CONTENTdm
Delgamuukw Trial Transcripts
British Columbia. Court of Appeal
British Columbia. Supreme Court
application/pdf
Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 CORAM: VANCOUVER B.C. May 5, 1992. Taggart, Lambert, Hutcheon, Macfarlane, Wallace. THE REGISTRAR: In the Court of Appeal for British Columbia, Tuesday, May the 5, 1992. In the matter of Delgamuukw versus Her Majesty the Queen at bar, my lords. TAGGART, J.A.: Yes Mr. Rush. MR. RUSH: Thank you, my lord. Before I continue with the Factum, there were four matters that I wanted to raise with the Court arising out of questions placed to me yesterday. The first is in relation to the 1910 Wet'suwet'en map given to Reverend McDougall and passed on to the Department of Indian Affairs. I wanted to draw to your lordships' attention that the map was not referred to by the trial judge and McDougall was referred to by the trial judge but mistakenly. In fact, the person referred to by the trial judge was surveyor Ashtown Green. Nothing much turns on that. I also want to draw to your lordships' attention that the trial judge made no mention as well in his judgment of the concurrent report that Reverend McDougall filed with the Department of Indian Affairs, and this is Exhibit 1035-334, and I have provided your lordships with a copy to be inserted at paragraph 1-100. And I want to draw to your attention that in that particular report, it's a photostatic copy that looks like this, my lords, which I think has been possibly placed in your volumes reference book R-4. HUTCHEON, J.A.: What number would we find it? MR. RUSH: Yes. 1-100 at the end of the references in that tab and it's at page three of that and it's difficult to read, my lords, and I wanted to help you with this, but it is of some importance in terms of your lordship's Mr. Justice Taggart's question of me yesterday. At (a) Mr. McDougall reports following his inquiry of the Wet'suwet'en and the Gitksan, he says: The Indian people of British Columbia have now fully awakened to the knowledge that their vested right to the ownership and long centuries of occupancy of the greater portion of the Province of British Columbia have never been dealt with by either the British or Canadian Governments. That by British, Sovereign, Royal, Proclamation and by Canadian 90 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Government precedent, action, such ownership and title has been conceded and respected and many treatise have been made by these Governments with Indian peoples like themselves whereby the Indian title (for consideration stipulated) was relinquished on their side and thus righteously required on the part of the Governments." And then he carries on. "I would respectfully submit:- (a) That by mutual endeavor such arrangements and agreement be sought after by the Provincial and Federal Governments interested so that they decide upon a course which will secure the extinguishment of the Indian title to the lands in British Columbia." And that latter portion -- LAMBERT, J.A.: Mr. Rush, where it's handwriting and it's very difficult to read, would you be good enough to give us a typescript of it. I can't read this. Without you reading it aloud to me I couldn't have made it out. I wonder if you could at some time at your convenience give us a typescript of those parts of this -- MR. RUSH: Yes. LAMBERT, J.A.: — that you think we will find helpful. MR. RUSH: I will do that, my lord, and I will also tell you now that this passage is reproduced in our Factum at paragraph 364 at page 172. LAMBERT, J.A.: All right. TAGGART, J.A.: 364 paragraph — MR. RUSH: Paragraph 364 of tab 4 at page 172. Now, my lords, that deals with the first issue. The second issue arises out of a question directed to me by his lordship Mr. Justice Hutcheon in which I misspoke. It is referred to the law involving clan exogamy and it's reference to your -- TAGGART, J.A.: I am sorry, involving — MR. RUSH: Clan exogamy. TAGGART, J.A.: Yes. Right. MR. RUSH: And your lordship asked about whether this was recognized as a law and to what extent it was followed. And my memory failed me yesterday, and what I've handed to up to your lordships to be inserted in 1-64 is a reference to the evidence of Ms. Harris who 91 Submissions by Mr. Rush 1 was the genealogist who addressed this subject 2 directly, and I think -- 3 HUTCHEON, J.A.: My question was as to whether the trial 4 judge -- 5 MR. RUSH: He did not refer to this evidence. 6 HUTCHEON, J.A.: No. But he did I found at page 372 of his 7 trial judgment that he makes a finding without giving 8 particulars about it. If you see under (c) on page 9 372: "I have no difficulty finding that," and then he 10 talks about and marriage, and that's an overall 11 finding without specifics, but I took it that meant 12 that he was accepting the evidence that you referred 13 to and also the principle that there was no marrying 14 within the clan. 15 MR. RUSH: Yes, my lord. 16 HUTCHEON, J.A.: That seems to be a finding — 17 MR. RUSH: Yes, I agree with that. 18 HUTCHEON, J.A.: It speaks of an organized — 19 MR. RUSH: Yes, it does. And I suppose, although it's not 20 indicated in that passage, that the evidence that his 21 lordship may have had in mind is the passage that 22 comes from Ms. Harris' report, which I handed up to 23 your lordships, and it is to be inserted at 1-64 in 24 Volume 2. And for your lordships' reference I would 25 ask you to look at line 37 of that extract, and Ms. 26 Harris is asked how many marriages approximately are 27 recorded on the genealogies and she says 1550. And 28 then on the next page her opinion is referred to at 29 the top of the page and she's asked if that is her 30 opinion and says yes, and then carries on at line 13: 31 32 "The Gitksan will tell you and the genealogies 33 will demonstrate that one should not marry into 34 his own clan. He can marry anyone outside of 35 his own clan but not within his own clan. 36 37 And the question is put: 38 39 "How many -- did you estimate or calculate on 40 the Exhibit 853 genealogies how many gaats --" 41 42 that is marriages in violation of the law, 43 44 "-- marriages if any are shown there?" 45 46 And she says: 47 92 Submissions by Mr. Rush 1 "Yes. I believe there were 58 at the time that 2 the report was written. 3 Q At the time of the genealogies? 4 A At the time the report was written." 5 6 And my estimate of the percentage, my lord, is that 7 that is some 96 per cent of the marriages among the 8 Gitksan shown on the genealogies as of 1987 were 9 marriages in compliance with the law of clan exogamy. 10 LAMBERT, J.A.: And the 70 per cent figure you gave us yesterday 11 was really what you would have expected if there had 12 been no law at all according to the evidence on the 13 following page. So -- and that seems much more 14 comprehensible. That is -- 15 MR. RUSH: Yes. 16 LAMBERT, J.A.: -- there are only three or four per cent are 17 exceptions, but if you had let nature entirely take 18 its course without any law at all you could have 19 expected that the figure of 30 per cent would have 20 been gaats marriages. 21 MR. RUSH: Yes. I accept your lordship's comments, although I 22 must say that my answer was directed to Mr. Justice 23 Hutcheon and was in error. My recollection was simply 24 wrong. 25 LAMBERT, J.A.: Yes. I was certainly puzzled by the 70 per cent 26 figure that you gave us yesterday. 27 MR. RUSH: Yes. And two further housekeeping matters, my lords, 28 and I have already dealt with this, these two matters 29 with the clerks, and that is that I indicated that I 30 would provide the additional page to Joan Ryan's 31 evidence that spilled off the end of one page and onto 32 the other, and I have provided that and it's in your 33 Volumes at 1-86 and I also indicated that I would 34 provide a typescript of one of Mr. William Brown's 35 journals, and that's at 1-116 and I have done that as 36 well. 37 Now, I'd like to take you to the paragraphs where 38 I left off yesterday at 1-158 or 158 of our Factum. 39 And I was submitting to your lordship on the 40 dispossession of the Wet'suwet'en from their lands and 41 I had directed your attention to the references at 42 1-158 and I had read from a passage from James Yami 43 which is the first reference in sequence. I indicated 44 to your lordships yesterday that this evidence was 45 passed on to the Royal Commission in 1913. In fact, I 46 misspoke there. It was passed on to an inquiry 47 conducted by Messrs. Vowell and Stewart in 1909 some 93 Submissions by Mr. Rush 1 four years earlier. An inquiry conducted under the 2 direction of the Department of Indian Affairs in the 3 upper Skeena River agency. And that's the evidence to 4 which Mr. Yami provided and the persons to whom he 5 gave it. But I'd like to take you as well to the 6 bottom of the second page after James Yami's comments 7 and I direct your attention in that reference to what 8 was said by Francis Lake John and he says: 9 10 "We have the greatest respect for authority and 11 hope that our words be taken to Ottawa. We now 12 will speak of our hunting grounds. The clashes 13 we have with the whites are many." 14 15 And then on the next page, page three, running down to 16 the fourth full paragraph: 17 18 "Lame Michel had a place at Lyetate" 19 20 which was called the cross-roads and that's upriver on 21 the Bulkley from Moricetown. 22 23 "Now, it is taken from him and he is staked by 24 a white man. In other ways he has lost about 25 $216.00 in buildings with his brother Nazelle." 26 27 And then further down, my lords: 28 29 "Peter's place on Sananoos Lake; the cabins 30 here were burned by some whites." 31 32 And following that: 33 34 "Isaac's place on Bulkley lake. One day Isaac 35 went away leaving his family at home. A white 36 man (Billy Clark) set the place afire in the 37 bush, whilst Isaac's family was in the cabin 38 near by. Billy Clark is employed on the 39 telegraph line about 100 miles south of here." 40 41 Now, I also referred your lordships to the comments 42 made by Mr. Brody in his report and he makes reference 43 to some of these comments that were made to Stewart 44 and Vowell in 1909, and I'm going to just ask you to 45 pass over the references in Mr. Brody's report and ask 46 you to go to the fourth reference in sequence and that 47 is to Johnny David's testimony. And, my lord, I'd ask 94 Submissions by Mr. Rush 1 you to refer to page 10/11. Mr. David was 2 commissioned. Beginning at line 14: 3 4 "Q Can you tell me what your father did on 5 that land? 6 A He did a lot of trapping. He did some 7 haying and I personally know where all his 8 traps were. 9 Q Now, did you grow up on the area where he 10 was haying? 11 A Yes. I was brought in the area where he 12 did his haying and I know all the areas 13 where he did his trapping. 14 Q Did he have a house or farm there? 15 A In the area of north Bulkley my father had 16 a big smoke house and when he died the 17 white people burnt it down and they kicked 18 me off the land. 19 Q Can you tell us how old you were when that 20 happened, approximately? 21 A My dad died in 1908 and must have been 22 around 30 or 40, and I got a letter from 23 Mr. Loring, he was the Indian agent, who 24 was the Indian agent at Hagwilgate. I 25 received a letter from him telling me to 26 get off the land and he was going to give 27 me some acreage in Hagwilgate which he 2 8 never did. 29 Q Do you still have that letter? 30 A No I don't have it any more. The area 31 around the present ballpark in in 32 Hagwilgate, he had promised me 160 acres 33 and I helped survey that land. I asked Mr. 34 Loring if he was going to give me that 160 35 acres in Hagwilgate and he said to wait a 36 while. He said the land commissioner from 37 Ottawa was coming and that they would give 38 you the 160 acres in Hagwilgate. I was 39 never given the land. The land 40 commissioners never came and Mr. Loring 41 lied to me. About two years later Round 42 Lake Tommy was given a letter from Mr. 43 Loring where he was kicked off his land and 44 Round Lake Tommy was given some property 45 just next to the community hall. 46 Q In Moricetown?" 47 95 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Round Lake Tommy was given a Wet'suwet'en chief's name. "THE INTERPRETER: He's pointing to the area down here which is the area near the community hall. MR. GRANT: For the record, that's in Moricetown." And over to the next page: "THE WITNESS: Round Lake Tommy, he was very good man, worked hard, and when he was kicked off his land some of the non-Indian people took Roynd Lake Tommy to an area east of Houston where he was given a small portion of land. The non-Indian people were angry at Mr. Loring for treating Round Lake Tommy in a deceiving manner. MR. GRANT: Q Where was Round Lake Tommy's land when he was thrown off? A Round Lake area where the present community hall is situated is where Round Lake Tommy had his home. Q Which community hall? THE INTERPRETER: Round Round Lake community hall. MR. GRANT: Okay. THE WITNESS: Round Lake Tommy's father died in Round Lake and he is buried not too far away from the area I just described." And he carried on:" "A He even -- Round Lake Tommy's father was buried on his land. Mr. Loring still kicked him off his land similar to the way he kicked me off my land. Q Did you ever go back to your father's land to see what had happened? A Yes, I have been back to the -- to North Bulkley, I was there with you guys." And then Mr. Grant carries on at 34: "Q When did you first go back there after you got the letter from Mr. Loring? A I went back immediately because I was doing my trapping in that area. 96 Submissions by Mr. Rush 1 Q What had happened when you first went back 2 there? 3 A They never talked to me or anything about 4 the territory. They knew I was trapping on 5 the territory. It was only the cleared 6 farmland that was taken from my father. 7 Q When you back there to trap, was there 8 somebody living on that cleared farmland? 9 A When I went back Mr. McGuinness was living 10 on the property that my dad had cleared." 11 12 Now, my lords, I'd like to take you to the next 13 reference and I won't read from this one, but I direct 14 your attention to 5-16 and ask you to note lines one 15 through 22. It's Mr. Johnny David picked up again on 16 the same information, but I do ask you to go to yet 17 the next reference which is Exhibit 74E 5-34. Again, 18 it's Mr. David discussing the dispossession of the 19 Wet'suwet'en. It's Exhibit 74-E beginning 5-34. It's 20 approximately the fourth reference along the line. 21 Middle of the page, my lords, at line 26, he's 22 referring to another Wet'suwet'en, Jean Baptiste. And 23 he's asked by Mr. Grant: 24 25 "Q You referred earlier that Jean Baptiste was 26 troubled by the white people; was he 27 Wet'suwet'en? 28 A Yes. 2 9 Q Can you tell us what you know about what 30 happened to Jean Baptiste and his land? 31 A Mr. Baptiste had about 160 to 300 acres and 32 he had set up a farm, had cows and horses, 33 and the Indian Agent asked him to move off 34 the land but he defied that order and 35 stayed on the land. 36 Q What happened when he defied that order? 37 A He kept resisting the government and they 38 asked him to remove himself from the land. 39 He refused and the government got their own 4 0 lawyers to try and remove him from his 41 land. The Indian Agent had also asked him 42 to leave the land he was on. He refused, 43 he stay on there. Kept growing hay for his 44 cattle. 45 The people from the government told 46 him that he was to leave the land, he 47 refused again, so that they told him to go 97 Submissions by Mr. Rush 1 somewhere and he dressed and he got ready. 2 He had two race horses and he got the 3 fastest one and saddled it up, and he had 4 two revolvers and he stuck them on his 5 sides. 6 There were people who were sent to 7 pick him up, were all lined up, and he came 8 by on his horse and as he neared them he 9 jumped off his horse, pulled his revolver 10 out and stuck to the head of one of the 11 people and asked him if he wanted them 12 both. 13 The people who were sent to pick him 14 up talked to him, told him to get off the 15 land. The Indian Agent told him to get off 16 the land but he refused. When he refused 17 they finally gave in and made that land a 18 Reserve. 19 Q Who finally gave in? 2 0 A It was the Indian Agent who made the land 21 into the Reserve. 22 Q Do you know where that land is? 23 A Yes, I know. It's on the road on the way 24 to Babine on the bottom of the hill. 25 Q Is it on the road known as Burnt Cabin 2 6 Road? 27 A Yes, that's how the white people fooled 28 around with us. 29 Q Is that land that is now known as the Jean 30 Baptiste Indian Reserve? 31 A Yes. 32 Q Go ahead if you have something to say? 33 A The way the people have threatened Jean 34 Baptiste, that is the same way other white 35 people have threatened our Indian people. 36 The same is done regarding our trap lines, 37 the white people have been taking them." 38 39 And in English "that's all." 40 And then the next reference, my lords, earlier in 41 the testimony that was presented before Stewart and 42 Vowell, reference was made to Lame Michel and Johnny 43 David also testified about Lame Michel and I ask you 44 to -- I draw your attention to the side line portion 45 at the next reference, 74G at 7-59 where he explains 4 6 what he remembered that happened to Lame Arthur 47 Michel. And then I'd ask you to pass over to page 98 Submissions by Mr. Rush 1 7-61 of this reference and this is in 2 cross-examination and Mr. Milne acting for the 3 Province asked the question of Mr. David: 4 5 "Q What did the Wet'suwet'en do in 6 circumstances when they were asked to 7 leave? Was there any attempt by them to go 8 before the men who spoke for the white man 9 and ask them not to remove people from the 10 land? 11 A At that time most white people didn't like 12 Indians and when they spoke up against the 13 land they were threatened to be taken to 14 jail and they would leave, and the white 15 people would take over the land, and it is 16 still the same way today. The white people 17 still don't like the Indians." 18 19 And then the question is asked: 20 21 " Other than Sylvester Williams' grandfather 22 whom you mentioned, do you recall anybody 23 else, any other Wet'suwet'en who spoke out 24 against the white people taking their 25 lands? 26 A I can't remember anyone else. 27 Q Was the taking of lands that Wet'suwet'en 28 were living on discussed at feasts that you 29 had? 30 THE INTERPRETER: You mean the lands that they 31 were... 32 Q The lands that were being taken by anyone, 33 this Van Happy fellow or whites generally, 34 was that a problem that was discussed at 35 the feasts to your knowledge? 36 A This problem was discussed at feasts, and 37 the white people didn't have respect for 38 the Indian people. They would threaten 39 them, if they spoke up against people about 40 the land, and our people were afraid of the 41 white man's laws." 42 43 And finally, my lords, I direct you to the passage 44 of the evidence given by Bazil Michell, also an 45 elderly chief of the Wet'suwet'en, which is referenced 46 in paragraph 159 of our Factum. He was asked what he 47 thought when his family was forced to leave Barrett 99 Submissions by Mr. Rush 1 Lake after his family home was burned and Bazil 2 Michell said this, and it begins at line 39: 3 4 "Even though we were young, we were really hurt 5 by what was done to us. Our people had cleared 6 the land and white people just moved in and 7 chased us off the land. We weren't very happy 8 about it. The white people that worked for the 9 government just went home after we were chased 10 off our land and we were left to die because we 11 had to live in tents and in sixty below 12 weather. It wasn't right what they did to us." 13 14 Now, my lords, at 160 I do direct your attention 15 to the McKenna-McBride Royal Commission which 16 commenced its hearings in 1913 and the chiefs of the 17 Gitksan told the commissioners that they wanted their 18 aboriginal lands and rights respected. They were 19 ignored. And William Holland, Chief Haalus, father of 20 Mary McKenzie, the first witness at this trial, told 21 the commissioners at their hearing in Gitanmax, and I 22 want to read, my lords. I don't think the text in our 23 Factum does justice to the evidence. I'd like to ask 24 you to turn to 1-160, and this is Robert Galois, Dr. 25 Galois who has contextualized the Royal Commission and 26 he refers to this evidence. I direct you to 16590, 27 the first page, to line 13, where Dr. Galois said the 28 "Royal Commission on Indian Affairs for the Province 29 of B.C. Babine Agency Contents of Evidence" is 30 referring to the exhibit. 31 32 " The first thing I have to note, my lord, is 33 that the Babine Agency transcripts at least 34 of the Royal Commission were produced 35 between April 17th and July 13th, 1915, and 36 your lordship has said that we're not 37 conducting a royal commission, but it 38 appears that the royal commissions can do 39 it faster the. 40 First of all, Dr. Galois, could I ask 41 you to explain, if you know, how the 42 McKenna-McBride Commission conducted its 43 hearings? 44 A Over a period of some two, three years the 45 commissioners travelled throughout the 46 Province of British Columbia conducting 47 meetings with individual Indian bands, as 100 Submissions by Mr. Rush 1 they described them, so I think they 2 achieved if not 100 per cent coverage at 3 least very substantial coverage of the 4 Indian population of British Columbia." 5 6 And then Dr. Galois indicates that he's read the 7 hearings, and I ask you to turn to the next page, my 8 lords. And he is now citing evidence of testimony 9 given at Gitanmax and in the middle of the page at 10 line 21: 11 12 "And let me ask you to turn over the page, 13 and at the top seven lines down there is a 14 person identified as Holland, and he's 15 recorded as saying: 16 17 'You heard what the Chief said a 18 while ago - We don't want no Reserve 19 at all - we want to get our own land 20 back. You want to ask us questions 21 which are not in our petition at all. 22 We did not sign our petition for a 23 reserve at all - we signed it for our 2 4 own land.'" 25 26 And then skipping down eight lines, he's reading from 27 the transcript of the commission hearings: 28 29 "'It is the wish here that we get the 30 petition settled. I guess all you 31 gentlemen misunderstand our 32 petition - you think we sent our 33 petition in for a reserve, but that 34 is not right. We did not send in our 35 petition for a reserve, larger or 36 smaller. We did not sign our 37 petition for that at all.'" 38 39 And then over at page four in the middle of the page 40 the heading says "The Chairman addresses the assembled 41 Indians." Now, this would be the chairman of the 42 commission. 