVAY: I take your point. But I submit that it's a 14 needless concern. I say that you do have the 15 jurisdiction. 16 Let me start at paragraph 114 of my factum, because 17 I think what I have got in paragraph 114 is still very 18 serviceable of the order that we seek. It may or may 19 not require some refinement, but when I looked at it 20 again last night I thought no, it still works. We 21 seek a declaration that there was not blanket 22 extinguishment. Not a particularly artful or 23 legalistic phrase, but one we now all understand, are 24 the appellants' aboriginal rights. That's something 25 very important the court is being asked to do. And, 26 again, I want to emphasize that we are of the view 27 that the court is being asked to do some very 28 important things in this appeal, even though the court 29 is being asked not to do as much as it could do. 30 The second declaration is that the appellants have 31 existing aboriginal rights with respect to an 32 undefined portion of the territory in question. That 33 is a broad, very general declaration. But in my 34 submission it is an appropriate one for the court to 35 make. 36 Now, in your reasons, I don't see that it's 37 necessary to put this in the order, although it could 38 be put in the order, but in the reasons we would urge 39 you to say both what aboriginal rights are not and 40 what aboriginal rights are. We urge you to say that 41 aboriginal rights are not rights to ownership, as the 42 appellants say they are, ownership of the land, we 43 urge you to say that they are -- do not give the 44 appellants the right to jurisdiction in the sense that 45 they say, although we also recognize that the 46 appellants do have some rights of self-government, but 47 it is a right which is subject to federal and 1628 Submissions by Mr. Arvay 1 provincial law. We urge you to say that the 2 aboriginal rights are not proprietary, at least not in 3 any common law sense of that word. Even though they 4 may be a sui generis interest with respect to land, 5 they don't carry the baggage of the common law insofar 6 as the idea of a proprietary right is concerned. We 7 urge you to say that the aboriginal rights are defined 8 as a sui generis interest in respect of land which are 9 highly context fact specific, tied to historical use 10 and practice, which is integral to a distinctive 11 culture, the precise scope and content of which will 12 depend upon that historical practice. The extent to 13 which the activity, the practice was exclusive was 14 extensive, recognizing as well that it requires some 15 evolution in keeping with the purpose of the right as 16 is found in the constitution. So we urge you to say a 17 great deal about what aboriginal rights are and what 18 they are not. And that's a very, very important 19 reason for this appeal. 20 At the end of the day you are entitled to, though, 21 because of the province's concession that there has 22 been blanket extinguishment -- sorry, that there has 23 not been blanket extinguishment of aboriginal rights, 24 and because the rights are so context fact specific, 25 you are entitled to say that the appellants enjoy 26 aboriginal rights to an undefined portion or portions 27 of the territory of their claim. That means a great 28 deal, even if it doesn't provide the appellants and 2 9 the province and the federal government and the 30 intervenors with as much information as perhaps some 31 people would like. It provides enough information. 32 We say, if I go back to paragraph 114, my lords, 33 that the order should simply declare that a temporary 34 transition period exists in the anticipation that the 35 appellants's claim will be resolved and could go but 36 doesn't need to go on to say in the precise locations, 37 scope and content and consequences of their rights be 38 further defined and implemented by the parties through 39 negotiation. 40 I will come back to that, and the reason I would 41 put parentheses around the portion of paragraph (c) 42 about the precise location, scope, et cetera, is 43 because it's not exactly certain what will happen 44 during the transition period. And I will talk about 45 that later. 46 And (d), allow the appeal in part, adjourn the 47 proceedings sine die, and retain jurisdiction over the 1629 Submissions by Mr. Arvay 1 matter in recognition that should agreement not be 2 reached by the parties, and the court will proceed to 3 address the issues. 4 HUTCHEON, J.A.: This is a change from the two years? 5 MR. ARVAY: The two years is a period of time that the province 6 and the appellants agreed to was a reasonable period 7 of time. Of course, it's in your lordships' decision, 8 judgment, as to what should be the period of time. 9 Speaking for the province, two years is a minimal but 10 acceptable period of time. 11 So, while it may need some further clarification, I 12 say that paragraph 114 still describes the nature of 13 the order that we would request from the court. 14 Now, what we ask the court not to decide is what 15 part or parts of the territory the aboriginal right 16 exists, if any -- well, I shouldn't say if any, just 17 what part or parts of the territory aboriginal rights 18 exist, don't decide that, therefore don't decide the 19 extent of the territory; do not decide the content of 20 the right in any particular place in the territory; do 21 not decide whether the province has the authority to 22 specifically extinguish the aboriginal right in any 23 place in the territory, the constitutional authority. 24 Do not decide the test of specific extinguishment. We 25 say with great confidence that fee simples extinguish 26 aboriginal rights but we say don't decide that, not 27 because we are fearful of your answer or less than 28 confident in our submissions, we are not. We don't 29 need to know. And we say the appellants don't need to 30 know. And that's very important. 31 LAMBERT, J.A.: I would like you to repeat the fourth point that 32 you -- 33 MR. ARVAY: The point being that do not decide the test of 34 specific extinguishment. 35 LAMBERT, J.A.: Thank you. 36 MR. ARVAY: And, therefore, do not decide whether there has been 37 any specific extinguishment or diminution of the 38 aboriginal right. And do not decide what, if any, 39 remedy the appellants are entitled to, if there has 40 been an extinguishment or diminution of their rights, 41 either before or after 1982. 42 First, we ask you what to decide then we ask you 43 to stop and not decide those things, but then we say 44 don't go away, at least figuratively. And I know 45 that's a concern of your lordships, but we say that as 46 long as the court is here for the parties it's not 47 necessary that any individual member of this panel be 1630 Submissions by Mr. Arvay 1 here for the parties, because it's not necessary that 2 this panel indeed even be seized of the remaining 3 questions to be decided, if necessary. 4 LAMBERT, J.A.: And you're going to be dealing later in your 5 argument with the powers of the new five or three, who 6 come in in relation to overruling anything that we may 7 say in the areas in which we have said them? 8 MR. ARVAY: I address that point, my lord. I don't -- I address 9 that point, I don't spend a long time on it. But I 10 will deal with it and I would prefer to deal with it 11 later, if I may. 12 LAMBERT, J.A.: Of course. 13 MR. ARVAY: My lord, we say that the remedy is principled 14 primarily because it's consistent with the nature of 15 aboriginal rights. It's consistent with the right, 16 the remedy is consistent with the right and the right 17 should drive the remedy. And your jurisdiction is -- 18 it's clear to give effect to the appellants' 19 aboriginal rights, and therefore you have jurisdiction 20 to fashion a remedy which gives effect to the 21 aboriginal rights. And I will develop that. 22 I say, this is all by way of summary, it's also 23 consistent with your duty to uphold and vindicate the 24 values in the Constitution, because we are not asking 25 you to dismiss the appeal and send the parties off to 26 negotiate, we are asking you to decide some very 27 important constitutional questions here. We are just 28 saying don't go as far as you might otherwise go. 29 We are -- we say it is an appropriate remedy 30 because not only is it consistent with your duty to 31 uphold the constitution but it's appropriately 32 sensitive to the legislative and the democratic 33 process to allow the governments an opportunity to 34 fulfill their constitutional duties and 35 responsibilities and otherwise act in the public 36 interest. And this is important, given the fact that, 37 as I understand it, the appellants and the province 38 are in essential agreement with this approach. And 39 there may be some, there may be some differences, and 40 I am not sure what they are. But as I understand it 41 as I am sitting here today, we are in essential 42 agreement with this approach. That makes my job, in 43 my submission, very easy, or at least relatively easy. 44 When we drafted the factum, we drafted it without 45 realizing or believing that we would have had the 46 appellants' concurrence with this approach. We do 47 have their essential concurrence with this approach. 1631 Submissions by Mr. Arvay 1 And given that, not only does that make any advocate's 2 job easier, but in the context of this case, the 3 remedy is not only principled because it has regard to 4 the democratic process and the legislative process and 5 the job of governments, but it's respectful of the 6 appellants as First Nation peoples to determine their 7 own destiny as well. Because it's not just the 8 province who wants to have a hand at determining how 9 the appellants and the aboriginal people should co- 10 exist in British Columbia society, but it's the 11 appellants themselves want to have a hand in that. We 12 want to be able to use what the court gives us by way 13 of declaration of general entitlements, base line 14 entitlements, to then fashion a more complete remedy 15 by which the appellants and the province and other 16 interests in the province can find the means to co- 17 exist. And I say that particularly because, although 18 my argument is not dependent upon the consent of the 19 appellants, but because the appellants and the 20 province are essentially ad idem on this approach, the 21 court should be very slow to not give effect to these 22 submissions. 23 I don't know what the position of the federal 24 government is on this matter, I don't know what the 25 position of the amicus is on this matter. But I would 26 say to your lordships that opposition from either the 27 federal government or amicus, should it come, should 28 not be a reason to frustrate the joint request and 29 wishes of the appellants and the province with respect 30 to this remedy. 31 My lords, you mention that I should be given an 32 opportunity to reply to the appellants' written 33 submissions on remedy before their reply. It would be 34 my respectful submission that I be given an 35 opportunity to reply only once, but it would be not 36 after receiving the appellants' written submissions 37 but it would be after hearing the submissions of the 38 federal government and the amicus, because I have 39 reason to believe, or suspect at least, that I will 40 find more resistance in -- from the amicus, and 41 perhaps the federal government, than I will from the 42 appellants. And if we are to join issue and assist 43 the court it would be my submission that it would be 44 much more appropriate if you heard from me after the 45 federal government and amicus rather than before. 46 My lords, what I am proposing is innovative, yes, 47 but, in my submission, it is a model of judicial 1632 Submissions by Mr. Arvay 1 restraint. It is, I would submit, a -- not a, the 2 just and appropriate remedy in all of the 3 circumstances. And that it hopefully, hopefully, will 4 go a very long way to facilitate a final and just 5 resolution of a dispute which -- between aboriginal 6 peoples and the province, which should have been 7 settled a long time ago, wasn't, but which this 8 attorney-general is committed and this government is 9 committed to settling. 10 So, my lords, I would like to turn then back to the 11 factum, which is paragraph 115, and I suppose 12 paragraph 115 is maybe the most important part of my 13 submission. And that is that constitutional remedies 14 should reflect the nature of the particular 15 constitutional right at stake. And I cite from the 16 Gamble case on the bottom of that page: 17 18 "A purposive approach should, in my view, be 19 applied in the administration of Charter 20 remedies as well as to the interpretation of 21 Charter rights." 22 23 And the Gamble case is not on point in terms of 24 original concerns, it was a case in which the Supreme 25 Court of Canada applied the ancient writ of habeas 26 corpus in a way to give effect and vindicate Charter 27 values, Charter rights, even though at common law it, 28 because it was bound by very technical and restrictive 29 rules, would not have worked. But the passage from 30 Gamble, in my submission, says we all know about the 31 purposive approach in the constitution, that we should 32 give the constitution a purposive approach in order to 33 determine the nature of the right, and the interests 34 that the right is designed to protect. But Gamble is 35 important because it says you have to apply that 36 purposive approach as well to the remedy. And, in my 37 submission, that statement from the Supreme Court of 38 Canada goes a very long way, if not all the way, in 39 establishing that you have the jurisdiction to do 40 whatever you understand to be necessary or proper to 41 give effect to the constitutional right at stake. 42 And, again, I emphasize this is primarily largely a 43 constitutional case, for the reasons I set out before, 44 even though there is obviously considerations of the 45 common law that have to be taken into account. 46 I would like to ask you to turn to the first 47 reference book, W-5 at tab 115, and the second 1633 Submissions by Mr. Arvay 1 reference in the second green page in, is the -- 2 TAGGART, J.A.: 115? 3 MR. ARVAY: 115, yes. 4 TAGGART, J.A.: Second tab? 5 MR. ARVAY: It's the Osborne case, Osborne and Canada. 6 TAGGART, J.A.: My second one is Millar. 7 MR. ARVAY: Actually, I think it's called that as well. 8 LAMBERT, J.A.: Yes, Osborne and Miller. 9 MR. ARVAY: That's right. Again, the facts and the legal — the 10 law in that case doesn't have anything to do with 11 aboriginal issues, it had to do with the provisions of 12 the Public Service Employment Act, which prohibits 13 public servants from engaging in work for a candidate 14 or a political party. And the court had to decide 15 what to do with a provision which was over-reaching 16 and over-broad. Mr. Justice Sopinka talked about the 17 reading down doctrine and how it was applied in 18 division of powers cases and how it should be applied 19 under the Charter. Division of powers cases he says 20 that courts were engaged in somewhat of an illusory 21 search for the legislative intention, and would 22 attribute to parliament the intention to stay within 23 its constitutional boundaries, and that's the 24 presumption of constitutionality works and division of 25 powers, but that's not a necessary way of applying the 26 Charter. But anyway at page 104 he says: 27 28 "The policy of restraint reflected in the 29 presumption of constitutionality arose out of a 30 traditional respect by the judicial branch for 31 the supremacy of the legislative branch. 32 Interpreting a statute by reading it in 33 accordance with the presumed intention of the 34 legislators was regarded as less of an invasion 35 of their domain by the court. In selecting an 36 appropriate remedy under the Charter the 37 primary concern of the court must be to apply 38 the measures that will best vindicate the 39 values expressed by the Charter and to provide 40 the form of remedy to those whose rights have 41 been violated that best achieves that 42 obj ective." 43 44 Of course, we are not dealing with a Charter 45 right, we are dealing with a constitutional right, but 46 the same, in my submission, applies. Then he goes on 47 to say: 1634 Submissions by Mr. Arvay 1 2 "This flows from the court's role as guardian of 3 the rights and freedoms which are entrenched as 4 part of the supreme law of Canada. The court 5 is given an express mandate to declare invalid 6 a law which, by virture of s.52 of the 7 Constitution Act, is of no force or effect to 8 the extent of its inconsistency with the 9 Charter. There is no reason to disguise the 10 exercise of this power in the traditional garb 11 of interpretation. At the same time, the court 12 must be sensitive to its proper role in the 13 constitutional framework and refrain from 14 intruding into the legislative sphere beyond 15 what is necessary to give full effect to the 16 provisions of the Charter. In exercising its 17 broad discretion to fashion the appropriate 18 remedy that will achieve these objectives in a 19 Charter case, it is unnecessary to resolve the 20 question as to whether there is a presumption 21 of constitutionality. By reason of the diverse 22 and novel problems which it will be called upon 23 to redress, the court must maintain at its 24 disposition a variety of remedies as part of 25 its arsenal. Reading down may in some cases be 26 the remedy that achieves the objectives to 27 which I have alluded while at the same time 28 constituting the lesser intrusion into the role 29 of the legislature. The same result may on 30 occasion be obtained by resort to the 31 constitutional exemption." 32 33 Again, the constitutional exemption somewhat of a 34 creation of the judiciary by virtue of -- since the 35 enactment of the Charter. It's close cousin is the 36 reading down doctrine. But the constitutional 37 exemption says that even though a law will have clear 38 application in most of -- will be valid in most of its 39 applications, there may be some individuals for whom 40 the law will have no application, and that person or 41 that individual will be entitled to an exemption from 42 the law. That was a fashioning of a remedy that was 43 designed to give effect to the constitution, give 44 effect to the democratic will, and recognize the 45 unique circumstances of some individuals in Canadian 46 society for whom the law ought not to apply. He says: 47 1635 Submissions by Mr. Arvay 1 "This remedy was adopted by the Ontario Court of 2 Appeal in R. v. Seaboyer, a case which is 3 pending in this court." 4 5 And Seaboyer did not give effect to the 6 constitutional -- did not provide, did not apply the 7 constitutional exemption doctrine in Seaboyer but 8 didn't say it wasn't a doctrine that was worthy of 9 being applied in that case. 10 11 "In such circumstances I see no particular 12 virtue in resorting to the language of 13 presumptions in order to disguise what is to 14 all intents and purposes a remedy. When the 15 values of the Charter are not sacrificed 16 thereby, it is preferable to express deference 17 to the legislature as a factor in fashioning 18 the remedy rather than engaging in a fictitious 19 analysis that attributes to the legislation an 20 intention that it did not have." 21 22 Then he goes on paragraph f where he says 23 sometimes to give -- well, I will read it: 24 "In the final analysis, a law that is invalid in 25 so many of its applications will as a result of 26 wholesale reading down, bear little resemblance 27 to the law that Parliament passed and a strong 28 inference arises that it is invalid as a whole. 29 In these circumstances it is preferable to 30 strike out the section to the extent of its 31 inconsistency with s. 2(b). To maintain a 32 section that is so riddled with infirmity would 33 not uphold the values of the Charter and would 34 constitute a greater intrusion on the role of 35 Parliament." 36 37 So we see that the court is always struggling with 38 both its duties to uphold the values in the Charter 39 and the Constitution and at the same time notover step 40 its proper role, to be sensitive to the democratic 41 process. And we see that in Charter cases all the 42 time. And the same applies here, that the court 43 should be vigilant in upholding the values that the 44 Constitution, and particularly section 35, express, 45 but should be careful to not go further than is 46 necessary to give effect to those values. And given 47 that both the appellants and the province are saying 1636 Submissions by Mr. Arvay 1 to the court that with the declaration that you give 2 as to what is or is not aboriginal rights, we are 3 saying to the court that that provides enough 4 expression, provides a sufficient account of the 5 constitutional values for our purposes right now. And 6 we would like the court not to, in a sense, deny the 7 province, the aboriginal people, an opportunity to 8 give full expression to the values in the 9 Constitution. Or at least not to deny us an 10 opportunity to try to work out our differences and 11 find a -- find the situation where there is co- 12 existence without further assistance from the court, 13 at least at this time. 14 My lords, the next few cases in the tab are just 15 other illustrations of how the court has been 16 innovative in providing a constitutional remedy, and 17 yes, these cases are Charter cases, but in my 18 submission they are not limited to the Charter. 19 Section 35 is a new constitutional right, which could 20 have been put in the Charter except it's a right which 21 is very difficult from a Charter right in the sense 22 that it's a collective right. There are also 23 collective rights in the Charter but it's a very 24 different right than ones defined in the Charter but 25 it's not so different that it somehow suggests that 26 the court should be less innovative in fashioning a 2 7 remedy. 28 The Rahey decision is a case involving 29 unreasonable delay and what the appropriate remedy 30 should be. And the -- at page 619, rather 618, Mr. 31 Justice Le Dain says that the appropriate remedy when 32 there is a violation of one's right to a trial within 33 a reasonable time, is not a speedy trial but rather 34 it's a stay. 35 In the Morgantaler case, what the court said what 36 was wrong with section 251, sub (4), was 37 unconstitutional, even though it was somewhat of an 38 exculpatory provision to be a proscription against 39 abortions. It provided for abortions in certain 40 circumstances. The court said the section is 41 unconstitutional, the Attorney-General said just 42 strike out that subsection and leave the rest of 43 section 251 in place, which prohibited abortions, and 44 the court said no. And at page 125 Mr. Justice Beetz 45 said: 46 "There is no saving s. 251 by simply 47 severing the offending portions of 251(4) . 1637 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Submissions by Mr. Arvay I am reading from the second paragraph from the bottom on page 125. HUTCHEON, J.A.: I am sorry, 125? MR. ARVAY: Yes. I am sorry. HUTCHEON, J.A.: I have got 600. Wait a minute. I have gone too far. Thank you. MR. ARVAY: Third tab in. Second paragraph from the bottom: "There is no saving s. 251 by simply severing the offending portions of s. 251(4). The current rule in s. 251, which articulates both Parliament's principal and ancillary objectives, cannot stand without the exception in s. 251(4). The violation of pregnant women's security of the person would be greater, not lesser, if s. 251(4) was severed leaving the remaining subsections of s. 251 as they are in the Criminal Code." It was a rather common sense answer to the problem, didn't require perhaps the kind of innovation that I am asking the court, but nevertheless it demonstrates a sensitivity to try and fashion the facts to reality. The Schachter decision at the next tab is a very -- is an example where the court provided a very innovative remedy. And that was the case where the natural parents were not provided the same child care benefits under federal legislation as adoptive parents. It was an equality case. And the Federal Court of Appeal said that that's right, that the law discriminated against natural parents by not providing them the same benefit that was given to adoptive parents. And there was two ways of achieving equality. One might be characterized as equality with a vengeance, which is to strike out the law because it was -- because it discriminated. It's equality with a vengeance because then if would mean that neither natural parents nor adoptive parents would have the benefit. And the court refused to do that. What the court did was extend the benefit to the natural parents. It was an innovative remedy. And I will take you to the text. Then the court coupled that with a temporary, the temporary period. At page 644, Mr. Justice Heald, the first full paragraph says: 163? Submissions by Mr. Arvay 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 'In the quotation from the Ontario Court of Appeal in the Reference re An Act to Amend the Education Act reference is made to the positive right to equality conferred by s. 15(1). A mere declaration of invalidity is inadequate in the circumstances at bar, because it would not guarantee the positive right conferred pursuant to s. 15(1) . That positive right can only be guaranteed by the fashioning of a positive remedy. That is precisely what the learned trial judge attempted to do in the decision a quo. " LAMBERT, J.A.: But may I say, I don't have section 24 in front of me, but my understanding is that it says that the court will award the remedy that it considers appropriate. It's an invitation to fashion a remedy to suit the circumstances. And it's a constitutional provision that requires the court to do that. I don't think that the remedies that were being asked, as I see them at the moment, are within the power of section 24. So we don't have that statutory authorization to create remedies. My answer to that question, my lord, is this: That you don't need -- yes, let me start again. Section 24 is obviously an important section in the Constitution with respect to the issue of remedies but, in my submission, it is not necessary for the court to have section 24 to do, in this case, or in any other Charter case, to do what it does in Charter cases. Section 24 is essentially an expression of the inherent power of a court which is called upon to apply, interpret and expound a constitutional document to give effect to the rights in that constitutional document. This court is a court of inherent jurisdiction. J.A.: No, this court is a court of statutory jurisdiction. it is a court which finds its source in the Court of Appeal Act, to that extent it's a court of statutory jurisdiction. But the Court of Appeal Act, in my submission, clothes the court with all the powers of the Supreme Court, which is a court of inherent jurisdiction and therefore, for all intents and purposes, you are a court with the same powers of a MR. ARVAY: LAMBERT, MR. ARVAY 1639 Submissions by Mr. Arvay 1 court of inherent jurisdiction, even though it may be 2 inaccurate to say that you a court of inherent 3 jurisdiction. And maybe I should deal with that point 4 now. If you will just flip back to tab 114, the first 5 tab, first reference is the Court of Appeal Act and 6 section 9(4). 7 MACFARLANE, J.A.: What tab number is that? 8 MR. ARVAY: Tab 114, 114, the first tab in this book. Section 9 9(4) says: 10 11 "The court my exercise any original jurisdiction 12 that may be necessary or incidental to the 13 hearing and determination of an appeal." 14 15 In section 9(9): 16 17 "For all purposes of and incidental to the 18 hearing and determination of any matter and the 19 amendment, execution and enforcement of any 20 order and for the purpose of every other 21 authority expressly or impliedly given to the 22 Court of Appeal, the Court of Appeal has the 23 power, authority and jurisdiction vested in the 24 Supreme Court and, where the appeal is not from 25 the Supreme Court, the power, authority and 26 jurisdiction vested in the court or tribunal 27 from which the appeal was brought." 28 29 In my submission, those are very broad words which 30 clothe this court with the same powers of the superior 31 court, which is a court of inherent jurisdiction. 32 MACFARLANE, J.A.: We can make orders that could have been made 33 in the court below, that's as I understand the 34 section. In the court below there is no problem in 35 hearing part of a case and another judge hearing the 36 other part. But you say that same principle applies 37 here? 38 MR. ARVAY: Did you say there is no problem? 39 MACFARLANE, J.A.: I say there is no problem, as I understand 40 it. 41 MR. ARVAY: That's right. There is no problem. 42 MACFARLANE, J.A.: In other words, the liability issue can be 43 heard by one judge and the issue of damages can be 44 heard by another judge, and the rules of court provide 45 that issues can be segregated and heard by different 46 courts. So your argument, I take it, must extend that 47 jurisdiction to this court? 1640 Submissions by Mr. Arvay 1 MR. ARVAY: Yes, indeed. 2 MACFARLANE, J.A.: But you say we can divide up issues. 3 MR. ARVAY: Yes. And where your rules are silent the rules of 4 court apply, and furthermore, other examples of 5 splitting issues in constitutional cases is splitting 6 the definition of the right from the section 1 7 analysis. And you are also, because of 9(4), a court 8 of original jurisdiction, to the extent that that may 9 be necessary to the hearing and determination of the 10 appeal. Insofar as if -- insofar as is necessary to 11 be a court of original jurisdiction. I am not 12 convinced that it is. I think it's sufficient that 13 you have all the powers that a superior court has and 14 could have exercised in this case. 15 If you turn to the next reference, the next green 16 sheet, there is a case from the Supreme Court of 17 Canada, Societe Des Acadiens Du Nouveau-Brunswick. 18 The case is interesting for two reasons, but on this 19 point it deals with similar language in the New 20 Brunswick legislation. And if you turn to page 430, 21 this is the judgment of Madam Justice Wilson, but it's 22 the -- this portion of the judgment is shared by Chief 23 Justice Dickson and, I believe, I stand to be 24 corrected, on this point this is the decision of the 25 court. Under the heading The Inherent Jurisdiction of 26 the New Brunswick Court of Appeal: 27 28 "Mr. Justice La Forest, as he then was, writing 29 for the New Brunswick Court of Appeal, 30 concluded that the court could, pursuant to its 31 inherent jurisdiction, grant the Association 32 leave to be added as a party for the purpose of 33 launching an appeal." 34 35 I thought that was an interesting idea, given at 36 the outset of this case we talked about whether 37 intervenors would have any rights of appeal, even if 38 they were not parties. 39 40 "According to Mr. Justice La Forest the inherent 41 jurisdiction of the New Brunswick Court of 42 Appeal is derived from Section 8(2) of the 43 Judicature Act, which reads as follows: 'The 44 Court of Appeal shall have and exercise 45 appellate jurisdiction, with such original 46 jurisdiction as may be necessary or incidental 47 to the determining of an appeal.' 1641 Submissions by Mr. Arvay 1 2 Very similar to our 9(2). 3 "...and shall have all the jurisdiction and 4 powers possessed by the Court of Appeal 5 immediately before September 4, 1979 with 6 appellate jurisdiction in civil and criminal 7 causes and matters, and with jurisdiction and 8 power to hear and determine motions and appeals 9 respecting any judgment, order or decision of 10 any judge of the courts." 11 12 Now that's far less a clear statement that the 13 Court of Appeal has an inherent jurisdiction, but what 14 the court did was it traced back the legislation to 15 find out that the Court of Appeal in earlier 16 legislation was given the power of the Court of 17 Chancery, and concluded that, therefore, the court, if 18 you go to page 432, the version of the Judicature Act 19 of 1952, reading from the middle of sub (2), it says: 20 21 "...and shall have all the jurisdiction and 22 powers possessed by the Court of Appeal 23 immediately before the commencement of this 24 act, with appellate jurisdiction in civil and 25 criminal causes and matters, and jurisdiction 26 and power to hear and determine motions and 27 appeals respecting any judgment, order or 28 decision of a judge of the Queen's Bench or 29 Chancery Division, and of any judge of the 30 Court of Appeal." 31 32 Now it's looking very much like our Court of 33 Appeal Act, giving it the powers of the Court of 34 Queen's Bench and Chancery Division. 35 The court concluded on page 435, the first full 36 paragraph: 37 38 "As may be seen from these statutes, the 39 jurisdiction of the New Brunswick Court of 40 Appeal is, except as modified by legislation, 41 essentially that exercised by the High Court of 42 Chancery in England. Accordingly, it is 43 through an examination of the Chancery practice 44 that the scope of the court's jurisdiction in a 45 particular matter must be determined. The 46 appellant society does not dispute the 47 relevence of Chancery practice. Its position 1642 Submissions by Mr. Arvay 1 rather is that the present facts do not fall 2 within the principles laid down by the Chancery 3 courts. Is it correct in this? 4 The concept of inherent jurisdiction has 5 been described as 'peculiar, amorphous, 6 ubiquitous and pervasive.'. 7 8 Then the quote from the Jacob article. 9 10 "Moreover, the term 'inherent jurisdiction of 11 the Court' is not used in contradistinction to 12 the jurisdiction conferred on the court by 13 statute. The contrast is not between the 14 common law jurisdiction of the court on the one 15 hand and its statutory jurisdiction on the 16 other, for the court may exercise its inherent 17 jurisdiction even in respect of matters which 18 are regulated by statute or by rule of court, 19 so long as it can do so without contravening 20 any statutory provision. There is, 21 nevertheless, an important difference between 22 the nature of the inherent jurisdiction of the 23 court and its statutory jurisdiction. The 24 source of the statutory jurisdiction of the 25 court is of course the statute itself, which 26 will define the limits within which such 27 jurisdiction is to be exercised, whereas the 28 source of the inherent jurisdiction of the 29 court is derived from its nature as a court of 30 law, so that the limits of such jurisdiction 31 are not easy to define, and indeed appear to 32 elude definition." 33 34 And, Mr. Justice Taggart, you thought we had left 35 the airy-fairy law of jurisprudence, because I guess 36 that's describing a positive and natural law 37 conception of jurisdiction, at least it might be. 38 At the bottom paragraph: 39 40 "Despite the obvious difficulty in determining 41 the limits of the inherent jurisdiction of the 42 New Brunswick Court of Appeal, it is clear, I 43 believe, that it is not unlimited since its 44 invocation requires an exercise of judicial 45 discretion in accordance with accepted 46 principles. These principles may be found in 47 statute or in inherited court practice. 