43 44 "'We quite understand the view that you 45 take - We think, though, that you have made 46 a great mistake, because if we were in a 47 position to give the Indians here more 101 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 reserves that would not hurt them in the claim that the Indians are making - If we gave them an additional 1,000 acres for their reserve it would not hurt them in still holding to the claim that they have." And then the next line, the name Holland appears at the bottom: "We are not mistaken when we ask for our own. We are born citizens in this country - we were born in this place - we were born here and we own this land and we want to get it back." And then the chairman says: "We are not disputing the fact that you own this land; only they are two different matters altogether." WALLACE, J.A.: Mr. Willms said that is not "disputing." It's a matter of "discussing." MR. RUSH: Excuse me? WALLACE, J.A.: Mr. Willms said: "My lord, it is crossed out, and it says 'discussing.'" MR. RUSH: Yes. And Mr. — WALLACE, J.A.: "Crossed out there, and it's 'discussing.' Mr. Adams said: "I have no problem with that." MR. RUSH: Yes. Yes. Quite right, my lord. LAMBERT, J.A.: But that's not a reference to what the chairman actually said, I suppose. What he actually said, I suppose, is we are not disputing the fact that you own this land, but what he means by that is not that they are recognizing or conceding that they own the land. What he means by disputing is discussing in the old fashion way that they used at that time. MR. RUSH: It was very clear before the Royal Commission, my lords, that the question of title was not to be dealt with by the Royal Commission and that's what this reference is about. That was to be severed off and to have been dealt with by a proposed Court action which never bore fruit. LAMBERT, J.A.: Yes. MR. RUSH: But what the chairman is saying here is that we are only talking about the question of reserves which he distinguishes from the issue of title. 102 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 TAGGART, MR. RUSH TAGGART, MR. RUSH MACFARLANE, J.A.: But I understand from reading this transcript that what Mr. Willms was saying, was pointing out was that the transcript of the hearing had been amended. The word "disputing" had been struck out in the transcript and in its place the word "discussing." MR. RUSH: Yes, quite right. MACFARLANE, J.A.: So the proper transcript of the hearing for the commission was "we are not discussing." MR. RUSH: Yes. MACFARLANE, J.A.: All right. MR. RUSH: Perhaps to deal with this we should see it in its original form and I'll provide that for your lordships. Now, my lords, I go to the Factum at 161: Despite the promise the federal government to refer the question of aboriginal title to the Privy Council for adjudication, the Province refused to participate. No Court reference was ever instituted. J.A.: What promise was that? There was negotiations. J.A.: Did this arise out of the McKenna-McBride? It arose prior to McKenna-McBride and part of the conditions leading into McKenna-McBride was that the issue of title would be set aside and the negotiations as to whether or not it would be referred to a Court action continued. The Province refused to participate with the federal government to make such a reference and no reference occurred. J.A.: Is there a record in the material of that promise? Yes, it's in the material, my lord. J.A.: You don't give us under paragraph 161 a -- the reference to where we could find the terms of the promise. I will do that. J.A.: Yes. There is extensive and at some moments acrimonious exchanges between the governments on the issue. In 1977, the Gitksan and Wet'suwet'en formally submitted their claim of aboriginal rights to their territory to the Government of Canada for negotiation. No negotiations have ever been entered into by the governments. My lords, at 163, today's picture of dispossessions including clear-cut logging in vast parts of the territory, social dislocation, high education drop-out rates, poor housing, unemployment LAMBERT, MR. RUSH LAMBERT, MR. RUSH LAMBERT, MR. RUSH 103 Submissions by Mr. Rush 1 and poverty. Over the course of the last century the 2 appellants have been moved farther to the margins of 3 their own territory and of our just society. 4 I'd like to refer you to his lordship's reference 5 at 1-163, and what he says at the bottom: 6 7 "The most distressing evidence I heard during 8 the entire trial was firstly the evidence of 9 young Chief Glen Williams (Ax Gwin Desxw) of 10 Kitwangak, who said the high school drop-out 11 rate for his people, that is, the percentage of 12 students who do not complete high school, is 80 13 per cent, and secondly, that the saw mills at 14 Hazelton and Gitwangak are closed or closing. 15 The latter is ruinous in the near term, 16 which may somehow be overcome; the former is 17 ruinous in both the near and long term and 18 irremediable. Mr. Williams also mentioned 19 other priorities such as housing -- " 20 21 And his evidence was and it's referred to there about 22 the desperate shortage of housing on his reserve, "a 23 treatment centre for alcohol and drugs, and a fishing 24 by-law as well as education." 25 Now, my lords, at 164, we say it is from this 26 history the appellants started this action. And in 27 referring to the judgment we say that the learned 28 trial judge found against the plaintiffs and dismissed 29 their claim for declarations of ownership to and 30 jurisdiction over their territory. The counter-claim 31 of the Province was dismissed. The trial judge also 32 ordered that the Plaintiffs are entitled to a 33 declaration that, subject to the general law of the 34 Province, they have a continuing legal right to use 35 unoccupied or vacant Crown land in the territory for 36 aboriginal sustenance purposes so long as such lands 37 are not dedicated to an adverse purpose. 38 The effect of this judgment is to deny that the 39 Gitksan and Wet'suwet'en have aboriginal rights as 40 distinct peoples. They were found to have no 41 aboriginal rights in lands they and their ancestors 42 have lived on from time immemorial. They were found 43 to have no authority in respect of this land to 44 determine their future as distinct peoples. 45 These rights were extinguished and were replaced 46 by a political promise, made, unknown to them, in the 47 colony by James Douglas and binding on them today. 104 Submissions by Mr. Jackson 1 That promise permits them to use Crown land but 2 subject to the general law of the Province, subject to 3 the land not being used by some other person for a 4 contrary purpose, subject to use being exercised on 5 vacant or unoccupied land and subject to use being for 6 berry-picking and hunting ("aboriginal sustenance") 7 purposes only. 8 And it is from this judgment that the appellants 9 bring this appeal. 10 Now, at tab two, my lords, we have set out the 11 errors in the judgment. I don't intend to canvass 12 them. They are evident from the sub-paragraphs and 13 paragraphs of this tab. I only ask you to note that 14 we address these errors in respect of particular 15 tabbed references and the tabbed references are there 16 contained, so it is clear where it is that the errors 17 are being addressed. And at this juncture, my lords, 18 I will pause and I will ask Mr. Michael Jackson to 19 address you on the first of the issues of the errors 2 0 made in the judgment. 21 WALLACE, J.A.: Are we going to tab 3 or tab 7? 22 MR. JACKSON: Tab 7, my lord. 23 WALLACE, J.A.: And the reference numbers are volume number -- 24 MR. JACKSON: And what I would like to do before I give my 25 argument, my lords, is just alert your lordships as to 26 what volumes and reference books I will be refering to 27 so that they are readily at hand. Tab 7 is expanded 2 8 on at some considerable extent in Appendix B and what 29 I will be doing is I will be moving from tab 7 in and 30 out of Appendix B. Appendix B can be found in Volume 31 2 of the appellants' Factum, and if your lordships 32 have that readily at hand, it will assist me and your 33 lordships. The second housekeeping matters, my lords, 34 is that the appellants' reference to tab 7 and 35 Appendix B can be found in a series of four red books 36 but your lordships need only have readily available 37 the reference book number R-16 which is the reference 38 book tab 7. 39 LAMBERT J.A.: You would like me to take it out and put it in my 40 desk. 41 MR. JACKSON: No. As long as you have it available. 42 LAMBERT, J.A.: Trying to anticipate how often we are going to 43 be looking at it. 44 MR. JACKSON: R-16, we are going to be getting this quite 45 quickly. 46 LAMBERT, J.A.: Yes, all right. And I will take it out. 47 MR. JACKSON: And the other volume of the reference books which 105 Submissions by Mr. Jackson 1 is in relation to Appendix B is R-19. Those are the 2 only two reference books I will be asking your 3 lordships to refer to. 4 My lords, I have observed and noted in reviewing 5 the four hunting appeals and the spring fishing 6 appeals that it has become what may be akin to a 7 convention of counsel to provide your lordships with 8 speaking notes. Unfortunately I have to advise your 9 lordships I am going to act in accordance with that 10 convention, but I can immediately tell your lordships 11 that my speaking notes are very brief and hopefully 12 will not add to the burden of the papers your 13 lordships already have before you. And I have 14 provided Madam Registrar with a copy of those notes 15 and my friends will be provided with -- I think my 16 friends have been provided with them as well. And 17 it's to those notes I would first take your lordships. 18 In this part of our argument we will be tracing 19 the evolution of the legal relationship between 20 aboriginal nations and the colonial governments who 21 have established settlements in the Americas over the 22 last 500 years. This part of the argument, my lords, 23 should not be viewed as an exercise in antiquarianism, 24 nor as prologue to the real issues. In undertaking 25 this historical review, we will be focusing on the 26 identification of the first principles upon which the 27 appellants' assert their aboriginal rights to 28 ownership and jurisdiction are based. 29 And paragraph two, my lord, I refer you to the 30 well-known dictum of Mr. Justice Dickson in Kruger 31 and Manuel, where he observed: 32 33 The claims to aboriginal titles are woven with 34 history, legend, politics and moral 35 obligation." 36 37 And I go on to refer your lordships to the equally 38 well-known to your lordships' observation of the Chief 39 Justice in Big M Drug Mart, where in relation to the 40 Charter he observed that the Courts must search for 41 fundamental principles and purposes in interpreting 42 the meaning of Charter rights and has endorsed the 43 importance of an historical analysis to that purposive 44 inquiry. And I have quoted from the judgment: 45 46 "The meaning of a right or freedom 47 guaranteed by the Charter is to be ascertained 106 Submissions by Mr. Jackson 1 by the analysis of a purpose of such guarantee; 2 it is to be understood in other words, in light 3 of the interest it was meant to protect. 4 In my view, this analysis is to be 5 undertaken ... by reference to the character 6 and the larger objects of the Charter itself, 7 the language chosen to articulate the specific 8 right or freedom, to the historical origins of 9 the concepts enshrined..." 10 11 And in paragraph four I refer to the judgment both of 12 this Court and in Sparrow as endorsed by the Supreme 13 Court of Canada that an historical, purposive analysis 14 is no less required in the interpretation as to 15 Section 35 aboriginal rights. The Court in the 16 Supreme Court said: 17 18 "The approach to be taken with respect to 19 interpreting the meaning of Section 35(1) is 20 derived from general principles of 21 constitutional interpretation, principles 22 relating to aboriginal rights, and the purposes 23 behind the constitutional provision itself." 24 25 And I note that the respondent Province of British 26 Columbia in its Revised Factum in citing from this 27 particular passage from Sparrow stated that: 28 29 "The judiciary is free, indeed obliged, to 30 provide a definition of the Appellants' 31 aboriginal rights, and to fashion remedies, 32 true to the constitutional values and interests 33 that those rights are designed to protect." 34 35 Now, in fulfilling this mandate an understanding of 36 the historical matrix and the development of the 37 relationship between aboriginal nations and colonial 38 governments, not only pours content into the 39 appropriate definition of aboriginal rights but we say 40 also highlights the central errors of the trial judge 41 in his characterization of those rights. 42 And I would like your lordships to turn now to the 43 Factum to paragraph 808, my lords. We say that in 44 charting a course in the historical purposive analysis 45 of aboriginal rights there are good reasons to start 46 with a period of Spanish colonization. And I say 47 that, my lords, not simply because this year is the 107 Submissions by Mr. Jackson 1 500th year anniversary of Christopher Columbus' first 2 voyages into the New World. There are other 3 significant reasons for beginning the inquiry at this 4 point. 5 The subject of aboriginal rights, we say in 6 paragraph 808, first became the subject of legal 7 discourse early in the sixteenth century following 8 Columbus' discoveries, so-called. The treatment by 9 the early Spanish colonizers of the aboriginal 10 inhabitants of the Americas provoked intense debate 11 regarding the legal and moral legitimacy of 12 colonization. One of the principle protaganists in 13 that debate was Francisco De Vitoria. In his 14 treatise, published in 1532, On The Indians Lately 15 Discovered, he developed as part of International Law 16 some of the basic principles of aboriginal rights. 17 My lords, it may appear somewhat paradoxical to be 18 citing the words of a Dominican scholar in the 19 sixteenth century in a setting where we are surrounded 20 by the hardware and indeed the software of the 21 twentieth century and its technology, but in fact 22 Francisco De Vitoria's comments about aboriginal 23 rights have a remarkable contemporary resonance and it 24 is for that reason that I will be referring your 25 lordships to them. 26 And paragraph 809, Vitoria asserted that the 27 original inhabitants of the Indies possessed natural, 28 legal rights as free and rational persons. By virtue 29 of these natural rights they were, in his words, "true 30 owners alike in public and in private law before the 31 advent of the Spaniards among them." Furthermore, 32 "just like Christians... neither their princes nor 33 private persons could be despoiled of their property" 34 without just cause. And I pause to alert your 35 lordships to the fact that the dual aspect of this 36 first principle of Vitoria that aboriginal peoples had 37 legal rights to their lands and that these rights are 38 pre-existing rights, are principles, first principles, 39 endorsed and embraced by our Supreme Court of Canada 40 in, among other cases Guerin and of course I will be 41 coming back to Guerin later in my argument. But I 42 pause, as I say, to note that when we look at the very 43 first statements made by scholars in the question of 44 what rights do aboriginal peoples have, we find 45 statements which bring us down to statements endorsed 4 6 by our own Supreme Court of Canada. 47 Paragraph 811, Vitoria dealt with the title to 108 Submissions by Mr. Jackson 1 land advanced by the Spaniards. He rejected the 2 validity of any title based upon papal grant which 3 formed the foundation for the "Requerimiento", the 4 infamous document under which the inhabitants of the 5 New World were "required" to acknowledge the 6 ascendency of the Pope as the ruler of the whole 7 world. Failure to do so, was viewed as a basis for 8 declaring just war on the Indians and subjucating them 9 and taking their property. According to Vitoria, as 10 the Indians were free according to natural and divine 11 law, no human law, such as the "requerimiento", 12 whether issued by priests or king, could not bind them 13 without their consent. 14 Vitoria drew a distinction, which we will be 15 coming back to as part of the foundation of our 16 argument, a distinction between the assertion of Crown 17 sovereignty and the pre-existing rights of ownership 18 of aboriginal peoples. And he said: 19 20 "Granted that the Emperor were the lord of the 21 world [a proposition to which Vitoria did not 22 assent] still that would not entitle him to 23 seize the provinces of the Indian aborigines 24 and erect new lords there. Even those who 25 attribute lordship over the world to the 26 Emperor do not claim he is lord in ownership, 27 but only in jurisdiction, and this latter right 28 does not go so far as to warrant him in 29 converting to his own use or in giving towns or 30 even estates away at his pleasure. 31 32 And I should observe there, my lords, that Vitoria 33 would have found very problematic the trial judge's 34 statement that aboriginal rights exist at the pleasure 35 of the sovereign and of course, that is a matter to 36 which I will be coming back later in my argument as a 37 focal point of one of the fundamental errors of the 38 trial judge. 39 In the passage I have just cited, Vitoria laid the 40 foundations for another contemporary principle of 41 first principles in relation to the law of aboriginal 42 rights. It's been referred to by some as the 43 principle of continuity. That principle says, and 44 it's set out in paragraph 813, that the assertion of 45 sovereignty by European states does not affect the 46 pre-existing rights of the aboriginal peoples. And 47 this doctrine of sovereignty lies at the centre of the 109 Submissions by Mr. Jackson 1 seminal decisions of the U.S. Supreme Court in the 2 Marshall judgments. It is a proposition to which the 3 Privy Council in Amodu Tijani gave its imprimatur and 4 it's a proposition to which the Supreme Court of 5 Canada has also cited in the Guerin decision. 6 Vitoria also addressed Spanish claims based on the 7 principle of first discovery. While he recognized 8 that discovery could grant priority to the discovering 9 nations vis-a-vis each other, that is vis-a-vis other 10 European nations in terms of giving them a monopoly on 11 trade with the aborigines and a monopoly on acquiring 12 their lands through treaties, he rejected 13 unequivocally the notion that discovery could vest 14 property rights in the Spanish thereby displacing the 15 pre-existing rights of the aborigines of the Americas. 16 And I would at this point take your lordships to 17 Vitoria's own words and if your lordships could turn 18 to Volume R-16 and at tab 814, the very bottom of the 19 page. What this is taken from, my lords, is a volume 20 which has been reprinted under the title of the 21 Classics of International Law and at the very bottom 22 of the tab reference -- 23 WALLACE, J.A.: Excuse me, what did Vitoria do? 24 MR. JACKSON: He was a professor at the University of Salamanca. 25 WALLACE, J.A.: Oh, I see. 2 6 MR. JACKSON: 27 28 "Accordingly, there is another title which can 29 be set up," 30 31 And what Vitoria was doing at this point, my lords, is 32 going through the various claims the Spanish could 33 make to the Americas. 34 35 "Accordingly, there is another title which can 36 be set up, namely, by right of discovery; and 37 no other title was original set up, and it was 38 in virtue of this title alone that Columbus the 39 Genoan first set sail. And this seems to be an 40 adequate title because those regions which are 41 deserted become, by the law of nations and the 42 natural law, the property of the first 43 occupant. Therefore, as the Spaniards were the 44 first to discover and occupy the provinces in 45 question, they are in lawful possession 46 thereof, just as if they had discovered some 47 lonely and thitherto uninhabited region. 110 Submissions by Mr. Jackson 1 2 Vitoria says: 3 4 "Not much, however, need be said about this 5 third title of ours, because, as proved above, 6 the barbarians were true owners, both from the 7 public and from the private standpoint. Now 8 the rule of law of nations is that what belongs 9 to nobody is granted to the first occupant, as 10 it is expressly laid down in the aforementioned 11 passage of the Institutes." 12 13 And that is a reference to Justinian's Institutes, 14 15 "And so, as the object in question was not 16 without an owner, it does not fall under the 17 title which we are discussing. Although, then, 18 this title, when conjoined with another, can 19 produce some effect here, yet in and by itself 20 it gives no support to a seizure of the 21 aborigines any more than if it had been they 22 who had discovered us." 23 24 Now, in relation to that passage, my lords, in the 25 context of what does the comments and thoughts of a 26 Dominican scholar in the sixteenth century tell us in 27 British Columbia in the nineteenth and twentieth 28 centuries when we are considering the question of the 29 rights of the appellants. 30 I would take your lordships to the next page of 31 this tab, and what this is, my lords, is a statement 32 or a letter, petition of the Kitwanga chiefs, the 33 ancestors of the appellants in 1884. Now, parts of 34 this were read to your lordships by my friend Mr. Rush 35 yesterday. The part I want to address is the part 36 side-barred on the right-hand column. And the 37 Kitwanga chiefs say: 38 39 "We hold these lands by the best of all titles. 40 We have received them as the gift of the God of 41 Heaven to our forefathers, and we believe that 42 we cannot be deprived of them by anything short 43 of direct injustice. In conclusion, we would 44 ask you, would it be right for our Chiefs to 45 give licenses to members of the tribe to go to 46 the district of Victoria and measure out, 47 occupy, and build upon lands in that district Ill Submissions by Mr. Jackson 1 now held by white men as grazing or pasture 2 land? Would the white men now in possession 3 permit it, even if we told them that as we were 4 going to make a more profitable use of the land 5 they had no right to interfere? Would the 6 government permit it? Would they not at once 7 interfere and drive us out? This would not be 8 right for us so to act, how can it be right for 9 the white man to act so to us? This is what we 10 would bring before you." 11 12 And I say, my lords, that in making that assertion and 13 raising that question, the Kitwanga chiefs in 1884 in 14 relation to their territory were raising the same 15 fundamental question which Francisco De Vitoria raised 16 four hundred years prior in relation to the assertions 17 of the Spanish to lands in the Americas. 18 The efforts of Vitoria in speaking out against the 19 practices of the conquistadores and in affirming the 20 rights of aboriginal peoples, bore fruit in the form 21 of the papal bull issued in 1537 by Pope Paul III. 22 And that bull, my lords, can be found -- goes under 23 the name "Sublimis Deus" can be found at tab 815 in 24 the same reference books. And you will see at page 21 25 he's holding asserted again some four hundred years 26 ago: 27 28 "We, who, though unworthy, exercise on earth 29 the power of our Lord and seek with all our 30 might to bring those sheep of His flock who are 31 outside into the fold committed to our charge, 32 consider, however, that the Indians are truly 33 men and that they are not only capable of 34 understanding the catholic faith but, according 35 to our information, they desire exceedingly to 36 receive it." 37 3 8 And further down: 39 40 "...notwithstanding whatever may have been or 41 may be said to the contrary, the said Indians 42 and all other people who made later be 43 discovered by Christians, are by no means to be 44 deprived of their liberty or the possession of 45 their property, even though they be outside the 46 faith of Jesus Christ; and that they may and 47 should, freely and legitimately, enjoy the 112 Submissions by Mr. Jackson 1 liberty and the possession of their property; 2 nor should they be in any way enslaved; should 3 the contrary happen it shall be null and of no 4 effect." 