1643 Submissions by Mr. Arvay 1 2 Now in my submission, this is, this is a complete 3 answer to any question that -- as to your, as to this 4 court's jurisdiction to do what we are asking you to 5 do. And while there may not be cases on point which 6 provide you with clear examples and precedents, there 7 rarely is in any case, otherwise you are not usually 8 in court on any case if there is a clear precedent. 9 There are principles that we can derive from cases 10 which support what I am asking you to do, but most 11 importantly the principle which should guide the 12 exercise of your discretion should come from the 13 constitution. And we say that the constitution, by 14 requiring you to give effect to the values, also 15 requires you to fashion a remedy which is sensitive to 16 those values in other institutions and people, and 17 peoples, who have some role to play in fashioning 18 giving meaning to our constitution. And the 19 declaratory, the power of the court to give 20 declarations, is what is so suitable in that regard. 21 And I will move, I will be getting into that part 22 of my factum later. I wanted to first simply 23 demonstrate why what I was asking you to do is 24 consistent with the right; later I was going to deal 25 with why you have the jurisdiction in a more technical 26 sense. But I have done that to some extent now by 27 pointing out this case, that you are a court with 28 great power and authority, and your discretion should 29 only be -- is limited only by that which is not 30 principled, not because it hasn't been done before. 31 Now, just back to the Schachter case, my lord, I 32 didn't quite finish that, which is tab 115. And I 33 think page 651, we can leave it at that. What Mr. 34 Justice Strayer did in the court below is set out at 35 page 651, first full paragraph: 36 37 "Furthermore, the judgment of the Trial Division 38 merely provides a temporary remedy, leaving it 39 to... 'parliament to remedy the situation in 40 accordance with the Charter, either by 41 extending similar benefits to natural parents, 42 or by eliminating the benefits given to 43 adoptive parents, or by provision of more 44 limited benefits on an equal basis to both 45 adoptive and natural parents in respect of 46 child care.' The remedy given by Mr. Justice 47 Strayer does not in any way impinge on 1644 Submissions by Mr. Arvay 1 Parliament's preogative to choose amongst 2 constitutionally valid policy options in 3 enacting legislation which conforms to the 4 requirements of the Charter. Since the remedy 5 here is a temporary one, it is unlikely that 6 parliament would find it necessary to rely on 7 section 33 of the Charter." 8 9 So what he did, as I understand it, is he extended 10 to natural parents a remedy which parliament chose 11 only to give to adoptive parents, but then said that 12 remedy is only going to be in place for a temporary 13 period. I thought I read six months, whatever it was, 14 at which time -- it's up to Parliament, but the ball 15 is in Parliament's court, Parliament can decide to 16 keep the law the way it is -- well, Parliament 17 couldn't decide to keep the law the way it is, because 18 the law the way it it is unconstitutional, Parliament 19 could decide to amend the law and extend the benefit 20 to natural parents or repeal the law and give neither 21 type of parent any benefit. So again, it was a very 22 innovative remedy but one which was designed to give 23 effect to the equality right. 24 MACFARLANE, J.A.: I understand that you're not citing these 25 cases because they are right on point but because you 26 do refer to the temporary remedy in this case, that 27 brings back to my mind your 114 (c), declare that a 28 temporary transition period exists and dissipation, et 2 9 cetera. And I want to be sure about what you're 30 asking. Of course we are not granting any temporary 31 remedies here, we are making some declarations, if we 32 accept your submission, making some declarations and 33 not making other declarations which we would normally 34 make. What you're really asking for is that the 35 appeal be adjourned. Let me put it -- are you asking 36 that we order the parties to negotiate? Because at 37 some time earlier on somebody said that that was the 38 nature of the application? 39 MR. ARVAY: My answer, my lord, is we are not asking the court 40 to order the parties to negotiate. We are asking the 41 court to adjourn to permit the parties the opportunity 42 to settle their differences, if they can, by whatever 43 means they can, in the hope, and to some extent 44 perhaps, using judicial suasion, guidance, urging that 45 the parties do make good use of the time. 46 MACFARLANE, J.A.: Just a minute. 47 MR. ARVAY: But we aren't asking for an order — 1645 Submissions by Mr. Arvay 1 MACFARLANE, J.A.: Surely you're not serious in that. I agree 2 that if we should accede to your submissions and 3 adjourn the appeal in anticipation that there will be 4 negotiations, because the parties say they want to 5 negotiate and would like an adjournment for that 6 purpose. If we do that, that's fine. I understand 7 that it's your submission that you could then come 8 back to the court from time to time to resolve other 9 legal issues relevant to the appeal which might arise 10 in the course of negotiations and which have to be 11 settled before you can carry on further with your 12 negotiations. And it's in that sense, I take it, that 13 you talk about the court supervising the negotiations. 14 Because the court surely can't be involved in the 15 negotiations in any sense. 16 MR. ARVAY: No, I agree with everything you say. And I guess I 17 am a bit taken aback by your opening comment by 18 "surely you can't be serious." What did you 19 understand me to say? 20 MACFARLANE, J.A.: Well, I am sorry, I tend to be too blunt. 21 MR. ARVAY: My feelings aren't hurt. I just want to make sure I 22 am communicating and I don't think I am. 23 MACFARLANE, J.A.: I didn't mean anything more than what I just 24 said, that I didn't think that you were saying to me 25 that the court ought to supervise the negotiations any 26 more than you would be saying that we ought to order 27 the parties to negotiate. 2 8 MR. ARVAY: That's right. 29 MACFARLANE, J.A.: And I understand that what you were saying, 30 what I just said, that if problems arise, you could 31 apply to the court then to settle legal questions 32 which might have arisen which would be relevant to the 33 appeal in any event. 34 MR. ARVAY: Obviously I should have set out of my position more 35 clearly at the outset. 36 MACFARLANE, J.A.: Sort of a swinging door application, you're 37 in, you're out, you're in, you're out, you're in. 38 MR. ARVAY: That's something that I wanted to avoid. In the 39 latter part of the factum I talk about what happens 40 during the transition period and what the role of the 41 court is. The court, in order to maintain its duty, I 42 say, has to retain jurisdiction, at least on some of 43 the issues. It's up to the court to decide what role, 44 if any, it wants to play during that transition 45 period, and whether it wants to, in any way, supervise 46 the negotiation process. We don't ask the court to 47 get involved in any way like that. We do say, though, 1646 Submissions by Mr. Arvay 1 that the court may want to let the parties know that 2 it is here if it is needed in order to assist the 3 parties in their task, but perhaps only by way of 4 setting timetables. We can't imagine the court being 5 involved in any way in the negotiations. We wouldn't 6 like to see the court adjourn the proceedings and then 7 allow either party to come back any time they get 8 frustrated at the bargaining table. The court should 9 adjourn the proceedings and indicate that it's not 10 likely open for business for two years. There may be 11 some compelling circumstances where the parties may 12 jointly need to come back to the court for further 13 definition. 14 MACFARLANE, J.A.: Well, surely -- I was going to say surely you 15 can't be serious again, but we surely can't say to a 16 party that they can't come back to the court whenever 17 they want to, because surely we can't say that we will 18 have nothing more to do with this and wash our hands 19 of it for two years? I mean, if we are retaining 20 jurisdiction then it seems to me that it follows that 21 either party at any time can invoke that jurisdiction. 22 MR. ARVAY: Well, I suppose, my lord, it follows that any party 23 can at any time come back and make a pitch to the 24 court to be heard. But I say that there is good 25 authority for courts to exercise their discretion to 26 refuse to give a remedy what a party might otherwise 27 be entitled to in law, if there are reasons for so 28 refusing to give relief. 29 MACFARLANE, J.A.: We don't have to get into that because that's 30 a case by case situation. We deal with it as we saw 31 fit at the time. But the important thing is that what 32 I wanted to say to you is that I feel that it would be 33 open to either party at any time to come back and 34 invoke the jurisdiction of the court. You don't argue 35 with that? 36 MR. ARVAY: I don't argue with the right of any party to come 37 back and to ask the court to decide more, any party 38 has the right to do that, yes. But what I say is that 39 the court has the right to do in response is because 40 the court is being asked to exercise its discretion in 41 giving declaratory relief, the court has a right to 42 say to a party, as it does in both administrative and 43 Constitutional law cases, the case is not ripe or 44 mature for final adjudication. What I have in mind is 45 the decision that -- certainly your lordships are 46 aware of University of Regina and Harelkin, that's a 47 sort of seminal administrative law case where a party 1647 Submissions by Mr. Arvay 1 may well have been aggrieved by some administrative 2 tribunal, the administrative tribunal may well have 3 violated that party's rights to natural justice, but 4 the superior courts have a discretion not to give 5 effect, legal effect, to that party's right if the 6 party has failed to exhaust some other alternative 7 process or remedy in the administrative structure. 8 And the same principles apply in constitutional cases 9 and this court did it, at my behest, in a case, 10 Cecilia Moore and the province -- and I will come back 11 to that later in my argument -- even though the person 12 had perhaps a constitutional right that had been 13 violated by the government, the court said we have a 14 discretion to give effect to your -- that right, and 15 we don't choose to do it right now because you have 16 another remedy out there. 17 Now, if this court decides to go as far as 18 adjourning, retain jurisdiction in the hope and 19 expectation that the parties will and can settle their 20 differences through the negotiation process, it seems 21 to me that it's appropriate for this court to look 22 very carefully at an application by one of the parties 23 which is made before the two year period expires, to 24 look very carefully at the application to see whether 25 or not this court should invoke its jurisdiction, 26 should exercise its jurisdiction at the behest of that 27 party. I think you have a discretion to say no. 28 LAMBERT, J.A.: There are some remedies, such as a declaration, 29 such as the prerogative writ remedies that are truly 30 discretionary, and the law has long said they are 31 discretionary. There are equitable remedies that 32 equity is treated as discretionary. But there are 33 some remedies that you are entitled to ask for and if 34 you show that a right has been violated, you are 35 entitled, as a matter of law, to remedy, such as the 36 remedy of damages for the breach of a common law 37 right. And the court has no power to say, yes, your 38 right has been broken, yes you have suffered damages, 39 but we are not going to award any, or we are going to 40 wait for a while. I wouldn't have thought -- I mean, 41 I can certainly see that in all those areas which are 42 traditionally discretionary, then you can invite us to 43 exercise an unusual discretion. But there are some 44 rights to remedies that people have that the courts 45 must grant if the circumstances are made up. 46 MR. ARVAY: But the remedy that the plaintiffs have sought in 47 this case is declaratory. 1648 Submissions by Mr. Arvay 1 LAMBERT, J.A.: Right. And when they come back in six months 2 and say we want you to award us damages, then it may 3 be entirely different, we may have to look at 4 different factors then than the ones you are 5 enunciating now, if the claim is one for a remedy that 6 they have made out and are entitled to. 7 MR. ARVAY: I take your lordship's point, but I don't think that 8 in the context of this case that the plaintiffs expect 9 anything other than, at most, a declaration of 10 entitlement to damages, not damages. And the 11 plaintiffs' case is pitched, as I understand it, is to 12 seek declaratory relief. The province's counter-claim 13 was likewise for declaratory relief. That's all this 14 court can really be expected to do. And because 15 declaratory relief is necessarily discretionary 16 relief, the court can refuse to give it, if there is 17 good reason. 18 MACFARLANE, J.A.: Well, I think before we end this discussion I 19 would like to hear what issues really are of a nature 20 that they would come back to this court if they are 21 not settled by negotiations. To mention one, damages, 22 damages were not assessed in the court below and I 23 can't imagine that this court would entertain an 24 application to assess damages. So that would have to 25 go back to the trial court. But that's the most -- 26 beg your pardon? 27 HUTCHEON, J.A.: A fee simple extinguishment might be -- the 28 province might come back and, as I understood, you 29 told us that. 30 MACFARLANE, J.A.: I don't understand that. 31 HUTCHEON, J.A.: Well, we were asked not to make any declaration 32 that the grant of a fee simple extinguishes the 33 rights. 34 MR. ARVAY: That's right. 35 HUTCHEON, J.A.: And I could conceive that in six months the 36 province may come back and say, we now want that 37 order. 38 MACFARLANE, J.A.: That's not my understanding of the argument. 39 I was going to mention that next. I understood the 40 argument to be that there was such a mass of evidence 41 relating to specific extinguishment, and the problems 42 are so complex with respect to those issues, that the 43 problems are so site specific and so fact specific, 44 that this court would be -- it would be impossible -- 45 that was the language used by counsel, I think -- for 46 this court to try and decide those issues, and that 47 they ought to be left for another time, perhaps 1649 Submissions by Mr. Arvay 1 another trial. And as I see that particular problem, 2 I see a good example in the Alcan case. 3 Now, I may be wrong about this but it seems to me 4 that in the Alcan case you have to look at -- you have 5 to look at the specific agreement that there was 6 between the province and Alcan, what flows from that, 7 you have to look at the legislation and the 8 regulations which were put in place in respect of that 9 whole project, and then you have to hear a lot of 10 evidence to determine what are the aboriginal rights 11 in that area which are competing with Mean's claims? 12 And you have to assess all of that very carefully, in 13 a specific way, before a conclusion can be reached. 14 I see another situation relating to the claim in 15 the Queen Charlotte Islands. Again, a site specific, 16 factually-based problem with its own legal context in 17 a situation that couldn't be resolved here. The 18 Meares Island case may be another case of the same 19 nature. And so, I had thought that I was being told 20 the other day that we ought not ever to attempt to 21 decide those specific extinguishment issues. And 22 there are so many statutes out there that one has to 23 consider and so many problems. So when I started all 24 this I was really asking you, because I knew we were 25 coming towards 12:30, that you might try and reveal to 26 me what it is that could come back to this court if we 27 give -- if we deal with the declaratory remedies that 28 are now sought. 29 Now, I mentioned two of them. The other one 30 relates to external and internal boundaries. It seems 31 to me that that's a subject which this court would 32 probably be reluctant to address, but I speak for 33 myself. All right, you have asked us not to define 34 the precise locations, scope, content and consequences 35 of whatever aboriginal rights there are, if you are 36 right, that they haven't made out their ownership 37 rights. Well, again, I understand that that whole 38 subject is one that wasn't -- I was going to say 39 wasn't canvased, of course it was canvassed -- but it 40 wasn't the subject of a careful judgment in the court 41 below. And so, failing that, failing careful analysis 42 in the court below and so on, it seems to me that it 43 might be inappropriate for us to try and settle that 44 one. 45 Now, I have gone through the things you say don't 46 decide, I think, looking at the list that I made, and 47 I don't see any of those things as things that ought 1650 Submissions by Mr. Arvay 1 to come back to this court. So I am beginning to 2 wonder whether what we really ought to be doing is 3 considering what declaratory remedies, declaratory 4 judgments should be made, and not acceding to your 5 submission that you should be allowed to come back, 6 adjourning the trial. I see some difficulties. I was 7 going to say great difficulties, and I think there 8 might be, in having some other panel come back into 9 this whole thing and try to settle some of these 10 questions. But, again, you know, I may be quite wrong 11 about that. I say all of that because I feel that I 12 would like to have answers to some of those questions. 13 WALLACE, J.A.: I would like to add, since it is lunchtime, if 14 you could also after lunch explain to me the rationale 15 why you ask the court not to make a declaration with 16 respect to the constitutional authority of the 17 province to extinguish aboriginal title. And perhaps, 18 indeed, the test of specific extinguishment, as my 19 notes indicate you asked the court not to decide 20 those. 21 MR. ARVAY: That's right. 22 WALLACE, J.A.: I know, and I felt the other declarations would 23 form a basis for your negotiations. And I would have 24 thought the question of whether or not the province 25 had constitutional authority to extinguish might 26 indeed -- got that issue out of the way, it might also 27 be of some assistance in negotiations. 28 MR. ARVAY: I will answer all of those questions after lunch, if 29 that's okay. 30 TAGGART, J.A.: Have a nice lunch. 31 32 LUNCH BREAK 33 34 35 36 37 I hereby certify the foregoing to be 38 a true and accurate transcript of the 39 proceedings herein to the best of my 40 skill and ability. 41 42 43 44 45 Wilf Roy 46 Official Reporter 47 United Reporting Service Ltd. 1651 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 (PROCEEDING RESUMED 2:00 P.M.) 2 3 THE REGISTRAR: Order in court 4 TAGGART, J.A.: Yes, Mr. Arvay. 5 MR. ARVAY: Let me start by answering Mr. Justice Macfarlane's 6 questions first. You are quite right, my lord, 7 when -- or insofar as you say that you ought never to 8 be asked and therefore you need not retain 9 jurisdiction to determine whether there has been on 10 the ground either specific extinguishment or 11 diminution of the aboriginal right. So that's not 12 something that this court need ever do, in my 13 submission. However, it may well be your 14 responsibility, if you weren't to give effect to our 15 submission, to do some on the ground analysis of the 16 content of the right, and it may well be that the 17 province as well as the appellants would want you to 18 do that. There was 318 days of evidence, umpteen days 19 of depositions and affidavits, all of which -- or much 20 of which went to the question of what was happening on 21 the ground. 22 Now, my friends pitched their case in this court 23 on a conception of aboriginal rights which doesn't 24 require, according to them, a detailed on the ground 25 analysis. Their case is pitched that they own the 26 territory based on legal principles and adduces what 27 they say was enough evidence to demonstrate that 28 ownership interest. But if your lordships reject that 29 conception of aboriginal rights and except instead the 30 conception of aboriginal rights that we put to you, 31 which is one which is very much context specific, it 32 may well be that all the evidence which was adduced at 33 trial ought to be looked at for the purpose of 34 determining on the ground wherein the territory the 35 appellants enjoy aboriginal rights and what the 36 content of those aboriginal rights are. Neither the 37 appellants nor the province wish you to do that right 38 now. But it may well be that both parties, and as 39 well as the Federal Government, would have the right 40 to come to this court and say, We haven't been able to 41 sort out our differences, we think there are no 42 aboriginal rights in this part of the territory, or if 43 there are -- or minimal aboriginal rights in that part 44 of territory, and the appellants are saying there are 45 a very rich bundle of rights in the territory, that's 46 evidence on the record, and that's something that this 47 court may have a duty to resolve. 1652 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 And so it's not fair to say, I don't think, that 2 beyond deciding the strict legal questions that this 3 court can wash its hands of the evidentiary matters. 4 I don't think that's the case. But -- so we say that 5 if indeed you are going to do that kind of on the 6 ground analysis you probably would need to hear from 7 us as much greater length than you have, it's hard to 8 imagine, but you'd probably need to hear much more by 9 way of submissions in order to do that on the ground 10 analysis. Because right now the way both the parties 11 are pitching their case on the appeal is somewhat 12 to -- at a more abstract level, and we're trying to 13 get the court to decide really what the nature of the 14 right is without asking the court to do any detailed 15 application of that right on the ground. But it may 16 well be that given this -- that the extensive record 17 in this case, and I don't pretend to have any except 18 the most fleeting familiarity with it, that the 19 parties could come back to the court and say, okay 20 decide. We say there are minimal aboriginal rights in 21 this area and the appellants differ, we may have a 22 right to do that. But what -- but there is no way we 23 say that you would ever be required to go the next 24 step and determine how the right relates to various 25 governmental acts because it just -- as I understand 26 it, there is just not sufficient evidence adduced for 27 that purpose. So that's why we say to you, we are 28 content now to have a fairly abstract -- a declaration 29 of rights which is fairly general, fairly abstract, 30 but it may well be that if this court was to complete 31 its task now the court would have to do more than 32 that, and we're saying, don't do more than that right 33 now. Now this -- 34 LAMBERT, J.A.: May I interrupt you for a moment. Before you 35 leave this question, if we were to decide that the 36 trial judgment contained an error of principle that 37 affected the question of boundaries, or error in 38 relation to the facts that affected the question of 39 boundaries, then in the ordinary way of the Court of 40 Appeal we are faced with the question of whether 41 having gone to set it aside whether we should 42 substitute our own view or send it back to the trial 43 judge. If we are into any realm which requires much 44 more extensive examination than we are having now, 45 then surely there is something to be said for us 46 exercising the option to send it back to a trial judge 47 to either examine the existing evidence, if that's the 1653 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 way the parties want to do it, or new evidence and 2 settle the question. 3 MR. ARVAY: I think that's right, my lord. It may be that you 4 can send it to someone other than the trial judge, 5 maybe you can send it to a master or registrar, 6 someone specially designated for the task, but it 7 strikes me that if you did that at least this court 8 would continue to have jurisdiction, maintain 9 jurisdiction. 10 LAMBERT, J.A.: Not if you send it to a trial judge, but if we 11 sent it to a master, yes. 12 MR. ARVAY: Yes. 13 LAMBERT, J.A.: And it seems to me that you would probably 14 choose the trial judge route over the master, if you 15 were satisfied that there was a clear error made by 16 the trial judge and questions of credibility have to 17 be taken into account in applying the right test. 18 He's seen all the witnesses, he's listened to all 19 their testimony, he's in a much better position than 20 this court would be to assess their credibility in 21 applying the test. But the reason it goes back to him 22 is because he just applied the wrong test in the court 23 below, you give him the instructions as to what the 24 right test is and then he applies it to the evidence 25 as he recalls it. That would be the reason to send it 26 back to the trial judge. But if you are of the view 27 that -- that all those sort of criteria don't apply, 28 and that this court is in as good a position to apply 29 your test to the evidence because you're of the view 30 that credibility is not a central issue or an 31 important issue and yet recognize that you don't want 32 to be spending days and weeks and months doing that 33 kind of on the ground analysis, then it would more 34 likely call for delegating the task to a master, in 35 which case the court would still retain jurisdiction. 36 And it's difficult to know which is the proper course 37 without doing all the -- answering all the questions 38 that are raised by your question, but I think that's 39 an option, yes, 40 MACFARLANE, J.A.: I have a couple more questions before you go 41 on. What about the constitutional power of the 42 province to extinguish by legislation passed during 43 the period 1871 and 1982, do you want us to decide 44 that? 45 MR. ARVAY: That was Mr. Justice Wallace's question. 46 MACFARLANE, J.A.: All right. Well then, you can answer it when 47 you come to him. 1654 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 MR. ARVAY: I can answer it right now. I'm ready. 2 MACFARLANE, J.A.: All right. 3 MR. ARVAY: Sure, I'll answer it now. 4 MACFARLANE, J.A.: Could I add another question to it then maybe 5 as part of the same argument? Do you want us to 6 decide what test to apply in relation to 7 extinguishment? That is, whether it must be express 8 or implied? 9 MR. ARVAY: And that I guess is Mr. Justice Hutcheon's question, 10 so let me cover them all right now. To answer the 11 question about the province's constitutional authority 12 to extinguish, clearly the province is of the view 13 that they have the constitutional authority to 14 extinguish, and Mr. Taylor has given extensive 15 submissions in that respect. There is two reasons why 16 that question, we say, shouldn't be answered right 17 now. One is that both the appellants and the province 18 would prefer that it not be answered because it's not 19 necessary to be answered. And the -- 20 WALLACE, J.A.: I see a lot of shaking of heads. I don't know 21 whether it's directed to its not being necessary or 22 whether you agree. 23 MR. ARVAY: Well, it's part of our list of — 24 MR. JACKSON: Well, I think Mr. Arvay should not take it to be a 25 fixed position of the appellants. 26 MR. ARVAY: In the list of issues that I was going to take you 27 through at the end of my submissions it is clear that 28 the parties had agreed that all questions relating to 29 specific extinguishment should not be decided by this 30 court, which the parties understand to mean including 31 the authority of the province. If that's not the 32 agreement then I'd like to hear that from the 33 appellants. 34 My first submission is that it has been my 35 understanding until 15 seconds ago that neither side 36 wanted that issue decided right now, and because it 37 was not necessary to decide it, that given normal 38 rules in constitutional litigation courts ought not to 39 decide constitutional questions that are not necessary 40 to be decided. And quite frankly, the reason is -- 41 WALLACE, J.A.: They are necessary in the long run, unless you 42 reach an agreement. 43 MR. ARVAY: My lord, there is no question that some other party 44 in some other lawsuit as we speak right now could be 45 arguing -- 46 LAMBERT, J.A.: Oh, no, no, we have heard Alfonse and Dick and 47 that issue is squarely raised about whether the 1655 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 Wildlife Act extinguishs the aboriginal right to hunt 2 in both of those cases, and we will have to decide the 3 principles and apply them to the hunting situation in 4 order to decide those cases which we have now got on 5 reserve of this very panel. 6 TAGGART, J.A.: And those are site specific, there they are, the 7 facts are there encompassed in the issues of law -- 8 MR. ARVAY: Well, you know, not being counsel on Alfonse and 9 Dick I don't know the extent to which what I say here 10 has application to Alfonse and Dick. Obviously we 11 would like the court to be consistent in what it does 12 in this case and what it does in the other cases, both 13 substantively and procedurally. 14 LAMBERT, J.A.: But those are criminal cases that have to be 15 decided, we have got no options about declarations or 16 anything like that in those cases. 17 MR. ARVAY: It may be, my lord -- I guess I'd like to have an 18 opportunity to reflect on how this plays out in 19 Alfonse and Dick and whether you need to hear 20 submissions from the other parties in Alfonse and Dick 21 on this issue. If I could just leave that aside for a 22 moment, I appreciate that's a tough question and I 23 don't have an answer to it. It may well play itself 24 out in another day and another courtroom. That's a 25 big win or big lose question. There is -- 26 WALLACE, J.A.: Well, I asked for the rationale for not doing 27 it. Is it -- are you free to enlighten us on that? 28 MR. ARVAY: Well, the -- I guess simply what we are trying to do 29 in this litigation is to even the playing field to 30 some extent. One of the reasons why this litigation 31 is going on is because when the Chief Justice -- and 32 my friends can correct me if I'm wrong, but my 33 understanding is one the reasons that this litigation 34 is going on is when the Chief Justice said that the 35 aboriginal people in this province have no aboriginal 36 rights, at least that are land-based, that it made it 37 impossible for the aboriginal people to come to 38 court -- sorry, for aboriginal people to negotiate in 39 any meaningful and effective way with the Provincial 4 0 Government or Federal Government. We don't 41 necessarily accept that that's true, but we respect 42 their view. 43 And the whole purpose of Section 35, we say, is to 44 provide a meaningful base, constitutional base, from 45 which aboriginal people can negotiate with province 46 and federal governments. It's a spring board, if you 47 will, to allow them to go into the treaty-making 1656 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 process, the negotiation process, on some measure of 2 equal footing with the government. 3 WALLACE, J.A.: So you think that knowing the legal position 4 with respect to the provinces right to or authority 5 or -- to extinguish aboriginal title prior to 1982 6 would be an impediment, is that what you're saying? 7 MR. ARVAY: It might be. 8 WALLACE, J.A.: And that's the only reason? 9 MR. ARVAY: That's the reason. 10 WALLACE, J.A.: And is that the same reason that you don't want 11 to know what the test of specific extinguishment is? 12 MR. ARVAY: Yes, that's exactly it. That we believe if we can 13 go to the bargaining table and -- 14 WALLACE, J.A.: With neither side really knowing what their 15 rights are. 16 MR. ARVAY: With neither side really knowing how strong a hammer 17 the other one has. And I'm sure my friends are going 18 to say that -- you know, that they can succeed on that 19 issue, and you've heard us that we can succeed on the 20 issue. We both feel very strongly about it. It's 21 clearly a big win or lose issue though, we can't hide 22 that, it is. And we would rather go into negotiations 23 and we believe the appellants would rather go into 24 negotiations, because that's what I understand is why 25 there was agreement on the list, in a position where 26 there is some relative equality of bargaining power, 27 and we think that if the court stops short of 28 answering that question there will be that measure of 29 equal bargaining power. It's as simple as that. 30 WALLACE, J.A.: Thank you. 31 MR. ARVAY: And then I guess to answer Mr. Justice Hutcheon's 32 question and the last one that Mr. Justice Macfarlane 33 asked, we said that we would prefer that the court not 34 determine even the test of specific extinguishment as 35 well as not determine whether or not, for instance, 36 grants in fee simple extinguish. I'm very firm on the 37 latter, that you ought not to decide, for instance, 38 whether a grant in fee simple extinguishes. Again not 39 because we are afraid of the argument, I believe we 40 would win that argument, but I don't think you should 41 decide that argument. 42 It may be more difficult for you to avoid entirely 43 the test, because you're going to run very close into 44 it when you're dealing with the blanket extinguishment 45 part of the case. In order to decide whether there is 46 blanket extinguishment or not, you probably have to 47 determine what the test of extinguishment is, so you 1657 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 might have to go as far as saying that there can be 2 specific extinguishment if the crown, the sovereign, 3 demonstrates complete adverse dominion by clear and 4 plain intention. You may have to go that far. Maybe 5 not. Maybe you can say, We're satisfied that the 6 trial judge was wrong in saying that there was blanket 7 extinguishment. We don't have to go the next step and 8 determine what constitutes extinguishment because it's 9 not before us. That would be my preference. You may 10 not be able to draw the line there and so you may have 11 to get into whether consent is a requirement or not 12 for extinguishment. That's a point I don't have 13 strong feelings about. And I think probably the 14 appellants will say you have to decide the issue of 15 consent. Fair enough. But I think you can stop at 16 that point and say as little as you absolutely have to 17 which is going to tip the scales one way or the other 18 on the issue of specific extinguishment or diminution. 