5 6 And I would alert your lordships to the fact that some 7 four centuries later when Pope John Paul II came to 8 Canada in 1987 his holiness renewed the commitment to 9 the vindication of the rights of aboriginal peoples in 10 terms which referenced back to Sublimis Deus. And I 11 would refer your lordships to the passage in the 12 Factum of the intervenor, Union of B.C. Indian Chiefs. 13 I am not going to take your lordships there, but if 14 you would make a note in paragraph 71 of that 15 intervener's Factum, they have set out the comments of 16 Pope John Paul II. Again, making the point that these 17 are not historical statements which may have been 18 important at one time but now have no significance. 19 These are statements which we say resonate with 20 contemporary not simply moral but legal significance. 21 The publication of Vitoria's treatise and the 22 promulgation of Sublimus Deus did not however bring to 23 an end the debate about the legal and moral legitimacy 24 of Spanish colonization. That debate continued and 25 culminated in a remarkable event hitherto almost 26 unknown in conventional history, a meeting of the 27 Junta or Council summoned by the Emperor Charles V at 28 Valladolid in 1550 to consider the legality and 29 justice of waging war to propagate Christianity 30 amongst the aboriginal peoples. And I note, my lords, 31 that in a recent issue of the Advocate there is a 32 reference to this debate of having been long ignored 33 it now seems to have made its way into legal 34 consciousness at least amongst the bar of this 35 Province. Again, the reason why I am taking your 36 lordships to this debate is because it makes what we 37 say is a very important point and that is that legal 38 theories regarding the rights of aboriginal peoples 39 are integrally related to assumptions and assertions 40 about the nature of aboriginal societies. 41 WALLACE, J.A.: I am sorry, I don't quite follow that. Would 42 you amplify it, please. 43 MR. JACKSON: Yes, my lord. What we are saying, my lord, is the 44 extent one makes assumptions that aboriginal peoples 45 are in some ways not only different but are in a less 46 evolved condition than European civilizations to the 47 extent that we see them as something less than us, it 113 Submissions by Mr. Jackson 1 is possible to characterize their rights on a 2 hierarchy in which our rights are seen as having 3 greater weight than theirs. And I make this point 4 because when we get to the question of whether 5 aboriginal rights are proprietory, where there is an 6 interest in land and my point will be that judgments 7 in the past in characterizing aboriginal rights as 8 non-proprietory have sometimes made these assumptions 9 about aboriginal societies which we say are not well 10 made and this court should not endorse. That is my 11 point. It's made clear I think in the context of the 12 debate in the sixteenth century when one looks at the 13 competing positions advanced by the principle 14 protaganists, the Emperor appointed Juan Sepulveda, a 15 leading lawyer in the Spanish empire, who in 16 justifying war against the Indians in order to convert 17 them, argued that the aboriginal peoples of the New 18 World were in such a state of barbarism that force was 19 legitimately required and could be used to liberate 20 them from this condition, and underlying these views 21 were some very clearly articulated views regarding the 22 inferiority of aboriginal peoples vis-a-vis the 23 Europeans who had come amongst them. 24 And at page -- paragraph 817, in comparing the 25 uncivilized state as he saw it of the aborigines to 26 the civilizations of Europe he asserted that the 27 aboriginal peoples "... not only lacked culture but do 28 not even know how to write, who keep no records of 29 their history except certain obscure and vague 30 reminiscences of some things put down in certain 31 pictures, and who do not have written laws but only 32 barbarous institutions and customs." 33 By contrast Bartolome de Las Casas, who had once 34 been a conquistador, companion of Columbus who had 35 become a priest and later became a bishop was 36 appointed by the Emperor as protector of the Indians 37 and who was commissioned to advance the claims on 38 behalf of the aboriginal peoples of the Indians, he 39 not only rejected Sepulveda's views that somehow the 40 Indians in some Aristotelian view, were fit only for 41 slavery but he sought to demonstrate that in fact the 42 Indians did indeed have civilizations and they were 43 contemporary civilizations. And I have set out part 44 of what Sepulveda said -- what de Las Casas said: 45 46 "Even though they lack the art and use of 47 writing, they are not wanting in the capacity 114 Submissions by Mr. Jackson 1 and skill to rule and govern themselves, both 2 publicly and privately. Thus they have 3 kingdoms, communities and cities that they 4 govern wisely according to their laws and 5 customs... [they] in accord with justice and 6 nature have... jurisdiction and good laws, and 7 there is among them lawful government..." 8 9 Further down in that passage: 10 11 "They cultivated friendship and, bound together 12 in common fellowship, lived in populous cities 13 in which they wisely administered the affairs 14 of both peace and war justly and equitably, 15 truly governed by laws that in very many points 16 surpassed ours, and could have won the 17 admiration of the sages of Athens." 18 19 WALLACE, J.A.: What Indians would he be referring to? 20 MR. JACKSON: He would have been referring principally, my lord, 21 to the aboriginal peoples of Mexico. 22 WALLACE, J.A.: The Indians. 23 MR. JACKSON: The Aztecs. 24 WALLACE, J.A.: Aztecs. 25 MR. JACKSON: He would have also been referring to some of the 26 peoples in South America in terms of Peru. But it was 27 principally the Aztecs. As your lordships no doubt 28 are aware, at this time the great cities of the Aztecs 29 had already been discovered and completely overwhelmed 30 the Europeans who found these marvels of civilization 31 hitherto unknown to them. The papal bull Sublimus 32 Deus and the writings of Vitoria and Bartolome de Las 33 Casas had sought to repudiate the concept that 34 aboriginal peoples could be denied their pre-existing 35 rights to liberty and property by virtue of their 36 difference from European societies and their location 37 on a supposed hierarchy of civilizations. But over 38 the course of the last four centuries this concept has 39 reasserted itself and has been reflected in some of 40 the cases dealing with aboriginal rights. A point I 41 just made. This is a point, my lords, which came up 42 the last time, an aboriginal rights case came before 43 this Court and from thence went to the Supreme Court 44 of Canada, and I am referring, of course, to the 45 Calder decision. 46 And at 820 I make the point, the importance of 47 overcoming this tendency to view aboriginal societies 115 Submissions by Mr. Jackson 1 as existing at an early stage of evolutionary 2 development has been clearly affirmed in recent 3 decisions of the Supreme Court of Canada. Mr. Justice 4 Hall in the course of his judgment in Calder, with 5 specific reference to the statement in the Court of 6 Appeal judgment of Chief Justice Davey, an eminent 7 jurist, that the Nishga "were undoubtedly at the time 8 of settlement, a very primitive people with few of the 9 institutions of civilized society and none at all of 10 our notions of private property", stated that his 11 lordship had assessed "the Indian culture of 1858 by 12 the same standards that Europeans applied to the 13 Indians of North America two or or more centuries 14 before." 15 And his lordship affirmed that a modern Court in 16 approaching the issue of aboriginal rights must 17 disregard "ancient concepts formulated when 18 understanding of the customs and culture of aboriginal 19 people was rudimentary and incomplete on when they 20 were thought to be wholly without cohesion, laws or 21 culture, in effect a sub-human species." 22 And it is the appellants' respectful submission 23 that the trial judge, also the Chief Justice of 24 British Columbia, also a well and justified and 25 respected jurist, fell into the same error as the 26 former Chief Justice Davey in his characterization of 27 the nature of the appellants' societies, their 28 institutions and laws. 29 And I would, my lord, at this point just take you 30 to paragraph 162 of our Factum. It's under tab 4. 31 According to the trial judge, my lord, the appellants' 32 ancestors before contact were "a privitive people" 33 living in a "primitive condition", "eking out an 34 aboriginal life" which was "at best nasty brutish and 35 short", lived in a "legal and jurisdictional vacuum", 36 acted on "survival instincts", were "hardly amenable 37 to obedience to anything but the most rudimentary 38 forms of custom" were not "bound to specific lands" 39 and had no reason, before the European fur trade, to 40 have any boundaries, but rather "roamed for sustenance 41 purposes" in the vicinity of their villages. 42 In short, despite "minimal levels of social 43 organization", their "primitive condition" was "not 44 impressive", and "the badges of civilization, as we of 45 European culture understand that term were indeed 46 absent." 47 The suggestion, never perhaps fully articulated, 116 Submissions by Mr. Jackson 1 was that such primitive, uncivilized people never had, 2 and could not now retain, property rights in land and 3 jurisdiction over their lands, their resources and 4 themselves. 5 Now, my lords, I say to your lordships that the 6 totem poles, the masks, the regalia, some of which 7 were shown to your lordships yesterday by Mr. Rush, 8 contain the incode history and proclaimed rights to 9 territory, names and crests and are part and parcel of 10 the badges of Gitksan and Wet'suwet'en civilization. 11 They have been acknowledged and understood as such in 12 the world of anthropology, in the world of art and we 13 say that they deserve and demand no less respect in 14 courts of law. 15 I don't know that whether this would be convenient 16 for your lordship to take the morning break. 17 TAGGART, J.A.: Yes, we will. 18 MR. JACKSON: Thank you. 19 2 0 MORNING BREAK 21 22 TAGGART, J.A.: Yes, Mr. Jackson. 23 MR. JACKSON: Thank you, my lord. I got to paragraph 823 in the 24 Factum. The trial judge after making reference to the 25 citations to the writings of Vitoria and de las Casas 26 contrasted those views with the views of Vattel, a 27 writer of International Law who published in the late 28 eighteenth and early nineteenth century, and the 29 passage his lordship quoted from Vattel as it were a 30 competing statement of International Law, is set out 31 at paragraph 823. Vattel wrote: 32 33 "There is another celebrated question to which 34 the discovery of the new world has principally 35 given rise. It is asked whether a nation may 36 lawfully take possession of some part of a vast 37 country in which there are none but erratic 38 nations, whose scanty population is incapable 39 of occupying the whole?" 40 41 Just a few lines lower: 42 43 "Their unsettled habitation in these immense 44 regions, cannot be accounted a true and legal 45 possession and the people of Europe... finding 46 land of which the Savages stood in no 47 particular need, and of which they made no 117 Submissions by Mr. Jackson 1 actual and constant use, were lawfully entitled 2 to take possession of it and to settle it with 3 Colonies... However, we cannot help praising 4 the moderation of the English Puritans who 5 first settled in New England, who, 6 notwithstanding their being furnished with a 7 charter from their Sovereign, purchased of the 8 Indians the lands of which they intended to 9 take possession." 10 11 Now, the trial judge, having as it were contrasted 12 these views, took the position that it was the views 13 of Vattel which had been given some judicial 14 imprimatur in the judgments of Chief Justice John 15 Marshall in the series of cases to which I will be 16 taking your lordships back in the nineteenth century, 17 and we say that far from supporting the views of 18 Vattel the Marshall judgments are a repudiation of 19 them. And I have set that out in paragraph 825. 20 Vattel, as you will see from that passage, said that 21 Indian habitation "cannot be accounted a true and 22 legal possession". And Chief Justice Marshall in 23 Johnson and M'Intosh said that the Indian nations 24 "were admitted to be the rightful occupants of the 25 soil, with a legal as well as a just claim to retain 26 possession of it." Quite contrary to Vattel. Vattel 27 asserted that the Indian nations "cannot exclusively 28 appropriate themselves more land than they have 29 occasion for, or more than they are able to settle and 30 cultivate." In the last of the Marshall decisions the 31 case of Mitchell, the Court said: 32 33 "Indian possession or occupation was considered 34 with reference to their habits and modes of 35 life; their hunting grounds were as much in 36 their actual possession as the cleared fields 37 of the whites; and their rights to its 38 exclusive enjoyment in their own way and for 39 their own purposes or as much respected, until 40 they abandoned them, made a cession to the 41 government or an authorized sale to 42 individuals." 43 44 Again, according to Vattel, the practice of the 45 English colonists of purchasing lands from the Indians 46 was a "laudable example" of colonial "moderation." 47 Put another way, an act of grace and benevolence. 118 Submissions by Mr. Jackson 1 After all, they had a Charter from the sovereign. 2 Chief Justice Marshall, in a passage which I will be 3 coming back to and focusing considerable attention on, 4 in addressing the question of what rights did the 5 English Charters give the colonists was quite clear 6 and expressed himself in a way quite contrary to 7 Vattel. Chief Justice Marshall said that those 8 Charters, and this is set out at the top of page 326: 9 10 "... were well understood to convey the title 11 which, according to the common law the European 12 sovereigns respecting America, they might 13 rightfully convey, and no more. This was the 14 exclusive right of purchasing such lands as the 15 Natives were willing to sell... These rights 16 asserted a title against Europeans only, and 17 were considered as blank paper so far as the 18 rights of the Natives were concerned." 19 20 That should have been "These grants," I beg your 21 pardon. 22 According to Vattel the practice of purchasing 23 lands from the Indians and treaty making were acts of 24 Crown benevolence and did not flow from any legal 25 obligation. We say that this view is not only 26 contrary to the principles of the common law as 27 reflected in the Marshall judgments, it is contrary to 28 the principles of the Royal Proclamation and we say, 29 and this is what I will now turn, it is controverted 30 by the historical evidence of four centuries of treaty 31 making. 32 Now, my lords, the next section in the Factum from 33 paragraphs 828 to 857 I will be coming back to next 34 week. They address the question of the issue of 35 whether consent is a legal principle limiting the 36 rights of the Crown to acquire lands and addresses the 37 errors of the trial judge in relation to treaty 38 making. But what I want to do today is to continue 39 with this laying out of the historical matrix and I 40 would take your lordships to paragraphs 857, but as I 41 say, making the point that I will be coming back to 42 the points I have overleaped. 43 The appellants placed before the trial judge an 44 extensive body of material to demonstrate that treaty 45 making has from the very earliest days of colonial 46 settlement played a vital part in the accommodation of 47 Crown and relationships. That evidence sought to pour 119 Submissions by Mr. Jackson 1 content, legal and historical content, into the nature 2 of aboriginal rights. It sought to demonstrate the 3 requirement of and the process for securing Indian 4 consent and it sought to illustrate the protectorate 5 and fiduciary obligations which the Crown assumed 6 pursuant to treaty making. This is paragraph 858. 7 LAMBERT, J.A.: All right. Thank you. 8 MR. JACKSON: And you will see, my lords, that here I make the 9 reference that a more detailed account of treaty 10 making is set out in Appendix B, and as I mentioned I 11 will be at appropriate points moving into the appendix 12 where I deem it necessary to flesh out some of the 13 propositions made in the Factum. 14 At paragraph 859 I make the point, from the 15 earliest stages of colonial settlement in North 16 America, treaties and agreements were entered into 17 with Indian nations for the acquisition of territory 18 and jurisdiction. And this process was initiated by 19 the Dutch after Henry Hudson discovered Delaware Bay 20 in 1609. I am taking your lordships very briefly to 21 the Dutch experience for two reasons. One, that the 22 Dutch in formulating their policies in North America 23 were very much guided by the writings of Hugo Grotius, 24 an eminent sixteenth century scholar in International 25 Law, who himself drew comfort and relied upon the 26 views of Vitoria. And so what we see here is an 27 intellectual legal chain of title for what the Dutch 28 actually did on the ground. The second reason is 29 that — 30 WALLACE, J.A.: I find this very interesting, but I am not sure 31 whether it's going to be very helpful for me to 32 resolve the problems that are presented by this case. 33 Do we need to go into this depth? I have read the 34 Factum. 35 MR. JACKSON: My lord, my point in taking your lordships into it 36 is to show the historical roots to rights which the 37 appellants say they have and which they say have been 38 recognized by the Crown in its dealings from the 39 earliest points in time. And we say that these 40 principles have a depth, an historical and legal depth 41 which makes them something more than transient 42 notions. They are not something which are applicable 43 only in other times and places. And the point I'm 44 taking your lordships through the various geographical 45 places and historical points in time in which treaty 46 making has been played out is because the trial judge 47 in looking at this material and in approaching the 120 Submissions by Mr. Jackson 1 question of what did he need to resolve the issues 2 before him in this case took the position that events 3 that took place on the eastern seaboard in the 4 seventeenth century and the eighteenth century, events 5 that took place in the period before the Proclamation, 6 events that formed the factual matrix for the Marshall 7 decisions, all were in a different place and a 8 different time than British Columbia. He made the 9 point that British Columbia has its own history and 10 that his judgment very much focused on that. He took 11 the position, for example, that treaty making in 12 British Columbia was really an aberration, that it was 13 something which took place early in British Columbia 14 history; it took place in 1898 in relation to Treaty 15 8, but by and large treaty making was irrelevant to 16 the pattern of settlement. And in other words, B.C. 17 was seen in an historical and legal context as a law 18 unto itself and it was within the context of British 19 Columbia history that one found the solutions to the 20 issues before this Court. We take a different view. 21 Our position, my lord, and it goes directly to why I 22 am taking your lordships through this, is that British 23 Columbia is not different. While certain events may 24 have happened in British Columbia, when one is looking 25 at the question of what are the principles which a 26 Court in 1992 should be guided by in adjudicating the 27 rights claimed by the appellants, we say that those 28 principles are to be found in events, in cases which 29 span the continent, and in fact which transcend the 30 continent in terms of by looking at cases in the Privy 31 Council, in looking at cases in New Zealand, and for 32 that reason we say that the inquiry has to be cast 33 that wide. I don't know if that gives your lordship 34 any comfort in -- 35 WALLACE, J.A.: Well, it shows me the direction in which you 36 hope to lead us, but I still have some difficulty as 37 to the pertinence of some of the background material 38 in light of the recent decisions and so forth that we 39 are concerned with. 40 MR. JACKSON: I will try and make the contemporary references, 41 my lord, as I go through it. Perhaps I can do that, 42 my lord, by going to the very first document which in 43 my researches I have come across in relation to a 44 treaty or an agreement in relation to land in North 45 America. This in fact is a Dutch agreement, and if 46 your lordships would go to tab 860, and the point I 47 make about these Dutch agreements is that as I say as 121 Submissions by Mr. Jackson 1 the earliest existing documents regarding deeds to 2 lands in North America, they talk specifically to the 3 pre-existing rights of aboriginal peoples both in 4 terms of ownership, in terms of jurisdiction and in 5 terms of the importance of Indian consent to the 6 acquisition of those rights. And at tab 860 you will 7 see, my lord, that it recites that: 8 9 "We, the Director and Council in New 10 Netherland, residing on the Island Manahatas," 11 12 That's Manhatten 13 14 "and in Fort Amsterdam...hereby acknowledge and 15 declare, that on this day... came and appeared 16 before us, in their proper persons," 17 18 And then there is a citation of a number of aboriginal 19 leaders, 20 21 "and freely and voluntarily declared, by 22 special authority of the rulers and consent of 23 the Commonalty there, that they already, on 24 [another date] for and on account of certain 25 parcels of cargoes which they... acknowledged to 26 have received... transported, ceded, given over 27 and conveyed in just, true and free property... 28 to Messrs. Samuel Godin and [another person]." 29 30 And then if you go to the bottom of the page the 31 recital goes on: 32 33 Without they, the Grantors, having, reserving, 34 or retaining for the future, any, the smallest 35 part, right, action or authority" 36 37 And these are the words I'd emphasize, my lords: 38 39 "whether of property, command or jurisdiction 40 therein." 41 42 In other words, one of the very first documents, in 43 fact the first document I have been able to discover 44 in my researchs of a deed for land in North America 45 very specifically refers to the rights of aboriginal 46 peoples in terms of ownership and jurisdiction and 47 authority. 122 Submissions by Mr. Jackson 1 There is a second version of this document, my 2 lord, which appears after the brown sheet. The reason 3 apparently for two versions is that one appears in the 4 state archives of New York, the other in the archives 5 of Pennsylvania. This document, if your lordships 6 look at page 21 of the tab, the document in stating 7 what the Grantors do not reserve actually uses the 8 words: 9 10 "shall have, reserve or keep in the least 11 degree any particle of claim, right or 12 privilege thereon, be it of ownership, 13 authority or jurisdiction." 14 15 Now, my lord, this document was not the root of the 16 title of the statement of claim of the appellants. It 17 was not drafted in order to accord with the language 18 of this document. In fact, this document only came to 19 light after the statement of claim. But I say that 20 when one looks at the claims of the appellants framed 21 in terms of ownership and jurisdiction, it is 22 remarkable that in the very first deeds one finds in 23 North America one finds, absent litigation, words of 24 Europeans describing pre-existing rights in exactly 25 those terms. And that is all I wish to say about the 26 colonial, the Dutch colonial practices, my lords. 27 TAGGART, J.A.: What was the consideration? 28 MR. JACKSON: The consideration for most of these, it's asserted 29 to be certain cargoes. 30 TAGGART, J.A. : I see this last one, document eight, 31 consideration of a certain quantity of goods. 32 MR. JACKSON: Yes. Some of these deeds do identify what the 33 quantity of goods were, and in one of the other 34 treaties I will be taking you to very shortly, my 35 lord, you will get a sense of what those 36 considerations were. But they were by and large trade 37 goods, goods which the aboriginal peoples, the 38 Indians, viewed as being important for them and which 39 were advanced by the English. And you'll see when I 40 go to several other treaties, there is an itemization 41 of the consideration, which gives you some sense of 42 what it was that was the document considered to be an 43 adequate consideration. 44 LAMBERT, J.A.: These documents are quitclaims and they are 45 designed to be read and understood by the Dutch people 46 and it comes as no surprise in a quitclaim that it 47 quits all right, title, ownership interest, property 123 Submissions by Mr. Jackson 1 interest, or any other kind of of interest whatsoever, 2 because that's the way quitclaims are worded, but it 3 doesn't mean that there was a recognition of an 4 ownership interest or any kind of -- with respect, I 5 mean it's interesting, but the conclusion that you 6 draw from it that it's a recognition that there was an 7 ownership interest being surrendered is not in my 8 opinion a logical conclusion from this document, 9 because of course, if you were drafting it you would 10 make it broad enough to surrender everything there 11 could possibly be. That doesn't mean that you are 12 recognizing that there are all these interests which 13 you are inquiring to be surrendered. 14 MR. JACKSON: I take your lordship's point and I don't suggest 15 that these constitute a recognition of ownership. 16 What I am saying, my lord, is that in conceiving of 17 the document as a quitclaim the Dutch themselves 18 clearly understood the aboriginal peoples to have 19 interest to convey which were necessary in order to 20 acquire the title of the Dutch to obtain a quitclaim. 21 To the extent that one would envisage using a 22 quitclaim to take in and acquire an interest, that 23 itself speaks of legal interests which are necessary 24 to acquire in order to have a good title. And that is 25 my point, my lord. 26 In relation to colonial practice in the British 27 North American colonies, typically the colonists 28 entered into settlement pursuant to Royal Grants and 29 charters. Now, those Royal Grants and charters 30 rarely, if ever, mentioned the presence of aboriginal 31 persons. But it's possible to see the extent to which 32 the colonists viewed themselves as having, through the 33 charter, sufficient title to develop and settle the 34 land by a consideration of some of these early 35 agreements. And I would refer your lordships to 36 paragraph 863, where in relation to the colony of New 37 York, where the effect of a grant of land under a 38 Royal Charter on the existing rights of the Indians is 39 reflected in a patent granted by James Farrett to a 40 group of Englishmen to settle on Long Island. And the 41 patent, after setting out the grant, states: 42 43 "The aforesaid inhabitants shall make purchase 44 in their own names and at their own leisure 45 from any Indians that inhabit to have lawful 46 right to any of the aforesaid land and any part 47 thereof and thereby assume it to themselves and 124 Submissions by Mr. Jackson 1 their heirs as their inheritance forever." 2 3 And what we say about that, my lords, is that it very 4 much reflects the position which I have already read 5 to your lordships from Worcester and Georgia, that the 6 grant, while it may have given the settlers an 7 interest, that interest in order to be perfected 8 required a further arrangement with the original 9 proprietors, the aboriginal peoples. 10 Now, what one finds in these early documents is 11 that following these grants the early colonists 12 entered into agreements with their Indian neighbours. 13 Now, these agreements not only dealt with the 14 acquisition of rights to land, they also dealt with 15 and encompassed mutual covenants of protection and 16 assistance. And I want to refer your lordship to one 17 of these early documents. Again, to pick up on the 18 question of my lord Justice Wallace in terms of the 19 contemporary relevance of this material, and if your 20 lordships would go to tab 866 what you find in these 21 early documents, these early treaties, is a parallel 22 with treaties which your lordships have judicially 23 considered in cases like Bartleman and Saanichton 24 Marina. The aboriginal nations were people who made 25 their living by and large from the sea. It was a 26 fishing economy. People lived in small villages, 27 fairly permanent in nature and in those early 28 arrangements in which land was transferred there often 29 was a reservation of rights to maintain traditional 30 harvesting activities of vital importance to the 31 Indian economy. 32 And in a document in 1648 you will see that the 33 reservation -- and actually, my lords, I think I can 34 just deal with the passage which is transcribed in the 35 Factum. After setting out -- paragraph 866, after 36 setting out the -- I just realized, my lord, the 37 document I am referring to is in the -- it's after the 38 brown sheet in 866. It's a document which -- 39 WALLACE, J.A.: I don't have a brown sheet. Oh, yes. I do. It 40 just precedes it, doesn't it? 41 MR. JACKSON: Precedes — 42 WALLACE, J.A.: Precedes the brown sheet. 43 MR. JACKSON: It's document two, "Indian Deed for the Town of 44 Easthampton." And you will see that this document, 45 after setting out that the agreement is between the 46 Governor of the Colony of New Haven and the Governor 47 of Conneticut, and having recited the lands which are 125 Submissions by Mr. Jackson 1 to be transferred pursuant to the deed, in the passage 2 sidelined, the last half of the deed says: 3 4 "Alsoe wee the sayd Sachems --" 5 6 And that's the word for chiefs, 7 8 "-- have covenanted to have libertie Freely to 9 Fishe in anie or all the creekes and ponds and 10 hunt vp and downe in the woods without 11 molestation (They giuing to the Inglishe 12 inhabitants no just offence or iniurie to their 13 goods or chattels) likewise they are to haue 14 the finnes and tayles of all such whales as 15 shall be cast uppon their proper right.... Also 16 they reserve libertie in all convenyent places 17 shells to make wampum. Allso if the Indians 18 hunting any deer they shall chase them into the 19 water and the Inglish should kill them the 20 Inglishe shall have the bodye, and the Sachem 21 the skin. And in testemony of our well 22 performance," 23 24 etc. 25 Now, my lords, what you have here in some greater 26 detail is the kind of reservation in the Douglas 27 treaties in British Columbia. In fact, it's a more 28 detailed statement of the sharing for mutual benefit 29 of the resources of the territory. What also you have 30 here in terms of these documents, and it's something 31 which is not very obvious, is the reservation of the 32 right to make shells for wampum. In this period 33 international trade as between Indian nations and as 34 between the English and the Indians, was -- in terms 35 of currency it was not the English pound, it was 36 usually wampum shells. This was the Indian currency. 37 What you have here, in other words, is the Indians in 38 reserving this right to make wampum were in fact 39 reserving in effect the right to the mint as regard 40 their abilities to trade with other Indian nations. 41 And so it was an important right to reserve. It 42 almost invites characterization as a deal for beads 43 and for shells, but in fact in its contemporary 44 context it was a reservation of a very important 45 right. So what you have right from the beginning is 46 this process of accommodation, treaty making which 47 seeks to share resources as lands are opened up for 126 Submissions by Mr. Jackson 1 settlement in accordance with the principle of 2 consent. 3 In the appendix, my lords, I have referred your 4 lordships to a number of other documents which I won't 5 be taking you to, which demonstrate in my submission 6 that these early treaties, in using the language they 7 do in describing Indians as owners of lands, bespeak a 8 characterization of their rights as legal as of being 9 property interests. 10 Now, my lords, I would take you to the appendix to 11 deal with a point which -- and it's not yet clear to 12 what extent this remains an issue in the proceedings, 13 but if your lordships could go to the appendix at -- 14 it's paragraph 15 of Appendix B. And I'll just 15 introduce this, my lord, and get to the point which 16 may or may not be an issue in this litigation. In 17 paragraph 15 I say that by contrast to the early 18 colonial practice in New York, the Puritan settlers 19 who founded Massachusetts pursuant to another Royal 20 Charter adopted the policy, reflected in an early 21 Massachussets law, that recognized Indian rights only 22 to lands that had been "possessed and improved." In 23 other words, cultivated fields and village sites. 24 Now, the trial judge did not adopt a view that 25 aboriginal rights were limited to cultivated fields 26 and village sites. He found that the most significant 27 rights the appellants had were in their villages but 28 he didn't limit aboriginal rights as a 29 characterization to that narrow confines. 30 The Province in the Russell and Dumoulin Factum 31 placed very heavy emphasis on the argument that 32 aboriginal rights as a matter of law are ones which 33 are limited to village sites and cultivated fields. 34 They are lands possessed by the Indians, possession is 35 defined by reference to English common law concepts 36 and that translates into a very narrow scope for 37 aboriginal rights. It is my understanding that the 38 provincial defendant in its revised Factum does not 39 take that position. It is at this point unknown to 40 the appellants, my lords, whether or not they will be 41 facing an argument in the context of the amicus' 42 submissions which requires us to meet that. And in 43 the absense -- and I don't know whether the amicus is 44 in a position to advise me, I wasn't going to spend 45 much time on this, but it does go to that point. The 46 early Massachussets history again is something which 47 relates in a contemporary context to the extent that 127 Submissions by Mr. Jackson 1 the argument is made that aboriginal rights have this 2 narrow scope of being limited to cultivated fields. 3 You will see, my lords, that the basis for that 4 argument that aboriginal peoples had only rights so 5 confined was scriptural. Governor Winthrop took the 6 position and cited the scriptures and the early 7 Massachussets laws, in fact incorporated scriptural 8 references that: 9 10 "The whole earth is the Lord's Garden and he 11 hath given it to the sons of men... and for the 12 Natives of New England they inclose no land 13 neither have any settled habitation or any tame 14 cattle to improve the land by, and soe have noe 15 other but a natural right to use those 16 countries soe as if we leave them sufficient 17 for their use we may lawfully take the rest, 18 their being more than an enough for them and 19 us." 20 21 MACFARLANE, J.A.: Could I interrupt you just to take you back 22 to this concept of village sites. Is that not a 23 question of fact finding in each case as to the 24 territory in which the rights were exercised in 25 Precontact? As I understand the judgment it is that 26 the evidence wasn't sufficient in view of the trial 27 judge to support a conclusion beyond that which he 28 expressed, namely, that the aboriginal rights extended 29 only to village sites and the surrounding lands. 30 MR. JACKSON: Yes, my lord. I think that's an accurate 31 characterization of the trial judge's position. 32 MACFARLANE, J.A.: Yes. Well, now, and isn't that a conclusion 33 which has to be drawn on each individual case 34 involving aboriginal rights based on the evidence in 35 that case as to the extent of the rights precontact? 36 MR. JACKSON: I agree with your lordship to the extent it is an 37 individual inquiry in defining the sui generis rights 38 of these appellants to understand the extent to which 39 their rights were recognized by their pre-existing 40 system prior to contact. If those rights were ones 41 which were limited to village sites -- 42 MACFARLANE, J.A.: But that latter question is a question of 43 fact. 44 MR. JACKSON: It would be a question of fact. And we say to the 45 extent the trial judge concluded that as a question of 46 fact the appellants' rights in this case were we say 47 he erred in a manner which is reversible and we will 128 Submissions by Mr. Jackson 1 be addressing that particular point on a question of 2 fact. 3 MACFARLANE, J.A.: Well, I understand that. But I'm having 4 difficulty finding or seeing how the Massachussets 5 position really assists us in the solution of that 6 question. 7 MR. JACKSON: It does not assist you at all, my lords, in terms 8 of understanding our argument in which we challenge 9 the trial judge's statements, that as a matter of fact 10 the rights asserted by the appellants were ones which 11 were limited to their villages and the surrounding 12 areas. Where this is important or may be important is 13 in relation to the argument which was almost the 14 underpinnings of the R&D Factum which is that 15 aboriginal rights, not on a fact-by-fact basis, but 16 aboriginal rights as a matter of law are limited to 17 village sites and cultivated fields because aboriginal 18 people have a right to possession of certain lands, to 19 use the language of Guerin. Those lands are lands in 20 their actual possession. The only lands in their 21 actual possession are those that they cultivate or in 22 which they have residents, and so that translates not 23 into an individual fact question but as an a priori 24 legal question only villages and cultivated fields are 25 capable of attracting aboriginal rights, and then the 26 question is what are the village sites and cultivated 27 fields of these appellants. It's to that argument 28 that aboriginal rights are limited to cultivated 29 fields and village sites that the Massachussets issue 30 is relevant. It's also relevant in this way, that in 31 the early documents in relation to the 32 establishment -- 33 MACFARLANE, J.A.: I am sorry. 34 MR. JACKSON: Sorry. 35 MACFARLANE, J.A.: I will just stop you. How can that be a 36 question of law that the aboriginal rights are limited 37 to cultivated fields? It seems to me when you look to 38 find whether there are rights and the extent of those 39 rights, the content of those rights, you look to the 40 society which existed precontact and they look to what 41 that society recognized as rights and part of the 42 question is where were the rights exercised, where 43 could they be exercised. But that -- but that's all 44 the question of looking to the circumstances of the 45 particular aboriginal society. Not a question of 46 saying ah, where is the -- where are the cultivated 47 fields. 129 Submissions by Mr. Jackson 1 LAMBERT, J.A.: Could I interject before you answer that 2 question. 3 MR. JACKSON: Yes. 4 LAMBERT, J.A.: Am I right in saying that the point you are 5 making is that as a proposition of law the trial judge 6 in this case said only rights associated with village 7 sites and in village sites and immediately contiguous 8 to village sites are capable as a matter of law of 9 being aboriginal rights? 10 MR. JACKSON: No, my lord. 11 LAMBERT, J.A.: No. 12 MR. JACKSON: The trial judge didn't say that. 13 HUTCHEON, J.A.: He rejected that proposition. 14 MR. JACKSON: Uh-huh, yes, he did. 15 LAMBERT, J.A.: Yes. But isn't that the context in which you 16 are saying there is a legal question, that is there 17 is -- there is a legal question about the nature of 18 aboriginal rights and what their association is with a 19 particular piece of land? 20 MR. JACKSON: No, my lord. The point I am making is that in the 21 Russell and DuMoulin Factum the proposition is made 22 beyond what the trial judge found, that as a matter of 23 law aboriginal rights are limited to village sites and 24 cultivated fields. 25 MACFARLANE, J.A.: With respect why don't you leave that until 26 you hear their arguments. 2 7 MR. JACKSON: I am quite happy — 28 MACFARLANE, J.A.: Because you are pushing on an open door as 29 far as I am concerned. I can't conceive that the law 30 says aboriginal rights are restricted to cultivated 31 fields. I mean, you know, aboriginal rights are 32 various types and character and a lot of them don't 33 have anything to do with cultivated fields. 34 MR. JACKSON: I am comforted by your lordship's position. I 35 don't understand the argument either, but it's one 36 which we were forced to meet in our reply and we did 37 meet. 38 MACFARLANE, J.A.: I may be completely wrong, but I don't know 39 why you -- 40 MR. JACKSON: I am happy to leave the point, my lord, and 41 address -- 42 MACFARLANE, J.A.: I am only one person in five up here. 43 MR. JACKSON: If none of your other lordships have any concern 44 about this I am happy to leave it to reply. 45 HUTCHEON, J.A.: Well, you could say we weren't aware of what 46 the amicus' position was and I would suggest we leave 47 it until we find out. 130 Submissions by Mr. Jackson 1 MR. JACKSON: I am happy to leave it. 2 TAGGART, J.A.: The amicus has filed a position paper and is to 3 file a Factum which I believe is due at the end of 4 this week. 5 MACFARLANE, J.A.: Today. 6 TAGGART, J.A.: Or today. 7 MR. JACKSON: Yes, my lords. 8 TAGGART, J.A.: I have forgotten. 9 MR. WILLMS: Sorry, I didn't understand we were to file a Factum 10 yet, my lord, because we are -- on a part of the 11 appointment we are still waiting to find out what 12 other party's positions are on the issue. And so -- 13 TAGGART, J.A.: But you have filed a position paper. 14 MR. WILLMS: Yes, we have, and to that extent it relates to the 15 Factum that was earlier filed. 16 MR. GOUGE: I hope, my lord, that my Factum is due tomorrow 17 rather than today. 18 TAGGART, J.A.: All right. I have forgotten the dates. There 19 have been so many dates fixed. 20 MR. JACKSON: Yes. As I say, my lords, I am quite happy to 21 leave the question of cultivated fields. 22 MACFARLANE, J.A.: I understand the point you are making. I 23 think I understand the point now, thank you. 24 MR. JACKSON: Then your lordships can for the time being leave 25 the appendix and we can go back to the Factum at 26 paragraph 869. My lords, in the same way as the early 27 colonial record is of some importance in understanding 28 how the European colonizing societies understood the 29 nature of aboriginal rights in terms of land, that 30 record is also of some help in understanding the 31 effects of the assertion of sovereignty on 32 pre-existing rights of self-government amongst Indian 33 nations and in this regard I very briefly am going to 34 refer your lordships to colonial practice in Virginia. 35 Where early relationships were cordial, very quickly 36 they deteriorated, hostilities ensued and those 37 hostilities were brought to an end through a series of 38 treaties. Because of the importance attached to the 39 establishment of peace amongst the Virginian settlers 40 and the British, Royal Commissioners were sent to help 41 in the negotiation of those treaties. And so the 42 treaty making in Virginia has a special significance 43 in reflecting the views of the British Crown in 44 relation to the rights of aboriginal peoples. And the 45 Factum makes mention in particular of the Treaty of 46 Middle Plantation in 1677. 47 And in paragraph 871 I have set out several 131 Submissions by Mr. Jackson 1 sections of that treaty and your lordships will see 2 that the recital talks about the "Establishment of a 3 good and just peace with the said Indians. ...(Founded 4 upon the strong pillars of Reciprocal Justice) by 5 Confirming to them their Just Rights, and by Redress 6 of their wrongs and Injuries." 7 The treaty goes on in paragraph -- in Article 1 8 you will see at paragraph 872 of the Factum to set out 9 that the respected Indian Kings and Queens acknowledge 10 their dependency on and subjection to the Crown. This 11 after all was a treaty of peace which followed 12 hostilities in which the Indians had been defeated. 13 And so there is a subjection to the authority of the 14 Crown, an acknowledgement of the Crown's suzerainty. 15 Article XII, however, of that same treaty expressly 16 deals with the recognition of Indian internal 17 self-government and the language says: "That each 18 Indian King and Queen have equal power to govern their 19 own people, " although it gives a certain precedence to 20 one of the chiefs, the poet and confederacy was 21 organized in a way in which there was paramount 22 chiefs. And so what you have here in the very early 23 document is an acknowledgement of the sovereignty of 24 the Crown which is not seen in any way to be 25 inconsistent with a continuing right to 26 self-government based upon the pre-existing rights of 27 the aboriginal peoples. 28 And again, quite briefly, my lords, I want to 29 refer your lordships to colonial practice in 30 Pennsylvania. This also is something which I would 31 commend to your lordships not by way of historical 32 interest but in terms of contemporary significance. 33 In Pennsylvania, Pennsylvania was one of the 34 proprietory colonies rather than a grant to a company. 35 There was a proprietory grant to an individual. In 36 this case William Penn. William Penn's Charter made 37 no mention of aboriginal peoples. The practices and 38 policies of William Penn are of significance because 39 unlike some agents of British colonization he was a 40 man of high moral principle. He was a Quaker. And I 41 say his views are of importance, my lords, because as 42 your lordships know the Surpeme Court of Canada in 43 Sparrow has made it very clear that in understanding 44 the obligations of the Crown, it is important to have 45 regard to the honour of the Crown. The honour of the 46 Crown is always charged in relationship to dealings 47 with aboriginal peoples. The development of a 132 Submissions by Mr. Jackson 1 fiduciary protectorate obligation. And I say that in 2 looking at the policies and practices of William Penn 3 we have a sense of what the honour of the Crown was 4 all about in the eighteenth century. And William Penn 5 again, even though he was given absolute rights under 6 his Charter, did not take that consistent with what we 7 say is the relevant law as being a right to immediate 8 beneficial enjoyment of Pennsylvania. He wrote, and I 9 have set it out at the top of page 343, that the 10 Indians are 11 12 "exact preservers of property as we are ...and 13 that the Indians are true lords of the soil, 14 there are two reasons; first because the place 15 was never conquered, secondly that the kings of 16 England have always commanded the English to 17 purchase the land of the natives which it is 18 supposed they would never have done, to the 19 prejudice of their own title, if the right of 20 the soil had been in them and not in the 21 natives." 