19 I think that answers all sets of questions, unless 20 there is anything else arising? Oh, sorry, there is 21 another answer to your question about specific 22 extinguishment, and that is this: That much of Mr. 23 Taylor's submission to you on 91.24 was to the effect 24 that whether there is an invasion of 91.24, not so 25 much whether there's been extinguishment of aboriginal 26 rights -- well both, on both counts, whether there's 27 an extinguishment of aboriginal rights and whether 28 there's been an invasion of 91.24, may itself be 29 highly fact intensive. 30 And we talked about the core and we tried to come 31 up with examples. The Supreme Court of Canada in a 32 number of cases have talked about constitutional 33 interpretation being contextual. That courts should 34 avoid if at all possible highly abstract articulation 35 of the rights. Madam Justice Wilson started the 36 debate -- and I can get this material for you if you 37 need it -- in a U of T law journal article, and it was 38 picked up by the court in the Edmonton Journal case, 39 and I think it was picked up by the entire court in 40 the Manitoba Law Society case in Pearlman. These are 41 just cases I'm recalling now, in which the court said 42 you shouldn't decide constitutional cases except in 43 the context of all the facts. And it may be very 44 difficult to even articulate the core doctrine without 45 doing so on the ground, so to speak. Particularly as 46 Mr. Taylor put it, the date of the inquiry when you're 47 determining whether there's been an invasion of 91.24 1658 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 may be different than the date of inquiry when you're 2 determining whether there's been an extinguishment of 3 aboriginal rights. And it gets real complicated 4 factually. And that's another reason why it may be 5 difficult to answer that question. 6 LAMBERT, J.A.: You made an offer in passing to give us the 7 material on the constitutional questions being 8 determined in a specific situation, in a context, and 9 speaking for myself I would like to take you up on 10 that offer. 11 MR. ARVAY: Yes. And I can tell you as well that in my 12 material, maybe in the -- I have these cases, if 13 you'll turn to Tab 141B -- supposed to be a B, 14 actually there is no B. If you turn to Tab 141 you'll 15 see there is a Tab A -- it's really Tab A. There are 16 three or four cases there which talk about the 17 importance of not deciding constitutional cases 18 without a proper factual underpinning, which is 19 similar to but may be a little bit different than 20 Madam Justice Wilson's approach to interpreting the 21 constitution which she said is contextual, but maybe 22 not very different. But I'll just take you through 23 this very quickly. The John Deere case I thought was 24 useful, it's an old division of powers case. And even 25 there at page 338, it's the Privy Council speaking, 26 the bottom paragraph: 27 28 "The structure of sections 91 and 92, and the 29 degree to which the connotation of the 30 expressions used overlaps, render it, in their 31 lordships opinion, unwise on this or any other 32 occasion to attempt exhaustive definitions of 33 the meaning and scope of these expressions. 34 Such definitions, in the case of language used 35 under the conditions in which a constitution 36 such as that under consideration was framed, 37 must almost certainly miscarry. It is in many 38 cases only by confining decisions to concrete 39 questions which have actually arisen in 40 circumstances the whole of which are before the 41 tribunal that injustice to future suitors can 42 be avoided. Their lordships adhere to what was 43 said by Sir Montague Smith in delivering the 44 judgment of the Judicial Committee in Citizens 45 Insurance Co. vs Parsons case to the effect 46 that in discharging the difficult duty of 47 arriving at a reasonable and practical 1659 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 construction of the language of the sections, 2 so as to reconcile the respective powers they 3 contain and give effect to them all, it is the 4 wise course to decide each case which arises 5 without entering more largely upon an 6 interpretation of the statute than is necessary 7 for the decision of the particular question in 8 hand. The wisdom of adhering to this rule 9 appears to their lordships to be of special 10 importance when putting a construction on the 11 scope of the words 'civil rights' in particular 12 cases. An abstract logical definition of their 13 scope is not only, having regard to the context 14 of Sections 91 and 92 of the act, 15 impracticable, but is certain, if attempted, to 16 cause embarrassment and possible injustice in 17 future cases." 18 19 The next case is the Rio Hotel case. Interesting 20 case as to whether persons who dance topless are -- 21 enjoy freedom of expression. And at page 83 of the 22 judgment, the last page in that green tab, Mr. Justice 23 Estey says: 24 25 "The record before the courts on this issue is 26 woefully inadequate and cannot serve as a base 27 upon which to build an argument that this law 28 violates the above provision of the charter. 29 The nature of the conduct, said to amount to 30 nude dancing, is not revealed in the record." 31 32 I don't know what he needed. I won't say it. 33 34 "There is no description of any such conduct, 35 the extent of the alleged nudity, the nature of 36 the 'expression' in question, or anything else 37 of a factual nature germane to this issue." 38 39 The Manitoba -- MacKay and the Government of Manitoba 40 is the next case. It's at page 361, under the 41 heading, "The Essential Need to Establish the Factual 42 Basis in Charter Cases. I'll just read the bottom 43 paragraph: 44 45 "Charter decisions should not and must not be 46 made in factual vacuum." 47 1660 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 I know your lordships are aware of these principles. 2 The next case, the Supreme Court of Canada, re Danson 3 and AG of Ontario, same proposition was advanced. So, 4 yes, I will indeed provide you with those other 5 references. There may be something that's added by 6 them. 7 LAMBERT, J.A.: Thank you. 8 MR. ARVAY: So, where was I? Madam Registrar tells me I'm still 9 on my first paragraph. I told Mr. Macaulay I would be 10 finished by noon. My apologies to Mr. Macaulay. 11 Paragraph 116 -- oh, by the way, you might want to 12 note the Manitoba Language case is in the white book 13 at Tab 115, that has tab -- and I put a blank tab 14 there just because I thought we might be referring to 15 it frequently, because I haven't reproduced Manitoba 16 Language every time it's been referred to in the 17 factum. I only reproduced it in its entirety once. 18 LAMBERT, J.A.: As far as that case is authority for the 19 respondents' part of the case and referring it back, I 20 was wondering to what extent that became possible if 21 that case becomes a reference rather than a piece of 22 litigation between parties. 23 MR. ARVAY: I don't think that there is anything in the judgment 24 to suggest that it turned on that at all. Indeed, in 25 the Dixon case, which I'll come to, which was a 26 decision of Madam Justice McLachlin when she was in 27 trial division, she applied Manitoba Language to do a 28 very similar thing and of course that was not a 29 reference, it was an action. So I don't see why it 30 ought to -- there was nothing in the judgment that I 31 recall. 32 LAMBERT, J.A.: No, but the terms of reference could let you do 33 it on a reference. 34 MR. ARVAY: Terms of reference can let you do a lot of things on 35 a reference, that's right, but that wasn't called for 36 by the terms of reference. 37 HUTCHEON, J.A.: The chief justice simply said on the question 38 of jurisdiction which was argued before him he was 39 satisfied we have jurisdiction, so there must have 40 been an argument based upon what jurisdiction they 41 had. 42 MR. ARVAY: May have been, my lord, I don't know the answer to 43 that. If you're asking me to try to find out, I'll do 44 that. 45 HUTCHEON, J.A.: It occurred to me it might be useful to see 46 what that argument was. It may raise what Judge 47 Lambert talks about, the language of the reference, 1661 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 but in that report we had last -- a year ago in the 2 1990 edition, that's all he said was, in the question 3 of jurisdiction we are satisfied we have jurisdiction. 4 MR. ARVAY: I see. I'll endeavor to get some background 5 information on that. I mean, at one point it was the 6 position of the Attorney General that the court not 7 retain jurisdiction and just say, trust us, we will do 8 it. And the court said, no, no, that would be 9 shirking our constitutional responsibility. So I 10 think the court took jurisdiction. I don't think it 11 was urged upon them, but I'll check into that. 12 116, I make the point that this purposive approach 13 to remedies and an innovative remedy is maybe 14 particularly called for when you're dealing with an 15 unusual right, an unique right. 16 And in paragraph 117 probably by way of summary I 17 say that the remedy that makes declarations concerning 18 the existence of aboriginal rights but relies upon 19 negotiation to give specific content and consequence 20 to these rights accords with the unique nature of 21 aboriginal rights, the text of the constitution, the 22 historical origins of aboriginal rights, the treaty 23 process, and the purpose and interests that those 24 rights are designed to protect. 25 Now, in order to understand that argument, of 26 course, you have to go back and look to -- at what we 27 said about the nature of the rights. And I'm not 28 going to go over ground Mr. Williams went over, but I 29 just ask your lordships to make a note that back in 30 the first part of the factum, at paragraphs 31 essentially starting from paragraph 11, 12, 13, 14, 32 15, 16, 17, 18 and 19, there is a discussion of what 33 aboriginal rights are and the importance of looking at 34 their historical origin. 35 Let me just touch on some of the points made in 36 the first part of that factum. In paragraph 12 and 13 37 you see that other parts of Section 35 demonstrate the 38 importance that the treaty-making process and 39 negotiations with aboriginal peoples have in our 40 society. 35(3) it constitutionalizes rights that are 41 acquired by way of land claim agreements. And in 42 paragraph 13, 35.1 constitutionalizes constitutional 43 compenses to give more content and meaning to the 44 rights. And those are places where people are going 45 to sit around the table and negotiate, negotiate the 46 content of rights. 47 There is no question that historically, as I said 1662 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 this morning, that colonial authorities to one extent 2 or another often attempted to negotiate co-existence 3 with aboriginal peoples, and you might -- you may not 4 call that aboriginal rights, but the rights of 5 aboriginal people to co-exist with non-aboriginal 6 societies was done in many cases by way of 7 negotiation. 8 Now, there is two ways of looking at Section 35 9 and I think they are both right. I think the key to 10 what -- to this argument is found in the passage in 11 Sparrow which is found at paragraph 17 of the factum. 12 Mr. Williams read this to you, but I think it's 13 critical that it be emphasized. And it's that Section 14 35(1) provide a solid constitutional base upon which 15 subsequent negotiations can take place. And so its 16 very purpose in the constitution, or an important 17 purpose in the constitution is not to settle once and 18 for all through the judicial process what the rights 19 of aboriginal people are in Canadian society, but to 20 provide them with a base upon which they can engage in 21 meaningful negotiations. 22 And so that's why when I was talking at the 23 beginning of my submissions on this part about what 24 the purpose of the transition period is, it could be 25 for one of two reasons: One reason is to allow the 26 parties to go off with their bundle of rights, each 27 side knowing what the basic rights of the aboriginal 28 people are, and negotiate a treaty. And the treaty 29 may well be for -- to acquire benefits, 30 responsibilities, duties and what not, that have -- 31 that would never be imposed by a court. In other 32 words, the treaty may give to aboriginal people, 33 impose upon governments rights and responsibilities 34 that would never come from a court. But nevertheless, 35 they then become constitutionalized by virtue of 36 Section 35(3), but they are then special, they are 37 different, they are treaty rights, they are not 38 aboriginal rights. That's one reason for the 39 transition period. It doesn't make the court's job 40 any less legimitate, if that's the reason, because the 41 purpose of Section 35 is to -- is to do that, to allow 42 the aboriginal people to go into negotiations with 43 enough rights to make those negotiations meaningful. 44 Another reason for the interim period -- and it's 45 the way the order is now framed as I've put it in Tab 46 7 at first paragraph I read to you, where we say the 47 transition period exists and the anticipation that the 1663 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 precise location, scope, content and consequences of 2 their rights will be further defined and implemented, 3 well, it may be that during the negotiations -- and I 4 don't want to second-guess how the negotiations are 5 going or in any way suggest how they should go -- but 6 it's possible that the transition period will be used 7 to not only acquire rights which are not strictly 8 speaking aboriginal rights, but to determine more 9 precisely what their legal rights are, and then come 10 back to the court and either with a joint submission 11 or perhaps not a joint submission, with more 12 information as to what the legal rights of the 13 aboriginal people are or not. 14 Remember, an important thing about Section 35 15 which distinguishes it from all the charter rights is 16 that Section 35 has built into it its own Section 1. 17 And -- so to speak. Supreme Court of Canada in 18 Sparrow found in Section 35 the ability of the 19 government to infringe aboriginal rights, so long as 20 it met a certain standard of justification. So the 21 right itself bespeaks reconciliation of both 22 aboriginal and non-aboriginal interests, right in the 23 right there is some balancing has to take place. And 24 it may well be that -- and perhaps too often than not, 25 the part of the process which involves the 26 infringement of the right is done without the 27 aboriginal peoples being involved. It's done in the 28 legislature or it's done in the offices of government, 29 but there is nothing to say that the -- there can't be 30 some negotiation about the nature of laws and 31 regulations and government acts which can or cannot 32 properly infringe the aboriginal right. And that can 33 all -- that can all be happening during this 34 transaction period. And so it may well be that during 35 the transaction period different things are happening, 36 but both of them are entirely legitimate, and the 37 court shouldn't feel in any way uneasy about being 38 party to it. The court should be very proud about 39 being party to this historic and very important 40 process. 41 I'll move over to -- I'm going to try to pick up 42 the pace a bit if I may, my lord, I probably will have 43 made my point over after over again by now and I'll 44 try not to repeat myself. 45 Paragraph 118, 119, 120 again I think reflect what 46 I've already said. Remember, in -- under Sparrow the 47 government has some duty to consult with aboriginal 1664 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 people before there has been a diminution of their 2 rights under Section 35. And we're saying that you 3 can -- once the government now knows clearly that the 4 aboriginal people have rights in this province, 5 contrary to what the Chief Justice said, that the 6 government should be given an opportunity to consult. 7 It should be given an opportunity to do what has to be 8 done to ensure that the rights of aboriginal people 9 are respected before anything is foisted on them 10 through the court process. 11 Paragraph 121 emphasizes why this approach is 12 particularly appropriate where there are generalized 13 claims such as this case. 14 Again, my lord, Mr. Justice Lambert, I -- I'd like 15 to think some more about what we do about cases like 16 Alfonse and Dick where they are not, and it may be the 17 only answer is you may have to do what you have to do, 18 but don't do any more than that. 19 And in paragraph 122 I talk about how, even 20 outside of Section 35, in that case it was Section 7, 21 why there is balancing that takes place in the context 22 of rights. 23 And in 124 I take about the important role that 24 the court has in getting the parties started, 25 overseeing the process only by way of retaining 26 jurisdiction and then finishing the job. And there is 27 a couple of quotes there from the Canadian Bar 28 Association which talk about why, if we really want to 29 have a lasting solution, it should be the parties that 30 are the authors of it rather than something that was 31 visited upon either party by virtue of judicial fiat. 32 Now, the next heading in my factum, the 33 appropriate role of declaratory relief, again goes to 34 the jurisdiction of the court to grant the relief. 35 I've covered quite a bit of the ground in this already 36 in answers to questions from the bench. I start off 37 by saying you have jurisdiction, which is the same as 38 the jurisdiction of the superior court which is very 39 broad. I talk in paragraph 125 about how flexible a 40 remedy declarations are. There is a quote there from 41 Solosky v The Queen: 42 43 "Declaratory relief is a remedy neither 44 constrained by form nor bounded by substantive 45 content which avails persons sharing a legal 46 relationship, in respect of which a 'real 47 issue' concerning the relative interests of 1665 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 each has been raised and falls to be 2 determined... Once one accepts that the 3 dispute is real and the granting of judgment is 4 discretionary, then the only further issue is 5 whether the declaration is capable of having 6 any practical effect in resolving the issues in 7 the case." 8 9 And we say clearly the -- this declaration would 10 have great practical effect for all the reasons I have 11 set out. You should also take note of the Kelso 12 decision. I'll just ask you to note the Kelso 13 decision at page 9, in which the court talked about 14 issuing a declaration even though they said the 15 declaration may not have practical result. I mean, 16 they took it quite far. 17 Paragraph 126, again more discussion about how 18 declarations can be used as preventative measures, 19 where there may be a cognizable threat to a legal 20 interest. I don't think you have a cognizable threat 21 to a legal interest, but I still think it's forward- 22 looking here, it's designed to deal with the 23 perspective. It's forward-looking, it's perspective, 24 it's designed to assist the parties in reaching the 25 reconciliation of their competing interests in the 26 future as much as it is to address past wrongs. 27 The -- at paragraph 127 we state again fairly 28 obvious propositions, that courts grant declaratory 29 relief against governments all the time, knowing that 30 it doesn't mean that the government must obey, but 31 knowing that -- they do it because they know the 32 government will obey. It's one of our traditions in 33 this country, unlike the United States, where it's 34 virtually unheard of -- there may be some 35 exceptions -- for governments not to give effect to 36 declaratory rulings by courts. 37 And a declaration from this court along the lines 38 that we submit will have a very salutory effect in 39 keeping governments moving in the direction that they 4 0 should be moving. 41 Paragraph 130 is the reference to the cases that I 42 touched on this morning: Harelkin, Mills, Moore and 43 Badger, all cases in which the courts have declined to 44 give any relief, even though there may be some clear, 45 illegal conduct occurring. Harelkin was an 46 administrative law case, but the Moore case was a 47 constitutional case. 1666 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 That was the case where Ms. Moore was fired by the 2 provincial government for failing to perform some 3 tasks that she said convened her freedom of religion. 4 I should take you to that one because I think it's 5 quite important. That's Tab 130. I see that three of 6 you are on that panel. 7 TAGGART, J.A.: Are we going to re-visit that? 8 MR. ARVAY: There were a number of issues in the case. One the 9 issues in the case was, was Ms. Moore entitled to a 10 declaration that her charter rights had been 11 infringed, given that she could have gotten her job 12 back or a remedy by seeking -- by going to the Human 13 Rights Commission. And one of the -- I mean, the 14 court said that the fact that the -- I mean, the 15 government was subject to the charter, notwithstanding 16 the fact that the government was acting qua-employer, 17 so there was clearly a charter issue before the court. 18 And Ms. Moore brought a declaration seeking -- rather 19 brought an action seeking a declaration that her 20 charter rights had been violated by the firing. 21 Our position was, and it was acceded to by the 22 court, that she had other remedies available to her. 23 One was to grief her firing through the collective 24 bargaining process, in which case the artibrator, 25 himself or herself, would have the power to take the 26 charter into account. Now, that part of the judgment 27 isn't particularly on point to what I'm saying, but 28 the other part of the judgment which I'll take you to 29 more specifically, is dealing with the -- deals with 30 the Human Rights Act. The court said, You also have a 31 remedy under the Human Rights Act. Now, that wasn't a 32 charter remedy, it was a statutory remedy. And her 33 counsel said, No, but I want my charter rights, I'm in 34 court. And the court said, you have an adequate 35 alternative remedy to pursue through the Human Rights 36 Act. If and only if you don't succeed there, then 37 come before the court. 38 The court is clearly the place where ultimately 39 charter or constitutional rights are vindicated, but 40 it's also the place of last resort. And that's what 41 the Supreme Court of Canada said in the Mills case. 42 So in the Moore case at page 114, Mr. Justice 43 Macfarlane said: 44 45 "At the heart of the question is whether equally 46 effective remedies are available elsewhere. 47 The superior courts have discretion to decline 1667 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 jurisdiction where just and appropriate relief 2 can be granted by another tribunal, and will 3 exercise jurisdiction only where there is a 4 need to do so." 5 6 And then dealing with the Human Rights Act, that's 7 dealt with at page 117 in the second paragraph from 8 the bottom just above the heading. The court said: 9 10 "Thus I conclude that it was open to Mr. Justice 11 Lander to hold the cause of action of the 12 appellant to be 'unnecessary because an 13 effective remedy is available under the Human 14 Rights Act.' The judge was therefore entitled 15 to exercise his discretion under R.19(24)(b) in 16 striking out the plaintiff's claims." 17 18 And so there is an example of where the courts said, 19 We are not even going to listen. Not that we are 20 going to only decide part-way, we are not going to 21 entertain your application right now. 22 I've heard it suggested that what I'm asking the 23 court for is an interim declaration. I am not asking 24 the court for an interim declaration. I'm asking the 25 court for a final declaration, and one that in indeed 26 could be appealed, although both sides I'm sure would 27 argue that leave shouldn't be granted until everything 28 is finished, but strictly speaking, it's a declaration 29 that is final and could be appealed. It's not an 30 interim declaration, because an interim declaration 31 implies that the court can change its mind, and there 32 is clear authority that the court can't grant interm 33 declarations. This is a final declaration, but it's 34 not as complete as it might otherwise be. 35 There is helpful authority in the language rights 36 cases -- and I'm at paragraph 132 of my factum -- in 37 which the courts have said, it's better to paint in 38 broad brush strokes rather than in fine strokes when 39 dealing with these rights. And the language right 40 cases are helpful because they are collective rights, 41 like aboriginal rights. They are new rights, like 42 aboriginal rights, and therefore caution is in order 43 before courts move to -- before courts decide more 44 than they -- caution is in order to -- so that courts 45 don't decide more than they need to. 46 And thirdly, the third distinction or similarity 47 about language rights is that they really do call upon 1668 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 other institutions of government other than the courts 2 to complete the -- in order to give meaning to the 3 rights, that courts alone cannot give meaning to 4 language rights. It requires the cooperation of 5 governments at all levels. Unless courts in Canada 6 want to engage in the kind of detailed supervision of 7 schools and hospitals and penal institutions that is 8 engaged in in the United States, and of course we are 9 not suggesting that at all. So in Canada the 10 tradition so far has been for the court to give rather 11 broad declarations as to what the language rights mean 12 leaving it for the governments to implement the right, 13 apply the declarations and implement the rights. 14 Let me -- before I read to you from paragraph 132, 15 I'd like to take you back to Tab 114, if I may, in the 16 reference back to the Societe case, because this goes 17 to the similarity between language rights and 18 aboriginal rights. Similarly I think it is warranted. 19 At Tab 114 at page 425 Mr. Justice Stratton says: 20 21 "While legal rights as well as language rights 22 belong to the category of fundamental rights, 23 it would constitute an error either to impart 24 the requirements of natural justice into 25 language rights or vice-versa, or to relate one 26 type of right to the other. Both types of 27 rights are conceptually different. To link 28 these two types of rights is to risk distorting 29 both rather than re-enforcing either. 30 Unlike language rights which are based on 31 political compromise, legal rights tend to be 32 seminal in nature, because there are rooted in 33 principle. Some of them, such as the one 34 expressed in Section 7 of the charter, are so 35 broad as to call for frequent judicial 36 determination. 37 Language rights, on the other hand, 38 although some of them have been enlarged and 39 incorporated into the charter, remain 40 nonetheless founded on political compromise. 41 This essential difference between the two 42 types of rights dictates a distinct judicial 43 approach with respect to each. More 44 particularly, the courts should pause before 45 they decide to act as instruments of change 46 with respect to language rights. This is not 47 to say that language rights provisions are cast 1669 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 in stone and should remain immune altogether 2 from judicial interpretation, but in my opinion 3 the court should approach them with more 4 restraint than they would in construing legal 5 rights." 6 7 Now, I'll come in a moment to the Mahe decision 8 where the court commented on that passage, but I just 9 want to pause there to say that aboriginal rights are 10 similar, not the same, but there are certain 11 similarities between aboriginal rights and language 12 rights, in the sense that -- as Chief Justice Dickson 13 says in Sparrow, they -- Section 35 is a culmination 14 of a long and difficult struggle in both the political 15 forum and the legal forum. And indeed, he said in 16 Sparrow that aboriginal rights for a long time had 17 been ignored in Canadian society, and I don't think 18 that anyone can deny that aboriginal rights are to 19 some extent the result of political compromise. The 20 very fact that they are rights which attempt to 21 reconcile the interest of aboriginal peoples, First 22 Nations, and provincial and Canadian governments, 23 indicates that they are to some extent the result of a 24 political compromise. So I think that that passage is 25 Societe is worth pointing out. 26 I said I would bring you to the Mahe decision 27 which comments on that. 28 TAGGART, J.A.: If we are going to get into that subject matter, 29 would it be appropriate to take five minutes? 3 0 MR. ARVAY: Certainly. 31 THE REGISTRAR: Order in court. Court stands adjourned. 32 33 AFTERNOON RECESS TAKEN 34 35 THE REGISTRAR: Order in court. 36 TAGGART, J.A.: Yes, Mr. Arvay. 37 MR. ARVAY: If you could turn to Tab 127, my lords, I think 38 that's in W-5. And there is two blank tabs, the 39 second blank tab -- no -- yes, two blank tabs. The 40 first blank tab is the Dixon case, you might even want 41 to write that in the tab. And the second black tab is 42 the Mahe case. 43 Again the Manitoba Language, Dixon and Mahe are 44 three very important decisions for the purpose of my 45 submission and so I reproduced them once in their 46 entirety in this book. And specifically pages 84 and 47 85. 1670 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 TAGGART, J.A.: Of Mahe? 2 MR. ARVAY: Of Mahe. 84 and 85. The court looks back at what 3 was said by Mr. Justice Beetz in the Societe case -- 4 quote that I read to you -- and said at the bottom of 5 page 84, last paragraph: 6 7 "I do not believe that these words support the 8 proposition that Section 23 should be given a 9 particularly narrow construction or that its 10 remedial --" 11 12 TAGGART, J.A.: Sorry, page again? 13 MR. ARVAY: Page 84. 14 TAGGART, J.A.: Yes. 15 MR. ARVAY: 16 "I don't believe the words should be given a 17 particularly narrow construction or that its 18 remedial purposes should be ignored. Beetz J. 19 makes is clear..." 20 21 And on the next page, page 85: 22 23 "Beetz J.'s warning that the courts should be 24 careful in interpreting language rights is a 25 sound one. Section 23 provides a perfect 26 example of why such caution is advisable. The 27 provision provides for a novel form of legal 28 right, quite different from the type of legal 29 rights which courts have traditionally dealt 30 with. Both its genesis and form are evidence 31 of the unusual nature of Section 23. Section 32 23 confers upon a group a right which places 33 positive obligations on government to alter or 34 develop major institutional structures. 35 Careful interpretation of such as section is 36 wise: However, this does not mean that the 37 court should not 'breathe life' into the 38 express purpose of the section or avoid 39 implementing the possibly novel remedies needed 40 to achieve that purpose." 41 42 I think that those words are directly applicable to 43 Section 35. 44 You can keep Mahe open. If you'll go back to the 45 factum, paragraph 135 where I left off, I have a quote 46 from Mahe which, if you want to go to it in the text, 47 is at page 106. Here again this is a case of where 1671 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 the court spoke in rather broad brush terms. At 2 paragraph starting at letter D on page 106 in Mahe, 3 the court says: 4 5 "For these reasons I think it best if the court 6 restricts itself in this appeal to making a 7 declaration in respect of the concrete rights 8 which are due to the minority language parents 9 in Edmonton under Section 23. Such a 10 declaration will ensure that the appellants' 11 rights are realized while, at the same time, 12 leaving the government with the flexibility 13 necessary to fashion a response which is suited 14 to the circumstances. As the Attorney General 15 for Ontario submits, the government should have 16 the widest possible discretion in selecting the 17 institutional means which by its Section 23 18 obligations are to be met; the courts should be 19 loath to interfere and impose what will be 20 necessarily procrustean standards, unless that 21 discretion is not exercised at all, or is 22 exercised in such a way as to deny a 23 constitutional right. Once the court has 24 declared what is required in Edmonton, then the 25 government can and must do whatever is 26 necessary to ensure that these appellants, and 27 other parents in their situation, receive what 28 they are due under Section 23. Section 23 of 29 the charter imposes on provincial legislatures 30 the positive obligation of enacting precise 31 legislative schemes providing for minority 32 language instruction and educational facilities 33 where numbers warrant. To date, the 34 legislature of Alberta has failed to discharge 35 that obligation. It must delay no longer in 36 putting into place the appropriate minority 37 language education scheme." 38 39 Now, the only thing that's different about Mahe 40 and other cases like it from this case is that in 41 those cases the court has gone as far to say that the 42 government has violated the citizen's constitutional 43 rights, but stops short of telling the government how 44 it can act consistent with the citizen's 45 constitutional rights. 46 In this case, the reason why this case is 47 different is that we are not asking the court -- 1672 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 indeed, we are asking the court not to say that the 2 government violated the appellants' constitutional 3 rights. We are asking the court to say that the 4 appellants have constitutional rights. We are not 5 asking the court to say that the government violated 6 those constitutional rights. 7 I -- I consider it important to point that out, 8 because that's why this case is different from Mahe 9 and it's different from the electoral boundaries case 10 of Dixon which I'll refer to in a moment, and it's 11 different from a number of cases. But nevertheless 12 it's -- the declaration is still consistent with the 13 judicial function, because you are declaring what 14 rights the aboriginal people have without further 15 determining the extent, if at all, to which those 16 rights had been violated. But it's probably a fairly 17 obvious proposition to say that if the aboriginal 18 people have -- if the appellants have aboriginal 19 rights throughout the portions of the territory that 20 they claim, then after 1982 at least there probably 21 will be some interferences with those rights and it 22 may be, I don't know, it may be that some 23 interferences are characterized as undue in the 24 language of Sparrow and it may or may not be that 25 those interferences can be justified. 