22 23 And my lords, I would just refer your lordships to the 24 appendix, to paragraph 41 of the appendix which is at 25 page 19. Soon after William Penn's arrival in 26 Pennsylvania in October 1682, he held the Great Treaty 27 at Shackamaxon to establish what the Quaker historian, 28 Robert Proud, has described as "a lasting friendship, 29 a firm peace" in which William Penn and the Indians 30 "mutually promised to live together as brothers, 31 without doing the least injury to each other." No 32 contemporary record of this famous Treaty has 33 survived, but tradition and indirect evidence are 34 strong. In the middle of the eighteenth century, 35 Voltaire wrote of it as "the only treaty between those 36 nations and Christians which was never sworn to and 37 never broken." Even at the time of the American 38 Revolution, memory of the treaty was so strong that it 39 saved the great elm tree under which it was held from 40 being cut down for firewood by soldiers during the 41 British occupation of Philadelphia. 42 My lords, I can only advise your lordships that 43 when I mentioned this treaty during the trial argument 44 the next day a member of the audience presented me 45 with a photograph of the great elm in which he was 46 shaking hands with one of the descendants of the 47 Delaware chiefs who signed this treaty. I don't say 133 Submissions by Mr. Jackson 1 that that is anything more than indirect evidence. 2 But my point, of course, is that the way in which 3 William Penn conceived of the relationship between 4 aboriginal peoples and the Crown as one of amity, of 5 one of mutual sharing of the territory with equal 6 respect for each other's rights we say is a reflexion 7 of the honour of the Crown which has contemporary 8 significance and which we will be addressing your 9 lordships in the context of a contemporary resolution 10 of the issues before this court. 11 Now, at this point, my lords, I will move to the 12 next area which is of some significant importance not 13 because it only reflects a certain paradigm of a legal 14 relationship between the Crown and aboriginal peoples 15 but because it also takes us up to the Royal 16 Proclamation and it provides as it were an essential 17 background to your lordships' understanding of the 18 Royal Proclamation and it's for those dual purposes I 19 will be spending some time in looking at the process 20 of treaty making with the Six Nations of the Iroquois 21 Confederacy reflected in what is known to legal 22 historians as the Covenant Chain. 23 At paragraph 876 I say contrary to the findings of 24 the trial judge, the formal protocol of treaty making 25 constituted the legal paradigm for the accommodation 26 of Indian-Crown relationships and the acquisition of 27 land required for colonial settlement. This can be 28 seen most clearly through an analysis of the 29 relationship between both the French and English 30 colonial authorities and the Six Nations of the 31 Iroquois Confederacy. The Iroquois Confederacy, as 32 the major and I should say diplomatic military power 33 strategically situated between rival English and 34 French colonies, played an important, and indeed 35 critical, part in shaping the colonial history of 36 North America. 37 Legal and political relationships between the 38 Iroquois and the English centered upon the "Covenant 39 Chain." This reflected in metaphorical terms how the 40 Indian Nations saw the evolution and nature of their 41 relationship with the British. Covenant Chain 42 diplomacy brought to the process of political and 43 legal accommodations and the transfer of territorial 44 rights, Indian and diplomatic protocol and legal 45 convention. A careful examination of these treaties 46 reveals how the principles governing Indian and 47 colonial political and legal relationships were forged 134 Submissions by Mr. Jackson 1 as a result of Covenant Chain diplomacy. 2 And at this point, my lords, I would take you to 3 the appendix, Appendix B, to paragraph 46, and I don't 4 know whether this would be a convenient point for your 5 lordships to take the break. 6 TAGGART, J.A.: Well, we have five minutes. You might as well 7 make use of it. You may need it eventually. 8 MR. JACKSON: Yes, my lord. 9 TAGGART, J.A.: Appendix B, paragraph — 10 MR. JACKSON: Appendix B, paragraph 46. And your lordships will 11 note there that the reference is to a comparative 12 analysis done by one of the appellants' expert 13 witnesses at trial, Dr. Richard Daly, who talked about 14 the ethnographic comparisons between the Six Nations 15 of the Iroquois and the appellants. My point is not 16 because they were -- they had similar social and 17 cultural norms, that that means their rights were 18 equivalent. My point is, however, that when one looks 19 at the Iroquois and the nature of their society, when 20 one looks at the Iroquois and the nature of their 21 rights, one finds remarkable parallels between an 22 Indian nation in the eighteenth century and an Indian 23 nation coming to court in twentieth century. And we 24 have some points to make about the contemporary 25 relevance of the principles which the Iroquois were 26 able to guarantee in their treaty making with the 27 kinds of rights which the Gitksan and Wet'suwet'en say 28 they are entitled to secure from this Court by way of 29 declaration. And I am not going to take your 30 lordships to Dr. Daly's comments, but if your 31 lordships will note in appendix -- in Volume 19 at B46 32 the relevant citations from Dr. Daly's comments are 33 set out. 34 I am going to paragraph 48 now, my lords, of 35 Appendix B. The Covenant Chain which symbolically 36 linked the Six Nations with the English originated in 37 the early treaties with the Dutch. And the first 38 treaty concluded between English colonists and the 39 Iroquois was made shortly after the conquest of New 40 Netherlands in 1664. And my lords, I would like you 41 to pay particular attention to this document. Your 42 lordships can find it in R-19, but perhaps since we 43 are so close to lunch I will just take your lordships 44 through it. This was as I say the first treaty 45 negotiated between the British authorities and the 46 Five Nations. There were Five Nations in 1664. They 47 became Six Nations in the 1730s. 135 Submissions by Mr. Jackson 1 The principle subject matter of this treaty was 2 the punishment of trans-national crimes and the treaty 3 explicitly recognizes the juridical equality and 4 mutual independence of the contracting parties. 5 Articles I and II refer to the "Indian princes... and 6 their subjects", distinguishing from the English and 7 the Dutch or Indians living under the protection of 8 the English. And other articles recognize the 9 jurisdiction of each party for crimes committed by its 10 subjects against the other party. Thus, the British 11 were held responsible for crimes committed by their 12 subjects against Iroquois; the Iroquois were held 13 responsible for giving satisfaction for crimes 14 committed by their subjects against the British. 15 The treaty, when your lordships look at it, is a 16 two-page document. It bears, however, a much heavier 17 burden than its few paragraphs would suggest. The 18 Treaty of 1664 is regarded by many as being the root 19 of the Covenant Chain. It reflects what has been 20 referred to by many aboriginal peoples as the Two Row 21 wampum protocol. The idea that aboriginal nations and 22 British European governments when they come together 23 for treaty making come together in the context of 24 mutual respect for each other's rights, a context of 25 juridical equality and one in which both parties 26 recognize that while accommodation is important, while 27 mutual benefit from ongoing relationships is of the 28 essence, their internal self-governments, their rights 29 to maintain themselves as distinct societies proceeds 30 in a parallel line. And, my lords, that is the 31 context accommodation, yhr recognition of the 32 distinctiveness of aboriginal nations which, of 33 course, we say will be reflected in the declarations 34 we are asking this court to make in the context of 35 these appellants in 1992, not 1664. 36 TAGGART, J.A.: All right. We will break now for lunch until 2 37 o'clock. 38 3 9 LUNCHEON BREAK 40 41 I hereby certify the foregoing to be a true and 42 accurate transcript of the proceedings transcribed 43 to the best of my skill and ability. 44 4 5 46 Laara Yardley, Official Reporter, 47 UNITED REPORTING SERVICE LTD. 136 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 PROCEEDINGS RESUMED 2 3 THE REGISTRAR: Order in court. 4 TAGGART, J.A.: Yes, Mr. Jackson. 5 MR. JACKSON: My lords, I'm at paragraph 51 of Appendix B. I 6 was just about to embark on an examination of some of 7 the underlying theme of the Covenant Chain treaties, 8 which we say are of significance, not only in 9 illustrating what we say are first principles in terms 10 of relationships between aboriginal peoples and the 11 Crown, but also because they pre-figure in many ways 12 the provisions of principles embodied in the Royal 13 Proclamation of 1763. 14 Paragraph 51 I say that an examination of the 15 Covenant Chain treaties provides important insights 16 into how Indian nations perceived the nature of Crown 17 "protection" in terms of their existing rights of 18 ownership and jurisdiction. Both in relation to the 19 articulation of the fundamental principles and the 20 legal process of governing Indian-Crown relations, the 21 principle of Indian consent and treaty making, and in 22 the establishment of boundary between colonial 23 settlement and Indian hunting territories along the 24 Allegheny divide, the Covenant Chain treaties 25 pre-figure the essential elements of the proclamation. 26 My lords, I just at this point want to go into a 27 couple of examples of Covenant Chain treaties to make 28 my point of their significance in a contemporary 29 context, not simply as matters of historical moment as 30 time has been spent. In 1742 a large delegation of 31 the Six Nations met with the representatives of 32 Pennsylvania, and at the beginning of these 33 proceedings the Onondago chief, one of the Six Nations 34 spokespersons, conveyed the Six Nations apologies to 35 the proprietor of Pennsylvania because certain of the 36 members of the nation had sold lands directly to 37 individuals. And Canassateego characterized this as a 38 high breach of the league of friendship between the 39 Six Nations and Pennsylvania and repudiated the sale 4 0 and said that when they returned home they would 41 publicly affirm that repudiation and return the 42 purchase to -- purchase price to those who had bought 43 from these individuals. 44 Now, the significance of this exchange, and I've 45 set out some of the particular passages in paragraph 46 52, is that the Iroquois characterized this sale as 47 high breach of a legal friendship, thus recognizing 137 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 Pennsylvania's exclusive right in the name of the 2 proprietary to purchase Indian lands. Now, your 3 lordships have heard in the previous cases, and it is 4 now, well, almost trite, that one of the incidents of 5 aboriginal title is that it is alienable only to the 6 Crown. That is not a proposition to which the 7 Appellants dissent. In fact, they've acknowledged 8 that in their submissions. But what is significant is 9 that in this exchange one finds that this what might 10 be called a qualification on the rights of the 11 aboriginal peoples itself comes out of a process of 12 treaty making, and an acknowledgement by the Iroquois 13 in order to maintain good relationships with 14 Pennsylvania and the other proprietaries and other 15 jurisdictions, it is important to centralize the 16 alienation of lands through treaty making and not 17 allow individual sales to corrupt and cause problems 18 both for the Crown and for the Indian governments. 19 My lord, I want to take your lordships to 20 paragraph 59, and you will see there that I make the 21 point that several years after this encounter, I've 22 just mentioned the Iroquois returned at this time to 23 the town of Lancaster to deal with certain matters 24 relating to the Six Nations and the governments of 25 Virginia and Maryland. And I would ask your lordships 26 to turn to tab B-60, that's reference book R-19, which 27 confirms an account of the Treaty of Lancaster in 28 1754. 29 TAGGART, J.A.: Could I have that tab number begin, please. 30 MR. JACKSON: Yes, B-60, R-19. 31 TAGGART, J.A.: Yes. 32 MR. JACKSON: In R-60(sic) it's about three-quarters of the way 33 through -- B-60. The first sheet after B-60 is some 34 transcript references from Mr. Morrison. And if your 35 lordships just go beyond that to a brown sheet, you 36 wil find behind the brown sheet the treaty I am 37 referring to. It's headed "Document 5, Treaty With 38 The Six Nations Indians". And I wanted to use this 39 treaty by way of illustration of the nature of the 40 relationship between the Six Nations and colonial 41 authorities at this point. And your lordships will 42 note on the first page that the treaty is between -- 43 the treaty conference is set out as being negotiated 44 on behalf of the lieutenant and the Governor of the 45 Province of Pennsylvania, Commissioners of Virginia, 46 Commissioners of Maryland and the Deputies of the Six 47 Nations. And this reflected the nation-to-nation 138 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 relationship which was established in these treaty 2 conferences. Almost on a yearly basis the Six Nations 3 deputies travelled to Albany, to Philadelphia and 4 other places of the seats of government in the 5 colonies to meet with the colonial authorities. These 6 were matters of state importance. You will note, my 7 lords, that the treaty conference takes place in the 8 courthouse in the town of Lancaster. In Philadelphia 9 it was usually held in the town hall. These meetings 10 were observed by the establishment of the colonial 11 societies, they were matter of state importance. This 12 is further reflected, my lords, you will see that -- 13 at the very top of the document you will see after the 14 heading "Treaty Of The Six Nations Indians" there's a 15 reference, "Philadelphia: B. Franklin". We have, in 16 relation to these treaties, an unprecedented account. 17 Benjamin Franklin, who at that time was a publisher, 18 saw what was happening as a matter of great moment for 19 relationships between the colonial governments and 20 their aboriginal neighbours, and these were published, 21 these were circulated in colonial society as affairs 22 of state. It's said, and, in fact, the American 23 congress has acknowledged that some of the ideas of 24 the Six Nations in terms of their forms of government 25 were the source and inspiration for some of the 26 American concepts in their constitution. The other 27 thing -- and I make this point, my lords, because in 28 the context of a contemporary Canada, where we see 29 First Nations representatives meeting now with federal 30 and provincial officials around a conference table, it 31 is easy to see this is a bold new venture, this is 32 something new and unprecedented. In fact, the idea of 33 nation-to-nation relationships, the idea of 34 recognizing the integrity of Indian governments and 35 their leaders around an affair of state is something 36 which has roots very deep, and some of their most 37 visible aspects can be found in the accounts of treaty 38 making as part of the colony chain treaty making. My 39 point is, in a sense, we are rediscovering certain 40 matters in relation to the relationship between 41 aboriginal peoples and the Crown. 42 Our argument, my lord, in asking this court to 43 make declarations of ownership and jurisdiction, also 44 is an argument to recognize that the roots of these 45 relationships, the roots of these concepts, go beyond 46 British Columbia. They have roots which take us 47 across the continent but which unify British Columbia 139 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 history in the context of a North American history. 2 Your lordships will also see, if you turn the page, 3 that -- and if your lordships go to the right-hand 4 column, you will see that when the Colonial officials 5 first address the Iroquois deputies they start, and 6 this is the British colonial authorities speaking: 7 8 "These your brethren of Virginia and 9 Maryland" — 10 11 And this is the last part of that column at the 12 bottom: 13 14 "-- are come to enlarge the fire which was 15 almost gone out, and to make it burn clearer, 16 to brighten the chain which had contracted some 17 rust." 18 19 Now, these were the metiphors of Iroquois diplomacy. 20 The fire was a reference to a seat or site of a treaty 21 conference. The chain was a reference to the covenant 22 which linked, metaphorically, the British in alliance 23 with the Iroquois. And one finds that throughout 24 these treaties that the British adopted the Iroquois 25 protocol of treaty making. And so you have this 26 accommodation, a recognition again of both the symbols 27 of civilization of the Iroquois as the British 28 conducted state business with them. 29 If your lordships turn the page again, at the very 30 top left-hand column where it's sidelined, you will 31 see that the end of the opening statements of the 32 colonial authorities, there's an editing comment: 33 34 "To enforce what had been said, the Governor 35 laid down a belt of wampum." 36 37 Now, the belt of wampum was for the Iroquois and an 38 encoded way of communication. It was a belt of 39 leather in which shells were embedded, and that was 40 the Iroquois way of communicating messages. It was in 41 fact the archival system of the Iroquois. The British 42 adopted it in the sense of when a proposition was 43 given to the Iroquois a belt of wampum was laid down, 44 and its acceptance was an acknowledgement not of an 45 acceptance of the proposition, but an acknowledgement 46 that it would be given in good faith and it would be 47 considered. The Indians give the "Yo-hah", which is 140 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 something akin to, although something more than, the 2 parliamentary "Here here", but my point again is to 3 make the argument that we had here, had in affairs of 4 state in which Iroquois and Colonial British diplomacy 5 and protocol were conjoined, thus, the end of these 6 treaty conferences, usually to the extent that any 7 land transactions took place, and often they did, 8 because often the purpose of these transactions was to 9 get Iroquois agreement to permit settlement within 10 their territories there would be a deed drawn up in 11 the British tradition. There would also be a belt of 12 wampum, which would be woven to reflect in the 13 Iroquois tradition the agreements which have been 14 made. 15 Now, the -- and I won't trouble you anymore with 16 the text of that, although, my lords, the text reads 17 something like the transcript to contemporary 18 Constitutional conferences, and, in fact, that is an 19 appropriate way to see them in their context. If I 20 can take your lordships back to paragraph 61 of the 21 appendix, and the next two paragraphs are designed to 22 give your lordships something of the sort of the 23 agenda items which took place. 24 The agenda for the conference embraced the status 25 of lands within Virginia and Maryland which the Six 26 Nations claimed by right of conquest and which had 27 been settled by whites from the two colonies without 28 Iroquois consent or any purchase made from them. And 29 the issue turned on the proper interpretation of the 30 previous Treaty of 1722 with Virginia, which had drawn 31 a boundary line between the Six Nations and Virginia 32 along the Allegheny Mountains and the Potomac River 33 across which the Iroquois had promised not to cross 34 that boundary without a passport from New York or 35 Virginia. And the Iroquois, making what we say is a 36 technical legal argument, maintained an equally 37 binding reciprocal covenant was to be implied that 38 Virginia settlers would not come across the mountains 39 to settle without Iroquois consent, and that they 40 maintain that Colonial settlers had done exactly that 41 in violation of their interpretation of the treaty. 42 The Commissioners of Maryland raised a concern 43 they had arising from previous statements made by the 44 Iroquois that they would get justice, either through 45 diplomatic means or in their own terms. The Maryland 46 Commissioners took umbrage at what they saw as a 47 threat. I've referred your lordships in paragraph 62 141 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 to what the Iroquois spokesman said about that alleged 2 threat: 3 4 "When we found that you had paid no regard to 5 our just demand...we were resolved to use such 6 expressions as would make the greatest 7 impressions on your minds and we find it had 8 its effect....we had no design to terrify you, 9 but to put you on doing us the justice you had 10 so long delayed." 11 12 And I say, my lords, in paragraph 63, that 13 Canassateego's words accurately describe what this 14 litigation is about, to obtain through court 15 declarations the justice which has been so long denied 16 the Gitksan and Wet'suwet'en, and indeed, other first 17 nations in British Columbia. 18 Now, what happened at the Treaty of Lancaster was 19 that the Iroquois lay down their chain of title as to 20 why they said they owned these lands and how they 21 acquired them through conquest. The Commissioners of 22 Maryland laid down their chain of title in terms of 23 why they said they had the right to settle it. In the 24 event neither party stood on their titles, it was 25 agreed in the interests of mutual accommodation and 26 maintaining the Covenant Chain that not withstanding 27 who had the better title, the Iroquois would cede 28 those lands and the British would pay for them. And I 29 also make the point, my lords, at paragraph 60 -- 30 sorry, paragraph 70, and again this was a late motif 31 of these conferences, the Iroquois were apprised of 32 the state of affairs between the British and French 33 and of the English successes, which has now been 34 renewed, and sought Iroquois assurances that they 35 would maintain the Covenant Chain with the British and 36 not assist the French. And you have an exchange of 37 wit and pleasantries, I won't go into it, my lords, 38 but an exchange which would have sat well in the 39 diplomatic halls of Versailles and Westminster. 40 At paragraph 73, my lords, I refer your lordships 41 to events subsequent to the Treaty of Lancaster which 42 I say are instructive as to the importance of treaty 43 making to colonial expansion. The Province of 44 Virginia had taken a very generous interpretation of 45 the lands ceded by the Six Nations to Virginia by the 46 Treaty of Lancaster. And in light of that, they had 47 taken the position that the colony had jurisdiction 142 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 over all lands between the Alleghenys and the Ohio 2 River. The Iroquois took a much more restrictive view 3 of the treaty; again, a distinction between the text 4 of the treaty and the archival wampum of the Iroquois. 5 In 1748 a group of prominent Virginia businessmen 6 formed the Ohio Company in order to pursue actively 7 Virginian land claims to the Western territory and, 8 pursuant to a charter, it received a grant of a large 9 area of land. 10 Now, Ohio Company was of critical importance to 11 the British and the French. It was seen as being the 12 key to the imperial strategies of the two competing 13 powers. When these land speculators sought to survey 14 the land they met resistance by the Iroquois, who said 15 "This is not land which is subject to your settlement 16 under our interpretation of the treaty". Therefore, 17 there was a further treaty at which the Iroquois, 18 having been given assurances that if they allowed 19 settlement a fort would be built, it would provide 20 protection for the Iroquois against French incursions, 21 it would supply easier supply routes to the Iroquois 22 in terms of trade goods. Having given those 23 assurances, the Iroquois agreed to allow settlement 24 within the Ohio territory, and I've characterized what 25 took place at Logstown, my lord, at paragraph 76. And 26 I would refer your lordships to that. In terms of the 27 legal process which this treaty bespeaks, the Ohio 28 Company had received a grant of land from Virginia to 29 which the Colony claimed legal title by virtue of a 30 previous Indian cession, Treaty of Lancaster. There 31 was ambiguity as to the proper interpretation of that 32 cession in terms of the extent of land ceded. Before 33 proceeding to build a fort and establish settlement 34 within the disputed area, a further treaty was 35 organized and the consent of the Indian claimants was 36 obtained. An agreed interpretation of the treaty was 37 ratified by both parties and Indian consent was given 38 to the proposed settlement and construction. And we 39 say this conforms precisely to the legal pattern of 40 settlement and development in colonial territories in 41 the post-proclamation period but not in British 42 Columbia. And we say that the Treaty of Logstown, 43 along with the other Covenant Chain treaties, refutes 44 the trial judge's conclusions that consent to the 45 settlement of lands in the possession of the Indians 46 was never part of colonial law. 47 And, my lords, I -- in relation to this question 143 Submissions by Mr. Jackson Submissions by Mr. Jackson 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 of the relationship of the status of Indian Nations, and which goes very much to the question of the right to jurisdiction, the right to self-government which the Appellants claim, is part of their aboriginal rights affirmed by Section 35. I would refer your lordships to the comments, judgment of Mr. Justice Lamer, Chief Justice, in the Sioui decision, and I don't know how handy this is to your lordships, but the Sioui decision can be found in volume A-2 of the books of authorities at tab 39. I would like your lordships, if you would, just turn to that briefly at page 145. That's volume A-2, 39. I'll start at page 145 of tab 39. And this is near the bottom of the page, in fact the penultimate paragraph on page 145. And in terms of context, Chief Justice had been looking at the surrounding circumstances and the situation of the Huron Indians at the time of the capitulation in 1760: "I consider that, instead, we can conclude from the historical documents that both Great Britain and France felt that the Indian nations had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations. The mother countries did everything in their power to secure the alliance of each Indian nation to encourage nations allied with the enemy to change sides. When these efforts met with success, they were incorporated in treaties of alliance or neutrality. This clearly indicates that the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations." TAGGART, J. MR. JACKSON TAGGART, J. MR. JACKSON Sorry to interrupt you. Where are we? This is bottom of page 145. I see, I have it. And I'll just go back a little moment: 'This clearly indicates" at the very bottom of 145: '-- that the Indian Nations were regarded in their relations with the European nations which occupied North America as independent nations. 144 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 I will be coming back to this, my lords, because you 2 will see immediately thereafter Chief Justice Lamer 3 refers to the judgment of Chief Justice Marshall in 4 Worcester and Georgia, upon which the Appellants 5 greatly rely, and I will be coming back to this whole 6 question of Sioui and Worcester and Georgia in the 7 next day or so. But my point is that there is now 8 Canadian authority which acknowledges that at this 9 point in time nation-to-nation relationships were the 10 hallmark of Indian-Crown relationships in North 11 America. 12 I now wish to get into the period immediately 13 before the Royal Proclamation and the role in which 14 Covenant Chain treaty making played in that context. 15 Paragraph 77, and your lordships might note that 16 paragraph 77 is also repeated in paragraph 880 of the 17 main factum, and paragraph 77 of Appendix B: The 18 maintenance of the Covenant Chain with the Six Nations 19 and their allies became of critical importance to the 20 English in the continuing hostilities with France in 21 the 1750's and 60's. The Six Nations, and I emphasize 22 this point, made it clear that the precondition for 23 maintaining that alliance with the British Colonies 24 was recognition of their territorial rights and the 25 redress of frauds and abuses by colonial land 26 speculators. It was this "mischief" and the inability 27 of the colonial authorities to properly address these 28 vital Indian concerns relating to their land rights 29 that led in 1753 to the imperial authorities in London 30 taking charge of Indian policy and placing imperial 31 imprimatur on the affirmation and enforcement of 32 Indian rights to their territories. And it is the 33 Appellants' submission that in the formulation of that 34 policy, and it's also an expression in the Royal 35 Proclamation, the imperial authorities endorsed and 36 consolidated principles of the common law governing 37 Indian-Crown relationships which had been articulated 38 and agreed upon in the Covenant Chain treaties. 39 My lords, I'm going to highlight the next part of 4 0 Appendix B, which really documents the extent to which 41 the acknowledgement of Indian land rights was a 42 critical and the critical element in British imperial 43 foreign policy in terms of maintaining Indian alliance 44 in the imperial struggles between England and France, 45 and it had a critical impact on the ultimate result of 46 that encounter. In the same way as that encounter 47 reverberates today in the context of contemporary 145 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 Canada, we say that the acknowledgement and 2 recognition of Indian aboriginal rights is as 3 contemporary and should resonate as much in the 4 deliberations of this court. 5 At paragraph 79, my lord, I note that in 1753, 6 because of the inability of the colonial authorities 7 to deal with Iroquois grievances about colonial 8 individuals and companies coming into their 9 territories without treaties and establishing 10 settlements, threatened to break the Covenant Chain. 11 At a moment when Britain was again preparing to go to 12 war with France, this was seen in apocalyptic terms in 13 Westminster, and the imperial authorities were 14 directed to come together in a sense, to use the 15 colloquial term, to get their act together and to come 16 together in one treaty with the Iroquois to 17 consolidate and cement the Covenant Chain, which was 18 seen as being of critical importance in the imminent 19 encounter with France. And that cementing of the 20 Covenant Chain took place at the Albany Conference in 21 1754. And I would just like to alert your lordships 22 to the nature of the exchange and extent to which it 23 reflects aboriginal and Crown understanding of what 24 their mutual rights were. At paragraph 82 of Appendix 25 B, Chief Hendrick, who had replaced Canasseteego as 26 the principal diplomatic envoy in these treaty 27 conferences makes the point the British and the French 28 are quarrelling about lands which belong to them, the 29 Iroquois. And in response to that complaint the 30 colonial authorities make the statement which appears 31 at the very top of page 41 in relation to what are 32 known as the Iroquois deeds. These were deeds whereby 33 the Iroquois placed their lands under the protection 34 of the Crown, and the British understood those lands 35 being placed under the protection of the Crown in this 3 6 way: 37 38 "You did put this land under the King our 39 Father, he is now taking care to preserve it 40 for you; for this end, amongst others, he has 41 directed us to meet you here, for although, the 42 land is under the King's government, yet the 43 property or power of selling it to any of His 44 Majesty's subjects having authority from him, 45 we always consider as vested in you." 46 47 In the light of that assurance Hendricks, on behalf of 146 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 the Iroquois confederacy, renewed the Covenant Chain. 2 My lords, the next paragraphs -- I'm not going to 3 take your lordships to them -- the next paragraphs 4 document how far for the next ten years, next seven 5 years, until the final capitulation, the recognition 6 of Indian land rights was a centrepiece of imperial 7 foreign policy in relation to aboriginal peoples. I 8 will just take you to one example and leave it at 9 that. 10 At paragraph 95 -- what happened during this 11 period is repeatedly the British met, through their 12 diplomatic envoy, Sir William Johnson, with the 13 Iroquois, with the Delawares, with their other Indian 14 Nations to ensure that their alliance would in fact 15 hold. Paragraph 95 I say the relationship between 16 Indian foreign policy and the recognition of their 17 land rights was made clear in the ongoing negotiations 18 between the Delawares in Pennsylvania. At a 19 conference in 1756 the Delaware Chief Teedyuscung, in 20 an address to the Government of Pennsylvania, made it 21 clear that fraudulent land dealings were at the root 22 of Indian hostility towards the British. And the 23 Delaware chief said: 24 25 "The reason I strucke you must know, it is I 26 think because the Kings of England and France 27 made warr with one another for our lands, and 28 both these nations incroached upon our lands 29 and coop'd us up as if in a penn...This very 30 ground I stand on was our land and inheritance; 31 bargains are bargains and we stand by them... 32 but we think we should not be ill-used on this 33 account by those very people who now enjoy the 34 fruit of our lands." 35 36 And Teedyuscung made the indelible link, I said, 37 between the resolution of legitimate land grievances 38 and justice, and the two or three passages I set out. 39 I will take you to the second one: 40 41 "I would desire also that you would look with 42 all diligence and see from whence our 43 differences have sprung....if I can now prevail 44 with you, as I hope I shall, honestly to do 45 what may be consistent with justice, then I 46 will with a loud voice speak and the nations 47 shall hear me. 147 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 The land is the cause of our difference that is 2 our being unhappily turned out of the land is 3 the cause, and tho the first settlers might 4 purchase the lands fairly yet they did not act 5 well nor do the Indians justice for they ought 6 to have reserved some place for the Indians: 7 had that been done these differences would not 8 have happened." 9 10 Now, my lord, Teedyuscung went on, and I would like to 11 refer your lordships to the next comment he makes, 12 because again it is one with contemporary 13 significance. In paragraph 97 the Delaware chief set 14 out a series of proposals to render what he saw as 15 long-standing land abuses: 16 17 "I therefore now desire that you will produce 18 the writing and Deeds, by which you hold the 19 land, and let them be read in public and 2 0 examined that it may be fully known from what 21 Indians you have bought the land you hold, and 22 how far your purchase extends, that copies of 23 the whole may be laid before King George, and 24 published to all the Provinces under his 25 Government. What is fairly bought and paid for 26 I make no further demands about, but if any 27 lands have been bought of Indians to whom these 28 lands did not belong and who had not no right 29 to sell them, I expect satisfaction for these 30 lands. And if the Proprietaries have taken in 31 more lands than they bought of true owners, I 32 expect likewise to be paid for that. But as to 33 the persons to whom the proprietaries may have 34 sold these lands which of right belong to me 35 have made some settlements, I don't want to 36 disturb them or force them to leave them but I 37 expect a full satisfaction shall be made to the 38 true owners for these lands tho the 39 Proprietaries as I said before might have 40 bought them for persons that had no right to 41 sell them." 42 43 Now, the significance of that, my lords, is it 44 parallels the Statement of Claim of the Appellants, 45 that in relation to lands which have been alienated in 46 fee simple, they do not concede the right of the 47 Province to have made those grants. They make no 148 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 claims to those lands beyond the expectation of 2 satisfaction or damages for their wrongful alienation, 3 and the point here, my lords, I would emphasize, is 4 that the Six Nations, at a point where they held the 5 balance of power, were still ready to accommodate. 6 They were still prepared in the spirit of the Covenant 7 Chain to make mutual satisfaction, to work out a modus 8 vivendi between them and the British to ensure 9 consistent with Crown protection and acknowledgment of 10 their rights and a sharing of the territory and 11 resources. 12 My lords, at this point, I would take your 13 lordships back to the main factum, to paragraph 881. 14 The other point I should say, my lord, before getting 15 back into the main factum, is that the part of 16 Appendix B I've just been taking you through also 17 makes a number of references to the critical military 18 importance of the Iroquois, how in fact the alliance 19 of the Iroquois was not simply of diplomatic 20 importance in maintaining the alliance of Indian 21 nations and denying the French their assistance, but 22 the active assistance of the Iroquois played a very 23 important part in the ultimate struggle for supremacy 24 as between the European contestants. 25 At paragraph 881 of the main factum I refer to the 26 references which the trial judge made to this part of 27 the argument. The trial judge said: 28 29 "The Plaintiffs argue, correctly I think, that 30 for 150 years prior to the Peace of Paris, 31 Indian trade, politics and land had been a 32 central factor in the economic, military and 33 political fabric of North America. It is 34 apparent that the support of the Indians 35 contributed to the successful outcome of the 36 struggle for North America. The plaintiffs 37 argued that British acknowledgement of Indians' 38 rights to the territories and that the Indians 39 could not be deprived of their lands without 40 their consent was fundamental to the survival 41 and expansion of British interests in North 42 America. The Plaintiffs argue that: 43 These principles form part of the bedrock of 44 Canadian history and nationhood. 45 In their arguments outline of argument, the 46 Plaintiffs say: 47 'Underlying this review of the covenant chain 149 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 of treaties and conferences is the Indian 2 insistence of and the British recognition that 3 the Indian-Crown relationship be grounded in 4 justice. The word crops up again and again in 5 both the exchanges between the Iroquois and the 6 colonial authorities and in the imperial 7 instructions to colonial authorities. The Six 8 Nations and the Crown came to agree that 9 Justice involved the recognition of the rights 10 of the Indian Nations as the original 11 proprietors of the soil, that their rights to 12 their territories could not be changed without 13 their consent expressed in public council 14 through the treaty protocol; and that the Crown 15 assumed the obligation of protecting the Indian 16 Nations from frauds and abuses in relation to 17 their territorial rights." 18 19 My lords, having so acknowledged, the trial judge 20 in fact then ignored the implications of that 21 argument. He in fact consigned it to the wastebasket 22 of history. And we say, my lords, that these 23 principles are not transient notions confined in time 24 or place to the east coast of North America in the 25 mid-18th century. 26 At paragraph 882 we say that these principles are 27 part of the common law and are recognized and affirmed 28 in the Royal Proclamation of 1763. The difference of 29 course is that in the mid-18th century the Six Nations 30 of Iroquois Confederacy and their allies were able to 31 insist upon the enforcement of these principles 32 without resort to courts of law by virtue of military 33 and diplomatic power. But these principles do not 34 lose contemporary significance because the Gitksan and 35 Wet'suwet'en lack that military and political power to 36 compel their recognition by the Federal and Provincial 37 governments. It is because we say they are 38 fundamental principles upon which the shape of Canada 39 was forged that the Gitksan and Wet'suwet'en have 40 turned to the courts as the appropriate means to 41 insist upon their acknowledgement in the 20th century 42 by British Columbia and Canada. 43 Now, my lords, in the context of the Royal 44 Proclamation, and I will be taking your lordships 45 through that in summary form in just a moment, but in 46 relation to the Royal Proclamation, the trial judge, 47 in characterizing what the Proclamation was about, 150 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 focused very much on its purposes in reorganizing the 2 territory acquired from France, in dealing with trade 3 relationships, in pacifying the frontier. But what he 4 did not focus on is what the Supreme Court of Canada 5 in Sioui did focus on and what the Appellants insist 6 is the appropriate focus of the Royal Proclamation in 7 the context of this litigation. And at page -- 8 paragraph 885, I refer to the characterization by 9 Chief Justice Lamer in Sioui, who makes the point that 10 the Royal Proclamation granted certain important 11 rights to the native peoples and is regarded by many 12 as a kind of Charter of Rights for the Indians. And 13 that is a point which I will be coming back to and 14 Miss Mandell will be directing your lordships' 15 attention to in some considerable detail. 16 At paragraph 886, and again this is by way of a 17 notice, rather than addressing the particular argument 18 here, my lords, having mischaracterized the 19 fundamental purpose of the Royal Proclamation the 20 trial judge was led into further errors, both in 21 saying that the rights created by the Proclamation 22 were rights determinable at the pleasure of the Crown. 23 And while this was not critical to his findings, 24 because he had held the Royal Proclamation didn't 25 apply to British Columbia, it was critical in the 26 sense that he said that aboriginal title existing as a 27 matter of common law independent of the Proclamation 28 could be of no higher order. It also was a right 29 extinguishable at the pleasure of the Crown. And that 30 is a finding which we say is fundamentally flawed, and 31 it's one which I will be addressing the court at some 32 length tomorrow. And the further error we say the 33 trial judge made, which will be the gravamen of Miss 34 Mandell's submission, is that the Proclamation did not 35 apply specifically to British Columbia when the 36 Appellants' territories came under the sovereignty of 37 the Crown. 38 Now, my lords, starting at paragraph 887, I have 39 set out in somewhat of a synoptic view of the Royal 40 Proclamation of 1763, and I just want to give your 41 lordships a sense of where we say it reflects the 42 principles which have been evolving, have been 43 emerging, have been brought about through Covenant 44 Chain treaties, and how, almost as it were as a 45 watershed, they are brought together in the context of 46 the Royal Proclamation and given imperial affirmation, 47 and endorsement. 151 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 HUTCHEON, J: Where could we find — do we have the text? 2 MR. JACKSON: Yes, your lordships. The text of the Proclamation 3 is set out at tab 897 of Volume R-16. 4 MACFARLANE, J: It's also part of the judgment. 5 MR. JACKSON: I think your lordships, it's an appendix to the 6 judgment as well, yes. 7 MACFARLANE, J: That's probably more convenient. 8 MR. JACKSON: That may be more convenient to your lordships. I 9 at this point was not going to take your lordships to 10 the actual particulars of the Proclamation, I was 11 going to leave it to Miss Mandell when she gets to the 12 details of it. I've set out in the factum the parts 13 which I say embody the themes which constitute the 14 affirmation of what we say are principles of the 15 common law in their own right. At paragraph 887 and 16 paragraph 888 we have set out the now well-accepted 17 view by the courts that the Proclamation did not 18 create rights. The trial judge at one point talked 19 about the Proclamation creating a right, but it is 20 quite clear on the authorities that the Proclamation 21 affirmed rights, and those rights exist independently 22 of the Proclamation as a matter of the common law. 23 And that again is a point which I will be addressing 24 your lordships tomorrow. And in terms of the overall 25 impact of the Proclamation, I have sought to summarize 26 it at paragraph 889 too, which I would now direct your 27 lordships. The Proclamation in part IV, which is 28 known as the Indian affairs part of the Proclamation, 29 recognizes that lands possessed by Indians anywhere 30 within British Dominions within North America are 31 reserved to them unless and until ceded to the Crown 32 or its representatives and protects this territorial 33 integrity by restrictions on grants, settlements and 34 purchases. It also temporarily closes to settlement 35 and development, subject to Indian consent, large 36 parts of the North American interior, reserving it for 37 use of the Indian nations but designating it a free 38 trade zone. To the extent that future settlement is 39 permitted by the Crown on lands which Indian nations 40 are prepared to sell, such purchase is to be made by a 41 representative of the Crown according to the treaty 42 protocol at a public meeting and assembly of the 43 Indians. Moreover, the Proclamation contemplates no 44 intrusion into the powers of Indian self-government. 45 Now, paragraph 890, my lords, I have set out the 46 preamble, and it is a comprehensive referential 47 incorporation of many of the points I have been making 152 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 so far. The recital states: 2 3 "And whereas it is just and reasonable, and 4 essential to our Interest, and the Security of 5 our Colonies, that the several Nations or 6 Tribes of Indians with whom We are connected, 7 and who live under our Protection should not be 8 molested or disturbed in the Possession of such 9 Parts of our Dominions and Territories as, not 10 having been ceded to or purchased by Us, are 11 reserved to them, or any of them, as their 12 hunting grounds." 