26 So it says a great deal to say that the appellants 27 enjoy aboriginal rights to an undefined portion of the 28 territory, without conceding for a moment that those 29 rights have been violated by either the Provincial or 30 the Federal Government. But I wish to point out that 31 that's the only difference between this case and Mahe, 32 because in Mahe the court said that the plaintiff's 33 rights had been violated by the facilities that were 34 or were not given to school children in the Province 35 of Alberta, but it left it to the government to come 36 up with a scheme by way those rights could properly be 37 met. Because there is -- to borrow a phrase -- many 38 ways of skinning a constitutional cat. 39 In paragraph 136, from an article by Madam Justice 40 McLachlin in -- written by the learned justice, she 41 said, commenting on Mahe: 42 43 "The court was faced with a choice. Should it 44 itself draft legislation which would meet the 45 constitutional requirements of Section 23, in 46 effect filling the vacuum, or should it leave 47 the legislation temporarily in place, calling 1673 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 upon the legislature to do what it should have 2 done in the first place? The court chose the 3 second alternative. Mindful of a concern not 4 to infringe on legislative functions, the court 5 sets out factors which they deemed should be 6 taken into account and then issued a 7 declaration to the effect that the legislation 8 should be changed to take into account these 9 concerns. In short, the court instructed the 10 legislators to draft the appropriate law. The 11 use of a general declaration instead of 12 specific instructions, while it may be (and 13 was) criticized as offering insufficient 14 guidance to lower courts, had the merit of 15 allowing the government the flexibility to 16 fashion an appropriate response which may be 17 more sensitive and more appropriate to local 18 concerns than any which a court could fashion. 19 Once again we see a solution predicated on 20 recognition of the complementary roles of the 21 courts and legislatures and on the belief that 22 governments will in good faith comply with 23 court directives." 24 25 26 Now, in paragraph 137 is an example, the Marchand 27 case where the court actually said more than it 28 probably needed to say. And if I can just take you to 29 137 in Marchand. The trial judge found that the 30 plaintiff's rights under Section 23 of the charter 31 were violated. Mr. Justice Sirois made declarations 32 of the plaintiff's entitlement to rights, the 33 corresponding duties of the defendant -- and this is 34 important -- including a mandatory order or injunction 35 against the defendant school board to improve 36 facilities in a particular school. They told the 37 school board to improve the facilities in L'ecole 38 Secondaire Le Caron, so that it complied with the 39 standards of Section 23 of the charter. 40 What happened was that the --in a subsequent 41 motion the same judge held that a different remedy 42 which the school board -- or rather a government body 43 called FLEC, French Language Education Council, had 44 prescribed, which was simply moving the students to 45 another facility was good enough. So -- and he ended 46 up blessing that, saying that meets my concerns. 47 And that's an example how the negotiation process 1674 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 may itself shape rights and give content to rights. 2 It's not just courts who do that. Parties, 3 governments, are entitled to play a role in that. 4 Courts are the ultimate arbitor rights, but not the 5 sole player in the constitutional game. 6 And in paragraph 138 the Marchand case is 7 commented on by Professor Fairly as a example of where 8 negotiated demployment of governmental fiscal 9 resources and the capital resources of the Simcoe 10 Board were accepted and enforced by the court. 11 Paragraph 139 is the Dixon case. That was the 12 case where Madam Justice Dixon held that the 13 provincial electoral boundaries law contravened 14 Section 3 of the charter because it didn't provide for 15 sufficient portionality of the voting power. She said 16 that the law was in contravention of the charter, but 17 she left it for the legislature to fix the law. And I 18 think I should take you to the Dixon case. That's in 19 that same tab, 127, it's the first tab of 127. If you 20 turn first to page 294 at the bottom of that page, she 21 says. 22 23 "I agree with the Attorney General that it is 24 not the role of the courts to decide which 25 factors and considerations are to be applied to 26 each individual riding and with what degree of 27 relative weight. This task is within the 28 responsibilities of the legislature. However, 29 this court, if called upon, must examine the 30 results of the efforts of the legislature to 31 see whether in individual ridings the deviation 32 from the electoral quota can be justified." 33 34 And then likewise at page 311, she says at the 35 second paragraph: 36 37 "The second problem concerns the mechanics of 38 formulating a provision for electoral 39 districting which will satisfy the requirements 40 of the charter. The first step in this process 41 lies in the court's domain." 42 43 The first step. 44 45 "It is for the court to articulate an objective 46 and manageable standard by which the 47 legislature can be guided. 1675 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 2 While the decision is for the legislature, I 3 may be so bold as to suggest it may be aided by 4 the efforts of the Fisher Commission." 5 6 And there was already in existence a royal commission 7 that had considered it. Here the process is just 8 slightly different, the time frame is different. What 9 we have is the impending establishment of the Treaty 10 Commission, which will oversee and supervise 11 negotiations with aboriginal people, but I think what 12 this shows is sort of the hand and glove or the close 13 relationship, at least, that courts and other 14 institutions of government have in fashioning, giving 15 shape to constitutional rights. 16 Now, at page 312 she says: 17 18 "If the legislature acts to adopt a scheme 19 similar to that proposed in the Fisher 20 Commission report within the time specified by 21 the court for amendment of Section 19 of the 22 Constitution Act and Schedule 1, the court's 23 involvement will be at an end. I need not 24 enter on the speculative question of what might 25 happen if remedial legislation were not passed 26 with such time period as may be specified. I 27 confine myself to the general enjoinder that 28 just as the courts have a duty to measure the 29 constitutionality of legislative acts against 30 the charter guarantees, so they are under an 31 obligation to fashion effective remedies in 32 order to give true substance to these rights. 33 34 It is my conclusion that this court cannot 35 escape its constitutional obligation to review 36 the validity of Section 19 and Schedule 1 of 37 the Constitution Act, and must declare those 38 provisions to be contrary to the Charter of 39 Rights and Freedoms. Pending submissions on 40 what time period may reasonably be required to 41 remedy the legislation and the expiry of that 42 period, the legislation will stay provisionally 43 in place to avoid the constitutional crisis 44 which would occur should a precipitate election 45 be required. 46 47 I add that I am not seized of this matter. 1676 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 Submissions as to the appropriate period during 2 with the legislation remains valid and any 3 other matters arising from these reasons or the 4 case may be brought before any justice of the 5 Supreme Court." 6 7 And indeed that happened, it was brought back 8 before the Civil Liberties Association, was frustrated 9 the government wasn't moving fast enough and they went 10 back before Mr. Justice Meredith, and -- and he 11 carried on where Madam Justice McLachlin left off. 12 And that decision is referred to in my factum at 13 paragraph 173. 14 So in the Dixon case you see again strands of 15 authority for my submission, not directly on point 16 admittedly but pretty chose. Close enough to 17 demonstrate that what we are asking you to do is 18 consistent with principle. Broad declarations of 19 right leaving it for other institutions to fill in the 20 details, declaring a transaction period, not seized of 21 the matter. Dixon provides, in my submission, 22 comfortable authority for this court. 23 Now, I'm at 141 in my factum, and just before I 24 move to the transaction period I want you to make a 25 note that in Tab 141A of the reference book, there is 26 a case called R v Zelensky, 1978, 2 SCR 940. You 27 don't need to turn to it because when I turned it this 28 morning it didn't have the right page, but that case 29 is one of many cases for the proposition that courts 30 should not decide constitutional issues unless it's 31 necessary to do it. 32 Another authority while I'm thinking of it is Law 33 Society of Upper Canada in Skapinker, one of the very 34 first charter cases. 35 Now, heading C on page 58 of my factum, the 36 transaction period, this is where -- this is of course 37 the -- the course that was set by the Supreme Court of 38 Canada in the Manitoba Language case. That's one of 39 the first cases in which the courts ordered a 40 transition period. And in the Manitoba Language case, 41 which is probably familiar to everybody by now, the 42 transition period was allowed to enable the Manitoba 43 legislature to re-enact all of its laws in both 44 official languages, because as they were written in 45 only English the court said that all of the laws of 46 Manitoba were unconstitutional, and many other things 47 dire may flow from that. 1677 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 It's clear that the Manitoba Language case 2 presented a situation where a transition period was 3 necessary. I mean, the court there had to give effect 4 to the rule of law. If the transition period wasn't 5 ordered -- it had to say that the laws were 6 unconstitutional, because they were. It had to order 7 a transition period and effectively deem the laws 8 valid during that period, because otherwise there 9 might have been anarchy in Manitoba. But merely 10 because that was a situation that might be 11 characterized as being one where some -- where chaos 12 may have flowed if they didn't act, doesn't mean that 13 in order to order a transition period there has to be 14 that measure of concern. 15 What's interesting about Manitoba Language, my 16 lords, is that the courts did more there than I'm 17 asking you to do. The courts there deemed what is 18 clearly an unconstitutional law valid and effective 19 for a period of time, which meant that the source of 20 the law's validity was no longer the constitution as 21 it should be, but the judiciary. Now, that's, in my 22 submission, an exercise of judicial power and an 23 example of judicial activism, if I can use that not 24 very nice phrase, that is not commonly found by our 25 judiciary. What I'm -- 26 LAMBERT, J.A.: It's only found in the Supreme Court of Canada 27 because they are the only people where it can't be 28 said they are wrong. They do it and it's the law. 29 TAGGART, J.A.: Not because they are right, but because they are 30 final. 31 MR. ARVAY: I don't think I want to engage in this debate. 32 MR. HUTCHEON: What's your next point? 33 MR. ARVAY: What I am urging the court calls for much more 34 restraint. Similar innovation but more -- it's on the 35 restraint side rather than the activist side. I'm 36 saying to the court, don't decide that the law is -- 37 that there is a situation of unconstitutionality going 38 on in this province, don't decide that, decide that 39 the appellants have rights and stop there. That's a 40 course of restraint, not a course of activism. But 41 the principle of allowing a transition period is, in 42 our case, flows to some extent at least from the 43 Manitoba Language case. 44 Now, in that part of the factum, paragraphs 142 to 45 147, you'll see that transition periods are becoming 46 very fashionable in the Supreme Court of Canada. 47 We can move through my factum fairly quickly on 1678 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 this. The Brydges decision at paragraph 145, the 2 court proclaimed a 30-day transaction period in order 3 to allow police departments to respond to the 4 declaration that the right to counsel in Section 10(b) 5 included a right to be informed of the availability of 6 legal aid. 7 8 "This transition period is needed to enable the 9 police to properly discharge their new burden, 10 more specifically to take into account the 11 reality that police officers often use printed 12 cards from which they read the caution given to 13 detainees. In my view a period of 30 days from 14 the date of this judgment is sufficient time 15 for the police forces to react and to prepare 16 new cautions. I note, in passing, that the 17 imposition of a transition period is not 18 unusual. In Mills v The Queen, for example, I 19 stated that a transitional period was 20 appropriate in the context of an application of 21 the principles developed under Section 11(b) of 22 the charter. In addition, in reference re 23 Manitoba Language Rights, this court 24 established a period of temporary validity for 25 the acts of the Manitoba legislature in order 26 to allow for the translation, re-enactment, 27 printing, and publishing of previously 28 unilingual legislation." 29 30 Next paragraph, in the Swain case, that was a case 31 which said that the provisions dealing with the 32 detention of mentally ill was unconstitutional, 33 because of the risk of dangerous people acquitting on 34 the ground of insanity being released, otherwise 35 unconstitutional legislation should be given temporary 36 validity for six months and be subject to interim 37 guidelines provided by the court. 38 Next case, Bain, held that a provision of the 39 Criminal Code provided the Crown with 48 stand-asides 40 in jury selection violated Section 11(d) of the 41 charter and should be declared invalid. 42 Mr. Justice Cory said: 43 44 "The declaration of invalidity resolves all 45 future problems. However in order to avoid a 46 hiatus the declaration should be suspended for 47 a period of six months. This will provide an 1679 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 opportunity for parliament to remedy the 2 situation if it considers it appropriate to do 3 so. The suspended declaration does not leave 4 the defence without a remedy during the 5 interim. The accused may always attempt to 6 demonstrate there has been an abuse of the 7 stand-by provisions by the prosecution." 8 9 And I'll remind you again of the Schachter 10 decision, where there was a transition period to allow 11 parliament to consider its position as to what to do 12 with child care benefits, no emergency, it's -- the 13 only question before the court is whether there is a 14 good reason, a principle reason to invoke the -- this 15 idea of a transition period. 16 Now, in paragraph 148 and 149 I refer to some 17 American cases. Now, I'm far from urging upon this 18 court any modeling of what the U.S. courts are doing 19 in the constitution. Because there, rightly or 2 0 wrongly, the courts have become very much involved in 21 supervising what governments are to do in assuring 22 that they meet their constitutional obligations. They 23 issue structural injunctions to tell prison officials 24 what colour the walls should be in prisons and how 25 many toilets on the floor of a hospital. 26 I don't present those cases for that purpose. I 27 present them for, I guess, two purposes: One is to 28 tell you that in the United States at least the courts 29 are now exercising considerably more caution. I think 30 they see that by moving as fast as they did they 31 caused more problems than they solved. And so it's 32 that lesson that's being learned there that is useful 33 and instructive for our courts. And I think that fits 34 nicely with my main point here, is that the courts 35 should exercise restraint in devising a remedy. But 36 the other purpose of the -- particularly the articles 37 referred to in paragraph 150 of my factum, is to I 38 guess make the obvious point that public litigation is 39 different than private law litigation. And courts 40 should get comfortable in that reality and recognize 41 that what might work in the private litigation model 42 doesn't necessarily work in the public litigation 4 3 model. 44 I'd ask you to turn to the article at Tab 150 by 45 Professor Chayes, which is sort of a similar article 46 in this field. At page 1282 he talks about -- he 47 gives five reasons why, five ways of describing 1680 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 private litigation, civil adjudication. The 2 lawsuit -- page 1282: 3 4 "1. The lawsuit is bipolar. Litigation is 5 organized as a contest between two individuals 6 or at least two unitary interests, 7 diametrically opposed, to be decided on a 8 winner-takes-all basis. 9 10 2. Litigation is retrospective. The 11 controversy is about an identified set of 12 completed events, whether they occurred, and if 13 so, with what consequences for the legal 14 relations of the parties. 15 16 3. Right and remedy are interdependent. The 17 scope of relief is derived more or less 18 logically from the substantive violation under 19 the general theory that the plaintiff will get 20 compensation measured by the harm caused by the 21 defendant's breach of duty - in contract by 22 giving the plaintiff the money he would have 23 had absent the breach; in tort by paying the 24 value of the damage caused. 25 26 4. The lawsuit is a self-contained episode. 27 The impact of the judgment is confined to the 28 parties. If plaintiff prevails there is a 29 simple compensatory transfer, usually of money, 30 but occasionly the return of a thing or the 31 performance of a definite act. If defendant 32 prevails, a loss lies where it has fallen. In 33 either case, entry of judgment ends the court's 34 involvement. 35 36 5. The process is party-initiated and party 37 controlled. The case is organized and the 38 issues defined by exchanges between the 39 parties. Responsibility for fact development 40 is theirs. The trial judge is a neutral 41 arbiter of their interactions who decides 42 questions of law only if they are put in issue 43 by an appropriate move of a party." 44 45 And then if you move over to page 1302, he 46 provides what he calls "a morphology of public law 47 litigation." He says: 1681 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 2 "1. The scope of the lawsuit is not exogenously 3 given but is shaped primarily by the court and 4 parties. 5 6 2. The party structure is not rigidly 7 bilateral but sprawling and amorphous." 8 9 To wit. 10 11 "3. The fact inquiry is not historical and 12 adjudicative, but predictive and legislative. 13 14 4. Relief is not conceived as compensation for 15 past wrong in a form logically derived from the 16 substantive liability and confined in its 17 impact to the immediate parties; instead it is 18 forward-looking, fashioned ad hoc on flexible 19 and broadly remedial lines, often having 20 important consequences for many persons 21 including absentees. 22 23 5. The remedy is not imposed but negotiated. 24 25 6. The decree does not terminate judicial 26 involvement in the affair; its administration 27 requires the continuing participation of the 28 court. 29 30 7. The judge is not passive, his function 31 limited to analysis and statement of governing 32 legal rules; he is active, with responsibility 33 not only for credible fact evaluation but for 34 organizing and shaping the litigation to ensure 35 a just and viable outcome. 36 37 8. The subject matter of the lawsuit is not a 38 dispute between private individuals about 39 private rights, but a grievance about the 40 operation of public policy." 41 42 Now, without taking from that that you ought to do 43 therefore everything that happens in the United 44 States, I don't say that at all. I do say though that 45 the reality is that public litigation does have many 46 of these features and certainly this case has many of 47 these features, and therefore this case does call for 1682 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 innovative, creative remedy, that otherwise you 2 wouldn't even consider for a moment in a private law 3 case. 4 And as well in that tab is another interesting 5 article by Professor Sturm, "A Normative Theory on 6 Public Law Remedies. And if I could just ask you to 7 note at page 1357, her opening paragraph which is 8 useful. 9 And at paragraph 151 there is a reference to U.S. 10 and Washington. It is a passage from the Canadian Bar 11 Association where they say that they have been 12 impressed by the American judicial experience in 13 combining the power and authority of the court in 14 negotiations to resolve complex details. And they 15 refer to not only well-known desegregation in 16 environmental cases, but the U.S. and Washington Boldt 17 decision in resolving Indians treaty rights to fish in 18 the Pacific Northwest. And portions of that decision 19 are excerpted at Tab 151. Again we find a very 20 activist court there prescribing what should or 21 shouldn't be done in negotiation process. And I'm not 22 suggesting for a moment that you go that far, but it 23 just demonstrates how other courts have wrestled with 24 these difficult problems. 25 And in paragraph 152, another article from Madam 26 Justice McLachlin. She wrote two articles, very 27 similar articles, and they are both referred to in 28 paragraph 152. She says with respect to the Dixon 29 case -- if I could just read from my factum: 30 31 "The courts call to the government to correct 32 the defective legislation was heeded in Dixon, 33 the case with which I was concerned. The 34 government moved to introduce legislation in 35 conformity with the charter and the legislation 36 was promptly passed. The case illustrates how 37 the court and the legislature, each acting 38 within the bounds of its proper responsibility, 39 can efficaciously resolve a difficult issue." 40 41 And in paragraph 154 again is not directly on 42 point but somewhat helpful, the case is the Osborne, 43 Seaboyer and Hunter and other cases dealing with 44 reading-down doctrine, the constitution exemptions 45 that I already read to you. The court struggles with 46 sort of just finding that right place, drawing the 47 line in the right place to balance its duty to uphold 1683 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 the constitution without intruding too far into the 2 legislative ground. 3 And at Tab 155A I have two cases that you should 4 note. You might want to note it in the factum. 155A 5 has the Erwin Toy case and the McKinney case. Erwin 6 Toy is a case involving a commercial expression 7 advertising and McKinney is the mandatory retirement 8 case. And without taking you to those cases I'll just 9 tell you the page numbers that you might want to make 10 a note of on your factum. For Erwin Toy would be at 11 page 993 and 994. And McKinney would be at page 669. 12 Both of those cases are included just to 13 illustrate the concerns that the courts have when 14 interpreting Section 1 of the charter. Canadian 15 courts have come quite a distance from where they 16 started in early days of charter interpretation. We 17 are still in the early days of charter interpretation, 18 but clearly the courts in the last number of years 19 have seemed to have a greater recognition of the 20 difficulties there are in deciding whether or not 21 legislation meets Section 1 tests or not, and the 22 courts are very sensitive about substituting their 23 judgment on what is a reasonable means of infringing a 24 charter right for that in the legislature. Clearly 25 the courts have the ultimate say, but in cases like 26 Erwin Toy and McKinney they are expressing greater 27 deference, I say, to the legislative process. That's 28 the only reason that those cases are there, because 29 just -- in Section 35 there is, as I say, a Section 1 30 kind of analysis that has to be applied. And in a 31 case of a generalized claim like this case, it would 32 be very, very difficult for the court to ever attempt 33 to reconcile on the ground whether or not provincial 34 laws and government action unduly interfere with 35 aboriginal rights and if so whether there's been a 36 justification. So at least at the outset the courts 37 should be -- allow the government to react and provide 38 a solution to the problem, rather than having the 39 court do so first. 40 And at paragraph 159 I simply say that we have no 41 factual basis to determine the extent of a 42 transitional period during which the implementation of 43 the appellants rights should be left to a consensual 44 process. The transition period should be long enough 45 to allow meaningful negotiation of the content and 46 consequences of the appellants aboriginal rights, but 47 for a limited period in order to allow for the 1684 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 ultimate judicial enforcement of the appellants 2 rights. The respondents suggest that an appropriate 3 time period might be two years. 4 Now, the next part of the factum deals with 5 retention of jurisdiction. I don't think I need to 6 spend a lot of time on that. Essentially the reason 7 why we say that you must retain jurisdiction is in 8 order to meet your duty as the court, it seemed to us 9 that if on the one hand we're saying only give a 10 partial declaration, it's encumbent upon us to say 11 therefore you must retain jurisdiction to complete the 12 task if the parties come back before you and ask you 13 to do so. The court could only walk away from the 14 matter if in fact it has finished its task, and if the 15 court gives effect to our submissions then the court 16 has not finished its task or may not have finished its 17 task. It may be that at the end of the two-year 18 period, and hopefully it would be at the end of the 19 two-year period, the parties come back to the court 20 and say, thanks but no thanks. 21 In paragraph 162 I refer you to the Supreme Court 22 of Canada decision in Morin, which was one of these 23 Askov II, which was the unreasonable delay case, in 24 which they said there a transition period was not 25 appropriate because it would have constituted a 26 moratorium on the individual's constitutional rights. 27 And there the government was pleading institutional 28 resources as a reason for delay. 29 That case, in my submission, is not in any way -- 30 does not create any obstacle for what we are asking 31 this court to do. We are not suggesting that during 32 the period the appellants rights will be defeated or 33 claims were violated or claims will be defeated. 34 Because at this point all that the court can 35 meaningful do is determine that the appellants do have 36 aboriginal rights, not that the government has 37 violated their rights. 38 I obviously feel obligated to bring to your 39 attention the decision of this court in Delgamuukw 40 which is referred to at page 166, which was decided 41 December 5 -- that should say December 5 in the 42 factum, 1986, not March 5. 43 TAGGART, J.A.: The date is incorrect, did you say? 44 MR. ARVAY: The date is incorrect. It should say December 5, 45 1986. In that case the government -- it's in this 46 case the government applied to strike a paragraph in 47 the plaintiff's claim. It's at page 6 of the 1685 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 decision, at Tab 166, bottom of page 6, it says: 2 3 "In the appeal the plaintiffs seek to amend 4 their Statement of Claim by adding these two 5 paragraphs to the prayer for relief. The 6 declaration that the plaintiffs have a 7 constitutional right to negotiate a land claims 8 agreement with respect to the territory with 9 the defendants, and the defendants are 10 constitutionally obligated to negotiate with 11 the plaintiffs a settlement of the relationship 12 between the plaintiffs and the defendants based 13 on the plaintiff's rights. 14 A direction that the defendants meet with 15 the plaintiffs forthwith to negotiate a good- 16 faith settlement of the relationship between 17 the plaintiffs and the defendants based on the 18 plaintiffs rights as set out in the declaration 19 17. Before the judge in chambers paragraph 7 20 was in a different form and made no reference 21 to an obligation of the defendants to negotiate 22 with the plaintiffs. As far as an agreement 23 that we should consider paragraph seven in the 24 form as set out. I note that paragraph seven 25 looks to the period of time following the 2 6 judgment. I notice while Mr. Rush who spoke as 27 counsel for the plaintiffs in this part of the 28 appeal acknowledged that paragraph 7 was based 29 upon the success by the plaintiffs in obtaining 30 one or more of the six declarations set out in 31 the prayer for relief. The wide scope of those 32 declarations is illustrated by the first one. 33 That reads: 34 35 1. A declaration that the plaintiffs have a 36 right to ownership of the jurisdiction over the 37 territory. 38 39 All of the declarations that are sought flow 40 from number one. If the plaintiff is 41 successful then it would follow without more 42 that they would have the right to negotiate a 43 land claims agreement with respect to the 44 territory. 45 46 I can find no jurisdiction in law and in my 47 view the Supreme Court has no jurisdiction to 1686 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 declare that the defendants are obligated to 2 negotiate. No one doubts however that that 3 must of necessity be done. Still as the 4 Supreme Court has the power to direct the 5 defendants to meet with the plaintiffs and 6 negotiate in good faith as sought in paragraph 7 15, prayer for relief. 8 9 If the plaintiffs are successful, the trial 10 judge has available a variety of ways in which 11 to implement the judgment, but I am satisfied 12 that declarations sought in paragraph seven and 13 directions sought in paragraph 15 are not among 14 them." 15 16 Now, we say, my lords, with respect to this case 17 that we are not asking the court to issue any order 18 that the parties have a duty to negotiate. In light 19 of the province's new position and its -- and its 20 willingness to negotiate, we ask the court to invoke 21 its discretionary remedial power to decline to provide 22 full -- I say in paragraph 166 a full or final 23 definition of the scope and consequences of the 24 appellants' right at this time. I think that's right. 25 Certainly to decline to provide a full definition of 26 the scope and consequence of the appellants' rights at 27 this time, as well as the final definition of their -- 28 of the scope and consequences. But what you are being 29 asked to decide is final. I want to make that clear, 30 it's not interim, it is final. 31 In paragraph 167 I deal with what happens during 32 the interim period and I think I've already addressed 33 that this morning with my lord, Mr. Justice 34 Macfarlane. And I note in paragraph 168 through to 35 169, 170, that what's happened in the Supreme Court of 36 Canada in the Manitoba Language case, the court has 37 now heard a number of different motions as a result of 38 its initial decision to order the transition period. 39 And each time the court has met there's been a 40 different panel or some members of the panel have been 41 different, indicating that that this panel, in support 42 of my submission that this panel is not necessarily 43 seized of the issues. 44 The rest of this part of the factum simply 45 provides other examples where the court has retained 46 jurisdiction and I leave it to you to read. 47 Paragraph 176 there is an interesting quote from 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 1687 Submissions by Mr. Arvay Submissions by Mr. Arvay Professor Sharp's text on injunctions and specific performance where he relates the court's undertaking and on-going role in private law litigation, which is in principle similar to the kind of role that courts engage in public law litigation and what we are asking the court to do. He says in paragraph one -- I see the time. My lord, I'm very, very close to finishing, but rather than me rush through I would be obliged if I could have probably no more than half an hour at the opening of the next day's section simply to complete my submissions. THE COURT: All right, thank you. We will adjourn now to Monday week, we'll hear you. LAMBERT, J.A.: Just before we go, I raised earlier on today the question of what happens if there is a different group of judges here and you've referred to the Supreme Court of Canada cases where the group has changed, but the situation in the Supreme Court of Canada is very different. They can certainly agree among themselves not to reverse each other and to do it progressively and they can do that in the back room, but this court might have a completely different panel, we are such a big court in numbers, that it would be appropriate to think of a judicial committee working in that way, what's more, the law can change in other provinces and as declared by the Supreme Court of Canada, and the new group will come in, whether they want to or not, may be obliged to change our views. So I'm still interested on the question of how you conceive that our orders made -- the ones you want us to make, could be final rather than merely interlocutory and how that the panel would be bound to continue as if our decisions were locked in stone, when it doesn't seem to me that they would be. I've glanced through the rest of your factum and it didn't see seem to me that those specific points were dealt with and they are certainly continuing to trouble me. MR. ARVAY: I'll address them at the resumption of this hearing. MR. MACAULAY: Before we adjourn can I ask that a time be fixed by which the appellants deliver to the other parties the material concerning the nature of the relief sought? TAGGART, LAMBERT, TAGGART, J.A. J.A. J.A. I thought we had fixed that. Had we not? Yes, I — Close of the registry, I believe, next Friday. Am I not correct in that? 1688 Submissions by Mr. Arvay Submissions by Mr. Arvay 1 MR. JACKSON: That's our understanding, my lord. 2 TAGGART, J.A.: All right. 3 THE REGISTRAR: Order in court. Court is adjourned until ten 4 o'clock, Monday, June the 15th. 5 6 PROCEEDINGS ADJOURNED 4:05 P.M. 7 8 I hereby certify the foregoing to 9 be a true and accurate transcript 10 of the proceedings herein to the 11 best of my skill and ability. 12 13 B.M. March, 14 Official Reporter 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
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
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[British Columbia Court of Appeal 1992-06-05]
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