13 14 And I would take your lordships to the comments of 15 Professor Slattery, who devoted a Ph.D. thesis at 16 Oxford to a detailed investigation into the origins 17 and the analysis of the Proclamation. His comments in 18 relation to the preamble are set out at page 351: 19 20 "In effect, the text assumes an already-existing 21 situation whereby certain lands are reserved 22 for Indian use, and states the necessity of 23 safeguarding from invasion. What lands are 24 viewed as reserved? They are described as 25 'such parts of our dominions and territories' 26 as have not 'been ceded to or purchased by us' 27 and are in Indian 'possession'. The conjecture 28 of these factors is taken to characterize the 29 lands in question. This presupposes that lands 30 possessed by indigenous peoples which have not 31 been ceded to or purchased by the Crown are 32 reserved for their use. The references to 33 cession and purchase likewise presume the 34 existence of interests susceptible of being 35 ceded and bought, that is, interests amenable 36 to legal transfer, at least to the Crown. In 37 sum, the preamble recognizes that Indians hold 38 rights to unceded lands in their possession 39 throughout British dominions in North America." 40 41 And paragraph 912 I make reference to the provision -- 42 MACFARLANE, J.A.: Has that statement been adopted by a court? 43 MR. JACKSON: I'm not aware of any court which has specifically 44 gone to that passage and has affirmed it. 45 MACFARLANE, J.A.: I didn't remember it being so. 46 MR. JACKSON: As your lordship may know, Professor Slattery has 47 been cited on a number of occasions now. It may be up 153 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 to your lordships to give imprimatur to that statement 2 in due course, as your lordships so please. Miss 3 Mandell has reminded me, my lords, that it is not 4 typical for a Ph.D. thesis, its circulation was 5 limited, it was never published as a book and 6 therefore its amenability for endorsement has not been 7 as visible. 8 WALLACE, J.A.: I presume you're adopting it. 9 MR. JACKSON: I am, my lord. 10 MACFARLANE, J.A.: Visible enough it was adopted in the Supreme 11 Court of Canada, not this part, but part of Slattery's 12 thesis, and it's been -- you know, it's been discussed 13 there. 14 MR. JACKSON: Professor Slattery's views in Sparrow I think were 15 in his article in Canadian Bar Review, Aboriginal 16 Rights, which builds upon the insights he gains in 17 research for the thesis. 18 LAMBERT, J.A.: But it's not a profound proposition, or perhaps 19 even one that needs endorsement, it's just logic, is 20 it not? The Proclamation says -- refers to such 21 matter as have not been ceded or purchased, and 22 Professor Slattery says therefore the Proclamation 23 contemplates that Indian lands are cedeable and 24 purchaseable, and that's all the point you're making. 25 MR. JACKSON: My point of using Professor Slattery, my lords, is 26 the Proclamation language I find straightforward. It 27 has been subject to such contextural interpretation 28 that sometimes the plain language of the Proclamation 29 is obscured. I think your lordship has gone to the 30 heart of it. The language says what it means and 31 perhaps does not bear nor need extensive commentary, 32 but extensive commentary it has got, and a part of 33 your lordship's inquiry I think will be to get to the 34 language and to understand it in the context of what 35 happened before. Our point is that the Proclamation 36 is endorsing a situation which had already been 37 prefigured. The requirement for purchase of Indian 38 lands, the acknowledgement that lands not purchased in 39 procession. Indians were -- Indian lands not 40 available for settlement was something which we say 41 comes out clearly from an analysis of the 42 pre-Proclamation history. 43 WALLACE, J.A: Why would it be necessary to provide that such 44 lands would be reserved for the use of Indians if 45 indeed they had total ownership and title? It's this 46 other -- you know, these are reserved for you, and the 47 argument that they already belong to the Indians. 154 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 MR. JACKSON: My lord, I think the land of reservation is not 2 intended to connote a granting of those lands, it's 3 intended to make a reference to the pre-existing state 4 of affairs, which these lands are in fact Indian 5 lands. The language of the reservation comes up when 6 you look at the Proclamation in context, because one 7 or the other purposes of the Proclamation, which I can 8 take your lordships to immediately in paragraph 894, 9 was building upon what will come up in Indian treaties 10 with the Iroquois. The Iroquois, as reflected in the 11 early treaties, had said "We are prepared to cede 12 lands to the British, but there comes a point where 13 there are lands which we need for ourselves beyond 14 which we cannot make any further cessions." And in 15 the pre-Proclamation period the Allegheny line, the 16 line of the Allegheny Mountains, was seen both by 17 British and Iroquois spokespersons as an appropriate 18 line, to draw a line not so much in the desert, but to 19 draw a line which would provide a boundary between 20 British and Indian interests, and the using the 21 language of a reservation, of reserving those lands, 22 which was reflecting of that demand that some lands 23 not be available to settlement at this time, they will 24 be reserved for the Indians that they -- as lands they 25 were not prepared to cede at this point. And I think 26 that is the explanation, my lord, for using the 27 language of reservation. 28 What -- before I get into actually what those 29 lands were, my lord, there's one thing I will just 30 take you back to, paragraph 892, where the Colonial 31 Governors were enjoined from granting patents or 32 making grants to land which had not been purchased 33 from the Indians. The language of that is important, 34 because it has led to a characterization as to the 35 nature of the interest of Indian lands. If you look 36 at paragraph 892, you will see that the Proclamation 37 says: 38 39 "For the present and until our further pleasure 4 0 be known". 41 42 Now, that is the language, my lords, which has given 43 rise to the concept that aboriginal title, either held 44 under the Proclamation or at common law, exists at the 45 pleasure of the Crown. Lord Watson in the St. 46 Catherine's Millings case, which I will be coming to 47 tomorrow, refers to the language of the Proclamation 155 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 and those particular words. And I will be coming back 2 to them in just a moment in terms of what we say they 3 mean properly understood in the context of the 4 Proclamation. In addition to enjoining the Governors 5 from making grants beyond their colonies, boundaries 6 for lands unceded by the Indians, the Proclamation 7 also closes off to settlement as Indian territory all 8 those lands west of the Allegheny Mountains. But 9 again the language of that is important. If you look 10 at paragraph 894, the Proclamation says: 11 12 "We do further declare it to be Our Royal Will 13 and Pleasure" -- 14 15 Again, the pleasure of the Crown: 16 "-- for the present as aforesaid, to reserve 17 under Our Sovereignty Protection, and Dominion, 18 for the Use of said Indians" -- 19 20 And it sets out what those lands are. Miss Mandell 21 will be going into that in more detail, but for 22 present purposes I've summarized in paragraph 895 they 23 are those lands lying outside of the boundaries of the 24 existing colonies in North America and the newly 25 acquired colonies and the Hudson Bay territories. All 26 those lands are designated as Indian territory in 27 which settlement is not for the present to be 28 permitted. 29 Now, my lords, the last, and as I say, I will be 30 coming back to the question of "what for the present 31 and until further pleasure be made known" in just a 32 moment. The last part of the Proclamation, "having 33 enjoined the Governors from making lands to unceded 34 lands, having closed off for the present lands beyond 35 the Alleghenys" provides for a protocol for the 36 purchase of Indian lands which they are prepared to 37 cede. And at paragraph 897 I've set out this part of 38 the Proclamation, and it reads: 39 40 "And whereas great Frauds and Abuses have been 41 committed in the purchasing Lands of the 42 Indians to the great Prejudice of our 43 Interests, and to the great Dissatisfaction of 44 the said Indians; In order, therefore, to 45 prevent such Irregularities for the furture, 46 and to the end that the Indians may be 47 convinced of our Justice, and determined 156 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 Resolution to remove all reasonable Cause of 2 Discontent, We do, with the Advice of our Privy 3 Council, strictly enjoin and require, that no 4 private Person do presume to make any Purchase 5 from the said Indians of any Lands reserved to 6 the said Indians, within those parts of our 7 Colonies where, We have thought proper to allow 8 Settlement; but that, if at any Time any of the 9 said Indians should be inclined to dispose of 10 the said Lands, the same shall be purchased 11 only for Us, in our Name, at some public 12 Meeting or Assembly of the said Indians, to be 13 held for the Purpose by the Governor or 14 Commander-in-Chief Colony respectively within 15 which they shall lie." 16 17 And separate provisions are made where the lands are 18 within the proprietary provinces. And we say in 19 paragraph 898 that in this paragraph we find the 20 referential incorporation of the principal themes and 21 principles which were the subject matter of treaties, 22 compacts and Royal Instructions governing Crown-Indian 23 relations in the pre-Proclamation period. We find the 24 recital of the "frauds and abuses" in the purchasing 25 of Indian lands which were a constant theme in 26 Covenant Chain conferences. And in prohibiting 27 private purchases of Indian lands, the Proclamation 28 was confirming, as a matter of imperial law, the 29 provisions which were contained in virtually all 30 existing colonial laws and which had been reinforced 31 from time to time by specific instructions to colonial 32 governments. 33 Now, we say, my lords, at paragraph 899, that the 34 Proclamation affirms both the principle that a 35 purchase from the Indians is the method for acquiring 36 Indian lands and also that the exclusive legal process 37 for that acquisition must be by public treaty. And if 38 your lordships would now go to paragraph 904, you will 39 see that I set out that the trial judge, in rejecting 40 the Appellants' argument that Indian consent was 41 necessary for the settlement and development of lands 42 subject to aboriginal rights, concluded that "even the 43 language of the Proclamation makes it plain that the 44 Crown did not consider it necessary to obtain the 45 consent of the Indians to exclude their interests". 46 Now, I say, my lord, that if you read paragraph 4, 47 the Proclamation says that it is necessary to obtain 157 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 the consent of the Indians. How then could his 2 lordship opine such a view. In so doing he relied 3 upon those words which I've already identified to your 4 lordships, that the Proclamation says "until our 5 further pleasure be known for the present as 6 aforesaid". And that is language which was referred 7 to by Lord Watson, as I said. The short answer we 8 have to that, my lords, is this: That in the context 9 of the Proclamation, what the Crown was doing was for 10 the present time to close certain areas to further 11 colonial settlement. At such time where Indian 12 nations could be persuaded that settlement was in 13 their interests in accordance with treaty making, at 14 that time the Crown's pleasure would change, once 15 lands had been acquired through treaty making, at that 16 point lands could be granted by the Governors. So 17 that the language "for the present and until our 18 further pleasure be known" was not intended, nor 19 should it be viewed as constraining or characterizing 20 the nature of the interests of aboriginal people. It 21 was not intended to do that. That interest did not 22 exist at the pleasure of the Crown, it was to reflect 23 the fact that the Proclamation line itself might 24 change as demands for more lands came about, as 25 aboriginal peoples could be persuaded through the 26 treaty making to accede to those demands. As treaty 27 making took place, settlement could proceed in 28 accordance with those principles agreed to in the 29 Covenant Chain, principles which we say are the 30 hallmark of the common law, principles which we say 31 are reflected in the Royal Proclamation. 32 TAGGART, J.A.: Would it be appropriate to pause here for a 33 break? 34 MR. JACKSON: Yes, it would, my lords, thank you. 35 THE REGISTRAR: Order in court. Court stands adjourned for a 36 brief recess. 37 3 8 AFTERNOON RECESS 39 40 THE REGISTRAR: Order in court. 41 TAGGART, J.A.: Yes, Mr. Jackson. 42 MR. JACKSON: I, before the break, made the point, my lords, 43 that the trial judge in characterizing the language of 44 the Proclamation as one which conditioned Indian 45 rights under the Proclamation was in error. And I 46 say, my lords, at paragraph 907 of the factum, that 47 this error was compounded in the way in which the 158 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 trial judge stated that, quite apart from the 2 Proclamation, aboriginal title was also something 3 which existed and was extinguishable at the pleasure 4 of the sovereign. And that is a point which I will be 5 addressing your lordships tomorrow, and it is our 6 position that aboriginal title, far from being 7 conditioned on the pleasure of the Crown, can only 8 lawfully be acquired by the Crown in accordance with 9 the principle of Indian consent expressed through the 10 legal protocol of treaty making. 11 And I wish now to turn to paragraph 909 of the 12 factum, which looks at the post-Proclamation history, 13 which we say, my lord, stands as powerful evidence 14 inconsistent with the conclusions of the trial judge 15 that consent was never necessary to the acquisition of 16 Indian lands either as a matter of common law or the 17 Royal Proclamation. And that powerful evidence we say 18 is the continuing history of treaty making in the 19 post-Proclamation period. That treaty making both 20 demonstrates the centrality of consent and 21 demonstrates the dual aspect of aboriginal rights as 22 encompassing both rights to property and rights to 23 self-government and reinforces the importance of the 24 protectorate of fiduciary obligations of the Crown. 25 My lords, the Royal Proclamation itself says 26 nothing about internal self-government of aboriginal 27 peoples. We argued that nothing in the Proclamation 28 is designed nor can be read as to tred upon the 29 pre-existing rights of self-government as reflected in 30 the treaties I have placed before your lordships. 31 That conclusion is one which is supported by Chief 32 Justice Lamer in Sioui in which, addressing himself 33 specifically to this period, he says: 34 35 "The British Crown recognized that the Indians 36 had certain ownership rights over their land, 37 it sought to establish trade with them which 38 would rise above the level of exploitation and 39 give them a fair return. It also allowed them 40 autonomy in their internal affairs, intervening 41 in this area as soon as possible." 42 43 That's something I will be getting into when I deal 44 with the Worcester and Georgia and the Marshall 45 decision. 46 The point I made just before the break, my lord, 47 the language, "at the pleasure of the Crown until our 159 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 further pleasure be known", was not language which 2 characterized the legal nature of aboriginal rights, 3 but rather characterized the fact that the boundary 4 between Indian territory and Colonial territory was 5 something which might change over time pursuant to 6 treaty making in accordance with the Proclamation's 7 requirements is very much borne out that that is the 8 appropriate interpretation when one looks at what 9 happened after the Proclamation. And at paragraph 912 10 I have referred your lordships to statements made by 11 the Lords of Trade, who were the imperial authorities 12 charged with the administration of affairs in North 13 America in the post-Proclamation period. And in 14 advising colonial officials in North America their 15 lordships say: 16 17 "Upon the whole it does not appear to us, that 18 it will be greatly for Your Majesty's Interest, 19 as well as for the Peace, Security and 20 Advantage of the Colonies, that this Boundary 21 line should as speedily as possible, be 22 ratified by Your Majesty's authority, and that 23 the Superintendents should be instructed and 24 impowered to make Treaties in Your Majesty's 25 Name with the Indians for that purpose, and 26 enable to make such presents to the Indians as 27 the Nature and Extent of Concessions on their 28 part shall appear to require; Care, however, 29 should be taken in the Settlement of this 30 Business, that the Agreement for a Boundary 31 line be left open to such Alterations, as, by 32 the common Consent, and for the mutual 33 Interests of both Parties, may hereafter be 34 found necessary and expedient." 35 36 Not the language "until our further pleasure", but the 37 language "until we come by common assent as to what 38 the boundaries should be, and it not be altered except 39 by further mutual consent to accommodate our mutual 40 concerns". Again, the language of accommodation, the 41 language of co-existence, in the context of treaty 42 making. 43 Now, that the Proclamation was never seen to 44 interfere with rights of internal self-government is 45 laid manifest in one of these post-Proclamation 46 treaties, in fact, one of the very first 47 post-Proclamation treaties designed to determine where 160 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 the line should go. And in tracing the line, the 2 Proclamation line, so-called, it was understood that 3 there were some settlements made by colonists west of 4 the line which should not be disturbed, and treaties 5 should be made to ensure that the Proclamation would 6 go around those settlements. On the other hand, the 7 Indians had certain territories within the eastern 8 part, and it was important that the Proclamation line 9 not in fact envisage settlement in those territories, 10 and so the line was a general principle subject to 11 negotiation and movement. And the Treaty of Augusta 12 was one of these treaties which sought to adjust the 13 line by mutual consent. In that treaty there is a 14 specific acknowledgement of the continuing right of 15 aboriginal peoples to internal self-government. And 16 paragraph 914 I have set out that explicit 17 acknowledgement in Article III of the Treaty of 18 Augusta. The last part of it: 19 20 "And the several Indian parties do expressly 21 promise and engage for themselves severally, 22 and for their several nations and tribes, 23 pursuant to the full right and power which they 24 have so to do, that they will, in all cases, 25 and upon all occasions, do full and ample 26 justice to the English." 27 28 At paragraph 915 through to paragraph 918 I have made 29 reference to one of the post-Proclamation treaties, 30 the Treaty of Fort Stanwix, which was an omnibus 31 treaty with a number of Indian nations, but 32 principally the Six Nations, to work out the contours 33 of the Proclamation Line. And I refer your lordships 34 in paragraph 917 to the language of the treaty, and I 35 make the same point as I made in relation to the early 36 treaties in the 17th century. The recital to the 37 treaty refers to the Indians as the true and absolute 38 proprietors of the lands in question. The deed of 39 cession, in paragraph 918, is the language of 40 conveyancing. In other words, the point is aboriginal 41 peoples had legal interests in land to convey, and 42 those lands bespeaked proprietary interests. 43 I would also refer your lordships, although I 44 won't take your lordships to them, to Appendix B, 45 paragraphs 180 to 185. And I'll just alert your 46 lordships that those paragraphs refer to two other 47 treaties made with the Cherokees, the Treaty of Hard 161 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 Labor and the Treaty of Lockaber, which were treaties 2 which had built into them amending formulas, formulas 3 for further movement of the Proclamation Line by 4 common consent and providing that this treaty can be 5 amended in the same way as it was brought into 6 existence, an amending formula entrenching the 7 principle of Indian consent and mutual accommodation. 8 My lords, at paragraph 919 we say that the 9 principles of recognition of aboriginal rights 10 reflected in the Royal Proclamation of 1763 provided 11 the legal framework in the post-1763 period within 12 which the Crown negotiated for the acquisition of 13 lands in Canada in possession of the aboriginal 14 peoples which was required for settlement and 15 development. This framework was applied in the old 16 Province of Quebec, what is now Ontario, and as 17 colonial expansion pushed westwards in what is now 18 Manitoba, Saskatchewan and Alberta and in parts of 19 British Columbia and in the Northwest Territories. We 20 say that most recently this framework has been applied 21 in Northern Quebec, the James Bay Agreement, Yukon, 22 and in parts of the Northwest Territories not hitherto 23 covered by treaties of cession. We say that the 24 underlying principle in this acquisition of aboriginal 25 lands has been the principle of Indian consent, and 26 unifying process has been one where that consent is 27 expressed through public treaties or land claims 2 8 agreements. 29 My lords, in terms of the post-Proclamation 30 period, I would take your lordships to paragraph 922 31 of the factum in order to understand how colonial 32 authorities understood lands which the Proclamation 33 said were parts of Her Majesty's Dominions in North 34 America and how that co-existed with the rights, the 35 pre-existing rights also recognized by the 36 Proclamation of lands in possession of the Indians. 37 And in that paragraph I cite how the Executive Council 38 in the Province of Quebec in 1766 dealt with a 39 petition requesting lands in the Restigouche area, and 40 the committee's opinion and Executive Council was 41 presided over by Chief Justice William Hey was that: 42 43 "-- the lands so prayed to be assigned are, or 44 are claimed to be the property of the Indians, 45 and as such by His Majesty's express command as 46 set forth in his Proclamation 1763, not within 47 their power to grant. 162 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 And another example, my lord, which I think speaks 2 very loudly of the extent to which aboriginal rights 3 exist at the pleasure of the Crown, is set out in 4 paragraphs 923 and following, and I would just take 5 your lordships through them. We say that the 6 requirement of Indian consent at every stage of 7 European penetration into the Province of Quebec's 8 immediate Hinterland is demonstrated in the 9 Instructions given in 1785 to the Deputy 10 Surveyor-General, John Collins, to survey the 11 communication between the Bay of Quinte and Lake Huron 12 by way of Lake Simcoe. Collins was directed to 13 determine "the Indian tribes, on the communication, 14 their numbers, disposition" as well as "what tract of 15 land it may be necessary to purchase, and at what 16 rate". Now, a deed of cession was indeed negotiated 17 with the Mississauga Nation. However, the delineation 18 of the proposed boundaries of the treaties was not 19 filled in, an omission which caused the Government of 20 Upper Canada considerable anxiety a decade later. In 21 fact, in 1794 Lord Dorchester declared the Deed of 22 1787, because the boundaries were not filled in, there 23 was no specificity to what land was ceded, he 24 declared -- he stated that no fraud was intended. It 25 was, however, "an omission which set aside the whole 26 transaction and throws us entirely upon the good faith 27 of the Indians for just so much lands as they are 28 willing to allow". The trial judge had said that the 29 law never recognized that the settlement of new lands 30 depended upon the consent of the Indians, and that 31 their rights could be extinguished at the pleasure of 32 the sovereign. 33 We say that the comments of Lord Dorchester 34 supports the Appellants' submissions that it is not 35 the rights of the Indians that is dependent upon the 36 good will of the sovereign, but the rights of the 37 sovereign to settle land which were dependent upon the 38 consent of the Indians. 39 And in paragraph 927, a further indenture was 40 signed by the same chiefs reciting the imperfection 41 and -- of the previous document and reciting those 42 lands in a document which properly sets out the metes 43 and bounds. My lords, both the original document, 44 without the boundaries put in, and the subsequent 45 document with the boundaries put in, can be found in 46 tab 7-927. And your lordships will see both the 47 original treaty followed by the renegotiated treaty 163 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 reciting the problematic nature of the first one. And 2 our point is this surely bespeaks a recognition that 3 aboriginal peoples had legal rights to convey, that a 4 legal protocol was not simply convenient, a matter of 5 benevolence, but was the essence of the relationship 6 and necessary to perfect the title of the Crown, the 7 underlying title of the Crown. 8 At paragraph 929 -- just before I get to that, my 9 lordships, I would also refer your lordships to 10 Appendix B, paragraphs 210 and 212, which sets out 11 some further examples which we say unequivocally refer 12 to the legal necessity for obtaining Indian consent 13 before lands could be settled in what is now Ontario. 14 Paragraph 929, in the same month as the Province 15 of Quebec was divided into two separate provinces of 16 Upper and Lower Canada, Lord Dorchester, who was the 17 Lieutenant-Governor of both, addressed the Assembly of 18 the Confederated Indian Nations of the Ottawas, 19 Chippewas, Pottowatomy, Huron, Shawnee, Delaware and 20 the Six Nations, and this was in Montreal. And in the 21 course of his speech Lord Dorchester, speaking on 22 behalf of the Crown, reflecting, as it were, the 23 honour of the Crown directed himself to the war of the 24 American Revolution and the effect it had on the 25 rights of aboriginal peoples. Rumours had been 2 6 rampant that somehow the King of England had given 27 away the lands of the Indians to America. And Lord 28 Dorchester makes the statement, it's a statement which 29 the Defendants place great reliance upon, it's a 30 statement which the Intervenor N.I.B./A.F.N. has also 31 referred to in their factum, and this is a 32 characterization of what the Crown understood its 33 rights to be vis-a-vis the aboriginal peoples. And I 34 won't go through the -- well, I'll start with the 35 second paragraph: 36 37 Brothers, I cannot think that the Government of 38 the United States would hold that language; it 39 must come from ill-informed individuals; you 40 well know, that no man can give what is not his 41 own. 42 The King's rights with respect to your 43 territory were against the Nations of Europe; 44 these he resigned to the States." 45 46 That's the United States: 47 164 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 "But the king never had any rights against you 2 but to such parts of the Country as had been 3 fairly ceded by yourselves with your own free 4 consent by Public convention and sale. How 5 then can it be said that he gave away your 6 lands? 7 So careful was the King of your interests, so 8 fully sensible of your rights, that he would 9 not suffer even his own people to buy your 10 lands without being sure of your free consent 11 and of ample justice being done you. 12 13 Now, we say that is an accurate characterization of 14 the relationship and of the respective rights. 15 Now, at paragraph 930 we've set out, my lords, a 16 parallel statement by the Commissioners of the United 17 States speaking on the American side of the line to 18 the same assembly of aboriginal peoples sometime 19 later, and the language is the same. The 20 Commissioner, speaking on behalf of the United States, 21 say: 22 23 "We now concede this great point; we by the 24 express authority of the President of the 25 United States, acknowledge the property or 26 right of soil, of the great Country above 27 described, to be in the Indian Nations so long 28 as they desire, to occupy the same. We only 29 claim particular tracts in it, as before 30 mentioned, and the right granted by the King, 31 as above stated, and which is well known to the 32 English and the Americans and called the right 33 of pre-emption, or the right of purchasing of 34 the Indians Nations disposed to sell their 35 lands, to the exclusion of all other White 36 People whatever." 37 38 And as we will demonstrate in the next part of the 3 9 argument when we deal with tab 3, the fundamental 40 principle that the assertion of sovereignty by a 41 European nation did not nullify the pre-existing 42 aboriginal interests but only gives rights of 43 pre-emption against other European nations received 44 its judicial affirmation in the seminal decisions of 45 the Marshall court, and has been endorsed by the 4 6 Supreme Court of Canada. 47 My lords, in terms of Upper Canada, paragraph 932, 165 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 I have referentially incorporated a lot of history. 2 After the division of Canada into Upper and Lower 3 Canada, further instructions were proclaimed by Lord 4 Dorchester affirming the requirements of treaty 5 protocol for the acquisition of Indian lands. And as 6 settlement advanced throughout Ontario, treaties were 7 made again and again and again in order to acquire the 8 Indian interest to permit settlement to proceed in an 9 orderly way consistent with aboriginal concerns. And 10 in paragraph -- in tab 7-932, which I would ask your 11 lordships to turn to, what your lordships will find at 12 tab 932 is an index of all the treaties and surrenders 13 made from 1680 to 1890, the great bulk of which are 14 made in the period 1763 to 1867, and that's an index 15 of all the treaties and surrenders. And as we see, it 16 goes on and on and on. You will also find, if your 17 lordships will turn to the brown sheet at the end of 18 the index, quite a way in, a list of selected treaties 19 between the British Crown and aboriginal peoples in 20 the period 1768 to 1870 and following which are the 21 actual texts of those treaties and surrenders. And 22 you will see that that occupies the greater bulk of 23 the references in tab 7. And the extent to which you 24 will find in that, for example, my lords, the -- if 25 you turn to tab 6 of that section under the top of the 26 page is number 1 and then number 2. 27 WALLACE, J.A: Sorry, I'm lost. Tab 6? 28 MR. JACKSON: My lord, I'll — I need not bother you with that, 29 it's a -- the reference I was looking for is not to be 30 found at that tab. So -- 31 HUTCHEON, J: You're not pursuing that? 32 MR. JACKSON: No, my lords, I apologize. The document I was 33 looking for, I think I will give your lordships the 34 correct reference maybe tomorrow, is the treaty where 35 the delineation of the boundaries was not filled in 36 and then the subsequent treaty where it was. 37 What we say, my lord, is that these treaties again 38 reflect the importance and necessity of both the 39 principle and the process of consent and treaty 40 making. The extent to which this was consistently 41 done is reflected in a Report On the Affairs of the 42 Indians in Canada, report of the Royal Commissioners 43 in 1845, which is set out in paragraph 934 of the 44 factum. The Commissioners, in referring to the 45 Proclamation, make the point: 46 47 "The subsequent Proclamation of His Majesty 166 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 George III, issued in 1763, furnished them (the 2 Indian Nations) with a fresh guarantee" -- 3 And I emphasize that as the appropriate 4 characterization: 5 6 "-- a fresh guarantee for the possession of 7 their hunting grounds and the protection of the 8 Crown. This document, the Indians look upon as 9 their Charter. They have preserved a copy of 10 it, to the present time, and have referred to 11 it on several occasions in their 12 representations to the Government." 13 14 And in summarizing the period from 1763 to 1845 the 15 Commissioners say: 16 17 "Since 1763 the government adhering to the Royal 18 Proclamation of that year, have not considered 19 themselves entitled to dispossess the Indians 20 of their lands, without entering into an 21 agreement with them, and rendering them some 22 compensation...As the settlement of the country 23 advanced, and the land was required for new 24 occupants ... the British Government made 25 successive agreements with them for the 26 surrender of their portions of their lands." 27 28 And we say, my lord, this reflects the process of 29 treaty making from the earliest days on the east coast 30 of British North American Colonies. 31 I want now, my lords, to turn to the period after 32 1850. In Upper Canada treaty making continued to be 33 the exclusive means by which the Crown acquired Indian 34 lands for settlement and development. The difference 35 in terms of the post-1850 history is not that any 36 different principle was applied, but the extent of 37 lands which were obtained by treaty expanded 38 enormously, whereas most of the treaties which are 39 referred to in the previous parts of the factum were 40 for relatively small areas of lands. The treaties 41 after 1850 took increasingly larger and larger tracts 42 of lands in Indian possession. The Robertson Treaties 43 of 1850 are of particular importance. They were 44 brought about as a result of the discovery of minerals 45 around the shores of Lake Huron and Superior, and the 46 complexity of the treaties changed in terms of the 47 terms. Whereas prior to 1850 a consideration was 167 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 usually in terms of delivery of trade goods and a 2 certain amount of monetary compensation, sometimes 3 coupled with rights to hunt and fish reserved. They 4 weren't complicated transactions. Starting in 1850 5 the treaties started to include more complex 6 arrangements. Provisions were made for reserves 7 according to certain formulas. The Robertson 8 Treaties, it was on the formula of 160 acres for a 9 family of five; there were provisions for educational 10 assistance, for the development of agriculture. So 11 the complexity of the terms and the context of mutual 12 accommodation became more enlarged, and that's a point 13 I want to develop before the end of the day. 14 In 1867 we come to Confederation, and, of course, 15 under Section 91(24) the Federal Government is given 16 exclusive jurisdiction over Indians and lands reserved 17 for Indians. That also is not a new principle. The 18 idea of centralizing federal or central authority over 19 Indian affairs, relationships with Indians and the 20 Crown, was something which is the hallmark of the 21 Royal Proclamation. The whole process leading to the 22 Proclamation was imperial consolidation of authority 23 to ensure that the relationships were for the -- in 24 the interests of the Crown and were not subordinated 25 to the narrower provincial concerns of local settlers 26 and legislators. So 91(24) continues that tradition. 27 And that is a point that is of importance in the 28 context of Provincial powers to extinguish aboriginal 29 rights or to adversely affect a point of course which 30 will be later addressed at a later point in our 31 argument. Between 1871 and 1921 the federal 32 government, in furtherance of its exclusive 33 jurisdiction under Section 91(24) negotiated a number 34 of treaties with aboriginal Nations in Western Canada 35 and in the Northwest Territories. They are referred 36 to, somewhat unimaginatively, as the "Numbered 37 Treaties", in part because they are Treaty Number 1, 38 Treaty Number 2, Treaty Number 3, through to Treaty 39 Number 11. These treaties affirm, we say, in 40 paragraph 940, the principles and policies governing 41 Indian-Crown relationships in recognizing a legal 42 obligation on the part of the Crown to obtain through 43 the treaty protocol Indian consent for the settlement 44 and development of lands in the possession of the 45 Indians. The continuity of the policy is recollected 46 in a quote in paragraph 940: 47 168 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 "The policy followed by Canada in the North-West 2 was a continuation of that which had governed 3 the relations between the Whites and the 4 Indians since the days of Sir William Johnson. 5 Western Indian history was merely the 6 application of these well-founded principles to 7 a new problem, the acknowledgement of the 8 Indian title, and the formal negotiation for 9 the surrender of the same." 10 11 My lords, in paragraphs 941 through to 945 I have 12 set out the constitutional provisions under which the 13 Hudson's Bay territories were purchased back from the 14 Hudson's Bay and became part of the territories of 15 Canada, the Dominion of Canada, and I point out how in 16 making those arrangements the Crown continued its 17 historic obligations in dealing with the Indian 18 interests. And at paragraph 944 you will see set out 19 the terms of the first address, which was one of the 20 terms upon which the Hudson's Bay territories became 21 part of Canadian territories, which recites: 22 23 "...that, upon the transference of the 24 territories in question to the Canadian 25 Government, the claims of the Indian tribes to 26 compensation for lands required for purposes of 27 settlement will be considered and settled in 28 conformity with the equitable principles which 29 have uniformally governed the British Crown in 30 its dealings with the aborigines." 31 32 The uniform principles which have governed 33 relationships between the Crown and the aborigines, 34 the land which is unequivocal, it speaks of 35 obligation, in this case a constitutional obligation. 36 My lord at paragraph -- 37 HUTCHEON, .A.: Sorry. What is the force of an address, its 38 legislative force? 39 MR. JACKSON: My lord, normally it would not have any particular 40 legal force at all. This particular address has 41 particular force as a result of Section 146 of the 42 Constitution Act of 1867, and I've set that up, my 43 lords, at paragraph 942. Perhaps I shouldn't have so 44 quickly jumped over that paragraph, but you will see 45 in paragraph 146, in allowing for the admission of 46 Rupert's Land, the Hudson's Bay territory into Canada 47 states that: 169 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 "And the provisions of any Order-in-Council in 2 that behalf shall have effect as if they had 3 been enacted as by the Parliament of The United 4 Kingdom of Great Britain and Ireland." 5 6 And, my lords, you will see that the addresses were 7 incorporated into the Order-in-Council, and so they 8 had in fact Constitutional force. At paragraph -- 9 LAMBERT, J.A.: They went through the Senate and House of 10 Commons in the same way as if they had been a bill? 11 MR. JACKSON: Yes, my lord, that's right, yes. 12 Paragraph 947, my lords, I adopt the words of my 13 friend, as he then was, Mr. Justice Berger, when in 14 writing the report of the Mackenzie Valley Pipeline 15 Inquiry he, in referring to these documents, makes the 16 point that these documents acknowledge the rights of 17 the native people: 18 19 "They illustrate that the recognition of 20 aboriginal title was deeply embedded in both 21 the policy and the law of the new nation." 22 23 Now, the trial judge, in addressing this question, my 24 lords, in terms of the numbered treaties and their 25 legal significance, concluded that: 26 27 Ruperts Land later became the subject of the 28 numbered treaties under a completely different 29 regime because of a completely different 30 history from British Columbia." 31 32 The trial judge, in other words, read out of this 33 history as being a relevant matter that there were 34 special constitutional provisions in relation to 35 Ruperts Land which don't exist in relation to British 36 Columbia. 37 Our response to that, my lord, is that that is of 38 no moment in the sense that these Constitutional 39 provisions incorporate in themselves pre-existing law 40 and policy. They are fresh guarantees in the way the 41 Proclamation is a fresh guarantee, but they do not 42 justify a rejection of this as being part of the 43 relevant legal or factual matrix, anymore than it is 44 relevant to dismiss what has happened on the eastern 45 seaboard on the basis that was a different time, that 46 was a different regime. We say that the regimes, 47 while they may be different, have an underlying common 170 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 denominator, and that is the Crown's recognition of 2 the pre-existing rights of aboriginal peoples. 3 Now, my lords, in relation to the numbered 4 treaties, at paragraph 951 I say that beginning in 5 1871 the Federal government, pursuant to its legal 6 obligations, initiated treaty making with Indian 7 nations in the newly acquired territories. And the 8 review of treaties 1 to 7 set out in Appendix B 9 demonstrates the continuity between the principles and 10 process underlying the Covenant Chain treaties of the 11 18th century and the post-Confederation treaties of 12 the 19th century. It also illustrates that in light 13 of the changes in the intervening century in terms of 14 the balance of power between Indian nations and the 15 Crown and the pressures on the resource base of the 16 Indian economy through increased white settlement, the 17 search for mutual accommodation and the discharge of 18 the protectorate role of the Crown was reflected in 19 different ways in the post-Confederation treaties. 20 That role was not confined as in the Covenant Chain 21 treaties to preserving the Indians' territorial and 22 political integrity within the unceded lands, but also 23 extended to the protection of the traditional Indian 24 economy and assistance in the development of new forms 25 of Indian economic self-sufficiency. 26 And I want to illustrate that point, my lords, 27 both the continuity and the difference in the context 28 of the negotiation of Treaty Number 3. Treaty Number 29 3 is of particular importance, because it is part of 30 the factual matrix of the St. Catherine's Millings 31 case. And the trial judge saw that case as 32 characterizing the Indian interests in the land 33 surrendered by Treaty Number 3 as a non-proprietary 34 interest extinguishable at the pleasure of the Crown. 35 And we say, my lords, looking at the way in which 36 Treaty 3 was negotiated, the language of the treaty in 37 its historical context makes that conclusion 38 unsupportable as a matter of law, as well as a matter 39 of history. 40 And paragraph 953 I have said that the continuity 41 with the treaty protocol mandated by the Royal 42 Proclamation and the explicit recognition to Indian 43 consent to the opening for settlement of Indian lands 44 is evident from -- that should be, my lords, "the 45 second recital in Treaty Number 3", which appears with 46 small variations in almost all of the numbered 47 treaties. And your lordships will see there it says: 171 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 "And whereas the said Indians have been notified 2 and informed by Her Majesty's said 3 Commissioner, that it is the desire of Her 4 Majesty to open up for settlement, immigration, 5 and such other purposes as to Her Majesty may 6 seem meet....and to obtain the consent thereto 7 of her Indian subjects inhabiting the said 8 tract...so that there may be peace and good 9 will between them and Her Majesty." 10 11 The reference to apathy, the reference to 12 accommodation, the reference to Indian consent before 13 settlement can take place. And the treaty goes on in 14 its language to talk about the Indians ceding all 15 their rights, interests and privileges. The text of 16 the treaty, my lord, is set out at tab 7-853, and your 17 lordships will find language there which bespeaks 18 legal rights, language there which bespeaks the 19 obligation of the Crown to obtain Indian consent for 20 the surrender of those rights in order to perfect the 21 Crown's title. 22 In terms of the negotiation of Treaty Number 3, in 23 terms of how that reflects upon the honour of the 24 Crown, how the Crown understood what it was doing in 25 negotiating this treaty I've set out in paragraph 954, 26 and some of the following paragraphs some of the 27 statements made on the occasion of the treaty. 28 Unfortunately we don't have a Benjamin Franklin for 29 the Numbered Treaties, we have to rely on important 30 contemporary accounts by newspaper reporters and by 31 the treaty commissioners themselves. And that 32 contemporary evidence in the context of Treaty Number 33 3 is more full than it is for many others. You see at 34 paragraph 954 the Treaty Commissioner, Treaty 35 Commissioner Morris, in introducing the proposed 36 terms, talks about the question of mutual benefit and 37 accommodation: 38 39 "I told you I was to make the treaty on the part 40 of our Great Mother, the Queen, and I feel it 41 will be for your good and for your children... 42 I want to settle all matters, both of the past 43 and the present, so that the white and the red 44 man will always be friends." 45 46 Note, my lords, the response of the Indian spokesman 47 on the occasion of Treaty Number 3: 172 Submissions by Mr. Jackson Submissions by Mr. Jackson 1 "What we have heard yesterday, and as you 2 represented yourself, you said the Queen sent 3 you here, the way we understand you as a 4 representative of the Queen. All this is our 5 property where you have come....We think where 6 we are is our property. I will tell you what 7 he said to us when he planted us here;" -- 8 9 That's a reference to the Great Spirit: 10 11 "-- the rules that we should follow - us 12 Indians - he has given us rules that we should 13 follow to govern us rightly." 14 15 And we say, my lords, the Indian spokespersons on the 16 occasion of Treaty 3 in making those statements and 17 affirming their rights to property, in affirming their 18 rights to self-government, were expressing themselves, 19 which have a clear line of continuity to statements 20 made by the Iroquois chiefs in the 18th century and 21 which have a clear line of continuity to the 22 statements made by the Appellants and the other 23 hereditary chiefs in this case in the 20th century. 24 TAGGART, J.A.: Four o'clock. All right, we'll adjourn until 25 ten o'clock. 26 2 7 (PROCEEDINGS ADJOURNED) 28 29 I hereby certify the foregoing to be 30 a true and accurate transcript of the 31 proceedings herein transcribed to the 32 best of my skill and ability 33 34 35 36 37 Graham D. Parker 38 Official Reporter 39 United Reporting Service Ltd. 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
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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[British Columbia Court of Appeal 1992-05-05]
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